Key issues
- Unlike
its anglosphere counterparts, Australia lacks express federal freedom of
expression protections. Instead, the scope of freedom of expression can be influenced
by human rights commitments, parliamentary scrutiny, regulatory exceptions
and the High Court’s constitutional rulings. Accordingly, the boundaries of freedom
of expression are continually shifting.
- Although
relatively rare, recent expansions in the scope of freedom of expression in
Australia include defamation law reform and protections from termination for
employees expressing ‘political opinions’.
- Preserving
existing freedom of expression often involves balancing it against other
public interests. However, legislative changes to expand the scope of freedom
of expression can often be controversial and struggle to achieve political consensus.
- Policymakers
can also use their discretionary powers to alter the scope of freedom of
expression and preference other social values, such as through the ‘character
test’ for granting visas.
Introduction
Freedom of expression (paired with freedom of opinion) has
been described
as ‘the foundation stone for every free and democratic society’. In Australia,
there is no federal law which broadly enshrines a right to freedom of
expression. Instead, the scope of freedom of expression is predominantly shaped
through human rights treaty commitments, legislative scrutiny, regulatory
exceptions and constitutional interpretation. For policymakers, this patchwork of
influences makes gaining a holistic view of freedom of expression challenging. Against
this backdrop, this paper considers:
- recent
examples where freedom of expression has expanded, such as defamation law
reform
- the
challenges of reducing limits on freedom of expression, in the context of
discrimination law
- varying
approaches to balancing freedom of expression in privacy law and social
cohesion offences
- the
discretion of decision makers to change policy and influence freedom of
expression.
Freedom of expression with Australian
characteristics
In 1980, Australia ratified the International
Covenant on Civil and Political Rights, which obliges parties to protect
freedom of expression (article 19) as well as recognising that the exercise of
this right carries with it ‘special duties and responsibilities’. Although Victoria,
Queensland
and the ACT have explicitly
included freedom of expression within their human rights laws, this has not
been replicated federally. Despite this lack of legislative recognition, new
federal regulatory frameworks often contain provisions that protect freedom of
expression. This preservation of freedom of expression is a product of
Australia’s human rights treaty obligations and parliamentary scrutiny,
including by the Parliamentary
Joint Committee on Human Rights (PJCHR) as well as requirements that new legislation
be accompanied by statements
of compatibility with human rights.
Australia’s differences with its ‘5 eyes’ counterparts (which
have specific legislative or constitutional freedom of expression protections)
may be partly due to varied social attitudes. For example, a 2024 Pew
Research survey indicated that Australians placed slightly less importance
on the ability of people to say what they want without censorship, compared
with respondents from the US, UK and Canada.
Since 1992, the decisions of the High Court have
significantly shaped the scope of freedom of expression in Australia. In Australian
Capital Television v Commonwealth and Nationwide
News Pty Ltd v Wills, the High Court established that an implied freedom
of political communication (implied freedom) is an indispensable part of Australia’s
constitutional
system of government.
Since 1992, the decisions of the High Court have
significantly shaped the scope of freedom of expression in Australia.
This implied freedom is not a personal right but rather a
limit on legislative or other government power. Laws may be constitutionally
valid even if they burden the implied freedom, provided the burden is proportionate
in response to a legitimate policy goal. However, the High Court’s
interpretation has evolved over time and recent cases (for example Ravbar
v Commonwealth) indicate some judicial disagreement exists regarding its
application.
Oft lost without deserving: defamation and
termination for political opinion
Australia once had a reputation as the ‘defamation
capital of the world’ due to a permissive environment for well-funded
litigants and proceedings against media organisations. Notably, a 2017 Senate
inquiry highlighted that defamation laws had ‘played a significant part in
curtailing journalists' efforts to pursue public interest stories’
(p. 128).
However, nationally-agreed changes to the model defamation laws
have increased protections for freedom of expression. For example, the reforms introduced
a ‘serious harm’ threshold and public interest defence (modelled on a UK example) which
was first
established in case law in August 2025. As a comparison, Germany has a statutory
framework
of criminal defamation offences, including a specific offence for insult,
malicious gossip and defamation ‘directed at persons in political life’ (section
188). This has led German
politicians to file hundreds of criminal complaints against persons and
raised concerns the law is infringing on the right of citizens to express their
views.
Workplace contractual obligations can also constrain freedom
of expression; however, the Fair Work Act
2009 provides that an employee
must not be terminated due to their ‘political opinion’. In June 2025, the
Federal Court clarified the scope of this protection in Lattouf
v ABC (No 2), finding that it ‘encompasses not only the holding of a
political opinion but also the expression of a political opinion’ (at [129]).
A rachet effect: reform to discrimination law
Easing freedom of expression restrictions can often be
controversial, as illustrated in attempts to modify key provisions of the Racial
Discrimination Act 1975. In particular, section
18C of the Act provides that it is unlawful to act in a way reasonably
likely to ‘offend, insult, humiliate or intimidate another person or a group of
people … because of [their] race, colour or national or ethnic origin’. Section
18D provides limits and exceptions to protect legitimate freedom of
expression, which include making ‘fair comment’ on a matter of public interest ‘if
the comment is an expression of a genuine belief held by the person’.
In 2017, a PJCHR
inquiry failed to agree on an approach to reform sections 18C and 18D (recommendation
3), despite concerns the existing law was ‘not clear and accessible’. Many
submissions to the inquiry argued that changing section 18C ‘would send a
dangerous message’ (p. 115). For example, Professor Anne Twomey contended:
The difficulty facing the Committee
and the Parliament is essentially that even if s 18C warrants reform, the
message sent out by undertaking the reform might itself result in damage that
outweighs the benefits of the reform (p. 35).
Following this inquiry, the Senate rejected the Government’s
proposed amendments
which would have limited the scope of section 18C.
Similarly, attempts to introduce
religious discrimination laws faltered in 2022. Despite bipartisan support
for overall religious discrimination protections, a proposed exception (clause
12) to provide that ‘certain statements of belief do not constitute
discrimination’ proved a key sticking point. The PJCHR’s
report on the Bill acknowledged that this aspect of the proposed
legislation was ‘contentious’ and that ‘numerous submitters raised concerns
about the range of statements that could be protected’ (p. 198).
Getting the balance right: a new privacy tort and social
cohesion offences
Australia’s approach to preserving freedom of expression often
involves balancing it against other public interests through legislative exceptions
and defences. For example, the objects of the new
statutory tort of serious invasion of privacy included
recognition that ‘the public interest in protecting privacy is balanced
with other public interests’. The non-exhaustive list of countervailing public
interests includes ‘freedom of expression, including political communication
and artistic expression’ (paragraph
7(3)(a)).
Distinguishing between harmful and legitimate freedom of
expression can be a delicate task, as seen in the 2023 legislation creating
offences for the public display of prohibited symbols including the Nazi
Hakenkreuz (hooked cross). Notably, the legislation contained exceptions for
‘religious, academic, educational, artistic, literary or scientific’ conduct. The
then Attorney-General highlighted
that the legislation would protect the continued use of the symbol by
communities of faith.
Distinguishing between harmful and legitimate freedom of
expression can be a delicate task...
More recently, in 2025 the federal Parliament
legislated to expand offences in the Criminal Code
(sections
80.2A and 80.2B)
for ‘advocating force or violence’ against groups or their members. This
included extending protections for targeted groups, reducing the fault element from
‘intention’ to ‘recklessness’ and removing the defence in section
80.3 for ‘acts done in good faith’. In considering the expanded offences,
the PJCHR’s
report cautioned:
There is a risk that, in practice,
the offences could capture a greater range of conduct that may be offensive and
insulting but the prohibition of which may constitute an impermissible limit on
the rights to freedom of expression and religion. In relation to the offences
related to urging violence, this risk appears to be particularly pronounced
given the proposed removal of the defence of acting in good faith (p. 100).
In contrast, the US Supreme Court’s line of authority from
the case of Brandenburg
v Ohio provides that the First
Amendment protects ‘mere advocacy’ of violence or illegality unless it is ‘directed
to inciting or producing imminent lawless action and is likely to incite or
produce such action’ (p. 447).
We will decide: visa restrictions
Changes in government policy can also influence the scope of
freedom of expression, as illustrated by the Migration Act
1958 ‘character test’ which all non-citizens travelling to Australia
must pass. The test considers various factors, including the risk that a person
entering or remaining in Australia would ‘incite discord in the Australian
community…’ (subparagraph
501(6)(d)(iv)).
Over time this part of the test has incrementally been
amended to increase ministerial discretion to refuse visas. Originally, it
required the minister to be satisfied that a person seeking a visa 'would' incite
discord. However, in 1998 the threshold was amended to a ‘significant risk’
of inciting discord and in 2014 changed again to merely a ‘risk’.
Failed character tests have blocked entry into Australia for
controversial figures, including
political commentator Candace Owens who had scheduled a speaking tour in
2024. Ms Owens challenged her visa refusal, but in October 2025 the High
Court rejected an argument that this part of the character test infringed the
implied freedom.
In August 2025, the Home Affairs Minister, Tony Burke, indicated
he would prioritise social
cohesion over freedom of speech considerations in granting visas. This
approach aligns with a recent UK decision where it denied
entry to a South African politician considered ‘non-conducive to the public
good’. Elsewhere, the US
State Department revoked the visas of persons who ‘celebrated the heinous
assassination of Charlie Kirk’. Conversely, the New
Zealand government reversed its original decision to deny Ms Owens a visa,
citing ‘the importance of freedom of speech’.
Conclusion
As it navigates future regulatory reforms, the Parliament
will need to balance freedom of expression against competing public interests
across diverse policy areas. Without federal legislative recognition of freedom
of expression, decision-makers may face challenges in assessing how proposed
changes will broaden or limit its scope. In particular, following the terrorist attack on Bondi Beach, the Government has recently passed legislation that includes offences for ‘hate groups’ and additional grounds for the Minister of Home Affairs to cancel or reject visas.
In 2026, the United Nations Human Rights Council Fourth
Universal Periodic Review will scrutinise Australia’s human rights record,
as part of a peer country assessment process. In the previous 2021 review, the limited
commentary regarding Australia’s freedom of expression protections focused on
the impact of national security laws on journalists and whistleblowers (pp
17-18). However, recent reforms (including unprecedented
social media age restrictions), may draw increased attention to the protection
of freedom of expression in Australia.
Further reading
- Patrick Graham, ‘Burdening the Implied Freedom of Political Communication: Method,
Ideas, and Disagreement’, University of NSW
Law Journal 48, no. 3 (2025): 1036–1069.
- Report of the United Nations Special Rapporteur on the promotion
and protection of the right to freedom of opinion and expression, Threats to freedom
of expression online in turbulent times, (Geneva:
United Nations General Assembly, 18 August 2025).
-
Australian Law Reform Commission (ALRC), Traditional
Rights and Freedoms—Encroachments by Commonwealth Laws: final report, ALRC report, 129, (Sydney: ALRC, December 2015).