Australian National Flag

By Joseph Harmon

In 2010 Australia was ranked 18th in the Press Freedom Index published by Reporters without Borders.  Since there are 178 different countries in this ranking system that means that a ranking of 18 put Australia among some of the elite countries when it comes to freedom of expression.  However, because of recent happenings since the publication of those rankings, Australia now sits at number 30.  This indicates that issues have risen that have changed the perception of, or tried to limit freedom of expression in Australia.  Reporters without Borders (RSF) is an organization that reports on free speech issues from every region of the world.  Through their reporting RSF has concluded that freedom of expression is not just being threatened, but in some cases is punishable by fine or imprisonment.  They also feel that the Australian Press Council (APC) is trying to extend too much power over media outlets.  On October 31, 2007 the “Report of the Independent Audit into the State of Free Speech in Australia,” was published by Australia’s Right to Know Coalition, which is an alliance of journalists that attempt to bring to light any issues of freedom of expression restriction.  This report outlined specifically the trends of legislation that have been created by the Australian government in order to be more restrictive against issues of free speech.  It highlights, “some 500 pieces of legislation which restrict the freedom to publish “secret” information, a poorly functioning access to information system, and tough and wide-reaching anti-terrorism laws.” (IFEX, Secrecy)  In the report, a call to action is made to the government suggesting that if these problems are not dealt with then bigger issues of freedom suppression will develop.  Australia has only been federalized for a little over a hundred years, and the constitution does not give any explicit protections for free speech or free press.  It is the job of the High Court of Australia to review appeals and set precedents that protect the freedoms of the citizens, just like the United States Supreme Court does for Americans.

Historical Background

Before 1770 Australia was just an unsettled territory with a population of indigenous people, known as aborigines.  Britain began sending convicts there in 1788 after losing the American colonies in the Revolutionary War. The convicts were managed by governors.  Each governor was given a portion of land for his convicts, and these became known as states.  Relations between the states could be rocky at times, and the need for a federal system became more and more apparent.  Through a series of conventions, a constitution was drafted.   Then, in 1901, the states of the Australian territory ratified that constitution making them a collective, independent democracy.  Each state still maintained reasonable control of what went on inside the state, but now there would also be federal laws that gave all citizens of Australia basic freedoms to be enjoyed by all.  The constitution itself did not expressly guarantee freedom of expression.  However, after a 1992 case it was determined that the basic right to freedom of expression was implied in the constitution.  Prior to the ratification of the constitution if any issue was to be appealed past the state level it would go to the Privy Council.  The Privy Council is a high court of appeals located in London, England.  The founding fathers felt that it was inefficient and costly to send appeals all the way to England, so almost three years after the ratification of the constitution, the High Court of Australia was created, which was intended to be a judicial body that would set constitutional precedent through appeals.  This meant that any case dealing with a constitutional issue would be reviewed by the High Court of Australia for a final decision and not the Privy Council.  Eventually, the founding fathers wanted all appeals to be handled by the High Court internally in the country, thus making Australia more independent and developed as a democracy.  However, this was not accomplished until 1986, almost 90 years later, with the passing of the Australia Acts.  Before the acts, litigants could bypass the state and high courts and go directly to the Privy Council for a final decision.  Today, the High Court of Australia is the highest legal authority in the land.

Freedom of Expression

Australian citizens enjoy the right to freedom of expression, even though it does not say it directly in the constitution.  The nation itself has only been federalized for a little over a hundred years now.  Because of this brief history there has not been many cases arise that challenge the basic freedom of speech.  That does not mean that there have not been cases that have set precedents in the common law of the Australian government.  The cases that defined the implied right to freedom of speech of the Australian citizens were Australian Capital Television Pty Ltd v Commonwealth and Nationwide News Pty Ltd v Wills, both in 1992.  The court decided in both cases that there is an implied freedom of political communication, as well as, unjust legislation that infringes on this freedom.  The first case was about a 1991 amendment to the Broadcasting Act of 1942 limiting political speech to only a percentage of allotted “free time” determined by the government during state and national elections.  The High Court of Australia ruled against the amendment by outlining political speech as a vital part of a democracy.  Also, political speech is protected by the implied freedoms of the constitution.  In the Nationwide News case the publisher of the Australian printed an article being critical of the Australian Industrial Relations Commission.  He was prosecuted under the Industrial Relations Act of 1988, which stated that no one was allowed to “use words calculated to bring the Australian Industrial Relations Commission into disrepute.”  The High Court held that limiting the critical speech of any commission was a direct violation of the right to freedom of speech that was not guaranteed but implied by the constitution.  The decisions set forth by the court in these cases are not able to be changed by any governing body and remain as very important precedents for free speech in the nation.  In 1994, for the first time, the High Court got to apply the precedent of implied freedoms to a new case.  Theophanous v. Herald & Weekly Times Ltd. and Anor is a case in which the petitioner sued for an article that was published being critical of his political campaign close to election.  The High Court reverted back to the decisions they made in the previous cases just two years earlier to determine their ruling.  Once again the court maintained that political communication was protected by the implied freedoms.  However, the decision was not unanimous like in the 1992 cases; it was a 4-3 vote.  The final result of the ruling is that political speech is protected, but not defamatory speech.  In future cases the defendant is left with the burden of proving the falsity of the statements made and whether they were made with reckless disregard for the truth.  Stephens & Ors v. West Australian Newspapers Ltd. was also decided in 1994 but after Theophanous.  Theophanous set the precedent for defamatory speech and Stephens extended the implied freedom protection to state and federal government officials.  These four cases set the framework for Australia to be a leader for the advocacy of the right to free expression all over the world.

Current Issues

Today, Australia is still combating issues of free expression through media outlets.  With the explosion of the Internet in recent years there is an emergence of free expression issues that no one could have foreseen.  In 2009, RSF made an effort to appeal to the prime minister in order to stop a proposed Internet filtering system to deny access to child pornography websites.  The problem described in the letter from RSF was that it would be impossible to block the desired sites without also blocking sites that are not offensive or even educational.  Some Internet Service Providers did employ a filtering system which proved to block more than just the intended sites as suggested by RSF.  This is still an ongoing issue in the Australian government and could begin a pathway for other countries to follow suit if it is passed.  In 2011, Andrew Bolt was convicted of breaching the Racial Discrimination Act.  Bolt wrote an article that condemned nine separate “light-skinned” people of aboriginal decent for using their ethnicity to obtain certain privileges that he felt they were not entitled to.  He does lose the case and chose not to appeal, but the decision in this case could set a precedent that will possibly punish other forms of expression rights that are otherwise implied by the Australian constitution.  In September 2011 the minister for broadband communications and the digital economy in Australia decided that an inquiry needed to take place to observe current procedures in media reporting and see if there is anything the Australian Press Council (APC) needs to do to make sure that certain standards are up held.  RSF “is concerned at the possibility that too much power will be given to the Australian Press Council, a regulatory body that monitors conduct and responsibility in the print media.” (RSF, APC)  The APC was created in 1976 as a way to try and hold media outlets to some form of consistent ethics.  However, an inquiry of this measure could give the APC enough power to “chill” the freedom of expression.  All of these issues are ongoing and each one could send Australia back to the drawing board when it comes to free expression rights and their precedents.

Critical Comparison

The United States and Australia share many similarities in their governmental structures.  Obviously, the U.S. is older than Australia and contains much more common law precedent.  In the constitution that was drafted in the late 19th century by Australia, the founding fathers knew that they wanted a judicial system that was similar to the United States Supreme Court in order to end the Privy Council hearing appeals and make the High Court the highest legal authority in the land.  This proved to take more than 80 years, but now it is in effect and the Privy Council no longer has jurisdiction of any part over the federal or state governments in Australia.  The only flaw with the new constitution was the lack of expressed individual freedoms, like the ones American citizens have from the Bill of Rights that was added before ratification.  It took Australia 90 years to define the implied freedom of expression from the original constitution.  New York Times v. Sullivan has also set many standards in America when it comes to free speech and defamation.  This case created the “actual malice” standard, which forces the defendant to prove either the falsity of the statement or a reckless disregard for the truth.  The “actual malice” standard is difficult to prove and is the only way to prove true defamation.  In the Australian judicial system there have been two cases that set similar precedents, Theophanous v. Herald & Weekly Times Ltd. and Stephens & Ors v. West Australian Newspapers Ltd.  These cases have helped to shape the definition of defamation in Australia just like the Sullivan case in America.  The High Court did feel as though the “actual malice” standard was too impenetrable and adopted slightly less strict standards that are to be applied to defamation cases.  Since the Sullivan case has proved to be so important to American free speech, it can be assumed that the corresponding Australian cases will have equal importance.

In 1953, Australia passed the Flags Act, which specifically outlined the style and colors of the national flags.  However, the document does not address flag desecration, but there have been several proposals from the Left and Right of the political spectrum that have tried to make it a crime to destroy or mutilate the national flags.  Currently, there are no specific laws that protect or criminalize the desecration of a flag or national symbol.  The U.S. Supreme Court made flag desecration a protected freedom of expression with their decision in Texas v. Johnson.  This was a case in which a demonstrator burned a flag in political protest and was arrested under a flag desecration act in Texas.  The case was appealed to the USSC where they deemed the act unconstitutional and placed flag desecration under the First Amendment protected freedoms.  It remains to be seen if the High Court in Australia will have to create precedent to protect the nation’s flag.  This could be because there are so few flag burnings that occur, or because Australians do not place as much importance or concern to protect the flag as a symbol of nationalism.  Since the Australian government looks to the America for the framework of their government, there will possibly be a similar decision that will result from a case comparable to Texas v. Johnson.

Even though the U.S. and Australia have similarities between them, Australia is still considered to have more freedoms than the States.  However, this could be based on the lack of a Bill of Rights and the lack of enough common law precedent to set stricter standards.  Currently, on the RSF Press Freedom Index, Australia is ranked at number 30, while the US is seventeen spots behind at number 47.  There are several issues that Australia is dealing with in relation to freedom of expression.  It is the decisions from these cases that will determine whether Australia will maintain its place as a hub for individual freedoms or backslide into a nation of restrictive governmental control.

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