IS THERE A COMMON LAW 'RIGHT' TO FREEDOM OF SPEECH?

• Date: 01 August 2019
• Author: Meagher, Dan

Contents I Introduction II What Is the Nature of a 'Right' to Freedom of Speech? III The Doctrinal Evolution of Freedom of Speech at Common Law A United Kingdom B Australia 1 Constitutional Law 2 Common Law Principle of Legality IV The Equivalence Proposition V The Inexorability of the Equivalence Proposition? VI Is There an Alternative at Common Law to Adopting the Equivalence Proposition (and Proportionality)? VII Conclusion I Introduction

It may seem an odd, if not anachronistic, thing to ask whether there is a 'right' to freedom of speech at common law. Surely in our age of statutes and human rights the answer is an unqualified 'yes'. With the continued expansion in the size and complexity of the statute book, our judges are more alive than ever to the threat this poses to fundamental rights, including free speech. (1) The pressing nature of that threat was outlined in painstaking detail in the recent 600-page report of the Australian Law Reform Commission on Traditional Rights and Freedoms: Encroachments by Commonwealth Laws. (2) Indeed, a chapter of nearly 50 pages was devoted to freedom of speech. (3) Its opening summary noted that, amongst other things, the chapter 'discusses the source and rationale of the common law right of freedom of speech'. (4) And significantly, the interpretive approaches of our courts was said by then Chief Justice Spigelman to have established a 'common law bill of rights' which included freedom of speech. (5)

These contemporary observations seem to assume, if not require, the existence of a common law 'right' to freedom of speech. Yet the orthodox view at common law is that freedom of speech is not a 'right' but a residual liberty--that in the event of government or legislative action infringing the freedom of speech of an individual, that breach is not directly actionable. Part II will outline this position and explore the nature of a common law 'right' to freedom of speech.

There are, however, contemporary developments in Australia and throughout the common law world which have put pressure on the common law's residual conception of freedom of speech. These developments will be the focus of Part III. In Australia, for example, it will be argued that the recognition of political speech as a constitutional principle and the emergence of the principle of legality have driven the doctrinal evolution of freedom of speech at common law.

The equivalence proposition is considered in Part IV. This is where judges (in both Australia and the United Kingdom) have asserted that the common law provides equivalent protection to freedom of speech as the relevant articles in international human rights treaties such as the International Covenant on Civil and Political Rights ('ICCPR') (6) and the European Convention on Human Rights ('ECHR'). (7) That important doctrinal and methodological claim will be unpacked and critiqued. Part V will suggest that at some point the High Court may well adopt the equivalence proposition. Whilst such a development would be problematic in my view, the doctrinal and normative forces driving it may well be inexorable.

Finally, Part VI considers whether there is an alternative at common law to recognising the equivalence proposition (and proportionality) in order to outline the protection it provides to freedom of speech. It is suggested that an opportunity exists for the High Court to develop a distinctive, indigenous conception of freedom of speech at common law.

II What Is the Nature of a 'Right' to Freedom of Speech?

Sir Gerard Brennan made the following observation in his foreword to Michael Chesterman's Freedom of Speech in Australian Law: A Delicate Plant, (8) which was published in 2000:

There is no common law right to free speech which trumps other legal rights but there is a general freedom of speech because of the common law principle that 'everybody is free to do anything, subject only to the provisions of the law'. The freedom recognized by the common law is confined only by limitations imposed by statute or by other rules of the common law that seek to protect the common good or those personal interests to which the common law accords priority. (9) This posits freedom of speech not as a 'right' but as one aspect of a residual liberty which exists once the scope of the general law and statute is ascertained. And that is precisely what the unanimous High Court appeared to have in mind in Lange v Australian Broadcasting Corporation ('Lange'), (10) which is the source of the internal quote in Brennan's statement above. The full quote is worth outlining as it confirms the Brennan account that '[t]here is no common law right to free speech'; and it was made in a decision where the High Court emphatically confirmed the existence of a constitutional freedom of political speech:

Under a legal system based on the common law, 'everybody is free to do anything, subject only to the provisions of the law, so that one proceeds 'upon an assumption of freedom of speech' and turns to the law 'to discover the established exceptions to it. (11) This conception of speech as residual liberty is said to arise '[u]nder a legal system based on the common law'. That is important. It is, for example, consistent with Dicey's account of the English Constitution and the status or location of freedom of speech within it, of which he tartly observed: 'Freedom of discussion is ... in England little else than the right to write or say anything which a jury, consisting of twelve shopkeepers, think it expedient should be said or written'. (12) It also accords with the notion that a legal 'right' in a common law system is something which an individual possesses and which may be vindicated or protected by the provision of a remedy in the event of infringement. (13) For example, at common law a person has a 'right' to exclude others from their property which, in the event of breach, may be vindicated by an action in tort for trespass. (14) And personal liberty is a common law 'right' the infringement of which may be remedied by the writ of habeas corpus or found an action in false imprisonment. (15) In this regard, there is no 'right' to freedom of speech at common law. (16)

In Australia, the closest one gets to such a position is an implied freedom case where there is coextensive protection of political speech at common law and under the Constitution. (17) However, that 'right' is not a personal one and it is not vindicated by an action at common law. It is rather a freedom to communicate on political matters which is protected by limiting legislative and executive power to the extent necessary to facilitate our constitutional system of representative and responsible government. (18) Indeed, such is the willingness of the High Court to emphasise the non-personal nature of the right under implied freedom, that the first part of the relevant test of validity was stated and explained in the following terms in Unions NSW v New South Wales: (19)

The first question posed by Lange is whether [the law] effectively burdens the freedom of political communication either in its terms, operation or effect. It requires consideration as to how the section [in question] affects the freedom generally ... In addressing this question, it is important to bear in mind that what the Constitution protects is not a personal right ... The freedom is to be understood as addressed to legislative power, not rights, and as effecting a restriction on that power. Thus the question is not whether a person is limited in the way that he or she can express himself or herself, although identification of that limiting effect may be necessary to an understanding of the operation of a statutory provision upon the freedom more generally. The central question is: how does the impugned law affect the freedom? (20) There is some awkwardness--if not abstraction--with the italicised proposition above. Yet it is said to follow from the correctness of Brennan J's observation in Australian Capital Television Pty Ltd v Commonwealth ('ACTV') (21) that 'the freedom cannot be understood as a personal right the scope of which must be ascertained in order to discover what is left for legislative regulation'. (22) Even so, this proposition is of little practical significance for the operation of the implied freedom, as courts now consider any infringement of political communication to meet the 'effective burden' threshold. (23) But Brennan J's characterisation of what would be judicially required if the implied freedom was a personal right is, arguably, of relevance to its status at common law, as will be detailed below. (24)

In any event, it seems clear enough that in Australia freedom of speech is not a common law 'right, in the sense of being held by an individual, which is directly actionable in the courts, and enforced through the provision of a remedy in the event of its breach. (25) Yet as John J Doyle QC observed in a valuable paper on 'Common Law Rights and Democratic Rights', '[f]or a term so frequently used, the meaning of "common law rights" is surprisingly unclear. (26) And he rightly notes the different ways in which the descriptor of 'rights' has come to be used in common law discourse. Relevantly, 'a reference to common law rights is a reference to a very loose legal category. It ranges over enforceable rights, residual freedoms or immunities, privileges and principles which underlie a particular area of the law.' (27) For example, the right to a fair trial is in fact 'a principle which may manifest itself in a range of [common law] rules'. (28) And Doyle suggests that '[i]t makes sense to talk of a right to personal integrity, because the law of torts confers remedies for interference with that right'. (29) But importantly, he adds the taxonomic qualification that '[a]s long as we recognise the loose sense in which "right" is then used, no harm is done'. (30) As for freedom of speech:

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