Yes and No
Comprehensive rights protections
Australia is unique among liberal western democracies in that it does not have an enumerated Bill of Rights; neither in its Constitution nor as an enacted piece of legislation. With the exception of the ACT and Victoria, the states and territories don't have one either.
Before Federation, the Constitutional Convention considered and rejected (19 votes to 23) including protections similar to those in the US Constitution. It failed largely because it was feared that due process protections would interfere with the racially discriminatory policies against aboriginal Australians and people of Chinese descent which all the colonies enthusiastically pursued. Australia in the late nineteenth and early to mid-twentieth centuries was breathtakingly and unashamedly racist. Today, racism is largely personal rather than institutionalised.
Proposals for a Constitutional Bill of Rights were considered in 1929 and 1959 but neither progressed to a referendum. In 1942, a referendum was held on expanding Federal powers over post-war construction counterbalanced by Constitutional limitation on Parliament regulating freedom of expression and extending freedom of religion to the states: it was rejected at the referendum. A charter of human rights went to referendum in 1988: it was overwhelmingly rejected with no state reaching 30% approval.
Several attempts to legislate a comprehensive Bill of Rights have also failed to go anywhere. However, individual pieces of legislation have created rights in specific areas.
That said, the Constitution gives the following express rights:
- freedom of religion
- freedom against discrimination between the states
- the right ofAustralian Citizens to trial by jury. That said, all judicial systems treat non-citizens the same as citizens but Parliament could legislate to change this.
- the right of free trade among the states
- The right to acquire and hold property
The courts have also found implied rights that are necessary to give effect to the democracy spelled out in the constitution:
- the right to vote, and
- the right of freedom of political communication.
The High Court has also indicated that the classes of implied rights are not necessarily closed.
Australia inherited the common law rights of England and, subject to subsequent statutory and judicial amendments, these are still in force. This means that freedom of expression is the default assumption baring any specific laws proscribing it.
Australia is also a party to seven core international human rights treaties. The right to freedom of opinion and expression is contained in articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR). Also relevant are articles 4 and 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), articles 12 and 13 of the Convention on the Rights of the Child (CRC), and article 21 of the Convention on the Rights of Persons with Disabilities (CRPD).
In addition, specific legislation such as the Sex Discrimination Act and the Racial Discrimination Act provide both rights and restrictions on free speech within their particular sphere. Most such legislation is replicated at a state and territory level.
Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the right to freedom of opinion and expression 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'.
[U]nder article 19(3) freedom of expression may be limited as provided for by law and when necessary to protect the rights or reputations of others, national security, public order, or public health or morals. Limitations must be prescribed by legislation necessary to achieve the desired purpose and proportionate to the need on which the limitation is predicated.