Opening statement to Commonwealth Parliamentary Joint Committee on Human Rights inquiry into Freedom of speech in Australia

With Simon Breheny

Freedom of speech is a basic Australian value. A survey, commissioned by the Institute of Public Affairs and released today, finds that 95 per cent of Australians say freedom of speech is important and 57 per cent say it is very important. If you would like copies of that poll, it is available here today. Australia’s commitment to freedom of speech makes this country one of the most diverse, prosperous and socially welcoming on the face of the planet. Laws that undermine free speech put at risk our success story as a socially inclusive and cohesive nation.

Section 18C of the Racial Discrimination Act is one of the most significant restrictions on freedom of speech in this country. Along with the rest of the provisions of part IIA of the Racial Discrimination Act, section 18C ought to be repealed outright. It is an excessive, unnecessary and counterproductive restriction on Australians’ liberties. Alternative proposals for reform would not solve the problems with the legislation that have been identified in particular by recent court cases involving section 18C. In our analysis, simply removing some of the words from the section—or worse, replacing those words with new words—would be ineffective or redundant, or would create even more uncertainty about the scope of the law.

Some participants in this debate argue that freedom of speech is protected by section 18D, but section 18D is a weak and unstable foundation for such an important right. Section 18D has been applied in just three out of more than 70 cases that have been decided by the courts since part IIA was first inserted into the Racial Discrimination Act in 1995. Parliament should not imagine that section 18D provides any certainty about the law. In the QUT case, Judge Jarrett noted a conflict in the authorities about the way in which section 18D might operate.

More fundamentally, section 18D places a burden on the respondent to prove why he or she should have the right to speak freely. This is not a requirement that a free country like Australia should be proud of. A fence is not a moral trump card. Australia is driven by other values, including individual freedom and a democracy. Section 18C harms these values. We urge this committee to recommit to the liberal democratic values that make this country great and to recommend the full repeal of part IIA of the Racial Discrimination Act. Thank you.

The Case for the Repeal of Section 18C

With Simon Breheny, Morgan Begg, Andrew Bushnell, and Sebastian Reinehr

Executive Summary: Research conducted by the Institute of Public Affairs demonstrates that section 18C of the Racial Discrimination Act 1975 must be repealed to protect freedom of speech in Australia.

Part A of this report comprehensively outlines the case for the full repeal of section 18C, and the reasons why alternative proposals for reform fail to stand up to scrutiny.

The key arguments of this report are that section 18C:

  • Is a restriction on the human right to freedom of speech and an attack on human dignity;
  • Undermines democracy
  • Is inconsistent with a peaceful and cohesive society
  • Punishes defendants through an unfair process
  • Is partially redundant
  • Undermines attempts to combat racism
  • Is unconstitutional.

The report rejects the following proposed compromises as inadequate:

  • Removing ‘offend’ and ‘insult’ from section 18C;
  • Replacing ‘offend’ and insult’ with functionally similar language;
  • Reforming the process for hearing section 18C or the Australian Human Rights Commission.

None of these reforms will address all of the problems created by section 18C.

We conclude that section 18C must be repealed in full, along with the associated provisions in Part IIA of the Racial Discrimination Act 1975.

Part B of this report outlines the history of section 18C and how it has been interpreted. This information forms the basis for the argumentation in Part A.

Available in PDF here.

Section 18C, Human Rights, and Media Reform: An Institutional Analysis of the 2011–13 Australian Free Speech Debate

With Sinclair Davidson. Published in Agenda (2016) vol. 23, no. 1, pp. 5-30.

Abstract: The paper examines two Australian freedom-of-speech controversies between 2011 and 2013 – the debate over section 18C of the Racial Discrimination Act, and the debate over the Gillard Government’s print media laws. These controversies featured rhetorical and ideological debate about the limits of free speech and the nature of human rights. The paper applies a ‘subjective political economy’ framework to these debates in order to trace the effect of increased perceived ‘disorder costs’ and ‘dictatorship costs’ of freedom of speech restrictions. The paper concludes that policy change is driven by exogenous changes in perceived institutional costs. In the case of the Gillard Government’s media laws, those costs were borne by the Gillard Government, and one would not expect print media laws to be a major political issue in the absence of a further exogenous shock. In the case of section 18C the revealed dictatorship costs of legislation, which includes the words ‘offend’ and ‘insult’, suggest the section 18C controversy will endure

Available at Agenda

When ‘Safe Spaces’ Become An Attack On Ideas

There is something deeply reactionary brewing in American higher education.

The events at Yale and the University of Missouri over the last few weeks make plain that the movement for trigger warnings in university classrooms and safe spaces on campus has turned into a dogmatic moral illiberalism.

We should pay attention to what’s happening. With a few years lag, Australia tends to enthusiastically adopt American intellectual fashions.

At the University of Missouri, anti-racism activists announced that their protest encampment on public property was a “safe space”. A student journalist, Tim Tai, tried to report on the protest.You can watch what happened. In the first half of the video, you’ll see the activists surround and attempt to intimidate Tai. In the last 10 seconds you’ll see no less than an assistant professor of mass media shout for “muscle” to remove another journalist for simply filming a public protest.

The Yale incident appears more trivial, but is more telling.

Just before Halloween, Yale’s Intercultural Affairs Committee emailed students asking them to ensure their Halloween costumes did not involve offensive “cultural appropriation and/or misrepresentation”. In response, one Yale lecturer and associate master at Yale’s Silliman College, Erika Christakis, objected that the idea that cultural appropriation was inherently wrong could stifle free speech and open debate.

Christakis’ email was apparently beyond the pale. Outrage spread across Silliman College. An opinion piece in the Yale Herald responded that “I don’t want to debate. I want to talk about my pain.” (The piece was taken down but you can read an archived version.) The New Yorkercomplains Christakis was “privileging abstract free-speech rights over the immediate emotional experiences of those who are likely to experience discrimination at the university.”

In these two events, we’ve dramatically seen how the apparently benign movement for trigger warnings in university classes and safe spaces for students has metastasised into a more general assault on the contest of controversial ideas in higher education.

The original idea behind trigger warnings was to advise students who had experienced serious and severe trauma, such as sexual assault, that they were about to hear some disturbing content. You can understand the reasoning behind the warnings, as a reasonable concession to the fact that some material, particularly in humanities subjects, can be highly confronting. Likewise the safe space – say a women’s room – might be seen as a benevolent amenity.

But trigger warnings have become absurd. Some students are requesting classic literature come with warnings. And safe spaces are morphing into places where infantilised students hide from ideas.

Now this movement has turned into a generalised attack on open discussion. The entire higher education experience is being reconceptualised as a zone of post-trauma, in which students demand faculty protect them from the expression and thoughts of others.

Using the language of psychological harm, ideas are condemned, rather than rebutted. Students can receive “pain” from the decision of another person to write an email. It is wrong to “privilege” free speech, a mere “abstract right”, over personal emotional experience.

It’s hard to think of anything more contrary to the purpose of education – which is, in the broadest sense, the systematic exposure to ideas outside personal experience – than that.

One of the arguments in Christakis’s email is worth dwelling on. Not her main points about the benefits of provocation, or the challenge of defining what costumes are offensive, but her point that, from a childhood developmental perspective, students need to learn how to reject ideas that trouble them, rather than running immediately to ban and punish.

This accords with the most well-known argument for freedom of speech – that made by John Stuart Mill in his book On Liberty. Mill argues that by hearing contrary ideas, if only to consider and discard them, we grow intellectually.

In this way, free speech and education are tightly intertwined. Limit the former and you hinder the latter. An education system where the students are excessively cushioned from the provocation of others will stifle that development. One would hope you could graduate from Yale being able to articulate why some ideas are wrong.

But what about students who have experienced genuine trauma? Even then, it’s not clear that preventing “triggering” is the best response, as Jonathan Chait noted earlier last year. Students who are genuinely unable to cope with incidental references to that trauma might not be ready for the window into the breadth of human experience that education is supposed to provide. If you are triggered by the racist language in Huckleberry Finn, you are not ready to study 19th century literature.

For those who are ready, hiding from every reminder of trauma can be counterproductive. There’s a growing area of research into what’s known as “post-traumatic growth”, the idea that some people who experience trauma can become stronger for the experience, rather than made permanently fragile.

This isn’t for everyone, of course. Talk to your doctor. But education is supposed to foster intellectual development. It is not supposed to be a safe zone of comfort and emotional protection. Campus radicals used to brag about how transgressive and provocative they were. Now, it seems, they’re more interested in policing the transgressions and provocations of others.

Free speech lost in translation

Ten years ago in September 2005, the Danish newspaper Jyllands-Posten published twelve cartoons and sparked what the Danish prime minister described as the worst crisis in Danish foreign policy since the Second World War.

In his book, The Tyranny of Silence: How One Cartoon Ignited A Global Debate on the Future of Free Speech, Danish journalist Flemming Rose compellingly outlines what happened, and what the events meant for the fight for liberty in free and unfree countries.

In 2005 Rose was the culture editor of Jyllands-Posten. He commissioned and published the cartoons in his section of the paper. And it was Rose who, more than anyone else, bore the brunt of the backlash — as well as being the most prominent defender of the decision to publish. First published in Denmark in 2010, his book was written at first to justify his actions and respond to critics. It has just been republished by the American free market think tank the Cato Institute, but developed into a longer discourse about free speech and censorship.

The purpose of the cartoons was to take a position in favour of free expression, and to editorialise against self-censorship in Denmark. The Jyllands-Posten editorial team were interested in the fact that a Danish children’s author, Kåre Bluitgen, had only been able to get an illustrator for his book on the life of Muhammad if the illustrations were done anonymously. In the middle of a Danish debate on self-censorship, this was an opportunity for the paper to take a stand: not a stunt, or an experiment, but a statement of principles.

Most strands of Islam are aniconic: that is, they oppose the depiction of images of their god and their Prophet Muhammad. Yet the question facing Jyllands-Posten was not whether Islam, as practiced in by Europe’s muslim migrant communities or the Islamic world, was aniconic. Rather it was whether the prohibition on depicting Muhammad was to be applied to non-Muslims in a non-Muslim country. Some potential illustrators for Bluitgen’s book had contacted Islamic religious and academic authorities in Denmark, who had given the project an all clear (at least one of those authorities, Rose notes, took a lead in the anti-cartoon reaction).

The twelve cartoons were published on 30 September 2005. Not all of them depicted Muhammad. At least two caricatured Kåre Bluitgen, suggesting the whole affair was a publicity stunt. Another was of a school child going by the name of ‘Mohammed’ — implicitly mocking Jyllands-Posten. But the most provocative cartoons directly connected Muhammad with terrorism. One — possibly the most iconic — was a picture of Muhammad’s face with a lit bomb in his turban. On the bomb was the Islamic creed ‘shahadah’. Others cartoonists offered more neutral portraits. One showed a cartoonist looking over his shoulder as he nervously drew the Prophet — also a comment on the Jyllands-Posten commission about free speech. All the cartoons were printed around a comment piece by Rose discussing the cartoons’ publication as a statement against self-censorship and in defence of freedom of speech.

In 2015 political backlashes are almost instantaneous. The cycle of outrage, counter-outrage and resolution can be completed within 24 hours. Ten years ago — that is, before social media drowned out the public sphere — political outrage took more time to build up.

Some newspaper sellers declined to sell the issue of Jyllands-Posten on the day. A few days after the publication, a group of Muslim leaders and activists agreed to take political and legal action against the paper. Two weeks later 3,500 Danish Muslims peacefully protested the cartoons’ publication. And there the reaction stalled. As the Danish scholar Jytte Klausen writes, ‘there was no groundswell of support for the mosque activists and imams who led the charge against the newspaper and the government in Denmark.’

It was the international events that brought the crisis to a head. As part of their political campaign against the paper, the Danish imams had petitioned the ambassadors of Muslim countries in Denmark to raise the cartoons as a diplomatic issue with the Danish government. In October 2005, a diplomatic protest was lodged by the ambassadors of eleven countries, including Turkey, Saudi Arabia, Iran and Indonesia. Their protest was acknowledged by the Danish government. But the Prime Minister Anders Fogh Rasmussen, head of a centre-right coalition, affirmed the paper’s right to free expression.

Feeling themselves unsupported, the imams decided to directly appeal to Middle Eastern governments. In December 2005, they travelled to Cairo armed with a dossier that included the cartoons.

The imam’s dossier — all 43 pages of it — was probably the most inflammatory part of the entire affair. It included not just the cartoons and translations of Jyllands-Posten’s editorials on Islam and self-censorship, but other material as well. There were abusive letters which the imams said had been sent to Muslims in Denmark. There were clippings from other papers, images completely unrelated to Denmark and Jyllands-Posten, unsubstantiated and inaccurate claims about the relationship between Denmark and its Muslim community, and a host of other material designed specifically to rile up Muslim readers. According to the secretly recorded statement of one of the Danish clerics, the dossier was intended to ‘create a climate of hate against the newspaper, God willing’.

In this, the dossier was a great success. The result of the fundamentally political decision to create a dossier that exaggerated and distorted the actions of Jyllands-Posten was devastating. Throughout February 2006 — more than four months after the publication of the cartoons — protests and riots erupted throughout the Muslim world. The targets of ire were not just symbols of Denmark but other countries whose newspapers either reprinted the cartoons or were generally presumed to be in league with the anti-Muslim sentiment contained within. The Danish embassy in Damascus was stormed. The European Union offices in Gaza were stormed. Riots occurred in Iraq, Afghanistan, and Pakistan. In Nigeria, protestors attacked and burned down local Christian churches. Some estimates suggest that globally 200 people lost their lives in the aftermath of the cartoons’ publication.

In Denmark, Rose and the cartoonist Kurt Westergaard were the subject of numerous death threats and assassination plots. One particularly close call occurred when a Somali man invaded Westergaard’s home with an axe and a knife. Westergaard hid in a panic room until Danish police shot and wounded the man, who was linked to a radical Islamist group. Other plots disrupted include attempts to attack the offices of Jyllands-Posten — a disturbing foreshadowing of the devastating Charlie Hebdo attack earlier this year.

The Danish cartoons crisis has, in light of subsequent events, taken on a deeper meaning. But in 2005 the political undercurrents of clerical aniconism seemed to be at the forefront. The Danish imams were playing Danish politics when they compiled their dossier of grievances. One cleric had been particularly incensed with Jyllands-Posten for publishing details of a sermon he had given in which he described women as the devil’s work. He saw the cartoons as an opportunity for some payback.

Likewise, the governments of Saudi Arabia and Iran had their domestic audience in mind when they lodged their Danish protests. The violence emanated primarily from within Muslim countries and not from Muslim migrants in Denmark. Local riots always have local causes. Attacks on Christians in Muslim-majority countries were as much driven by local prejudices as anything else.

In some countries — such as India and Pakistan — extremists used the existence of the cartoons as a way to destabilise domestic regimes. Other protests were sponsored by the governments of Iran and Syria to underline their own regimes’ religious piety.

One notable aspect of the Danish crisis is the relationship between Jyllands-Posten’s decision to publish the cartoons and the blame laid by critics on the Danish government. How does a feature in an independent newspaper so quickly become a question of diplomacy between national governments? We are used to political leaders sharing their views on the non-political scandals of the hour, but the Danish imams and the eleven Muslim governments were after more than just a side-comment by Prime Minister Rasmussen. They wanted a legal and political response.

The principle of a free press not subject to direct controls by the government of the day is a liberal one. Yet this liberal idea is not internationally unanimous. The countries that protested so vigorously against the cartoons do not share the ethos of the free press. Saudi Arabia, Egypt, Pakistan, Iran impose the death penalty for blasphemy. Turkey, Indonesia, Libya and Morocco also impose judicial punishment for blasphemy. Perhaps what the world saw in 2005 and 2006 was an international clash between two societies. The virtues of free expression were lost in translation.

And yet this explanation is too simple. Freedom of speech is hardly an overriding concern in the West either. One need only look at the repeated legal actions taken against Charlie Hebdo to see that. Or indeed, against Jyllands-Posten. Denmark has a blasphemy law which prohibits the public ridicule of a religious community. Denmark’s blasphemy law is a criminal law, rather than a civil one. The committee of imams complained to the police that such a violation had occurred, but the outcome of the police investigation was that the cartoon publication would be protected by exceptions covering matters of public interest.

What messages do such laws send? They suggest that religious insult is a matter for state supervision. Moreover, they imply that the bounds of public discourse should be determined by legislation, and that the proper response to offensive newspaper publications is to approach the police. No wonder the immediate appeal of the imams — and the foreign governments — was directed to the Danish government.

Hate speech and blasphemy laws undermine the liberal firewall that exists between individual expression and the views of society as a whole. Once we have established the principle that the nation can prevent offensive speech, it is unsurprising that people blame the nation for having failed to prevent offence. Rasmussen’s response to the diplomatic protest stated that: The freedom of expression has a wide scope and the Danish government has no means of influencing the press. However, Danish legislation prohibits acts or expressions of blasphemous or discriminatory nature. The offended party may bring such acts or expressions to court, and it is for the courts to decide in individual cases.

Pleading the fundamental right to freedom of expression simply looks false when blasphemy and hate speech laws are sitting on the statute books, waiting to be used. In the wake of the Charlie Hebdo massacre in January 2015, world leaders, foreign ministers, ambassadors and other dignitaries gathered in Paris to take a stand against Islamist violence. Linking arms they walked solemnly down a Parisian boulevard, looking as if they were leading the protest marches that had brought more than a million people onto the streets in Paris that day.

In fact, this was an illusion: the famed photo-op was conducted in an otherwise empty and secure side-street, far away from the crowds. More egregious, and more suggestive, was the fact that many of the leaders who attended the protest apparently in defence of freedom of expression were in charge of countries that aggressively stifled expression at home. Take, for instance, Sameh Shoukry, the foreign minister of Egypt, marching at the very time that Al Jazeera journalists, including the Australian Peter Greste, were locked up in a Cairo prison. So too was the Russian foreign minister — envoy to a country that targets journalists and whistle blowers for criticising the government.

Even Western, liberal leaders like David Cameron and Angela Merkel preside over laws that prohibit and punish hate speech. And Australia, of course, has section 18C of the Racial Discrimination Act. After the Charlie Hebdo killings Tony Abbott argued rightly that ‘from time to time people will be upset, offended, insulted, humiliated … but it is all part of a free society.’ Yet our legal system does not reflect this basic liberal principle.

Speech laws, we have been told time and time again, play as much a symbolic role as a practical one; showing who we are as a nation, the language and sentiments we will not tolerate.

Rose’s Tyranny of Silence is especially good when it contextualises the cartoon crisis in the long historical contest over individual liberty and dissent. As a journalist, he spent a great deal of time talking to Soviet dissidents who wanted the same sort of liberal freedoms enjoyed in the West. Many Muslims now want the same freedoms but are prevented from expressing their desire by a stultifying public sphere in Islamic countries and the aggressive political dominance of radical Muslim ‘spokesmen’ in the West.

As Rose points out, Western liberalism’s weak and hesitating defence of free speech is not only a poor defence of its own values, but it abandons liberals in the Muslim world who are looking for alternative political paths. There are many human rights activists in the Muslim world crying out for the liberties which we now bargain away in the mistaken name of ‘toleration’.

Defending freedom of expression is not some academic preoccupation. It is fundamental to our idea of ourselves — to our liberties, and ultimately, to our civilisation.

Is The Looming Internet Filter Justified? Not Yet

Is intellectual property “property”? Kinda. Sorta. Not really.

That question might seem a bit abstract, on par with how-many-angels-can-fit-on-the-head-of-a-pin. But it matters. Because how Parliament sees the fundamental nature of one form of intellectual property – copyright – is almost certainly going to determine whether we are subjected to a new internet filter.

A bill now before Parliament, the Copyright Amendment (Online Infringement) Bill 2015, would give courts power to require internet providers block access to foreign websites whose dominant purpose is to facilitate copyright infringement.

In practice this means that Time Warner, which owns the copyright to Game of Thrones, could go to a judge and demand Telstra or iiNet block access to the Pirate Bay.

There are lots of problems with this bill. Its language is absurdly vague and broad. What counts as “facilitating” copyright infringement? Maybe it would block sites that offer virtual private networks, perhaps – those VPNs that Malcolm Turnbull has been encouraging us all to use.

But these are legislative technicalities. More importantly, blocking websites is censorship. The bill is an internet filter, no matter how stridently the Abbott Government rejects the comparison.

Supporters of the bill argue that technicalities and censorship aside, the real issue is that property is being stolen, and the Government – whose job it is to protect property – needs to act. After all, private property is a human right as much as free speech is. (Check out Article 17 of the Universal Declaration of Human Rights.)

It is true that intellectual property shares some of the characteristics of property. Like tangible property, intellectual property can be owned. It can be traded. So it’s property in those senses.

But, unlike tangible property, the use of intellectual property is not exclusive. When one person listens to a song or watches a movie they do not prevent others from doing so. It can’t be “stolen” in anything but a metaphorical sense.

This is why the law hasn’t treated intellectual property like real property. We don’t have a moral right to perpetual ownership and unimpeded exclusive control over the songs we write or movies we produce. For instance, copyright lasts 70 years after the death of the creator. Real property has no such time limits.

The scholar Tom W. Bell says that intellectual property would be better called intellectual privilege. This privilege is conferred for a specific purpose – to provide an incentive for the creation of new works. The theory is if we don’t confer that privilege people will supply less creative work than is socially desirable.

But that privilege has costs. For instance, copyright also stops us from using our other, real property as we see fit – we can’t use our computers, printing presses or internet connections as we would like. And we can’t build on the cultural capital created by others.

Thus the Howard government’s Ergas Report into Intellectual Property and Competition Policyargued that “over-compensating rights owners is as harmful, and perhaps even more harmful, than under-compensating them”.

So will the proposed Copyright Amendment (Online Infringement) Bill 2015 inspire the creation of new works? Even if placing a block on the Pirate Bay successfully stops internet piracy (please bear with me on this fantastic hypothetical) will artists go out and create more art as a result? And would enough new work be created to compensate for the restriction on free speech?

Many economists theorise about an “optimal” level of copyright protection – a sweet spot of enforcement and rules where the benefits of copyright are maximised and the costs are minimised.

Yet it is very hard to figure out where that sweet spot is. Even impossible. And the political system isn’t looking for the optimal policy – it’s looking for the most politically palatable policy, the one where the benefits are being maximised for politicians, not consumers.

In the United States, every time Mickey Mouse threatens to fall into the public domain the Walt Disney Company lobbies hard to extend copyright term limits. Nobody really thinks that maintaining Disney’s exclusive rights over Mickey for another decade or two will lead to more creative works being produced. But these are decisions made by politicians, not blackboard economists, so the extensions get granted.

The Australian Parliament has been considering copyright enforcement changes since last year. We’ve heard a lot of pontificating about “theft” and digital access and global release dates.

But the only policy question is whether website blocking would inspire the creation of enough new content to make up for the fact that the Government is censoring the internet.

And, so far, nobody has shown that would be the case.

Submission to the Acting Independent National Security Legislation Monitor Inquiry into section 35P of the ASIO Act

With Simon Breheny

Introduction: This submission has been drafted in response to an invitation to the Institute of Public Affairs to make a submission to the Acting Independent National Security Legislation Monitor’s Inquiry into section 35P of the ASIO Act.

Our submission recommends the repeal of section 35P. We contend that there are three key problems with section 35P:

  • Individuals can engage in illegal conduct without being aware they are breaking the law
  • Restrictions on disclosure about special intelligence operations last forever
  • Any exemption will provide only limited protection for journalists but journalism is an ambiguous term, and the exemption will not protect freedom of speech

Available in PDF here.

Curbing Free Speech Would Deprive Us Of Powerful Tool To Wield Against Islamist Radicalism

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 Žižek, 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?

The Inability To Handle Criticism Shows Weakness

In his discussion of religion in Dialogues Between ABC, the great French writer Voltaire makes a simple point about freedom of speech.

“If a country’s religion is sacred”, says Voltaire, then “a hundred thousand volumes written against it will do no more harm [than done] to rock-solid walls by a hundred thousand snowballs. How can a few black letters traced on paper destroy it?”

One must now add: or a few coloured cartoons.

The Charlie Hebdo massacre was supposed to demonstrate Islamism’s strength. It revealed the opposite: the weakness inherent in any ideology that is unable to handle criticism with anything but force.

The Islamist radicals who committed this terrorism – and those who would support it in the West and around the world – are contemptible. They war against a modernity they cannot control or change.

Why? Freedom of speech is really a misnomer for the liberty we really care about. The speech isn’t the point. Charlie Hebdo’s cartoons aren’t the point. What really matters are the ideas that underpin the speech.

It is one thing to kill a speaker. But the beliefs of Charlie Hebdo’s readers are what matters. And this terrorist attack does nothing except confirm pre-existing views on the irrational sensitivity of Islamism and even a concern that Islam does not fit in a pluralistic, irreverent society.

So the debate over whether the Charlie Hebdo cartoons are satirical or just offensive completely misses the point. Either way, they were expressing an idea. Who cares whether that expression was done cleverly or not?

Yet apparently many do. In free speech debates there are always people who want to pontificate over the tone of the speech that has been censored or punished. We read that it was not reasonable, or civil. That it was unbalanced. That it was deliberately provocative. A Financial Times writer was quick to condemn editorial foolishness and Muslim “baiting” at Charlie Hebdo. One leaked Al Jazeera email said “insultism is not journalism”. If only they’d been more responsible, like real journalists.

Such journalistic boundary-policing does the profession no credit. Journalism isn’t special. It is just a form of expression. It deserves no more or less speech protection than any other form. Yet boundary policing always follows incidents like this. And we hear it from the same sort of people who have that quote that journalism is “printing what someone else does not want printed” on the wall of their cubicle.

In his memoirs, Salman Rushdie writes of his disdain of the earnest debate over his literary ability conducted after he was forced into protective custody for insulting Islam in The Satanic Verses. Everyone piled on. Even Prince Charles called Rushdie a “bad writer”. Putting aside that sort of critical dubiousness, so what? What relevance does quality have when protecting speech? Why criticise a victim if not to blame them?

In a liberal democracy the state is supposed to have a monopoly of force. Only the state has the lawful ability to conduct violence in the pursuit of its agenda.

The Charlie Hebdo massacre shows that not all threats to free speech come from the state. But it helps illuminate the basic contest in free speech. On the one side there are those who accept the plural society, and can tolerate the sometimes offensive cacophony that involves. On the other side there are those who would punish ideas with violence, whether that punishment is the violence of state power or murder.

This is why there is nothing more cynical than the politicians who have jumped on the Charlie Hebdo solidarity bandwagon yet impose force against speech at home.

The Egyptian foreign minister attended the Charlie Hebdo unity rally over the weekend, while Peter Greste languishes in an Egyptian jail. Almost every Western nation whose leaders announced their moral support for protecting offensive speech in the wake of the massacre also has laws against “hate speech”.

Whatever those politicians are protesting for, it is not the sanctity of freedom of expression.

Over the weekend Tony Abbott said in defence of Charlie Hebdo that “from time to time people will be upset, offended, insulted, humiliated…but it is all part of a free society.” This is a curious choice of words. Just a few months ago his government declined to remove the words “offend, insult, humiliate and intimidate” from section 18C of the Racial Discrimination Act.

Nevertheless, there is politics on both sides of the conflict. In both the Rushdie affair and the 2005 Danish cartoons crisis (when the newspaper Jyllands-Posten published a series of cartoons depicting the prophet Mohammed, leading to a diplomatic crisis and violent protests in the Muslim world) it later became clear many Islamist radicals were using their offence to pursue personal political agendas: to bolster support in Muslim countries or in their expat communities.

As Jytte Klausen writes in her 2009 account of the Danish crisis, The Cartoons that Shook the World, “Anger and pride certainly influenced the behaviour of some of the main actors, but so did deliberate political calculation and motives other than the public ones.”

The audience for these attacks on the West are not solely in the West. But the message they broadcast, domestically and internationally, is not that radical Islamism is strong, but that it is a weak, ideological dead-end.

The Government Can Revive Its ‘Freedom Agenda’

The promise to repeal or reform Section 18C of the Racial Discrimination Act may have been shelved, but it is not too late for the Government to revive its “freedom agenda”.

In opposition Tony Abbott and George Brandis made much of their commitment to freedom, arguing that the Liberal Party was “freedom’s bulwark”.

Unfortunately, this agenda is looking a little sad after they dropped the 18C promise, not to mention all the other stuff that’s happened in the last six months.

Yet one of the less heralded parts of the freedom agenda could set up a program of serious liberty-focused reform.

Sometimes the most important reforms are those that are done slowly and quietly.

In the first few months of the Abbott Government, Brandis asked the Australian Law Reform Commission to inquire into Commonwealth laws that encroach on what he described as “traditional rights and freedoms”. The ALRC produced an issues paper and a request for submissions in December.

The genesis of this inquiry is significant.

It was born in the contest over the Gillard government’s Human Rights and Anti-Discrimination Bill 2012. Remember that? This was the bill that would have made it unlawful to offend someone on the basis of their political opinion in the workplace.

The 2012 bill wasn’t really a “human rights” bill at all, as I argued on The Drum at the time – it was a consolidation of existing anti-discrimination law, symbolic of the capture of almost all human rights discourse by anti-discrimination.

The irony was that the bill was itself the remnant of Kevin Rudd’s grandiose dreams of a statutory bill of rights for Australia, yet it restricted human rights in some very important ways. For instance, it placed the burden of proof on the person accused of discrimination, and restricted the right to legal representation.

This correctly got Brandis and the Coalition fired up about Labor’s hostility to traditional legal protections.

For Brandis, and consequently for the ALRC, what constitutes “traditional rights and freedoms” is extraordinarily broad.

It includes things like freedom of speech, religion, association, and movement. Property rights are in there for good measure.

Then there are rights we exercise in the course of legal proceedings: the right to a fair trial, the right to appeal, the privilege against self-incrimination, and procedural fairness.

To top it off the ALRC is looking at broader governance principles like limiting the delegation of executive power to bureaucracies or regulators and maintaining judicial review of legislation.

This is a pretty comprehensive set of the tenets of liberal governance. The ALRC is going to find it very hard to do justice to just a small fraction of its inquiry.

But, on the other hand, it’s hard to imagine a more important inquiry for this Government, or any government, to pursue: a serious audit of the state of Australian law.

Debates like those over section 18C and the Human Rights and Anti-Discrimination Bill come and go, but Australia’s legal framework is the accumulation of decades of legislative busy-work. We look at laws individually as they are introduced or reformed but rarely do we step back to survey the full legal landscape.

We’re all familiar with commissions of audit for government spending. Wouldn’t it be nice to have periodic audits of our liberties?

In December my Institute of Public Affairs colleagues Simon Breheny and Morgan Begg released a report into just one facet of the ALRC’s traditional rights and freedoms: the rights that protect us while interacting with the legal system.

Breheny and Begg looked specifically at the right to silence, the presumption of innocence, the privilege against self-incrimination and what’s called “natural justice” – which constitutes things like the right to a trial, to appeal, to know what is alleged against us.

They found an astounding 262 provisions in Commonwealth law alone that breach these legal rights. Everything from the Telecommunications Act to the Agricultural and Veterinary Chemicals Code Act in one way or another abrogates these basic legal principles. The labyrinth Fair Work Act violates all four. So does the Competition and Consumer Act.

Breheny and Begg suggest these breaches of principle have been increasing in recent decades. If so, they’ve been increasing alongside the more general increase in legislative activity since the 1970s – governments are passing more, and longer, legislation than ever before.

Brandis asked the ALRC to look particularly into rights breaches within commercial and corporate regulation, environmental regulation and workplace relations law.

Breaches of fundamental legal rights in these sorts of acts tend to be ignored by Australia’s human rights community.

Indeed, the scope of the ALRC inquiry reveals how myopic and narrow the Australian Human Rights Commission has been, which appears to focus almost exclusively on anti-discrimination.

Things like the extraordinary powers granted to the Australian Securities and Investments Commission seem to be outside their frame of reference.

The people whose rights are violated by ASIC tend to be business types: managers, board members and executives.

That is, unsympathetic capitalists.

But, as the ALRC will hopefully conclude, even capitalists deserve attention for their traditional rights and freedoms too.