Rex Patrick (SA, Centre Alliance) Share this | Hansard source

I present the explanatory memorandum and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

CONSTITUTION ALTERATION (FREEDOM OF EXPRESSION AND FREEDOM OF THE PRESS) BILL 2019

I am pleased to introduce the Constitution Alteration (Freedom of Expression and Freedom of the Press) 2019.

This Bill is a landmark Bill – it will provide much needed protection of a right that every Australian citizen assumes they have already, a right they regularly rely on.

With the recent world events and events at home, it is obvious that freedom of expression and freedom of the press are under significant challenge – many would say significant threat – and require Constitutional protection.

The recent Australian Federal Police raids on journalists and media organisations provide a salutary warning that freedom of the press, a pillar of our democracy, can never be taken for granted.

Australia lacks, at a national level, entrenched protections of freedom of expression. The only protections in Australia are those found in cases decided by of the High Court of Australia which established that there is an implied freedom of political communication under the Constitution. However, this freedom is not absolute, and is far more restricted than guarantees provided by other jurisdictions.

This alteration to the Constitution will protect freedom of expression along similar lines to the First Amendment to the Constitution of the United States of America which provides that the Congress "shall make no law… abridging the freedom of speech, or of the press."

The Australian Constitution does not contain a bill of rights. However, it does provide some express protection against legislative or executive action by the Commonwealth (though not by the States). Notably, section 116 provides that the Parliament "shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion..."

In a similar way, the proposed explicit protection for freedom of expression would reflect the deep understanding in the Australian community that people must be able express their opinions with confidence and free of repercussions. It would put a constitutional brake on efforts to supress freedom of expression to the detriment of our democratic and open society. The alteration will set a clear benchmark against which current laws of the Commonwealth, States and Territories can be judged.

At international law, freedom of expression is a fundamental human right. Article 19 of the Universal Declaration of Human Rights states that:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Freedom of the press is included in freedom of expression, therefore, it is important that the protection will also extend to the media, delivered in any form, so that the media may continue to contribute to a free and democratic society. The importance of free media inquiry and reporting, including quality investigative journalism, cannot be underestimated for the contribution it has made to an environment of accountability and opportunity for reform. Where serious wrongdoing, in the form of corruption and lack of integrity or an attitude of apathy to corruption, is uncovered, it is important that this can be brought to the public's attention after avenues for holding those accountable have failed. For this reason, the proposed amendment expressly states that the freedom of expression includes the freedom of the press and other media, underscoring the significance of recent actions by government that limit that freedom.

This proposed alteration to the Constitution will extend the protection required to ensure the media can always play its vital role in supporting Australia's democracy.

The proposed alteration to the Constitution includes necessary provision for limitation of freedom of expression when, and only when, such limitation is "reasonable and justifiable" in an open, free and democratic society. It is important that the alteration contains provision for limitation, however any limitation must be consistent with the values and freedoms enjoyed within Australia.

What is "reasonable and justifiable" will be a matter for the Commonwealth, State and Territory legislatures, but will be subject to potential constitutional review by the High Court of Australia.

It is important to also recognise that this proposed alteration will, for the first time, not only incorporate into Australia's Constitution explicit protection for freedom of expression and the freedom of the press, but will also give constitutional recognition and expression to the "open, free and democratic" character of Australian society.

The explicit statement of these fundamental aspects of Australian society and democratic politics in our Constitution is long overdue and the Parliament should pass this Bill and put the proposed alteration to the Australian people for decision.

I commend this Bill to the Senate.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.