Australia: Freedom of Speech and Insult in the High Court of Australia

The Australian Constitution lacks a comprehensive statement of rights. The few rights which have been judicially recognized by the High Court of Australia have typically been narrowly interpreted. One such right is the freedom of political communication, which is a restricted/limited kind of free speech right. Though the early 1990s witnessed several decisions in which the freedom of speech was protected in fairly expansive ways, the doctrine was revised in 1997 due to growing doubts about its “more adventurous applications” within the Court. In Lange, the affirmation of the doctrine was accompanied by an emphasis on the limits imposed on the right by the text and structure of the Constitution, and the afterlife of Lange until Coleman witnessed the failure of all free speech challenges levelled in the High Court of Australia. In this article, Stone and Evans discuss how the decision in Coleman affirms the survival of the freedom of political communication as well as clarifies several aspects of the doctrine. They highlight that the quashing of Coleman’s conviction is reflective of the rejection of arguments about the legitimacy of the State’s endeavour to mandate civility in political communication. They argue that the Judiciary’s decision reveals a preference for public debate which tolerates insult as well as other forms of uncivil expression, and that such a justification “exposes the fragility of the consensus regarding the legitimacy of the implied freedom established in Lange.”