• Almost 500 government secrecy
provisions, including general secrecy
offences.35
• Immigration laws including mandatory
immigration detention,36 and the
cancellation of visas and mandatory
detention on character grounds.37
• COVID-19 involved a vast expansion of
executive power via legislation such as
the Biosecurity Act 2015 (Cth).38 Under
Freedom of expression
Since 2001 there have been concerning steps
taken to limit freedom of expression in Australia.
In 2015, the Australian Law Reform Commission
identified numerous laws interfering with
freedom of speech, many of which related to
terrorism and national security offences.40
A notable example occurred in 2019 when the
Australian Federal Police raided the homes of
two journalists. These raids were conducted
on the basis of broad Crimes Act provisions
protecting sensitive information. The information
in question related to leaked revelations of
alleged misconduct of Australian soldiers;
and plans to enable the Australian Signals
Directorate to covertly monitor Australian
citizens.41
The Human Rights Watch’s World Report
2020 identified that ‘freedom of expression
[has] come under unprecedented pressure’
in Australia, including through ‘overly broad
national security laws [that] are open to
misuse’.42 In 2019, the CIVICUS monitor
(a global civil society democracy monitor) also
downgraded Australia’s democracy from open
to narrow, citing the Australian Federal Police’s
raid on the home of a journalist, among other
free speech-related indicators.43
s 477(1), the federal Health Minister ‘may
determine any requirement that he or
she is satisfied is necessary to prevent
or control’ the emergence or spread of
disease listed under the Act. The former
Health Minister used this power for a
wide range of purposes, including to
impose travel bans, impose emergency
requirements for remote communities
and prohibit cruise ships from entering
Australia.39
The existence of a Human Rights Act would be
key to preventing free speech encroachments.
The case of Comcare v Banerji44 addressed
the decision to fire an Australian Public
Service employee for comments made via an
anonymous Twitter account that were critical of
the immigration policies of both major parties,
on the grounds of speech restrictions in the APS
Code of Conduct. The High Court unanimously
found that the termination of a public servant’s
employment did not contravene the implied
freedom of political communication right in
the Constitution. The Commission intervened
in this case and pointed to caselaw from the
United States that recognised the specialised
knowledge of public servants and the value
of the public being allowed to hear what they
have to say.45 Justice Edelman referred to those
cases and said that Australian restrictions on
the speech of public servants ‘would be struck
down as unconstitutional in a heartbeat’ in the
United States. Justice Edelman also recognised
that the APS Code of Conduct ‘casts a powerful
chill over political communication’.46 However, in
the absence of stronger constitutional or other
legislative protections, the wide laws limiting the
free speech of public servants in Australia were
upheld.
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