The recognition of political speech as a constitutional principle and the emergence of the principle of legality have driven the doctrinal evolution of freedom of speech at common law. The High Court now treats freedom of speech as something more than a residual liberty. Yet this doctrinal and taxonomic transformation is not complete. This article posits that at some point the High Court may incorporate proportionality into the methodology of common law rights protection. That development would be problematic, but the forces driving it may well be inexorable. However, the article concludes that there is an alternative. The High Court has an opportunity (if so minded) to develop a distinctive, indigenous conception of freedom of speech at common law.
Meagher, Dan R, Is There a Common Law ‘Right’ to Freedom of Speech? (July 23, 2018). Melbourne University Law Review, volume 43, no 1, 2018; Deakin Law School Research Paper No 19-21 (2019).