Free Speech is Far Too Important to Be Left to Unelected Judges

The Western Australian Jurist, 4 5-22, 2013

Posted: 26 Jun 2015

See all articles by James Allan

James Allan

The University of Queensland - T.C. Beirne School of Law

Date Written: 2013

Abstract

In this paper the author will begin by setting out the core philosophical basis for supporting very few limits indeed on a person’s scope to speak his or her mind in a successful democracy. This will involve a short description of the John Stuart Mill, utilitarian defence of free speech – the position largely rejected by Ray Finkelstein in his Media Council Report.

The author will then turn to set out how a bill of rights works, be it a constitutionalised one or a statutory one. He will mention the Canadian, New Zealand, United Kingdom, United States and State of Victoria models. He will argue that, in essence, when you buy a bill of rights all you are buying are the line-drawing social policy decisions of the unelected judiciary, decisions that without such an instrument would be made by the elected legislators.

The bulk of the paper will then argue that the bills of rights of Canada, New Zealand, the UK and Victoria have not ‘given freedom of speech a hefty leg-up’, as one Australian legal commentator has claimed. Victoria is no better off in terms of scope to speak your mind than any of the 5 Australian States without a bill of rights and in some ways is worse off. The United Kingdom looks the worst of any of these jurisdictions on free speech matters, and certainly far worse than Australia, without a national bill of rights. And Canada has extensive hate speech laws.

The author will run through some of the bill of rights decisions of the unelected judges in these jurisdictions on free speech matters and then argue that free speech is far too important to be left to the Leevesons, Finkelsteins, and unelected judges, who anyway do a terrible job on that front (outside the United States). In a healthy, vibrant democracy free speech is a matter for all the voters. They are the ones that need to ensure there is as much scope as possible to hear unpopular views.

Indeed the author will finish by noting the very close connection between the main ground for valuing democracy and the above ground for valuing lots and lots of free speech.

JEL Classification: K00

Suggested Citation

Allan, James, Free Speech is Far Too Important to Be Left to Unelected Judges (2013). The Western Australian Jurist, 4 5-22, 2013. Available at SSRN: https://ssrn.com/abstract=2623415

James Allan (Contact Author)

The University of Queensland - T.C. Beirne School of Law ( email )

The University of Queensland
St Lucia
4072 Brisbane, Queensland 4072
Australia

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