Freedom of Speech in Australian Law: A Delicate Plant

Article excerpt

Freedom of Speech in Australian Law:A Delicate Plant. Michael Chesterman. Burlington, VT: Ashgate, 2000. 360 pp. $99.95 hbk.

Michael Chesterman has written an excellent and accessible introduction to freedom of expression in Australia, with an emphasis on free-speech issues involving the media.

Chesterman, a law professor at the University of New South Wales and a former law reform commissioner in the areas of defamation and contempt, states from the outset that he has not written a legal treatise. His intent, and his accomplishment, is to address cogently several specific controversies in Australian free-speech law.

After introducing developments in the Australian law from the past ten years, Chesterman organizes the book in chapters addressing issues such as libel as a political-- speech problem, libel reform, media coverage of criminal trials, and hate speech or "racial vilification," as the Australian law calls it. This issues-oriented approach makes the book very useful to scholars interested in comparative legal studies.

This book will be helpful to researchers in international media law and international communications and is appropriate for a graduate or advanced undergraduate course in international or comparative media law.

A new era of free-speech law began in Australia in 1991 when the government ratified the optional protocol to the United Nations' International Covenant on Civil and Political Rights. That action created an international legal obligation for Australia to protect freedom of expression for Australians.

The International Covenant, however, did not create enforceable rights for Australians, absent the passage of an implementing statute. In 1992 that question was suddenly answered when the Australian High Court ruled for the first time that the Commonwealth Constitution contained an "implied principle of freedom of political communication."

In the first chapter, the book carefully analyzes seven key free-expression cases decided since 1992, many involving media parties, that create this new body of constitutional law. The introduction to these foundational cases is appropriately thorough for the non-Australian scholar, and the chapter gives the reader a sufficient base in Australian law to feel informed for the discussions of Australian constitutional law that follow in each of the chapters.

The "delicate plant" of the title is a double entendre. It is a botanical allusion, implying that the recent judicial recognition of broader free-speech rights "is not so robust or so strongly established that it could never wither away." But it is also an allusion to corrupt law enforcement: "Like incriminating evidence being 'found' in the home of a suspect by a dishonest police officer, the implied freedom (of speech) was, a hostile critic might say, delicately 'planted."'

Delicate or not, the implied freedom of expression, as Chesterman analyzes it, has grown stronger in Australian constitutional law over the past ten years, despite some early advances and retreats. …