Tony Abbott was right about the significance of the massacre at the satirical magazine Charlie Hebdo when it happened in January.
“Freedom of expression is the cornerstone of a free society,” the Prime Minister said. “From time to time people will be upset, offended, insulted, humiliated … but it is all part of a free society”. He praised the cover illustration of the next Charlie Hebdo edition, which depicted Muhammad crying. “I believe in free speech. I absolutely believe in free speech.”
These were powerful, important sentiments. They were a recognition of the threat of Islamist terror to our basic liberties, a threat which we saw manifest in the Danish cartoons crisis of 2006, the murder of the Dutch filmmaker Theo van Gogh, and the fatwa which led to Salman Rushdie’s decade in hiding. Abbott offered them at a moment when they were most needed.
But fast-forward to last Monday, and a central part of the government’s national security strategy is to boost laws against speech that is “vilifying, intimidating or inciting hatred”. The government wants to crack down on hate preachers.
So is free speech inviolate, a liberty that needs to be defended as fundamental to civilisation and democracy? Or must it be restricted for the fight against terrorism?
To understand some of the ructions within the Liberal Party right now, look no further than the government’s back and forth on freedom of speech. The government is struggling with itself on the very idea of liberty.
The Coalition came to power declaring it would pursue a “freedom agenda”. It would be “freedom’s bulwark” against a Labor Party that, under Julia Gillard, had attempted to control and regulate the free press.
And the Coalition promised to repeal, at least in part, section 18C of the Racial Discrimination Act, the law which makes it unlawful to offend or insult someone on the basis of their ethnicity, and the law which Andrew Bolt was found to have breached in 2011.
Section 18C is hardly the only anti-speech law on the books, but it is an iconic one, and was used against the country’s most prominent conservative commentator. For many Liberals, Liberal MPs and those on the right of centre, the 18C promise became a symbol of a reinvigorated, confident liberalism.
Yet over the past six months the Prime Minister has been saying that, in the light of the real threat of terrorism, the balance between liberty and security must tilt further towards security.
This is a false choice.
None of have us the liberty to kill, plot to kill, or incite killing. Preventing and punishing murder is no restraint on freedom. The problem comes when the government proposes to do much more than just enforce the law. Like when it proposes to criminalise non-inciting speech. Like when it proposes to invade everybody’s privacy with mandatory data retention – not just the privacy of those suspected of a crime.
Much of the Abbott government’s earlier national security legislation was necessary and important, particularly the elements that cracked down on foreign fighters. The government now proposes to strip dual citizenship from those who go to fight for Islamic State.
At the same time those necessary legislative changes have been mixed in with some extraordinary overreach. A bill passed in October means journalists who report on “special intelligence operations” could go to jail for 10 years. Another bill passed that month made it a crime to advocate (“counsel, promote, encourage, or urge”) terrorism. But incitement to violence has always been illegal. And there have been laws against advocating terrorism on the books for a decade.
Any law that the government might write to target hate preachers will – almost inevitably – expand to encompass other speech. The government clearly wants to make it illegal to say things like “Osama bin Laden was a hero”. Any legislation that did so would also criminalise the other ideas too. One current darling of the academy, the shock philosopher Slavoj Å½iÅ¾ek, praises the terrors of Mao, Lenin and Robespierre.
Such speech is distasteful and disgraceful, yes. It shouldn’t be illegal.
Legislative mission creep happens. For instance, when section 18C was first introduced in 1994, its advocates said it had a strict and narrow purpose. A piece published in The Age in November that year by Colin Rubenstein and Michael Kapel claimed it was only targeted at “the skinhead on the street yelling racist names and other insults at an Asian man, or a woman in traditional Islamic dress, not newspaper articles or anti-immigration pamphlets”. That has not turned out to be the case.
When he announced that they were abandoning section 18C reforms last year, the Prime Minister said it was because the whole thing had become “a complication” when dealing with Australia’s Muslim community. Labor’s fear campaign against the proposed changes had worked.
Yet last Monday Abbott criticised Australia’s Muslim leaders, wondering why they weren’t speaking up against terrorism themselves. He told them to police their own communities with the proposed anti-hate speech laws.
Which raises the question – does the government think the war against terror requires us to comfort or to confront the Muslim community?
Abbott’s instincts after the Charlie Hebdo atrocity were right. Free speech is a liberty we have to protect, and it is a powerful tool to wield against Islamist radicalism. Why does he now think it is a weakness?