Exit International is a political lobby group. Sure, its subject matter is controversial; namely euthanasia law reform, but it is clearly within the realm of political advocacy. One would have thought therefore that Free TV Australia, the commercial network’s self-regulating instrument, would understand that the High Court since 1992 has said that there is in the Australian Constitution, an implied freedom of political speech.
Therefore to deny Exit International the opportunity to communicate its message through the medium of a television advertisement is a clear undermining by Free TV Australia of the spirit of this right.
The High Court’s jurisprudence in this area is complex and has been the subject of several decisions since 1992 involving well-known political characters such as former federal Labor MP Andrew Theophanous, and a leader of the Monash University anti-Vietnam war movement Albert Langer. Essentially, however, it amounts to this. The Constitution limits and constrains the Commonwealth Parliament from passing laws and regulations that would have the effect of restricting political communication. Political communication in this sense means verbal and non-verbal means of discussing matters relevant to how people choose to vote.
There is absolutely no doubt that the intent of the Exit International advertising campaign is a form of political communication and as such it deserves to respect by those who mediate political discussion in our society. This not only means the legislature, but also the media and the organisations that regulate it, such as Free TV Australia.
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That Free TV Australia has been allowed to act as it has in this case points to the need for greater clarity about the scope of the protection of freedom of speech in Australia. Free TV Australia is not a government body and acting under its own rules, and therefore the issue of the lack of constitutionality of its rules is not one that is able to be readily tested by the courts.
But if Australia were to include an explicit freedom of speech right in its Constitution or in a human rights charter, as all other democracies now do, then Exit International would have a strong case to mount against a decision to pull its advertisement on the grounds that it promotes suicide.
A clear constitutional right to freedom of speech, as opposed to the more restricted and ambiguous right that exists courtesy of the High Court, would not allow for a free for all on the part of advocates to show and say anything they wanted. But it would mean that when governments and the media wanted to ban advertisements or other forms of content, particularly on contentious social and moral issues, they would have be forced to justify their decision and it could be tested in the courts.
If such a regime existed in Australia at the moment then it is doubtful Free TV Australia would have acted as it did last night.
*Greg Barns is a barrister and a director of the Australian Lawyers Alliance. He has provided pro bono legal advice in the past to Exit International and other right-to-die groups.