Submissions to the Australian government's current consultation on freedom of expression

The Senate Standing Committee on Legal and Constitutional Affairs has now published the submissions it has received on a proposed constitutional amendment to protect freedom of expression in Australia. These submissions include my own, which I earlier published on this blog.

This exercise involves consultation with interested parties over a specific proposal originally introduced as a Bill in 2019. The views of the responding individuals and organizations vary considerably. However, I was pleased to see some other parties making points similar to mine about: 1. the need to protect the use by everyone of communication technologies to receive and impart ideas and opinions (or some similar formulation), and not just to protect large news and media corporations and their employees; and 2. the need for governments to meet a stronger test than provided in the Bill if they are to justify encroachments on freedom of expression, i.e. the formula "reasonable and justifiable" is too weak, and could permit the constitutionality of too many laws that restrict the freedom.

On the second point, there seems to be almost a consensus that some tougher test is required to justify government encroachments on freedom of expression, though parties making this point have offered a variety of formulas to toughen up the requirement. The most popular view seems to be that the word "necessary" - or even the words "demonstrably necessary" - should be included in some way. My own proposal was that for most laws, outside of protecting individual reputation and privacy, the test should be the very strong one of "demonstrably necessary for the viability of an open, free and democratic society."

The words "for the viability of" are important here, as they make clear that I don't merely mean necessary to achieve some governmental purpose, but necessary for the viability of the society itself. Some laws would doubtless meet that test, such as laws against leaking military plans in advance, or against disseminating means of easily producing weapons of mass destruction. A law against genocidal hate propaganda would, I think, also survive, as campaigns using such propaganda can notoriously rip a society apart. But many existing laws would be in deep trouble under my version of the proposed new section of the Australian Constitution, which, in my opinion, they should be.