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2022-2025
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CONSTITUTION ALTERATION
(RIGHT TO FREE SPEECH) 2025
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Babet)
CONSTITUTION ALTERATION (RIGHT TO FREE SPEECH) 2025
OUTLINE
The purpose of the Constitution Alteration (Right to Free Speech) 2025 is to enshrine the
right of freedom of speech within the Constitution.
The proposed alteration 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 or a State must not make any law that limits the freedom of speech, including
freedom of the press and other media.
The Australian Constitution does not explicitly protect freedom of speech; however, the High
Court has recognised a narrower implied freedom of political communication.
Enshrining the right of free speech in the Constitution would bring certainty to an aspect of
expression that has lacked definition since the Constitution was enacted. While the
intervention by the High Court has provided some recognition, it is essential to provide
freedom of expression in the Constitution.
Since Federation, Australia's approach to free speech has been the subject of controversy,
ongoing debate, and protest. This Bill will provide Australians with certainty and remove
ambiguity regarding a right of expression that should be the corner stone of Australian
democracy.
This Bill if enacted would enshrine a right to free speech in the Constitution through section
128, which sets out the process for altering the Constitution.
Once the proposed alteration has passed Parliament, section 128 sets a very high threshold for
a referendum of a majority of all eligible voters in Australia and a majority of eligible voters
in a majority of the states.
Rules governing referendums are contained in the Referendum (Machinery Provisions) Act
1984.
This Bill follows the Unites States of America's approach. It is based on the language of the
first amendment "Congress shall make no law ... abridging the freedom of speech, or of the
press".
The United States of America model to the protection of freedom of speech and expression
has stood the test of time since the Constitutional right was ratified in 1791.
Although the First Amendment is a brief provision, which has been considered in an
extensive and complex history of cases and commentary. ,The Supreme Court has often been
emphatic about recognising its prominence, meaning the First Amendment means that
government has no power to restrict expression because of its message, its ideas, its subject
matter, or its content.
If successful at a referendum, this alteration to the Constitution would shore up Australia's
right to free expression. This Bill is necessary to ensure that attempted and successful
legislative attacks on free speech do not continue to be brought.
Protection must be extended to all peoples, including the press and other media. A free and
transparent media is a key pillar of a healthy and functioning democracy; they allow for
transparency and the accountability of those in power.
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the proposed Act is to be the
Constitution Alteration (Right to Free Speech) 2025.
Clause 2: Commencement
2. Clause 2 provides that the Constitution Alteration (Right to Free Speech) 2025
commences on the day the Act receives Royal Assent.
Clause 3: Schedule 1
3. Clause 3 provides that the Constitution is altered 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 alters the table of contents of the Constitution to insert a reference to new
Chapter IIIA.
6. Item 2 inserts a new Chapter IIIA after Chapter III. The new Chapter IIIA is titled
Freedom of Speech.
7. The new Chapter IIIA comprises of a new section 80A which provides that the
Commonwealth or a State must not make any law that limits the freedom of speech,
including freedom of the press and other media.
8. This new section will enshrine a Constitutional protection of freedom of speech in
Australia. Freedom of speech has long been considered a central principle of
Parliamentary democracy and individual liberty.
9. The reference to the press and other media is intended to capture all forms of media,
including individuals. Free media is most important to an open, free, and democratic
society. The reference to press and other media is in no way intended to limit who may
be afforded protection by the new section.
10. Section 80A will give constitutional recognition to freedom of speech in Australia,
removing any ambiguity.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Constitution Alteration (Right to Free Speech) 2025
Overview of the Bill
This Bill is designed to allow electors to enshrine the right to free speech in the Constitution.
Human rights implications
This Bill promotes and engages the freedom of expression recognised in Article 19 of the
International Convention on Civil and Political Rights, of which Australia is a party.
Article 19 states "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."
It is acknowledged that freedom of expression carries with it special responsibilities and may
be restricted on very limited grounds.
Conclusion
The proposed alteration to the Constitution promotes freedom of speech and will provide
protections that Australia has long needed.
This Bill enhances and is compatible with human rights as it does not raise any human rights
issues.
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Senator Ralph Babet