Background
Australia is commonly described as a free, open, and liberal democracy. In everyday life, Australians generally speak, criticise, and disagree without overt fear of repression. This lived experience has created a widespread assumption that freedom of speech is secure.
Structurally, however, that assumption is fragile.
Australia does not have an explicit constitutional protection for freedom of speech. Unlike many comparable democracies, freedom of expression is not enshrined as a foundational civic right. Instead, it rests on parliamentary discretion and an implied freedom of political communication recognised by the High Court.
That implied freedom is not a personal right. It exists only to ensure the functioning of representative government. Speech is protected insofar as it serves the political system, not because citizens are inherently entitled to express themselves freely.
This absence has rarely been discussed seriously, precisely because it has not yet been felt sharply. But constitutional gaps tend to matter most not in calm times, but under pressure.
On offence, harm and civilisational consequence
It must be stated clearly at the outset. Freedom of speech is not comfortable. Words can offend. Words can provoke. Words can hurt. No serious thinker has ever denied this.
But the civilisational cost of silencing people is vastly greater than the discomfort of hearing views we dislike.
There is a profound difference between speech and action. Freedom of speech does not mean freedom of action. It does not excuse violence, coercion, or harm. Those belong firmly within the domain of law enforcement and the legal system.
What must be resisted is the growing tendency to treat ideas, opinions, and speech itself as if they were acts of violence. Once that line is crossed, society enters dangerous territory.
No authority, no matter how well intentioned, has ever succeeded in erasing ideas by force, law, or moral decree. Ideas cannot be fought with swords or statutes. They can only be confronted through argument, debate, exposure, and collective reasoning.
History is unequivocal on this point.
When speech is suppressed, ideas do not disappear. They retreat, distort, and radicalise. They return more extreme, less examined, and far harder to confront.
A healthy society does not rely on the state to silence speech. It relies on the sanity, judgment, and common sense of its people. Groups are free to express views, even misguided ones, and society responds by pushing back through reason, criticism, ridicule, and moral clarity. This is how social immunity works.
The role of the police and the courts begins only when speech escalates into action, intimidation, or violence. That boundary matters.
What should concern us deeply is the rise of moral policing. This represents a sharp departure from Western intellectual and ethical achievement. Once the state appoints itself arbiter of acceptable thought, the question inevitably follows. Who decides what counts as hate? Who decides which ideas are beyond the pale?
History shows how quickly that power expands. Criticism of government becomes framed as dangerous. Dissent becomes suspect. Ordinary disagreement is reclassified as harm.
This is not hypothetical. It is a pattern repeatedly observed in authoritarian and totalitarian regimes.
Western civilisation learned this lesson at enormous cost. Thinkers across generations warned us. George Orwell showed how language control precedes tyranny. Jean Paul Sartre and Simone de Beauvoir warned against ideological conformity masquerading as moral virtue. Heidegger examined how thoughtlessness enables domination. Foucault exposed how power cloaks itself in claims of care. Kierkegaard warned of the crowd’s tyranny over the individual. Noam Chomsky repeatedly argued that free expression matters most precisely when it protects unpopular speech.
The West did not resist totalitarian ideologies merely as an economic system. It resisted it as a totalising ideology that crushed dissent, controlled thought, and subordinated truth to power. Millions of lives were lost defending the principle that ideas must be contested, not enforced.
Freedom of speech is not a minor procedural detail. It is a civilisational achievement. Treating it lightly, or trading it away in the name of comfort or control, is not progress. It is regression.
This does not mean hateful speech is not real or harmful. It is. But it is not simple, and it cannot be addressed through reductionist solutions that collapse speech into violence. That path leads not to safety, but to intellectual and moral decay.
If we forget this, we do not merely lose a right. We lose the conditions that allow a free society to remain free.
Introduction
That structural absence was recently stated plainly by the Premier of New South Wales, Chris Minns. In response to questions about speech laws, he said, “I don’t apologise for the fact that we don’t have the same free speech laws that they have in the United States. It’s clear that we don’t.”
The remark is notable not for its tone, but for its clarity. A senior elected leader openly acknowledged that Australians do not have constitutional freedom of speech, and that this is not seen as something requiring apology or repair.
Perhaps this should serve as a useful reminder. If the absence of constitutional free speech can be stated so matter-of-factly, then it is reasonable for Australians to ask whether this aligns with the dignity, responsibility, and trust we expect in a democratic society.
If freedom of speech is foundational to civic life, then relying on implication and goodwill may no longer be sufficient.
Comparative context
Constitutional protection of freedom of speech is often portrayed as an American peculiarity. This is misleading.
Across liberal democracies, there is broad recognition that freedom of expression is too foundational to be left entirely to ordinary legislation or institutional restraint. Different countries have addressed this in different ways, reflecting their own histories and constitutional traditions.
Some, such as the United States, Germany, Japan, India, and South Africa, have explicit constitutional guarantees of freedom of expression. Others, such as Canada and New Zealand, protect free expression through rights charters or bill of rights frameworks that, while not identical to constitutional entrenchment, are treated as foundational to democratic life and judicial reasoning.
These approaches vary in form and scope. What unites them is not uniformity, but seriousness. Each reflects an understanding that speech must be structurally protected, not merely tolerated.
Australia is unusual in this respect. Here, freedom of speech rests largely on parliamentary restraint and an implied freedom inferred by the courts for limited political purposes. Protection depends less on principle and more on continued institutional self-limitation.
This is not a call for Australia to copy any foreign model. It is a call for Australia to articulate its own. A mature democracy should aspire to the strongest possible protection of freedom of speech as a civic right, even while acknowledging the need for carefully defined limits on action and harm.
For a society that values responsibility, dignity, and trust in its citizens, settling for minimal or implied protection is an unusually modest ambition.
What Australians actually have instead
Australia’s protection of speech rests primarily on what is known as the implied freedom of political communication.
This freedom is limited in scope and intent. It is not a personal right held by citizens. It does not protect speech broadly across cultural, moral, scientific, or social life. Its sole purpose is to ensure that voters can communicate about political matters so representative government can function.
As a result, speech is protected only conditionally. Laws that restrict expression may stand so long as they are judged to be reasonable and proportionate to a legitimate purpose.
In practical terms, this means Australians are free to speak until speech becomes inconvenient, destabilising, or misaligned with regulatory objectives. Protection depends less on principle and more on context.
That is not freedom of speech as a civic right. It is permission shaped by institutional priorities.
Why this matters now
For a long time, this constitutional gap appeared harmless. Speech felt broadly free, and restraint was assumed.
That context has changed.
In recent years, speech has increasingly been framed as a source of harm to be managed, a threat to cohesion to be regulated, or a risk requiring intervention. The language used is measured and often well-intentioned, but the pattern is consistent.
Restrictions accumulate quietly. Uncertainty grows. People begin to weigh not only what they think, but whether speaking is worth the potential cost.
When citizens self-censor out of caution rather than conviction, something essential weakens. Public trust erodes, debate narrows, and disagreement becomes harder rather than healthier.
This is precisely the moment when relying on implication and goodwill becomes most fragile.
Freedom of Speech Through the Lens of Leadership and Being
To understand why freedom of speech matters at the deepest level, it helps to connect this question with the archetypes of Leader, Crowd, and Elite that I explored in my earlier essay, The Silent Weight of Leadership.
In that piece, I described the Crowd as orientated toward safety, conformity, and avoidance of responsibility. Under this posture, speech tends to become cautious, uniform, and self-limiting. People do not speak because they are insecure of response or eager to preserve comfort. In such a climate, expression is conditioned by fear rather than guided by inquiry.
The Elite is oriented toward maintaining control. When discourse becomes a tool of control rather than a field of engagement, speech is managed rather than respected. Narratives become scripts. Dissenting voices are treated as disruptions to be contained. Debate is shaped by regulation and permission rather than by open exchange. In this context, speech becomes a variable to be administered rather than a right to be honoured.
By contrast, the Leader engages reality as it is. A Leader does not fear disagreement. A Leader invites scrutiny, challenge, and difficulty because clarity emerges through contested ideas. True leadership does not constrain speech. It recognises that freedom of expression is not inherently dangerous. It is a space in which citizens exercise their capacity to respond, to think, and to reason together.
Viewed in these terms, freedom of speech is not merely a legal concept. It is a condition of civic agency and dignity. It is the terrain on which citizens confront error and power without retreating into conformity or submitting to managerial governance. Without structural protection of free expression, society defaults to a mode of restraint that aligns more with Crowd conformity and Elite management than with the posture of collective responsibility and engagement that characterises mature leadership.
This philosophical perspective underscores that the question is not whether speech can be uncomfortable. Discomfort is the necessary soil of insight. The question is whether a society wishes to ground its public life in trust and open engagement, or to settle for a pattern of containment that weakens the capacity of citizens to think, speak, and self-correct.
What constitutional protection would change
Constitutional protection of freedom of speech would not mean the absence of limits. Every democracy restricts direct incitement to violence, genuine threats, and harassment.
What would change is the structure of justification.
With constitutional protection, the burden shifts to the state to justify restrictions, rather than to citizens to justify expression. Speech becomes a recognised right, not a conditional tolerance.
It also provides stability during moments of fear, crisis, or moral panic. Rights anchored in a constitution do not expand and contract with political convenience.
This is not about importing another country’s model wholesale. It is about correcting a structural weakness in Australia’s own constitutional design.
How Australians could pursue this change
Calling for constitutional protection of freedom of speech requires seriousness rather than spectacle.
Any such change would need to occur through a formal amendment to the Australian Constitution under Section 128. This requires a referendum approved by a national majority of voters and a majority in at least four states. The threshold is deliberately high, reflecting the gravity of constitutional reform. Acknowledging this difficulty does not weaken the case. It strengthens it by placing the conversation within Australia’s lawful and democratic framework.
The first step is public reframing. Free speech must be discussed as a civic foundation rather than a partisan weapon or culture war slogan. It concerns citizens across political, cultural, and ideological lines, not any single group.
The second step is clarity. Any proposal would require careful constitutional drafting that protects freedom of expression while allowing narrowly defined limits for violence, coercion, and direct harm. Precision matters. Ambiguity invites misuse.
The third step is civic pressure. Constitutional change in Australia occurs only when an issue is understood as national rather than ideological. This requires sustained public discussion, engagement with civil society, and cross-party seriousness rather than short-term political gain.
Such a process is demanding by design. That difficulty is not a flaw. It is what ensures that constitutional change reflects genuine civic maturity rather than momentary reaction.
Conclusion
Australia’s lack of constitutional protection for freedom of speech is no longer an abstract legal curiosity. It is a lived structural gap that becomes more consequential as governance grows more regulatory and crisis-driven.
The Premier of New South Wales was right to state plainly that we do not have constitutional free speech. The question is whether Australians are content to accept that reality indefinitely.
At its core, this is not a debate about importing foreign models or defending offensive speech. It is a question of whether a democracy protects freedom of expression as a civic right or manages it as a conditional permission. Australia currently relies on implication, restraint, and institutional goodwill. That approach assumes stability, trust, and moral clarity will always hold.
History suggests they do not.
Freedom of speech is not a luxury granted by stable societies. It is one of the conditions that allows societies to remain stable, resilient, and self-correcting. Constitutional protection matters because it shifts the burden of justification, anchors trust in citizens, and preserves society’s capacity to correct error through open discourse rather than coercion.
If Australians believe in civic dignity, responsibility, and trust in citizens, then freedom of speech should not rest on implication or goodwill alone. It should be protected where it belongs, at the constitutional level, before silence becomes the safer habit and recovery far more difficult.