A significant and substantial issue for Australian’s is that there currently stands no direct constitutional or statutory right to freedom of speech for individuals.

A Limited Implied Right to Free Political Communication

The only implied right to free speech that exists in Australia is an Implied Right to Freedom of Political Commnuication. The High Court had to work very creatively to get even that established through the general structure of the Constitution. The unfortunate consequence of this is the current poor state of intelligent, rational and reasoned discourse in this nation. Every debate only has the freedom to occur if it has already become the subject of political involvement. All the subtle nuances of debate that might reasonably be expected to occur before it reaches this level have no freedom to have occurred. The state of our public conversations is the poorer for it.

No other Freedoms are Enacted or Supported

This issue is compounded for people of faith, even though S116 of the Constitution provides in-principle support for the ideals of freedom of religion. Kevin Andrews MP states that evidence before a Parliamentary Committee is that Section 116 in the Constitution provides restrictions on the State, but does not protect religious expression more generally in the community. He has highlighted that section 18 in both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights has not been enacted in Australian legislation. We have no soaring documents like the US Declaration of Independence asserting …certain inalienable rights…, nor do we have anything akin to the US Constitutional first amendment.

Human Rights means only Anti-Discrimination in Australia

On the other hand, Section 26 of the ICCPR has been implemented broadly by Commonwealth and State governments. This is the section that focusses on anti-discrimination. Which is why the Human Rights Commission has no legal basis or standing to address issues or complaints of Freedom of Religion, Freedom of Speech, Freedom of Expression, or Freedom of Association. There is no countervailing administative regime under which S116 of the Constitution can be applied to individuals and protected from vindictive misuse of anti-discrimination provisions. But the Human Rights Commission can fully investigate issues or complaints in regard to Discrimination. The process of those investigations, even before the findings are issued, are often punitive on their own. This is why the failure to reform section 18C of the Anti-Discrimination legislation was a failure to act on behalf of people of goodwill in this nation. However, 18C reform alone will not remedy the absence of legislation to positively institute the other freedoms.

Impact upon Public Discourse

All of this illustrates the distrust and disdain the political class has for the capacity of the population of Australia to hold a reasonable discourse. It also explains why our nation’s political class has sunk to such amazing depths of poor discourse. We have simply not had the history and training in the wise and robust use of free speech to articulate a viewpoint and have it challenged without resorting to political abuse or, even worse, physical violence. To some degree, it also explains the often used term in Austalia, the “silent majority.” It also goes a long way to explaining the rise in the number of minor “political parties” – their voice can be heard if their speech is considered political!

What Path to Resolution?

A recurring theme within political discussion in the nation is the issue of a Bill of Rights. At the time of the most recent referendum in 1988, along with some 70% of the population, I held the view that documenting a list of rights would be problematic. The link does a good job of summarising the objections and advantages stated at that time. Since then, the worldview, beliefs and actions of the prevailing voices promoting Bills of Rights and related matters have shifted further away from our Judeo-Christian heritage. So I am not naturally inclined to change my view of Bills of Rights as a broad principle.

However, we have a problem. The problem is that selected elements from a Bill of Rights have been implemented into legislation already. Now that the discrimination components of such lists of rights have been implemented into legislation, the problems created by having no recourse to any countervailing rights are now becoming painfully obvious. Perhaps it is time to revisit legislation to provide an administrative regime to support Freedom of Religion, Freedom of Speech, Freedom of Expression, and Freedom of Association. It is my belief that the population of the nation, divided, polarised, and politically paralysed though they may be at this point in time, are mature enough to develop the skills of rational discourse so that any issue may be raised and discussed without resorting to abuse and lies and ad-hominem attacks on “others who are not like us”.