Does freedom of speech need constitutional protection?

Professor Dean Jaensch has put forth his case in Adelaide’s The Advertiser, that the Australian Constitution should be amended to include a provision protecting freedom of speech in Australian law. Convinced of the simplicity in the wording in the United States Constitution, Professor Jaensch concludes that, rather than focus on section 18C of the Racial Discrimination Act 1975, parliament should “support a referendum to insert a real freedom of speech clause into the constitution.”

FreedomWatch applauds Professor Jaensch’s sentiment, and his ardent support for freedom of speech in Australia. The IPA’s own Chris Berg has written in support of entrenched rights in the past, indicating a minimalist bill of rights “rather than a mishmash of economic and cultural aspirations” might be desirable. Professor George Williams also supports a bill of rights, noting here that “if we are serious about protecting freedom of speech, it deserves the sort of protection that only the constitution can provide.” While sympathising with these arguments, it is this writers opinion that  it is unwise to entrench such rights into constitutional documents. There are a number of reasons for this.

Firstly, interpretation of these constitutional rights would be quite unpredictable, and may not be consistent. In the United States, amendments to the Constitution inserted ‘due process’ clauses which purport to protect persons from deprivation of life, liberty or property without due process of law. A noble provision indeed, but frequently has created a great deal of confusion. For instance, at one time, these clauses did not render unconstitutional laws which prohibited women being admitted to the Bar, nor laws which prohibited which excluded black Americans from ‘white’ railway carriages. Since then, the US Supreme Court determined that the clauses required the racial de-segregation of schools, and to that end, authorised the involuntary transportation of students (known as “busing”) to new schools which did not necessarily wish to receive them. These due process clauses were also relied upon in the case of Roe v Wade (1973) to invalidate a law which criminalised assisting a woman procuring an abortion. Such a direction would certainly not have been foreseen when the amendments were inserted.

A second important consideration is the deleterious effects such a free speech protection would have on the power of the states, relative to the commonwealth. It would be assumed that section 109 of the Constitution would render unconstitutional any state law which the High Court believed was inconsistent with commonwealth law. Recall the first Mabo case, where the High Court relied upon the Racial Discrimination Act 1975 to invalidate Queensland state law which would have extinguished native title. One can only imagine the broad effect a general principle written into the constitution would have on the powers and rights of the states.

Another problem is the politicisation of the judiciary. Where contentious rights are entrenched in a constitution, it follows then that the government, which appoints judges to the High Court, will make appointments based on their personal views rather than their legal acumen. For example, in an Australia where a free speech protection is entrenched, a government that wished to enact laws similar to section 18C would appoint activist judges who have a leftist view of human rights. The United States is a prime example of this politicisation, where Supreme Court Justices are routinely appointed along party political lines.

This only brushes the surface of the problems associated with entrenching rights into constitutions. Ultimately, the parliament, through the democratic process, should remain responsible for determining the substance of contentious policies. As former Chief Justice of the High Court Sir Harry Gibbs said back in 1996, “Constitutional guarantees may provide some protection to human liberties, but in the end freedom depends on the willingness of a community to defend it.”

For a more comprehensive defence of majoritarian governance, I recommend reading Professor James Allan’s Decline of Democracy.



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