Most Australians believe in freedom of speech; indeed we accept it as a given fact of life. We consider ourselves free to express our views and opinions, and we accept that others, including a free press, are free to do likewise.
However free speech can't be taken for granted.
Australia's draconian defamation laws have long placed significant limits on media reporting of public and private scandals, especially when the people involved are powerful and have deep pockets to fund litigation.
Over the past two decades a range of national security laws have further encroached on the ability of journalists to do their jobs. Government surveillance of both public and private communications has greatly expanded. Social media giants have also moved to increase monitoring and policing of what is said on their platforms.
It has become all too apparent that free speech is not guaranteed, rather it is a discretionary gift of governments, parliaments and large corporations.
There was a very serious legal development last month which received little attention in a media cycle dominated by COVID-19.
In a judgement of the High Court of Australia, Justice Simon Steward, appointed to the bench only seven months ago, made some very significant statements about what the court has previously endorsed as the implied freedom of political communication, something previously seen as a consequence of the democratic character of Australia's Constitution.
Justice Steward observed that "... for my part, and with the greatest of respect, it is arguable that the implied freedom [of speech] does not exist".
The judge went on to say, "The current division of opinion in this court may, in my view, justify a reconsideration, with leave if necessary, of the existence of the implied freedom."
To be clear, Justice Steward is not suggesting freedom of speech, or the narrower right of political communication, is not important, just that it has no protection under our Constitution.
Although this is not yet the majority opinion of the High Court, the judge's opinion has very clearly underlined the fact that freedom of speech is not guaranteed.
Indeed as the distinguished constitutional scholar Professor George Williams noted last week "Australia stands alone amongst democracies in lacking solid legal and constitutional protection for freedom of speech ... We are unique in being the only democracy that fails to give national legal protection to this fundamental right. ... There is nothing admirable about Australia having the weakest protection for speech and press freedom in the democratic world."
In recent years the federal Parliament has conducted two inquiries relating to press freedom. The Parliamentary Joint Committee on Intelligence and Security recommended some narrowly cast measures to provide journalists with very limited protection from surveillance and to require greater accountability from intelligence agencies that investigate the media and journalist's confidential sources.
A more wide-ranging Senate Committee inquiry has also made recommendations to improve government transparency, wind back government secrecy laws, strengthen public interest journalism and better protect whistleblowers.
These measures are worthwhile, but at the end of the day they rest on the preparedness of the government of the day and the majority parties in the Parliament to respect press freedom and freedom of expression.
What governments give, they may also take away. As Professor Williams points out, "Many of our largest free speech problems emanate from parliament itself, including laws that permit the jailing of journalists for reporting on matters of public interest."
It was with this in mind that in 2019 I introduced a "Constitution Alteration (Freedom of Expression and Freedom of the Press)" Bill into the Senate to address the lack of protection in our Constitution for the rights of freedom of expression and a free press.
This proposed alteration to the Constitution would protect free speech along similar lines to the First Amendment to the Constitution of the United States of America.
Such an amendment would put a constitutional brake on efforts to supress freedom of expression to the detriment of our democratic and open society. It would set a clear benchmark against which current laws of the Commonwealth, states and territories can be judged.
Freedom of the press is explicitly covered by the proposed amendment.
The importance of free media inquiry and reporting, including quality investigative journalism, cannot be underestimated for the contribution it makes to democratic accountability.
The proposed Constitutional alteration also includes necessary provisions for limitation of freedom of expression when, and only when, such limitation is "reasonable and justifiable" in an open, free and democratic society.
What is "reasonable and justifiable" would be subject to potential constitutional review by the High Court.
Such a Constitutional amendment would also, for the first time, give constitutional recognition and expression to the "open, free and democratic" character of Australian society.
After last month's High Court judgment, I referred my proposed law to the Senate Legal and Constitutional References Committee for an inquiry and report by the end of this year.
That inquiry should allow the full range of legal and constitutional experts, media organisations, journalists, free speech advocates, government agencies, and most importantly ordinary Australian citizens to express their views on the protections requires to safeguard what is a fundamental right.
It will be interesting to see what stance the Coalition government and the Labor Opposition will take on this proposal. They often talk about the importance of free speech, but are they prepared to support a constitutional safeguard? We shall see.
- Rex Patrick is an independent Senator for South Australia.
