Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CONSTITUTION ALTERATION
(FREEDOM OF EXPRESSION AND FREEDOM OF THE PRESS) 2019
EXPLANATORY MEMORANDUM
(Circulated by authority of Senators Patrick and Griff)
CONSTITUTION ALTERATION (FREEDOM OF EXPRESSION AND
FREEDOM OF THE PRESS) 2019
OUTLINE
The purpose of the Constitution Alteration (Freedom of Expression and Freedom of the Press)
2019 is to enshrine the right of freedom of expression including freedom of the press and other
media within the Constitution.
The proposed amendment will insert a new Chapter IIIA and section 80A in the
Commonwealth of Australia Constitution Act 1900. The new section will provide that the
Commonwealth, State or Territory must not limit the freedom of expression, including
freedom of the press and other media. However, a law of the Commonwealth, State or
Territory may limit the freedom if that limitation is reasonable and justifiable in an open, free
and democratic society.
While the High Court has ruled in various decisions that an implied freedom of
communication exists under the Constitution in relation to political and government matters,
this freedom is not absolute, and is far more restricted than guarantees provided by other
jurisdictions.
This alteration to the Constitution will protect freedom of expression more broadly along
similar lines to the First Amendment to the United States Constitution which provides that the
Congress "shall make no law ... abridging the freedom of speech, or of the press."
The Australian Constitution does not contain a bill of rights. However, it does provide some
express protection against legislative or executive action by the Commonwealth (though not
by the States). Notably, section 116 provides that the Parliament "shall not make any law for
establishing any religion, or for imposing any religious observance, or for prohibiting the free
exercise of any religion..."
In a similar way, the proposed explicit protection for freedom of expression would reflect the
deep understanding in the Australian community that people must be able express their
opinions with confidence and free of repercussions.
The proposed alteration would put a constitutional brake on efforts to supress the freedom of
expression to the detriment of our democratic and open society. The alteration will set a clear
benchmark against which current laws of the Commonwealth, States and Territories can be
judged.
At international law, freedom of expression is a fundamental human right. Article 19 of the
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.
Freedom of the press is included in freedom of expression, therefore, it is important that the
protection will also extend to the media, delivered in any form, so that the media may continue
to contribute to a free and democratic society. The importance of quality investigative
1
journalism cannot be underestimated for the contribution it has made to an environment of
accountability and opportunity for reform. Where serious wrongdoing, in the form of
corruption and lack of integrity or an attitude of apathy to corruption, is uncovered it is
important that this can be brought to the public's attention after avenues for holding those
accountable have failed. This Bill will offer the protections required to protect the role the
media plays in contributing to a free and democratic Australia.
The proposed alteration to the Constitution includes necessary provision for limitation of
freedom of expression when, and only when, such limitation is "reasonable and justifiable" in
an open, free and democratic society. It is important that the alteration contains provision for
limitation, however any limitation must be consistent with the values and freedoms enjoyed
within Australia. What is "reasonable and justifiable" will be a matter for the
Commonwealth, State and Territory legislatures, but will be subject to potential constitutional
review by the High Court of Australia.
In this regard it should be noted that the proposed alteration will for the first time not only
incorporate in Australia's Constitution explicit protection for freedom of expression and the
freedom of the press, but will also for the first time give constitutional recognition and
expression to the "open, free and democratic" character of Australian society.
Section 128 of the Constitution provides that any proposed law to alter the Constitution must
be passed by an absolute majority in both Houses of the Commonwealth Parliament. If passed
by both Houses, it is submitted to a referendum at least two months, but less than six months,
after it has been passed by Parliament. In certain circumstances, a proposed amendment can be
submitted to a referendum if it is passed on two separate occasions by only one House of the
Parliament.
At the referendum the proposed alteration must be approved by a 'double majority'; i.e. a
national majority of electors in the states and territories, and a majority of electors in a
majority of the states (at least four out of six states).
Rules governing referendums are contained in the Referendum (Machinery Provisions) Act
1984.
2
NOTES ON CLAUSES
Clause 1: Short Title
1. This clause is a formal provision and specifies that the short title of the Act may be
cited as the Constitution Alteration (Freedom of Expression and Freedom of the Press) 2019.
Clause 2: Commencement
2. This clause brings the Constitution Alteration (Freedom of Expression and Freedom of
the Press) 2019 into force on the day the Act receives the Royal Assent.
Clause 3 - Schedule 1
3. This clause alters the Constitution as set out in Schedule 1.
Schedule 1
4. Schedule 1 contains amendments to the Constitution relating to the alteration of the
Constitution by electors.
5. Item 1 inserts after Chapter III, a new Chapter IIIA titled Freedom of Expression.
6. The new Chapter IIIA comprises a new section 80A which provides that the
Commonwealth, a State or a Territory must not limit freedom of expression, including
freedom of the press and other media. However, it includes the proviso that a law of the
Commonwealth, a State or a Territory may limit the freedom if the limitation is reasonable and
justifiable in an open, free and democratic society.
7. This provision will enshrine a Constitutional protection of freedom of expression
within Australia. The specific reference to freedom of the press and other media recognises
the vital importance of journalism and publishing in all its forms for the functioning of an
open, free and democratic society. However the provision does not limit who may be afforded
these protections as the inclusion of the press and other media is not to be read as exhaustive.
8. The proviso would ensure that Commonwealth, State or Territory parliaments may
continue to pass some laws that limit freedom of expression including the freedom of the press
and other media provided that the limitation is "reasonable and justifiable in an open, free and
democratic society." For example censorship of military secrets may be justified as necessary
in time of war to protect Australia's democratic system government. Limitations on the
publication of national security information may also be justified in peacetime to ensure the
Australian Government can fulfil its responsibilities in relation to national defence and
protection from other threats to security. However the proposed section 80A makes it clear
that any limitations must be "reasonable and justifiable" in the context of an "open, free and
democratic society". Any limitations on freedom of expression must be consistent with and
supportive of Australia's democratic system of government and the open and free nature of
Australian society.
9. The proposed section 80A will for the first time give explicit constitutional recognition
to the "open, free and democratic" character of Australian society.
3
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Constitution Alteration (Freedom of Expression and Freedom of the Press) 2019
Human rights implications
The Bill promotes and engages the freedom of expression recognised in the following:
Article 19 of the International Convention on Civil and Political Rights;
Article 12 of the Convention on the Rights of the Child;
Article 21 of the Convention on the Rights of Persons with Disabilities; and
Articles 4 and 5 of the Convention on the Elimination of all Forms of Racial
Discrimination.
International Convention on Civil and Political Rights
Article 19(2) provides that everyone shall have the right of expression, this right includes
freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers,
with orally, in writing or in print, in the form of art, or through any other media of his choice.
Article 19(3) provides that the exercise of the rights provided at 19(2) carry special duties and
responsibilities. It may be subject to restrictions, but only where provided by law and are
necessary for the respect of the rights and reputation of others and to protect national security
or public order, health or morals.
Convention on the Rights of the Child
Article 12 protects the right for a child to from and express their own views freely in all
matters affecting the child, the views of the child is to be given due weight in accordance with
the age and maturity of the child.
Article13(1) provides that a child shall have the right to freedom of expression, this right
includes shall include the right to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print in the form of art or through any
other media of the child's choice. Article 13(2) qualifies the right as the exercise of the right
may be subject to certain restrictions, but these shall only be such as are provided by law and
are necessary for respect of the rights or reputations of others and the protection of national
security and the public order, health or morals.
Convention on the Rights of Persons with Disabilities
Article 21 protects the freedom of expression and opinion and access to information for
persons with disabilities. Relevantly the right provides that State parties shall take appropriate
measures to ensure that persons with disabilities can exercise the right of freedom of
expression and opinion, including the right to seek, receive and impart information and ideas
on an equal basis with others and through all forms of communication of their choice.
4
Convention on the Elimination of all Forms of Racial Discrimination
Article 4 and 5 require State parties to condemn all propaganda and all organizations which
are based on ideas or theories of superiority of one race or group of persons of one colour or
ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any
form, and undertake to adopt immediate and positive measures designed to eradicate all
incitement to, or acts of, such discrimination and, to this end, with due regard to the principles
embodied in the Universal Declaration of Human Rights and the rights expressly set forth in
Article 5.
Article 5(d)(viii) States Parties undertake to prohibit and to eliminate racial discrimination in
all its forms and to guarantee the right of everyone, without distinction as to race, colour, or
national or ethnic origin, to equality before the law and the enjoyment of the right to freedom
of opinion and expression.
Conclusion
The proposed alteration to the Constitution engages and promotes the right to freedom of
expression and will provide for these protections to be enshrined within the Constitution.
The proposed alteration to the Constitution will allow limitation on individual freedom of
expression only where the restriction is on balance reasonable and justifiable in Australia's
open, free and democratic society.
This Constitution Alteration (Freedom of Expression and Freedom of the Press) 2019 is
compatible with human rights and freedoms recognised or declared in the international
instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Senators Patrick and Griff
5