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When it comes to free speech, we’re all hypocrites

From anti-terror laws to Section 18C, both sides of politics have a bet each way

14 February 2015

9:00 AM

14 February 2015

9:00 AM

Like a few of his other ‘principled’ policies, Tony Abbott’s commitment to revising the legislative prohibition against insulting or offending someone on the basis of his or her race or ethnicity withered away in the face of concerted opposition. In the end, Abbott and his ministers did not have the stomach to fight a political battle for a principle that others have sacrificed their lives to defend.

While the pusillanimity of our current Government is to be lamented, the Australian left should also be hanging its collective head in shame. The same groups and individuals that have been demanding a Bill of Rights – an instrument that would necessarily include constitutional-level protection of freedom of speech – were at the barricades promoting and defending the legislation in question. Few picked up on the obvious contradiction. Their reaction to the Charlie Hebdo killings evidenced a frightening lack of self-awareness. In this country, nous ne sommes pas Charlie: a magazine like that would never survive. Certainly it would have fallen foul of our unreformed Racial Discrimination Act. Like Andrew Bolt, Charlie would have found himself in the dock, facing the vitriol of the Australian left – as well as Muslim extremists baying for his blood.

When it comes to free speech, hypocrisy is unrepentantly bipartisan. Australian conservatives, all too eager to scramble onto the free speech bandwagon when it suits them (and especially when their pet mascots are under attack) are oddly at peace with this country’s ever-denser web of anti-terror legislation that goes further than just about every other Western nation in controlling speech and the flow of information.

Our present government, the self-styled ‘Freedom Party’ has, with strong Labor support, criminalized the disclosing and sharing of any information that is related to a ‘special intelligence operation’. Critically, we don’t – and won’t – know exactly what constitutes a ‘special intelligence operation’ until the axe falls on the journalist or whistleblower responsible for the revelation – and maybe not even then.


What a disgrace. A good and fair law has a clear and predictable scope of application. The wording of this one is broad enough to drive a truck through: plainly intended to give maximum flexibility, power and cover to politicians and security agencies, while not-so-subtly discouraging public debate about what they are actually doing. The government’s feeble palliation– that these provisions are intended for only occasional use, in ‘unusual’ situations, is laughable. We’ve been rightly conned.

Revealingly, when it comes to terror offences, the Government decided that our robust legal prohibitions on ‘incitement to violence’ are not strong enough. Today, it is a serious criminal offence to ‘advocate terrorism’. The law is fuzzy on what ‘advocating’ actually entails, and is a bit vague on the whole ‘terrorism’ thing as well. Maybe we can trust our governments and courts to interpret and apply this law in a way that doesn’t unjustifiably infringe on freedom of speech. But maybe we’ve had enough reminders in recent years to wonder if such trust might be a tad misplaced.

Freedom of opinion and expression is an internationally recognized human right, one with a particularly stellar and bloody history. Like most human rights it has an unassailable core and a soft outer shell.

What this means is that someone’s right to think or say or write what he or she thinks should never be abrogated by the state except in carefully defined circumstances that can be objectively justified. In this case, state intervention is only ever acceptable when the intention or result of the opinion or expression is to incite hatred and violence or where there is a real (as opposed to hypothetical) threat to national security. That’s pretty much it: hatred, violence and national security. The genocidal Hutus in Rwanda who took over the local radio station to broadcast vile messages of hate and revenge crossed the line. So do religious extremists who call for the murder of those not sharing their views. To incite laughter or derision about matters some find sacred might be rude and graceless, but it should not be a concern for our laws or our courts.

And the same goes for the national security exception to the right of opinion and expression: it should never be capable of being used to block information about serious wrongdoing – or to shield governments from being embarrassed about incompetence and overreach.

I’m a human rights lawyer. Over the past two decades I’ve been in more than sixty countries, documenting and trying to respond to horrific abuses committed by the powerful against the weak: by governments against their citizens; majorities against minorities; men against women; adults against children. Human rights expose and challenge imbalances of power. That is why they are so feared by bullies, tyrants and nervous leaders. Abridging a fundamental liberty such as the right to freedom of opinion and expression in the name of shielding someone from future hurt or insult– or indeed on the too-often specious grounds of ‘national security’ – is dangerous because it also takes that right away from others. In a recent article in the Atlantic satirist Karl Sharro points out that these essential freedoms are being steadily eroded in the West at the very same time they are most needed to leverage social and political change elsewhere. Those brave men and women who are fighting political and social oppression in the Middle East and Africa, in Eastern Europe and Asia don’t need our lefty-liberal, fair-weather, wishy-washy version of free speech. They need and deserve the solid protection of the real thing.

Over to you, Mr Abbott: in the wake of the massacre in Paris you boldly declared that: ‘we have to be prepared to speak up for our beliefs. We have to be prepared to call things as we see them.’ These are fine words with which to revive debate over Section 18 of the Race Discrimination Act – and perhaps also to have another think about some of your anti-terror laws. Bon courage!

Anne T. Gallagher AO, PhD is an international lawyer and UN Adviser on Human Trafficking.


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