Section 46 of the Constitution guarantees freedom of expression and publication, and then defines the term more broadly than the words alone would suggest.
(a) freedom to hold opinions, to receive ideas and information and to communicate ideas and information, whether to the public generally or to a person or class of persons; and
(b) freedom of the press and other mass communications media.
The inclusion of the freedom to receive is significant. Section 46 protects the audience as well as the speaker: a restriction on what people may be told engages the right of the listener, reader or viewer independently.
The three permitted restrictions
Section 46(1) allows the right to be regulated or restricted by a law:
- (a) that imposes reasonable restrictions on public office-holders;
- (b) that imposes restrictions on non-citizens; or
- (c) that complies with section 38.
Paragraph (a) is the basis for rules constraining political comment by public servants and by members of the disciplined forces. The word is reasonable: a restriction on office-holders is not exempt from scrutiny, only from the full section 38 machinery.
Paragraph (c) is the general route, and it is demanding. A law restricting expression must be expressed to be made for that purpose, must specify the right it restricts, must be certified by the Speaker as passed by an absolute majority, must be necessary for one of the listed public interests or to protect the rights of others, and must be reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind. Under section 38(3) the burden of establishing all of that lies on the party relying on the law’s validity.
Section 46(3) — access and rebuttal
Notwithstanding anything in the section, an Act may make reasonable provision for securing reasonable access to mass communications media for interested persons and associations:
- (a) for the communication of ideas and information; and
- (b) to allow rebuttal of false or misleading statements concerning their acts, ideas or beliefs,
and generally for enabling and encouraging freedom of expression.
This is a positive-obligation provision, and unusual. It contemplates legislation that expands access to media rather than restricting it — and it was considered in The State v NTN Pty Ltd and NBN Ltd [1992] PGSC 11; [1992] PNGLR 1.
Freedom of the press
Section 46(2)(b) names the press expressly. Practical consequences include:
- Licensing or registration schemes that operate as a bar to publication must satisfy paragraph (c).
- Prior restraint — stopping publication before it occurs — requires justification against section 38 and section 39.
- Section 37(12) requires court proceedings, including the announcement of decisions, to be held in public, subject to the specific exceptions in section 37(13).
- Section 51 gives citizens without dual citizenship a right of reasonable access to official documents, subject to listed exceptions.
What section 46 does not protect
The right is qualified, and other law continues to apply where it satisfies the constitutional test:
- Defamation — the Defamation Act (Chapter 293) protects reputation, which is itself an interest the Constitution recognises through section 38(1)(a)(ii) (protecting the rights of others).
- Contempt of court — expressly preserved by section 37(2), and the one offence that need not be defined by written law.
- Criminal offences under the Criminal Code (Chapter 262) and other statutes, where the statute meets section 38.
- Online speech — regulated by the Cybercrime Code Act 2016, provisions of which have been examined against section 46: see Re Section 21(2) of the Cybercrime Code Act 2016 [2024] PGSC 77; SC2608.
Nothing in section 46 or in the Basic Social Obligation to respect the Constitution restricts criticism of the government, of officials, of the courts or of the Constitution itself. A demand that you stop criticising, absent a valid law that satisfies section 38, has no legal force — see also section 32(2)(c).
Sources
Constitutional sections are amended. Before relying on anything here, read the current text: the Constitution on PacLII. If a decision matters to you, get advice — start with the Office of the Public Solicitor.