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.

The Redundancy Of New Anti-Terrorism Laws

Incitement to violence is against the law. It’s always been against the law.

Every Australian state penalises incitement. The Commonwealth makes it unlawful to incite the commissioning of any criminal offence, not just violence.

This legal framework has developed over centuries. The prohibition on incitement has ancient common law roots. It is robust. It is coherent. It is a long-established and very well-founded limit on free speech.

So here’s a question: with the rich and robust law against incitement, why is the Abbott Government introducing the new offence of “advocating terrorism”?

Last week the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 was introduced into Parliament. Like the first national security bill that preceded it, it is dense and complex – a mix of sensible change mixed in with redundancy and extraordinary overreach.

I argued in The Drum a few weeks ago that the foreign fighter threat is both genuine and pressing. We’ve seen over the last fortnight how events in distant Iraq have materially changed the security environment in Australia. Many proposed legislative changes – particularly to foreign evidence laws and passport confiscation powers – make sense.

But the new bill goes much further than that.

The bill makes it illegal to visit some parts of the world without proving to a court that you visited for family or humanitarian reasons. It extends the control order regime and expands detention powers held by customs.

And it makes it illegal to advocate – counsel, promote, encourage, or urge – the doing of a terrorist act or the commission of a terrorist offense. (The section in the new bill is 80.2C.)

On its face this is extraordinary. The word terrorism is a term of art. A lot of people call Israel a terrorist state. Others respond that Palestine is terroristic.

More concretely, the Commonwealth Criminal Code defines a terrorist act as any action that a) causes or threatens harm to life, property, risk to health, or disruption of electronic infrastructure; b) is motivated by a political, religious or ideological cause; and c) is intended to intimidate the government or the public in general. (See section 100.1 of the Commonwealth Criminal Code here.)

The definition is broad because it has to be. What we describe as “terrorism” is really a collection of offenses. Every part of a terror plot is potentially prosecutable under laws that have been around for centuries. These include the most obvious – murder and attempted murder – down to things like conspiracy and weapons possession.

Indeed, as Bret Walker, the former Independent National Security Legislation Monitor, told the Australian Human Rights Commission’s free speech conference in August: “One of the best arguments against the counter-terrorist laws is that we didn’t need any of them, because we’ve long criminalised murder, conspiracy to murder, and incitement to murder.”

There are, certainly, some conceptual distinctions between traditional crime and terrorism. The latter is primarily intended to create fear. And governments hope to prevent terrorist acts rather than just punish them after the fact. Those differences perhaps justify some distinct anti-terror legislation.

But since September 11 governments have seemed intent on severing the concept of terrorism from its constituent parts – cleaving it off into a distinct body of law. This has created, as Bret Walker pointed out, massive redundancy, complication and confusion. The real winners from this decade of security hyper-legislation are lawyers.

Just how much redundancy has been piled into our anti-terror laws?

Well, in 2005 the Howard government passed sedition law reform that, in the words of the then-attorney general, Philip Ruddock, was intended to prohibit “any conduct or advocacy that is likely to encourage somebody to carry out a terrorist act”. Sound familiar?

It’s striking how little justification the Government has offered for the new advocating terrorism offense – let alone an account of why existing incitement or the 2005 sedition laws are inadequate.

But it appears the advocating terrorism offence isn’t just one of the dozens of new crimes and security powers in the Government’s voluminous anti-terror bills.

No, it seems to be the key to whole thing. It has deep political significance.

Think back to August, when the Government announced its turn towards national security. That announcement was made at a press conference where Tony Abbott also said he was abandoning the promise to repeal section 18C of the Racial Discrimination Act. We were told this was a matter of clearing the decks so everybody could get behind Team Australia.

Yet last week Fairfax reported Abbott shelved free speech reform so section 18C could be used against Islamic hate preachers.

This makes the August press conference even more disingenuous than it appeared at the time.

It seems the Government believes advocating terrorism and offending, insulting, humiliating or intimidating on the basis of race or ethnic origin are two sides of the same coin.

The promised reforms to section 18C weren’t a “complication”. They were directly contrary to the Government’s desire to suppress speech that would otherwise be free.

Free speech is non-negotiable

The Abbott government’s decision, announced in the first week of August, to abandon its promse to reform section 18C of the Racial Discrimination Act is one of the biggest setbacks for freedom of speech — and the cause of liberal reform — in some years.

Not because the broken promise is highly consequential (although, obviously, it is that, as various section 18C cases have shown) but because it demonstrates just how hard it is to wind the clock back; just how hard it is to reverse the dilution of liberal freedoms.

Throughout the debate over section 18C, the Institute of Public Affairs has maintained that freedom of speech is a fundamental liberty. The word ‘fundamental’ is not a rhetorical flourish. Speech is the expression of the deepest condition of individuality: that of thought. It is our thoughts — our preferences, our values, our beliefs, our ethical and moral principles — that set us apart from the collective. Being prevented from expressing those thoughts is an attack on our individuality. It suppresses difference in the interests of the group.

Hence the significance of the Coalition’s 18C promise. The last few decades have seen a substantial growth in the number of limitations placed on the freedom of speech. Most iconic of these has been the increasing legislative enactment of the doctrine of ‘hate speech’.

Each Australian jurisdiction (with the exception of the Northern Territory) has its own form of racial vilification laws. The Commonwealth Racial Hatred Act, that introduced section 18C in 1995, was, and remains, the preeminent anti-hate speech law in Australia. And the most stringent. It is worth recalling that the Andrew Bolt case was originally going to be launched in a Victorian court under Victoria’s anti-discrimination law. However, a decision was made that the plaintiffs would have more success under the Commonwealth’s section 18C.

So repealing section 18C, or amending it in such a way that it was effectively neutered, as George Brandis’ exposure draft legislation would have done, would have been highly symbolic.

It was not for nothing that the promise was the hook on which George Brandis hung what he described as the ‘freedom agenda’. When Tony Abbott gave the original promise to repeal section 18C in its current form at an Institute of Public Affairs event in 2012, his speech was titled ‘the freedom wars’. Abbott’s oratory was stirring. The Coalition would be ‘freedom’s bulwark’ in government. Abandoning the section 18C promise was not like abandoning any other election promises in the usual way that new governments do. A bulwark is supposed to provide protection.

So there is a heavy degree of irony that the announcement that section 18C would remain on the books came in the middle of a press conference on national security reforms.

Section 18C was, in the words of the prime minister, ‘a complication’ that put ‘national unity at risk’. In this case the government was quite literally trading liberty for security. It was to drop its promise to restore freedom of speech in the hope it would encourage Muslim communities to assist it with anti-terror measures.

As a political tactic, this is a somewhat strange. Australia’s Muslim leaders did not hesitate to condemn some of the new proposals that they believed targeted Muslims unfairly. The government’s ‘trade’ didn’t survive more than a few hours.

But as a position on public policy it is bizarre. Peter Costello was spot on when he asked in the Herald Sun:

Does the Government believe there are community leaders whose commitment to their fellow citizens and the values of a civilised society is so weak they will not co-operate in preventing terror and murder if Section 18C is repealed? If that is the case we really do have a problem.

Let us hope our anti-terrorism strategy does not really hinge on this legislative quid-pro-quo.

But more critically: what does it say about Australia if a political party elected on a platform of ‘freedom’ — they used the word liberally — drops that platform as a bargaining chip for national security laws? Such laws are, after all, supposed to protect the liberties which have been discarded.

The case for repealing section 18C is as strong as it ever was. Support for substantially amending it — ranging from simply deleting the words ‘offend’ and ‘insult’ from the act to outright abolition of the section 18C — was found across the political spectrum. The Age, the Saturday Age, the Australian, the Herald Sun, and the Courier Mail editorialised against section 18C.

Left wing agitators, human rights lawyers, legal academics, public commentators, aboriginal community leaders, and journalists are all found opposing section 18C as it stands and supporting reform. Figures from Keith Windschuttle to David Marr to Antony Loewenstein agree the act must change. (A full list of supporters of change is available at

Yet here we are. In the end change has to be fought through the parliamentary system. There will be future cases under section 18C. The section is a very real constraint on our most fundamental liberty. Hopefully future governments will take the freedom of speech challenge seriously.

Free speech in a liberal democracy

Speech at ‘Free Speech 2014’, Australian Human Rights Commission, Sydney, 7 August 2014.

Australia is a liberal democracy and liberal democracies are founded on freedom of speech.

This was the intuition behind the High Court’s discovery in the early 1990s of our implied right to political communication.28 That right, in my view, is deeply inadequate.

But for our purposes today, I’ll point out that the right to political communication isn’t really a ‘right’, per se, at least not in the way that we are used to speaking about human rights: as universal, based on fundamental moral principles, and innate to our personhood.

It’s a more of a pragmatic legal workaround to a basic contradiction in Westminster government. The Parliament gets its legitimacy from the fact that it is freely chosen by the conscience and debate of free citizens. But the Parliament is able to write laws that determine the rules under which that debate may be conducted and what consciences may be publicly expressed.

Then again, if the right to political communication is all we are offered, I’ll take it.

Today I want to do two things. First, I want to briefly lay some foundations for the right to freedom of speech. These foundations are philosophical. You might even say ideological.

The last three years of free speech debate, beginning with the Andrew Bolt case, has been an ideological one, as it should be. Pretending that free speech is just a matter for lawyers to negotiate competing rights claims in court – or, worse, for human rights technocrats to arbitrate between different international human rights ‘instruments’ – is to pay lip service to human rights. Human rights are fundamentally political claims.

Second, I’ll connect these principles to a few examples of what I consider to be the more interesting and concerning limitations on free speech today. The great American legal academic Lee C. Bollinger once wrote that ‘free speech is not just a practical tool for making systemic repairs, but an affirmation of what we value as a people’. He went on, ‘the reason we shelter speech is as important as the speech we shelter’. The popular free speech debate is mediated through a thicket of metaphors and analogies. One of the most common is that one cannot falsely shout fire in a crowded theatre.

It is astonishing anybody still uses this metaphor: it was conceived as a justification for the suppression of socialist anti-war dissent during the First World War. The ‘crowded theatre’ was the American war effort. To falsely shout fire was to contentiously object to that war. If we insist on the use of metaphors to determine our ideas of free speech, then it is hard not to see the stubborn persistence of the crowded theatre as itself a metaphor for the way free speech limitations are almost always defences of the power of the state.

Freedom of speech is, ultimately, the outward manifestation of the deeper freedom of individual conscience, of thought. It is our thoughts – our preferences, our ideas, our faiths, our internal differentiation from the collective – that make us individuals, that make us human. A recognition of that forms the basis of pluralistic liberal democracy.

Free speech is not a tool to make the state function better, as the High Court’s reasoning suggests it is. Rather it is fundamental to our individual moral autonomy.

I understand that’s a bit wishy-washy. But talking about principles seems to be more productive than the opposite: the philosophically empty busy-work that constitutes most debate about human rights in Australia today – that is, measuring Australian law against international treaties and identifying where the two differ.

And on these principles Australia has a massive freedom of speech problem. Our defamation laws are heavy-handed and have a demonstrable chilling effect on speech. Our sedition laws are excessive. Our classification scheme is effectively a censorship scheme. Our communications regulator believes that its job is to adjudicate whether speech on radio and television is
sufficiently balanced. We were told that the federal government abandoned the internet filter a few years ago, but section 313 of the Telecommunications Act 1997 (Cth) operates exactly as opponents of the internet filter feared Labor’s policy would.

And last week we learned that a super-injunction can prevent us discussing the absolutely scandalous foreign activities of the most important economic institution in the country – a super-injunction that we are told is necessary to protect national security. Of course it is. The bottom line from that super-injunction is this: I am unable to discuss the unlawful activities of a government department at a national conference on free speech.

Let me briefly mention a few policy proposals on the cards that have substantial free speech implications. First is the government’s proposed Children’s e-Safety Commissioner. They will have the power to delete material from social media sites – the phrase is ‘rapidly takedown harmful material’. Bullying is a serious issue. But the proposal will offer no material benefit to children who are being bullied. It is a strong example of how moral panics ultimately manifest in attacks on speech.

Second is the proposed anti-copyright infringement scheme, which would allow courts to block – that is, censor – overseas websites from being accessible in Australia. Once again, how does this differ from Labor’s reviled internet filter proposal?

Finally it is worth dwelling on the new frontier in freedom of speech restrictions – government surveillance. The sensation of being watched – and the fear that private speech or expression is going to be recorded or scrutinised – makes people more reserved and less willing to participate in discussion. As one significant study concluded, ‘the threat or actuality of government surveillance may psychologically inhibit freedom of speech’.

This is something to reflect on since the federal government announcement that it was seeking to require internet service providers to retain records of their customers’ internet activity for two years. What websites would you be reluctant to visit if you knew that they were going on your two-year activity record at your Internet Service Provider (ISP), for any of Australia’s dozens of law enforcement agency or regulators or quasijudicial bodies to trawl through years later? What would you decide not to read, or watch, or look at in the privacy of your home? What links would you regret clicking? What emails would you avoid sending?

Mandatory data retention is, and will be, a truly repressive attack on free speech. That’s even before we start talking about its privacy implications. Or its cost.

The Abbott government came to the 2013 election promising to pursue what it described as a ‘freedom agenda’. In August 2014 it also announced that it was abandoning its promise to repeal section 18C of the Racial Discrimination Act 1975 (Cth). Apparently it would be too divisive to restore, in some small way, free speech, while introducing a policy, data retention, that will suppress free speech. This is incredibly disappointing.

So what is left of the freedom agenda? For my organisation, the Institute of Public Affairs, and its thousands of individual members, section 18C is still an iconic and unambiguous limitation of free speech. We will continue to fight to repeal it, whether under this government or the next.

The Roman historian Tacitus defined the essential attributes of free Roman citizenship as one who ‘can feel what we wish and may say what we feel’. Without such liberties, liberal democracy is weak, and our human rights are without protection.

How George Brandis’ Race-Hate Laws Are Good For Democracy

What would the repeal of section 18C of the Racial Discrimination Act symbolise? It is a sign the debate has progressed that columnist Waleed Aly and Race Discrimination Commissioner Tim Soutphommasane, both writing in Fairfax Media last week, now focus their objections to Attorney-General George Brandis’ proposed reform on the symbolism of such a move, instead of its practical effects.

Section 18C makes it unlawful to offend, insult, humiliate and intimidate someone on the basis of their racial or ethnic origin. Introducing the provision in 1994, the then attorney-general Michael Lavarch said it would be a “safety net for racial harmony”.

But two decades later, no serious person argues the aggregate level of bigotry in Australia has been affected one bit by section 18C. As Aly admitted: “We’re not exactly playing for cutthroat stakes.”

The proposed reforms are not about the “right to be a bigot”; they are about whether Australians should be able to sue each other for racism. And that is a much narrower question. Few people have the resources or inclination to litigate speech. No wonder the most articulate defenders of section 18C now focus on its symbolism.

But the symbolism is a two-way street. The proposed reforms are not just designed to protect freedom of speech. They appear to be written in a way to suggest that free speech is a basic democratic virtue.

How so? The core of Brandis’ proposal is a new defence to the accusation of racial vilification if it occurs in a discussion of “any political, social, cultural, religious, artistic, academic or scientific matter”. This distinguishes it from the existing defence, which requires the political discussion to be “reasonable” and made in “good faith”.

The intuition here is that your right to participate in public debate does not hinge on whether a Federal Court judge believes you are participating reasonably, or what your motives are. It is a fundamentally democratic change. The High Court has rightly found that the very foundation of our liberal democracy is a right to speak freely on matters of political importance. Brandis’ proposals extend that observation to all areas of public interest: cultural, social, religious and so forth. And doing so is symbolism, which everybody – including those who section 18C was originally designed to protect – should have an abiding interest in.

Human rights exist to protect the minority against the whims of the majority. To defend free speech is to recognise that no ideas are sacrosanct, that all ideas can be challenged. Historically, free expression has been one of the strongest weapons for pluralism. Speech rights are most necessary for the weak, not the powerful.

Nobody denies the harm of hate speech. But nor should anybody deny the necessity of protecting free expression for the maintenance of a democratic system and as a basic individual right.

Indeed, it is surprising the same human rights bodies lining up to oppose Brandis are also the strongest advocates of an Australian bill of rights. Any bill of rights would have a right to free speech. What if this right made section 18C invalid? Certainly, that has been the result of the United States’ First Amendment, which has made anti-hate speech laws unconstitutional.

Brandis’ reforms are carefully written. They appear to be designed to straddle two famous controversies. The first is the Andrew Bolt articles on light-skinned Aboriginal people, which were found to have been unlawful under section 18C in 2011.

The amendments have been tailored to cover all the major issues raised by the judge in that case. Brandis wants to clarify that the word intimidation means physical intimidation, reset the “reasonable person” test to mean a reasonable member of the Australian community, and make sure the free speech exemption does not rely on a judge’s feelings about what constitutes good faith. The Bolt columns would be perfectly lawful under the Brandis reforms.

The other controversy was when a 13-year-old girl yelled “You’re an ape” at Adam Goodes at an AFL match in May last year. The proposed new anti-vilification provision is designed to keep speech such as this unlawful. The girl was not commenting on a matter of public interest.

Goodes did not sue. He made his case against bigotry in the public arena. But many section 18C cases are like the Goodes incident: verbal altercations and family feuds that involve some sort of racial slur. Under the Brandis proposals, they are still supposed to be unlawful. The theory is that such abuse has no democratic merit.

Yes, the Abbott government should reform laws that constrain freedom of speech across the board. And certainly, it should not be proposing to censor social media as part of its anti-cyber bullying proposals. But that this government’s defence of free speech is less than comprehensive is no argument against reforming section 18C.

Soutphommasane and Aly are right. The symbolism of getting the courts out of the business of regulating public debate would be profound, and profoundly democratic.

Politics Stands In The Way Of A Full 18C Repeal

George Brandis’ exposure draft of amendments to the Racial Discrimination Act is a magnificent example of how to repeal legislation without admitting you’re repealing legislation.

It is, without doubt, a reform that advances the cause of freedom of speech in Australia.

The reforms neuter the provision (Section 18C) which Andrew Bolt was found to have breached in 2011 with his newspaper columns discussing white-skinned Aboriginal people.

As supporters of the existing law point out, the next section of the Racial Discrimination Act(Section 18D) is supposed to provide exemptions to 18C, for instance, any reasonable and good faith statements on topics in the public interest.

But Justice Bromberg decided that Bolt was not eligible to meet the exemptions in Section 18D that cover political comment because the columns were not written in good faith. The judge said there were too many factual errors and Bolt had adopted an excessively sarcastic tone.

Well, 18D is to be repealed, and replaced with an extraordinarily, incredibly powerful exemption that reads (and it is worth reading in full):

This section does not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.

There’s no “reasonable” or “in good faith” there. No ambiguous terms of art a judge could use to decide some speech on political, social, or cultural topics didn’t actually qualify for the exemption.

And this rewritten exemption would undeniably have covered the Andrew Bolt columns, which spoke of what he saw as a social, cultural and political phenomenon of lighter-skinned people choosing to identify as Indigenous.

The full amendment presented by Brandis today makes a lot of other changes.

The old Section 18C prohibited any speech that would offend, insult, humiliate and intimidate a group on the basis of their, race, colour, national, or ethnic origin.

The words offend, insult, and humiliate are gone. Intimidate is more tightly defined as intimidation that involves physical harm, duplicating much existing law. The amendment adds “vilify”, which it defines as inciting hatred against a person or group.

But none of that matters if the grand exemption applies.

The exemption is important not just for what it does to the new Section 18C, but for what it symbolises.

Back in the early 1990s, the High Court decided that freedom of speech is a fundamental lynchpin of democracy, and that therefore the constitution implied some sort of freedom of political communication.

Putting aside whether implied rights make much sense, the court’s basic reasoning was a good one: it is absurd to talk of a democracy that doesn’t freely and openly debate political matters. Or social, cultural, religious, artistic, academic or scientific matters. Democracy is more than just voting.

The defence lawyers in the Bolt case didn’t base their argument on the right to political communication. It’s a shame that they didn’t. The strict confines that the High Court has placed around this right are starting to fall apart, as we saw in the Unions NSW case late last year. It would have been fascinating to see what they might have done with Section 18C if it was taken that far.

The new exemption makes clear the fundamental importance of free discussion on any matter of public interest, no matter how extreme that discussion is.

Yet Brandis is right that protections against racial vilification remain, even in the new amended section.

To understand why you have to be familiar with the sort of cases section 18C is used in. Most section 18C cases don’t cover high profile things like Andrew Bolt columns. I’ve mentioned one such case in the Drum before: where a lawyer called a security guard a “Singaporean prick”.Here’s another one, from 2012 – a family dispute that involved throwing racial slurs around.

Nor does anybody suggest that these sort of cases are major wins in the battle against prejudice.

Depending on how judges choose to interpret the word “vilify” and the phrase “racial hatred” – both added to Section 18C in the exposure draft – it is highly plausible that they would still be considered unlawful acts of racial discrimination. (And of course, there’s all those state racial and religious vilification laws.)

But who knows? Legislation can travel in funny directions once Parliament puts it in the hands of the courts.

That, ultimately, is the problem with leaving Section 18C in there; with not going the whole hog and committing to a full repeal.

The phrase “racial hatred” comes from state law, but we can’t know how future judges will choose to interpret it. There is always some risk that Section 18C could be reactivated in some sense.

Now given the strength of the broad exemption, it’s fair to say that risk might be small. But why not just do the full repeal?

Politics, obviously. The complex amendments allow George Brandis and Tony Abbott to say that they haven’t repealed any protections, just cleaned them up.

And that argument is pitched entirely at the Liberal party room, who will be the ones that decide whether this draft exposure bill becomes Liberal Party policy.

Australia’s March To Free Speech Has Begun

The High Court’s decision in Unions NSW vs New South Wales is one of the most significant decisions for democracy and human rights in Australian history.

It’s on par with the 1951 decision which quashed the Communist Party Dissolution Bill.

It reveals a High Court inching – slowly, reluctantly, unhappily – towards a full-blown recognition of the human right to freedom of speech and freedom of association: the sort of uncompromising liberties expressly found in United States’ First Amendment.

The decision was released just before the Christmas break. The High Court found that the New South Wales ban on organisations donating to political parties and third party political campaigning were invalid, as they violated the constitution’s implied freedom of political communication.

I wrote about the NSW laws in The Drum in February 2012. They were a disgraceful and transparent manipulation of the electoral system designed to cripple the Labor Party and its union-centred funding model.

Of course, like all disgraceful and transparent manipulations of the electoral system, they were dressed up in woolly sentiments about enhancing democracy and reducing corruption.

It is a rare law that can unite in opposition the union movement, the Institute of Public Affairs, and environmental groups (the law was particularly damaging for federated bodies like the Wilderness Society).

But it’s an even rarer law that can inspire the High Court to trigger its free speech veto.

In a series of cases in the 1990s the High Court discovered a ‘freedom of political communication’ buried (‘implied’) deep within the Australian constitution.

Of course, there are no words in the constitution that say any such thing, but in 1992 the High Court decided the freedom was in there.

The court’s reasoning went like this. The Australian Constitution is a democratic constitution. A democracy is predicated on the free flow of communication about political issues. Therefore the document is predicated on the existence of some form of freedom to talk about politics – a freedom of political communication.

But, as the High Court has always at pains to say since, that freedom is not a general right to freedom of speech for individuals. It’s not like the First Amendment. No, it’s about protecting political communication – and political communication alone – from legislative interference. There’s nothing in the Australian constitution to allow citizens to sound off on everything willy-nilly.

Over the past two decades, the court has kept its free speech lid screwed on pretty tight. In recent years it has declined to protect the speech of a group of sidewalk preachers in Adelaide, the Islamist Sheikh Haron, and Lex Wotton, one of the Palm Island rioters.

They’re probably worried where this whole implied freedoms thing will lead.

And rightly so. The court’s foray into the political philosophy of democracy is embarrassingly underdeveloped. Our constitution isn’t just a constitution for a democracy. It is a constitution for a liberal democracy – a country where free and morally autonomous individuals mutually consent to democratic government.

And that implies that those free individuals have rights as free individuals. Australian citizens are not just conduits for electoral debate. Adrienne Stone of Melbourne Law School makes this argument here. As she writes, there is a plausible – I would say fundamental and intrinsic – relationship between personal individual autonomy and liberal democracy. The former is the foundation of the latter.

If the High Court were to recognise this relationship, then the limited freedom of political communication could be transformed into a broader right to freedom of speech.

The constitution doesn’t only imply electoral democracy. It implies individual liberty.

Twenty years ago the judiciary committed itself to divining political philosophy between the lines of the constitution. Perhaps it should not have started down this path. But now that it has, it should go where the path leads.

The Unions NSW case suggests they might be doing so. It is remarkable for a number of reasons.

First, the court has decided that the freedom of political communication applies to the states as well. That’s a big deal. The previously strict bounds of the freedom are being pushed out.

The US Supreme Court only started imposing the First Amendment on state laws in the 1920s. Indeed, the First Amendment only really became ‘activated’ in the twentieth century. It had to grow into what it is today. Australian free speech rights are embryonic – but they’re heading in the same direction.

Second, the court recognised that money can be speech. The way we spend our money is sometimes a form of political expression. This apparently horrifies many people on the left. But it is obviously true. It takes money to buy a T-shirt with a political slogan on it. It takes money to publish a book. It takes money to host a website. To ban the money is to restrain the speech that money was to bring about.

The intuition that money and speech are related is why things as disparate as the proposed secondary boycott laws and the ban on David Hicks profiting from his memoirs are equally objectionable. They limit speech by regulating its financial side.

Finally, and most interestingly, the High Court’s decision quietly suggested something very important, even revolutionary: corporations have as much right to speech as anybody else.

Of course corporations are not people. Corporate personhood is just a legal construct to facilitate contracts and lawsuits. Stop hyperventilating.

But corporations are made of people.

And just because people get together to form organisations doesn’t mean they lose their rights once they have. As the Unions NSW case suggests, businesses, unions and non-profit groups have much in common. They are all voluntarily formed by individuals to achieve a collective goal. All legitimately participate in political life.

This is one of the reasons that the US Supreme Court is coming around to an understanding that there is no clear, coherent distinction between ‘commercial speech’ and regular speech.

Of course, Americans have a rich body of case law explaining the extent and limits of the First Amendment. Australia’s free speech corpus is fragmented and arbitrary, and cripplingly limited by the High Court’s reluctance to follow its own logic where that logic leads.

So it’s still not totally clear what our freedom of political communication actually means. But after the Unions NSW case, we know that, whatever it means, it means a great deal.