Freedom of speech and Annika Smethurst

Opinion piece by Commission President Rosalind Croucher published in the Australian newspaper 

The raids on the home of News Corp journalist Annika Smethurst and the offices of the ABC have highlighted the vulnerability of press freedom in Australia compared to other similar liberal democracies.

The offences being investigated, as set out in the relevant warrants, included alleged offences by journalists of unlawfully obtaining government information and publishing official secrets.

No-one reading the stories that formed the basis for these raids could be in any doubt that they were about vital matters of public interest.

The importance of these cases led the Australian Human Rights Commission to make submissions to the High Court about why it should use free speech principles to narrowly interpret the offence that the Australian Federal Police say Ms Smethurst may have committed.

If the Court agrees with our submissions, this could mean that the offence did not apply to Ms Smethurst’s conduct. It may also mean that the warrant was invalid because it did not properly describe the alleged offence. Either result would be a win for free speech.

A press free from government interference and intimidation has been part of liberal democratic thought for centuries, from John Milton’s caution over government censorship in 1640s England, to the First Amendment to the Constitution of the United States which prohibits laws “abridging the freedom of speech, or of the press”.

On our own shores, Prime Minister Robert Menzies warned in 1942 against “suppression of free thought and free speech”, writing of his shock that “intelligent men, in what they believe to be a free country, can deny to the newspapers or to critics of any degree the right to batter at people or policies whom they dislike or of whom they disapprove”.

However, in Australia, unlike the US or the UK, there is no constitutional or statutory charter of rights that protects freedom of speech.  Our system is based on the common law and a limited freedom of ‘political communication’ implied into the Australian Constitution.

These are thin protections because the common law can be, and routinely is, overridden by laws made by government. 

Of course, there are some legitimate limits to freedom of speech when it comes to national security or protecting the rights of other people in the community. But these laws should not stop us from finding out what we have a right to know. The Commission is on the record expressing concern at the erosion of freedom of the press through a suite of counter-terrorism laws over the past decade. Protecting freedom of speech and freedom of the press ensures that people can access the information they need to exercise their democratic rights, and that government is held to account in relation to its decision-making.

The Commission has had a statutory function since 1986 of intervening in cases that raise human rights issues. We choose these cases carefully and in each case our intervention is only by leave of the court. 

When we intervene, we advocate for the particular human rights outcome in issue, and not necessarily for any particular party. We regularly appear in cases that involve freedom of speech.

Earlier this year, we intervened in a High Court case challenging laws that limited the speech of public servants, particularly on social media. We pointed to cases from the US that recognised the specialised knowledge of public servants and the value of the public being allowed to hear what they have to say. Justice Edelman referred to those cases and said that Australian restrictions on the speech of public servants “would be struck down as unconstitutional in a heartbeat” in the US. However, in the absence of US-style constitutional protections, the wide laws limiting the free speech of public servants in Australia were upheld.

In 2017, we advised the government that we intended to intervene in a High Court case challenging secrecy provisions in the Australian Border Force Act. At the time, employees, contractors and consultants to the Department of Immigration and Border Protection were prevented from disclosing any information they learned at work, subject to some limited exceptions. The secrecy provisions inhibited doctors in regional processing centres from speaking publicly about the living conditions of detainees, or the standard of health provided at the centres.

Following the commencement of those proceedings the government took welcome steps to amend the provisions. First, doctors were provided with an exemption. Secondly, a harm requirement was inserted. It would only be an offence to disclose information that could reasonably be expected to prejudice defence, national security or other essential public interests.

Freedom of speech is a freedom we hold dear in Australia. It would be better protected in Australia if it were recognised as a positive right accruing to everyone. Instead, it is what is left over after government legislation is taken into account, provided the legislation does not infringe the narrow constitutional freedom of political communication. The Commission’s current Free and Equal project is examining how our fundamental rights could be strengthened. Stronger rights to free speech would make it easier for journalists like Annika Smethurst to win cases like the one heard by the High Court this week. Ideally, such cases would not even be necessary. In the meantime, the Commission will continue to use the tools at its disposal to make the case for the protectionof this essential right.

Photo: ABC News, Brendan Esposito.