Free speech is far too important to be left to unelected judges

Allan, James (2013) Free speech is far too important to be left to unelected judges. The Western Australian Jurist, 4 5-22.

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Name Description MIMEType Size Downloads
Author Allan, James
Title Free speech is far too important to be left to unelected judges
Journal name The Western Australian Jurist
ISSN 1839-1117
Publication date 2013
Sub-type Article (original research)
Volume 4
Start page 5
End page 22
Total pages 18
Editor Augusto Zimmermann
Michelle Evans
Place of publication Murdoch, WA, Australia
Publisher Western Australian Legal Theory Association
Collection year 2014
Language eng
Subject C1
180108 Constitutional Law
Formatted 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.
Q-Index Code C1
Q-Index Status Confirmed Code
Institutional Status UQ
Additional Notes "From the Threats to Freedom of Speech Conference, held at Murdoch University, Australia on 12–13 October 2012".

Document type: Journal Article
Sub-type: Article (original research)
Collections: Official 2014 Collection
TC Beirne School of Law Publications
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Created: Wed, 08 Jan 2014, 12:07:14 EST by Carmen Buttery on behalf of T.C. Beirne School of Law