The freedom of speech is rightly referred to as the most vital freedom because of its role in upholding basic human rights. Indeed, without the freedom of speech, other freedoms cannot survive. It is not surprising, therefore that the freedom of speech is directly linked to many other important freedoms that reflect the underlying factors of being human including the freedom of conscience and thought. Australia is a strong advocate of free speech which is protected by the Constitution in relation to public and political discussions (Buckingham 2016). Indeed, various cases have been determined to the benefit of the accused based on the need to protect the basic rights of free speech. However, The Australian Constitution appreciates that free speech is not absolute and does not therefore protect the free speech in cases where political issues are involved. In taking such a stand, Australia seems to be guided by the very notion that an absolute right to free speech implies a right to offend thus infringing on the rights of others.

The right to freedom of speech in Australia is expressly limited to political discussions and doe4s not extend to private discussions. In this regard, the publication of material in the media is only guaranteed of free speech if it involves public discussions such as the performance of public officials. In Lange v. ABC, the High Court held that freedom of speech is limited to speech necessary for the effective operation of the government as held by the Constitution. One may not therefore invoke the right to free speech in publishing defamatory accusations against a private citizen (Gelber 2008). Perhaps one of the industries that rely on the right to free speech is the press and the media because of their role in providing information to the public. However, this role must not extend to the defamation of private individuals in an attempt to avail information to the general public. The Australian Constitution does not protect the members of the press from private court cases following defamatory publications on private individuals. For instance, accusations against an official in a privately held organization may warrant defamatory court cases that are not protected by the Constitution.

Although the media, and indeed everyone, is entitled to free speech, it is in general interest that it should not offend people of a particular inclination. It would be wrong for media publications to offend a segment of the population and justify the same through their right to free speech. The media is well known for inciting provocative messages in a bid to spur debate on a controversial topic among the population. Normally, these provocations have the tendency of infringing on other people’s rights. Countless times, members of the media have faced defamation cases in court for their role in inflicting harm and danger to private citizens through their publications. Indeed, media publications may incite the public against a private citizen thus resulting to a risk on their lives (Stone and Evans 2006). Examples in the past have confirmed that the media is bound to exploit the right to free speech in curtailing other freedoms from the people. The media may for instance defame other people in their pursuit of information thus infringing on people’s rights. Still, the media may misinterpret the right to free speech as a license to intimidate a segment of the population through perceived negative characteristics.

It is very easy to defend the media in cases of defamation arguing that its right to free speech is under attack. However, media personalities are not saints in the conduct of their duties and are therefore prone to make mistakes. For instance, reporters are likely to misuse their right to free speech in pursuing stories that may incite hatred against a specific community (Berman 2015). Normally, minority communities suffer the brunt of this misgiving through perceived negative traits and qualities. In other instances, the media may wrongly interpret a story to insinuate that some people should be exposed to harm, risk or injury. A case in point is the negative depiction of members of minority religious groupings based on perceived advocacy of terrorism. The right to free speech is not an unconditional vehicle for the media to use in causing deception or defrauding the general public. In fact, such misinterpretations of the right can only amount to an infringement of the people’s right to information.

In a bid to protect citizens from offensive media publications, Australia has specific laws that guard against misuse of the right to free speech. Both the Racial Discrimination Act and the Defamation Act protect individuals from wrongful application of the right to free speech. However, these pieces of legislation do not only protect the citizens from the media but extend to protection of offence across the entire population. In the Australian Criminal Code, it is illegal to advocate for terrorism through such acts that support or encourage terrorist activities. These provisions are contained in section 80.2C of the Criminal Code and are seen as attempts to protect the citizens from offensive speech freedom (Stone and Evans 2006). Consequently, any speech that supports terrorist activities is deemed as an affront ob the basic rights of citizens as it encourages the infliction of harm and injury on the population. Similarly, media personalities inclined towards the support of terrorist groups face the wrath of the law through prolonged jail terms. While this piece of legislation has been termed as an affront on free speech, it sure discourages people from supporting the killing of populations through terrorist activities.

The Racial Discrimination Act of 1975 is perhaps the most applied in balancing free speech with protection from offence. Indeed, the Act states that all dissemination of ideas that are based on the superiority of race shall be punishable by law (McNamara 1995). In particular, the Act prohibits offensive behavior that is based on color, ethnic origin or race through section 18C. In this regard, the Act outlaws the conduction of an act that is likely to insult, humiliate, intimidate or offend another person because of their national origin or race. However, the Act further gives exception to the point that disseminations are considered unlawful I cases where they were said reasonably and in good faith. Although only a few cases have been determined under the Act, their pronunciations have a huge impact on the right to free speech.

In the Bolt Case (Eatock vs Bolt), the Act was applied in determining that a publication was racially offensive and did not qualify as a right to free speech. Ms Eatock had filed a suit against Mr. Bolt of the Herald Sun complaining of the offensive nature of the articles towards the Aboriginal people. In the articles, Bolt had asserted that the Aboriginal people pretended to be aboriginal so that they could gain welfare benefits. The Federal Court ruled that the publications were likely to offend, insult, intimidate and humiliate ordinary members of the Aboriginal group. In addition, the publication was not exempt because it contained errors of fact and provocative and inflammatory language towards the Aboriginal group. The Court held that Mr. Bolt was guilty of an offence under the Racial Discrimination Act because of the massive distortion of truth in the articles. Accordingly, the accused had not acted in good faith or reasonably in publishing the two articles and accusing the Aboriginals of pretense to gain welfare benefits.

The Defamation Act is also widely applied in balancing the right of free speech and protection from offence within Australia. The Act provides that publications that is likely to injure the reputations of its subject or his profession constitutes an act of defamation. It further stipulates that acts of defamation may be recorded as spoken or written words including signals, gestures and visible representations (Burgess 2013). The Act is an intersection of free speech and the protection of reputational and personal freedom. In 2014, the Q&A program held under ABC TV apologized to Andrew Bolt for possibly defamatory remarks. The program had claimed that Bolt racially abused an Aboriginal woman and insisted that he was a fool who believed in race theories. The apology followed public claims by Andrew Bolt that the claims were false and defamatory. This action shows the extent to which the Defamation Act is applied in Australia and the wide consequences of conviction. A public claim of possible defamatory remarks is enough to warrant an apology from a TV program because of fear of being sued.

The Defamation Act has been applied in several instances to determine cases of speech. For instance, Andrew Bolt was sued by Victorian magistrate Jelena Popovic for making defamatory remarks against her. In the case, the magistrate was awarded more than $245,000 following claims that she had freed drug traffickers and then hugged them upon release (Burgess 2013). The claims insinuated that the magistrate had hugged the two accused after she had wrongly freed them. Although Bolt was entitled to free speech, his remarks were interpreted as having a negative implication on the person and profession of the magistrate. By making the ruling, the court upheld the protection of citizens from offence thus striking a balance with the right to free speech.

Bibliography

Berman, Alan. 2015. “Human Rights Law and Racial Hate Speech Regulation in Australia: Reform and Replace.” Ga. J. Int’l & Comp. L, 44 : 45.

Buckingham, J. 2016. “Current trends surrounding the constitutional freedom of political communication.” Bond University Student Law Review 4(1): 2.

Burgess, C. 2013.”Criminal defamation in Australia:Time to go or stay.” Murdoch UL Rev., 20: 1.

Gelber, K. 2008. “What is political speech? Beyond content and conceptual inconstancy. In APSA 2008: Australian Political Science Association 2008 Conference. Labor and social inclusion: A new direction for social policy?. School of Political Science and International Relations, The University of Queensland.”

McNamara, L. 1995. “The merits of racial hatred laws: Beyond free speech.” Griffith L. Rev, 4: 29.

Stone and Evans, Simon. 2006. “Australia: Freedom of speech and insult in the High Court of Australia.” International Journal of Constitutional Law, 4(4): 677-688.

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