An Alternative Interpretation of Australia’s Implied Freedom of Expression— Through the Lens of Intrinsic and Instrumental Values

Abstract

As a fundamental human right, freedom of expression is constitutionally protected in many jurisdictions with written constitutions due to its critical role in safeguarding individual dignity and self-realization, supporting representative democracy and the rule of law, and fostering diversity and tolerance. Even in authoritarian states where freedom of expression lacks practical protection, constitutions often still declare citizens’ rights to free speech. This study, utilizing a doctrinal legal research approach and a comparative legal analysis, finds that Australia stands as an “outlier” among Western democracies—Australia’s federal constitution and its state and territory constitutions rarely recognize freedom of expression. Through examining this phenomenon through the philosophical lenses of intrinsic and instrumental value, this study suggests that the classification of free expression as merely an implied constitutional right in Australia stems from legislators and judges focusing primarily on its instrumental value, specifically its role in supporting representative democracy, rather than its intrinsic value as a natural right essential to self-fulfillment and individual autonomy. This limited perspective has ultimately contributed to the fragility of protections for freedom of expression within Australia’s legal system.