The law and its administration is subject to open and free criticism

Overview

The rule of law requires open and free criticism of the law and the administration of the law. This principle is underpinned by the concept of freedom of speech, which includes the freedom to express and communicate one’s opinion publicly, freedom of conscience, freedom of belief as well as freedom of expression

Sometimes known as the right to freedom of opinion and expression, people have the right to hold opinions without interference.  This extends to any medium, including written and oral communication, public protest and the media.

In a democracy, where the laws are made and administered on behalf of the people, there must be openness and transparency about their implementation. Freedom of speech, freedom of the press and freedom of assembly and association provide opportunities to hold those in power to account for the decisions they make on behalf of the people. 

It provides an opportunity for civic participation where the people can participate in the creation and refinement of laws that they must subsequently live by.

Open Criticism and Free Speech requires Freedom of the Press

The rule of law requires freedom of speech and freedom of the media. People must be free to comment and assemble without fear and be able to criticise the actions of government.

The role of newspapers and journalists in this process is pivotal. The media remains an effective means of promoting accountability in government, and journalists play an essential role in upholding the rule of law. This requires the media (the newspapers, press, publishers) to be independent of those in Government. It also requires journalists to have protections for their sources of information and from legal action that prevents them from reporting in the public interest. Uniform shield laws for journalist’s sources should be implemented across all Australian jurisdictions and should provide certainty and adequate protection for journalists and their sources.

Australian Constitution and Press Freedom

On 1 January 1901, the Commonwealth of Australia Constitution Act (1901) came into effect. The Australian Constitution contains an underlying assumption that the rule of law should be upheld in Australian society and democracy. It ensures that all individuals, including those in positions of authority, are subject to and governed by the laws of Australia.

The Australian Constitution does not explicitly safeguard freedom of the press or freedom of expression.

However, the High Court has found an implied freedom of political communication within the text. This implied freedom has played a crucial role in safeguarding the press’s ability to report on political and governmental matters, thus enabling the public to make informed decisions in exercising their democratic rights, particularly in the context of electoral participation.

Common law protections of Press Freedom

The common law is the starting point for the protection of rights, as citizens are free to do anything they like unless it is expressly limited by the law.

As per the High Court of Australia, freedom of speech ‘is a common law freedom.’   The High Court held ‘there are many common law rights of free speech, ’ with the common law recognising a ‘negative theory of rights’ where rights are marked out by ‘gaps in the criminal law’. Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1, [145] (Heydon J)

The Courts have also held, however, that freedom of speech is also not absolute and there may be times when it may be restricted.

Press Freedom and the Magna Carta

The laws of England, with legal principles and protections developed over many centuries, starting with the Magna Carta in 1215, The Habeas Corpus Act in 1679 and the Bill of Rights in 1689.

The Magna Carta introduced the concept that all citizens, including the King, are bound by the law.

Although not explicitly stated in the Magna Carta, freedom of the press is a crucial factor in upholding the rule of law. Firstly, pre-publication censorship through press licensing laws restricts the freedom of information before it is even expressed. Under clause 39 where punishment is only for breaches in the law, prepublication censorship limits the ability to receive or impart information before a breach has even occurred and before a law has even been broken.

Secondly, the Magna Carta’s significant legacy includes the power to criticise the King and hold him accountable. Restricting the ability to question those in power would be contrary to the spirit of the Magna Carta, limiting criticisms to only those approved by the King.

Open Criticism and Free Speech requires Academic Freedom

In his paper ‘The Peter Ridd case- a pyrrhic victory for James Cook University’, Chris Merritt writes

“Academic freedom is a category of freedom of speech where the public interest in protecting this right predominates.. it outweighs any assertion that people need to be protected from the risk of professional embarrassment where shoddy work is exposed…

According to Mill’s great essay, On Liberty, whilst a prohibition upon disrespectful and discourteous conduct in intellectual expression might be a “convenient plan for having peace in the intellectual world”, the “price paid for this sort of intellectual pacification, is the sacrifice of the entire moral courage of the human mind.”.

Press Freedom challenged in the early colony

During the 1820’s, the colony of NSW consisted of convicts, ex-convicts, children of convicts, and free settlers. The Sydney Gazette was a newspaper that published favourable articles about the Government. However, other newspapers such as The Australian and Sydney Monitor, advocated for freedom of the press and the right to critique those in power.

In 1827, Governor Darling, displeased with critical articles published by The Australian and Sydney Monitor, sought to impose an annual license fee on newspapers. This fee would grant the Governor the authority to decide which newspapers were permitted to publish and could be utilised to censor any publications that opposed his leadership.

Before the law could be passed, Chief Justice Forbes was required to certify that it was not repugnant to the laws of England. There was a heated dispute between Governor Darling and Chief Justice Forbes regarding the passage of the law and whether it was ‘repugnant to the laws of England.’

Chief Justice Forbes refused to allow the Governor’s proposal to enact legislation that would implement a licensing system that curtailed the freedom of the press.

Forbes wrote his reasons in a letter:

 “By the laws of England… every free man has the right of using the common trade of printing and publishing newspapers; by the proposed bill this right is confined to such persons only as the Governor may deem proper. By the laws of England, the liberty of the press is regarded as a constitutional privilege … every man enjoys the right of being heard before he can be condemned either in his person or property... [by the proposed bill] the Governor, with the advice of the Executive, may revoke the licence granted to any publisher at discretion, and deprive the subject of his trade, without his having the means of knowing what may be the charge against him, who may be his accuser, upon what evidence he is to be tried, for what violation of the law he is condemned. The Governor and Council may be both complainants and judges at the same time, and in their own cause—-that cause one of political opposition to their own measures, and consequently their own interests, of all others the most likely to enter into their feelings and influence their judgment.”

[Historical Records of Australia, I, xiii, p.293-4]

 Forbes’ view would have been derived, in part, from his reading of Blackstone’s Commentaries, which Chief Justice Forbes brought with him to the colony.

The Blackstone Commentaries (Volume 4) stated:

 “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications… Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if (an individual) publishes what is improper, mischievous, or il-legal, he must take the consequence of his own temerity.”

The freedom of the press and freedom of expression, as articulated by Blackstone, are fundamental human rights. Freedom of speech encompasses not only the right to hold an opinion, but to also discuss and express those opinions, and the freedom of belief as well as freedom of conscience. Consequently, freedom of the press should not be subject to prepublication censorship, as this would suppress the voicing and debating of opinions.

Forbes expressed a similar sentiment when he stated: “Every man has the right to be heard before being condemned, whether in his person or property.”

Blackstone also emphasised that freedom of the press is not an absolute right. There are instances when freedom of speech can encroach upon other rights and there should be consequences for such ‘temerity’.

As Forbes contemplated passing press licensing laws, considerations around the suitability of freedom of the press in a settlement established as a convict colony would have been made. This would involve assessing whether both convicts and non-convicts should be entitled to the protections offered by a free press. Additionally, Forbes would have evaluated the necessity of limiting these rights, especially if the colony was in a state of emergency and the overall safety of the community was at stake.

As explained by Sir George Murray, the Secretary of State for the Colonies, on 30 August 1828 in considering Forbes’s decision to refuse the press licence:

 “…of such extreme urgency as to supersede the application of all ordinary principles of law”, and for such emergencies “temporary provision” would have to be made. “But in any ordinary state of society,” he concluded, “the previous condition of obtaining a licence must not be required. ” Cases may arise of “such extreme urgency to supersede the application of all ordinary principles of law” but such emergencies were only to be temporary measures.“

Quote taken from Sir Francis Forbes by CH Currey