The Cost of Freedom: Constitutional Rights in Australia.

Introduction

World War II was a global military conflict never witnessed before. It involved the majority of nations and saw the death of 70 million people . The atrocities committed lead the world to see the best and worst in humanity, and undeniably, to assert that human beings have underlying rights incapable of being liberated, and which, were undeniable to all. It was on the 10th of December 1948, in Palais de Chailot, Paris, that the Declaration of Rights was adopted . Consisting of 30 articles, it envisaged to assert the expression of rights paramount to all citizens. Amongst these rights were the premises of freedom of assembly, freedom of speech, freedom from fear and the freedom from want. It liberated the differing countries, and meant that although a country may be in conflict, it still held value to human life, and that certain privileges, such as the right to freedom of speech, as articulated in article 19, are principal in any civilised country for the betterment of all, rather than a hindrance to government and society. It is the right to freedom of expression that leads many in Australia to question the veracity of the constitution. Many countries have independent statutory declarations of human rights . These include the Bill of rights, employed by the United States and England, the Declaration of the Rights of Man and of the Citizen, employed in France, and the Charter of Rights and Freedoms in Canada. Unlike these aforementioned countries, Australia lacks basic fundamental rights, which although have been implied in the Australian Constitution, through the High Court decisions, are limited, in comparison, and as such, a cost to all Australian citizens freedoms.

Defamation law is a vital facet of protecting individual rights and reputations. It is a powerful ploy, which although alluding to protection for all, often hinders free speech, and only protects powerful individuals from inquiry, analysis and conviction. Article 19 of the United Nations Universal Declaration of Human Rights states that ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’ This freedom implies that all views, beliefs and opinions are rightfully equal. Yet, it seems derisory to relinquish such benefit with radicalism rampant throughout society. It is therefore imperative to associate freedom with limitation, and within it, a close assimilation with social tolerance and acceptance. The ability to defame, accost and revoke in westernized societies is becoming ever so complex due to litigation. Drawing the metaphorical line, between defamation, and the so called derision of freedom of expression, envelops issues not only associated with religious intolerance, but the inevitable guise affronted between secular and religious propensity, and that of, restraints imposed therein. Freedom, therefore, can only exist with restraint upon it. But drawing the line concedes difficulty in all accounts. Since Australia has no implicit legal protection to freedom of speech, such as the American First Amendment, it leaves Australia with limited protection for those opposed to institutions, and leaves the government open to censor any, or all views, deemed counterproductive, unworthy or unwarranted.

John Stuart Mill, asserted that “one’s freedom stops when one’s fist is about to hit another’s”, metaphorically this statement clearly alludes to freewill, whereby an individual is free unless one’s action will bring detriment to another. Often this is misinterpreted, the ‘harm principle’, which is another way of describing his philosophical tenet, furthers his views of utilitarianism. Since Australia is a democracy based upon this premise, it would seem likely that within the constitution it would be evident that these rights should be preserved. Yet, Australia lacks laws that protect freedom of speech, freedom of liberty and even freedom of thought. Unlike the American republics ‘Bill of Rights’, Australia lacks laws which would protect those willing to oppose regimes. The introduction of the Federal Terrorism Act (2005) is a clear demonstration of basic rights being surpassed for state intervention. The fear of terrorism created a vivid contrast of fundamental democratic rights being discarded for the benefit of a supposed greater safety. By limiting the freedom to even communicate on conviction is clearly a violation of the freedom to express oneself. The very idea is portentous that one’s own right to show apprehension at the situation is silenced. It is a great power to silence anyone, especially if anyone who opposes the government potentially could be named a terrorist, and upon this, detained without appropriation to legal advice, and unable to voice discern with ones current containment.

The Federal Terrorism Act (2005) clearly represents breeches in civil liberties and freedom of expression, the most demoralizing attribute to the anti-terrorism laws is the encompassment of the right to detain people in police custody without charge and interrogate them incommunicado, without access to legal advice . If an individual was to incite an irrational dispensation between civil morality and individualistic rights, they could be charged with encouraging treason. Upon this premise, it appears impracticable if not impossible to comment on problems within society and government without a fear of incarceration and civil espionage. If anything, this would be encouraging Machiavelli’s view of ruling through fear, opposed to the libertarian approach of individual freedom and civil liberty. Conclusively, there is also the impending trepidation that, “basic safeguards of freedom from arbitrary arrest should not be compromised in this way, or the State itself becomes a terrorist” . This has been due to its irreprehensible deterioration of civil liberties and abhorrent lack of individual right of freedom of expression and freedom of thought. If anything, it is a chilling recourse of how our rights are being marginalised for the ‘greater good’. It is therefore necessary to evaluate Australia’s position, pertaining to freedom of expression, in relation to other countries. Through looking at varying positions, such as those held in America in comparison to China, a clear dispensation of rights appears. It is essential that Australia adopt a Bill of Rights and moves with the rest of the world which does not curtail civil liberties. Freedom of expression suffers drastically within Australia, with Australia being ranked 28th on the index of Reporters without Borders, below countries such as Lithuania, Jamaica and New Zealand.

Australia’s Freedom of Speech and Constitution Rights

The High Court of Australia, on various occasions, has been required to interpret the constitution and the implicit rights held within. In Australian Capital Television v Commonwealth (1992) 177 CLR 106 and Nationwide News Pty Ltd v Wills (1992) the high court asserted that within Australia there is an implied freedom of political speech, which was furthered in Theophanous v Herald and Weekly Times Limited [1994] HCA 46. It was stated that the Government was unable to pass laws which curtailed societal rights to freedom of expression in relation to political speech. This limited freedom meant that although there was freedom to express concerns against political authority, there was limited recourse to actually assimilate issue with other key influential’s without suffering defamation. Anti-terrorism laws which were enacted in 2005 curtail individual rights excessively. The Moss report, which found in excess of 500 sections in Australian legislation to contain provisions to restrict freedoms, consisted of not only limitation of expression, but also restriction on thought. Senator Stephan Conroy, the Australian telecommunication minister, even stated that the current government “makes no apologies to those who argue that any regulation of the internet is like going down the Chinese road” and that “If people equate freedom of speech with watching child pornography, then the Rudd Labor Government is going to disagree”.

Regulation in Australia can consistently be seen most evidently through its appraisal to censorship within classifications, particularly of films, video games and written publications. It seems permissible to encourage protection of individual liberties, in regards to advice of what is contained within a publication, but once limitation exceeds merely advising, and restricts public viewing; the freedom of expression is diminished, evidently biased to the ruling class of the era. Autonomous adults should be able to view, consume and watch what they deem suitable to their own situations, agenda and standards. As long as the detriment caused does not infringe upon another’s without due consent, it seems derisory that one should not be able to view what one wants . The focal issue, in regards to internet censorship, is the paramount problems associate with what can be censored and on what account. In trials conducted for the government, a ‘white list’ dictated what content could not be viewed, and rather than actually informed, a user who came across a page that was considered inappropriate was merely readdressed to another. This suggests that any opponent who purports to show issue with government could be silenced. Although only censored within Australia, it would mean that the freedom to show discern would be marginalised, eventually leading to all in opposition to the ruling party at the time being unable to show issue and publically defame appropriate individuals.

China and Freedom of Expression

China is often propagated as a country with limited rights. Its censorship, however, can be compared to Australia, in the year 2008, a similar account for limitation of expression was trialled. Under the guise of ‘protecting children’, it went as far as mandatorily logging, capturing, and excluding access to certain web pages that the government deemed to be outside classification. It is a clear contrast that nearly any webpage could invariably be added to the list, unknown to the site owner, and from this, be inaccessible, without recourse to appeal the decision of the initial censorship. The Chinese constitution allows for freedom of speech, yet under the current government, is virtually denied. Although Australia does not incarcerate journalists usually, which does occur in China, if an individual was to interview a ‘terrorist’ there is the impending intimidation of five years jail, and aiding and abetting terrorism.

The United States and Freedom of Expression

America is often considered liberal with most freedoms being expressed and allowed. But this has not always been the case. Eugene V. Debs, a Labor leader, was incarcerated for 10 years under the Espionage Act, for standing for freedom against slavery . A Bill of Rights, similar to what is held in America would benefit Australia. The issue, pertaining to this new freedom, would be the undue affluence of law, and with it, complications of where media entitlement stops for personal liability, and defamation is defendable.

The Possibility of a Bill of Rights

Australia’s constitution provides very few express rights that are formidable to all citizens. Unlike many countries, Australia lacks the appropriation of a Bill of Rights, which would streamline and consciously provide a clear outline of innate rights. This, however, has not diminished racial, sexual and discriminatory legislation which marginalizes and evokes limitation upon freedom of expression. Through the incorporation of the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth) a clear elucidation of rights having been expressed, only to be used in the distrainment, disadvantage and dissolution of individuals freedoms, has been induced. In the case Kartinyeri v Commonwealth [1998] HCA 22 a clear dispensation of rights is demonstrated. On one side, the Kartinyeri emphasized their rights being curtailed, and because of it, were silenced. If Australia was to have a Bill of Rights, it would ensure that basic fundamental rights would be clear, and could easily dissolute law which contravened it. It would also mean that all residents would be entitled to freedom of speech, which would allow for greater discussion, and awareness, which could reduce the marginalisation of freedom and encourage equality through the education, and discussion, which ensued.

Conclusion

Freedom of expression is paramount within any society. It allows citizens the opportunity to voice concern, and through this, elect leaders to the betterment of the country. The Declaration of Rights envisages to freedom of assembly, freedom of speech, freedom from fear and the freedom from want. Article 19 stipulates that freedom of speech is a key principal in any civilised country. It is this right, however, of freedom of expression, which leads many in Australia to question the veracity of the constitution. Many countries have their own separate provisions of rights, which include the Bill of rights, employed by the United States and England, the Declaration of the Rights of Man and of the Citizen, employed in France, and the Charter of Rights and Freedoms, in Canada. Australia lacks these innate civil liberties, which although are implied, are not as accessible, and definitely not as clear, as the aforementioned countries. It is this ambiguity which leads to the abolishment, and enactment of unfair, biased and denigrating legislation that unavoidably deteriorates rights. Although Australia has implicit rights, it is a mediocre assimilation in comparison to other countries.

The use of defamation in Australia is a vital schema to protect those with the money to defend against accusation, but for those without limitless resource, it is a derision of a few powerful and often unscrupulous individuals, to dodge acquisition, and elude inquiry. Although there is a fine line, it is imperative to associate freedom with limitation. There needs to be tolerance for intolerances sake, and there needs to be cultural awareness and acceptance, which inevitably would arise from furthered freedom of expression. Freedom can only exist with restraint upon civil liberties. But drawing the line concedes difficulty in all accounts. Since Australia has no implicit legal protection to freedom of speech, such as the American First Amendment, it leaves Australia with limited protection for those opposed to institutions, and leaves the government open to censor any, or all views, deemed counterproductive, unworthy or unwarranted. Revision of such rights, which nevertheless are inherent for all, would mean the inclusion of a rights based document, accessible, and binding to all. Until this time, Australia appears to be with severe limitation, to the detriment of freedom of expression, which seemingly is unbeknownst to the majority.

Bibliography

Legislation:

Federal Terrorism Act (2005)

Australian Security Intelligence Organisation Act 1979 (Cwlth)

Crimes Act 1914 (Cwlth)Criminal Code Act 1995 (Cwlth)

Crimes (Criminal Organisations Control) Act 2009 (NSW)

Case Law:

Australian Capital Television v Commonwealth (1992) 177 CLR 106

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1

Kartinyeri v Commonwealth [1998] HCA 22

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

Articles:

Freedom of Expression, Speech, and the Press , http://www.cecc.gov/pages/virtualAcad/exp/ . (accessed August 12, 2009).

Ira Glasser, Visions of Liberty , Arcade, 1991. (accessed August 12, 2009).

Christopher Caldwell. 2009. Beware blind faith in bigness. Financial Times, August 22, http://www.proquest.com.libraryproxy.griffith.edu.au/ (accessed August 30, 2009).

Shen, S.. 2009. A constructed (un)reality on China’s re-entry into Africa: the Chinese online community perception of Africa (2006-2008). The Journal of Modern African Studies 47, no. 3, (September 1): 425-448. http://www.proquest.com.libraryproxy.griffith.edu.au/ (accessed August 30, 2009).

J. Gora, D. Goldberger, G. Stern, M. Halperin, The Right to Protest: The Basic ACLU Guide to Free Expression , SIU Press, 1991.

ACLU Guide to Free Expression , SIU Press, 1991.

Eugene Volokh. 2009. Flag Burning and Free Speech. Wall Street Journal, July 3, Eastern Edition. http://www.proquest.com.libraryproxy.griffith.edu.au/ (accessed August 30, 2009).

Krotoszynski, R., and C. Carpenter. 2008. THE RETURN OF SEDITIOUS LIBEL. UCLA Law Review 55, no. 5, (June 1): 1239. http://www.proquest.com.libraryproxy.griffith.edu.au/ (accessed August 30, 2009).

Koppelman, A.. 2008. IS PORNOGRAPHY “SPEECH”? Legal Theory 14, no. 1, (March 1): 71-89. http://www.proquest.com.libraryproxy.griffith.edu.au/ (accessed August 30, 2009).

Neier, A.. 2008. May I Speak Freely? Columbia Journalism Review 46, no. 5, (January 1): 55-57. http://www.proquest.com.libraryproxy.griffith.edu.au/ (accessed August 30, 2009).

Franklin Haiman, “Speech Acts” and the First Amendment 1993, SIU Press, 1993.

Nadine Strossen, Defending Pornography: Free Speech, Sex and the Fight for Women’s Rights , Anchor Press, 1995.

Butler Amy, Watch Your Language, 4/8/09

CityNews.ca, Facebook Leads To Boss Catching Worker 4/8/09

Filimon Peonidis. Freedom of Expression, Autonomy, and Defamation. Law and Philosophy: An International Journal for Jurisprudence and Legal Philosophy. Ja 98. 17(1), 1-17.

Hardin Russell, Journal of Ethics: An International Philosophical Review. 2004. 8(1), 77-95.

Head Michael, ‘The Military Call-Out Legislation Some Legal and Constitutional Questions’ (2001) 29 Federal Law Review 273.

Vasi, I., & Strang, D.. (2009). Civil Liberty in America: The Diffusion of Municipal Bill of Rights Resolutions after the Passage of the USA PATRIOT Act. The American Journal of Sociology, 114(6), 1716. Retrieved August 22, 2009, from ABI/INFORM Global. (Document ID: 1764930671).

Reinhardt, S.. (2008). WEAKENING THE BILL OF RIGHTS: A VICTORY FOR TERRORISM. Michigan Law Review, 106(6), 963-973. Retrieved August 30, 2009, from ABI/INFORM Global. (Document ID: 1465888051).

Stoler, M.. 2009. Toward the National Security State: Civil-Military Relations during World War II. Political Science Quarterly 124, no. 2, (July 1): 388-389. http://www.proquest.com.libraryproxy.griffith.edu.au/ (accessed August 30, 2009).