Free Speech Shouldn’t Just Be the Domain of Politicians

March 7, 2021 Updated: March 8, 2021

Commentary

Australian governments have a long history of suppressing speech that is critical of the prevailing values of the ruling elites.

Although the nation’s highest court has acknowledged an implied, constitutional freedom of “political communication” in the landmark legal cases of Nationwide News v Wills and Australian Capital Television Pty Ltd v The Commonwealth (1992), free speech remains remarkably unprotected insofar as the systematic suppression of dissenting voices is concerned.

Whilst enjoying free speech due to the privileges of their office, our elected politicians constantly deny the enjoyment of these same freedoms to those who have elect them.

Some Australians have found themselves at the receiving end of expensive legal action, especially if they dare to stand by traditional values, which are no longer accepted by some in the ruling elite.

This is contrary to the notion of “popular sovereignty.”

Judges referred to popular sovereignty in 1992 cases, which contradicts the notion that politicians have the power to legislate away free speech rights.

Australia’s implied freedom of communication is not based on parliamentary sovereignty, but rather on the principle of popular sovereignty, which acknowledges that members of Parliament represent the people, and derive power from their consent.

To exercise their sovereign role, Australians must have their freedom of political communication protected against any intrusion by an Act of Parliament or judicial ruling.

In fact, no Parliament should pass laws that prevent the people from freely expressing themselves about political matters, as this is not compatible with our system of representative government.

If Australians really are a sovereign people, then no government has the power to prevent us from freely discussing political matters, even when such discussion might involve controversial issues that those in the privileged minority may regard as offensive or insulting.

Under the Australian Constitution, sovereignty ultimately resides in the Australian people. Since Australian citizens are sovereign, it borders on absurdity to assert that members of Parliament may speak outrageously; but the people in whom sovereignty actually resides, and from whom Parliament, members of Parliament and the executive derive their authority, cannot speak freely.

It is Australian electors who elect representatives to legislate on their behalf. If anything, a sovereign people must be entirely free to speak the unspeakable, especially about government and political matters.

Representative and responsible government, as stated by Justice Brennan in Nationwide News (1992) are, “constitutional imperatives intended … to make the legislature and executive branches of the Commonwealth ultimately answerable to the Australian people.”

It follows that, as sovereign, the Australian people must also be free to communicate about government and political matters fully and frankly.

This freedom of communication is critical to holding the executive and legislature accountable and to resolving controversial issues democratically at the ballot box. Indeed, such freedom is necessary to hold a representative government fully accountable to the sovereign people.

In our present political environment, however, censorship is rampant and freedom of association regularly abrogated. A proper analysis of free-speech jurisprudence in Australia demonstrates regular attempts by the courts to gradually increase the power of the State at the expense of the ever decreasing powers of the citizen.

This is particularly so over the last two decades, where the High Court has suddenly dropped any reference to democracy in its judicial rulings. In fact, the interpretative approach of the highest court has become more literalistic and detached from the democratic nature of the Australian Constitution.

With a few exceptions, the High Court remains largely uninterested and silent about ongoing legislative attacks on freedom of speech.

Instead of pressing ahead with a jurisprudence of liberty that protects the people against the predispositions of an increasingly illiberal political class, the Court prefers rather to consolidate the status quo and protect the legislative branch at the expense of the Australian Constitution and the people whose sovereignty it nominally protects.

If the High Court truly sought to exercise its constitutional role of protecting the sovereignty of the Australian people, as well as the legitimacy of the Australian Constitution, then it would have to implement changes in its interpretative approach.

These changes can lead to a new model of jurisprudential protection of fundamental rights and freedoms in general—particularly freedom of speech, freedom of expression, and freedom of association.

In an authentic democracy, of course, all power emanates from the people, who exercise it by means of elected representatives or, more directly, as provided by the law. And since our elected representatives are free to discuss in Parliament the fullest range of political and governmental matters, this freedom should also be extended to all those who have elected them to exercise political power on their behalf.

Dr. Augusto Zimmermann, Ph.D., LLM cum laude, LLB (Hons.) is professor and head of law at Sheridan Institute of Higher Education in Perth, and professor of law (adjunct) at the University of Notre Dame in Sydney, Australia. He is also president of the Western Australian Legal Theory Association, editor-in-chief of the Western Australian Jurist law journal, and a former law reform commissioner in Western Australia.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.