free speech – Page 2

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 Å½iÅ¾ek, praises the terrors of Mao, Lenin and Robespierre.

Such speech is distasteful and disgraceful, yes. It shouldn’t be illegal.

Legislative mission creep happens. For instance, when section 18C was first introduced in 1994, its advocates said it had a strict and narrow purpose. A piece published in The Age in November that year by Colin Rubenstein and Michael Kapel claimed it was only targeted at “the skinhead on the street yelling racist names and other insults at an Asian man, or a woman in traditional Islamic dress, not newspaper articles or anti-immigration pamphlets”. That has not turned out to be the case.

When he announced that they were abandoning section 18C reforms last year, the Prime Minister said it was because the whole thing had become “a complication” when dealing with Australia’s Muslim community. Labor’s fear campaign against the proposed changes had worked.

Yet last Monday Abbott criticised Australia’s Muslim leaders, wondering why they weren’t speaking up against terrorism themselves. He told them to police their own communities with the proposed anti-hate speech laws.

Which raises the question – does the government think the war against terror requires us to comfort or to confront the Muslim community?

Abbott’s instincts after the Charlie Hebdo atrocity were right. Free speech is a liberty we have to protect, and it is a powerful tool to wield against Islamist radicalism. Why does he now think it is a weakness?

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 freedomwatch.ipa.org.au.)

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.