Free speech cases

In Lange v Australian Broadcasting Corporation
 and Levy v State of Victoria, the High Court considered the right to free speech under the Australian Constitution.

The cases, heard together, were a defamation claim by David Lange against the ABC, and the prosecution of anti-duck hunting campaigner, Laurie Levy, who breached a Victorian regulation preventing him from entering designated areas during the duck-hunting season.

In defence, both the ABC and Levy relied on the implied right to freedom of speech in the Constitution.

PIAC was permitted to make written submissions, supporting the right to free speech, on behalf of the Media Entertainment & Arts Alliance (MEAA) as a ‘friend of the court’ (amicus curiae).

The High Court confirmed the implied right of free speech in the Constitution, finding that freedom of communication on matters of Government and political affairs is an indispensable part of the system of representative government. The Court qualified this right, holding that it is not absolute but limited to what is necessary for the effective operation of the system of representative and responsible government. The implied right of free speech may therefore be relied upon as a sound defence to a defamation claim if publication was in relation to government and political matters, provided it was made reasonably and with an absence of malice.

The Court also considered the role of ‘friends of the court’. The Chief Justice declined to limit the Court’s discretion or set out criteria upon which amicus interventions would be assessed, other than to say they would be heard when the Court was of the opinion interventions would significantly assist. Justice Kirby was more encouraging, stating that he would have allowed oral submissions from the MEAA and acknowledging that finding the law in any case is a far from mechanical task. It involved the elucidation of complex questions of legal principle and policy, a process often aided and ‘enlivened’ by amicus interventions.

Read the High Court’s decision in Lange v Australian Broadcasting Corporation

Read the High Court’s decision in Levy v State of Victoria

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