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We needed a robust session after lunch to wake you all up, if the food and cheese has not done that already. We also need to hear the conflicting views on how we preserve and protect free speech, in a country where we don’t have constitutional or legislative protections.

The role of our culture, and the citizen, is a very important part of reform. Should we be looking towards the United States or New Zealand for a system to protect free speech? We have four fantastic panellists.

Firstly, Professor Spencer Zifcak from Liberty Victoria and Professor George Williams AO, a prolific writer with Fairfax press and with the University of New South Wales.

We also have with us Professor Suri Ratnapala from the TC Beirne School of Law, University of Queensland.

We also have Dr Gary Johns, Director of the Australian Institute for Progress.

We thought we might kick off with a question, and then invite questions from the audience. Put your hand up and we will acknowledge that once we get a microphone to you.

Spencer, what are the limits to free speech and how should it be protected?

Professor Spencer Zifcak:

Thank you Tim, and thank you everybody for coming. I don’t think anyone at this conference would disagree that free speech is a political principle of fundamental value.

From where I stand, there are two important reasons for that. The first is that freedom of expression is essential for the maintenance of democracy, and for the effect of participation of citizens in democracy.

People cannot participate in democracy unless they have a reasonable understanding of political issues. Open debate about political and government affairs is essential.

Secondly – not my argument, originally of John Milton and John Stuart Mill – freedom of speech is crucial to the pursuit of the truth. Society will more accurately attain facts in an atmosphere of free and uninhibited discussion, criticism and debate.

xi Dr Gary Johns is a director of the Australian Institute for Progress and DonorInform Limited.

xii Professor Suri Ratnapala is Professor of Public Law at the TC Beirne School of Law at the University of Queensland. He teaches constitutional law and jurisprudence, fields in which he has published widely.

xiii Professor George Williams AO is the Anthony Mason Professor, a Scientia Professor and the Foundation Director of the Gilbert+Tobin Centre of Public Law at the Faculty of Law, University of New South Wales.

xiv Professor Spencer Zifcak is Allan Myers Professor of Law and Associate Dean (Research) at the Academy of Law at the Australian Catholic University.

It is also well accepted, however (and Chris Berg has alluded to this already), that freedom of expression should, in certain circumstances, be limited. As the jurisprudence around free speech has developed, a number of reasonable limits have been identified.

Freedom of speech may be limited, for example, in the interests of national security, public order, proper enforcement of law, for the sake of public health and, in certain circumstances, in the interests of public morality.

On a more traditional level, it can be restrained to protect the rights and reputation of others, for reasons of privacy, and to ensure a right to a fair trial.

In each of those instances, the political and social value of free speech must be weighed in the balance against competing and compelling public interests.

There are not any clear rules that enable us to adjudicate these competing claims. Decisions about balance will always be influenced by specific circumstances in which competition takes place. What we can say, however, is that political speech should be relatively immune from proscription because it constitutes a dialogue between citizen and citizen, elected and elector, and between government and the governed.

It is speech that is conducive to the effectiveness of constitutional democracy. So a special place should be reserved for speech that is of public or political concern. Limits should be kept to a minimum. The position is different, however, for speech that only has a tenuous connection to democratic deliberation. Racially hateful speech is an example of that kind. That is because racial hatred is, fundamentally, an attack on a tolerant society and the right of everyone to equal respect and concern. For that reason, limits to it may more easily be justifiable.

It is considerations like that I had hoped might predominate in our recent discussion about the balance between freedom of expression, on the one hand, and the provisions of the Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act) on the other.

It is regrettable, in my view, that debate over the last two and a half years became ideologically driven, focused on personality, and essentially pugilistic in nature.

Because of that, I think we lost an important opportunity to make a modest set of reforms to the RDA, which would have created a more sensible balance between freedom of speech and the rights of people of racial minorities.

Professor George Williams:

I will start with the obvious proposition that when it comes to protection of freedom of speech, Australia has a legal problem. If you look at how well it is protected in this country, in ranges from weak to non-existent.

We do not have any general protection. We have an implied freedom of political communication in the Constitution but it would be a brave and rich person that would try and indicate their rights based on the precedent. In 22 years, only on two occasions has the High Court ever exercised that freedom,93 and in a litany of other cases, it has refused to apply it.

This means that the High Court has restricted journalists from interviewing a range of people on parole, and a range of measures that impact on the freedom of the press. The problem is not just a matter of legal protection but also, in Australia, we have developed a permissive culture in the making of new laws that infringe on freedom of speech.

You only have to look at the litany of new anti-terror laws, and realise we may be reviving some of the sedition debates. People could be jailed purely on their speech on terrorism, not their actions.

We have an Australian Security Intelligence Organisation (ASIO) law that says journalists cannot disclose ‘operational information’ about a person’s detention by ASIO within two years of that person being detained, or they can be jailed for up to five years.

There are much tougher examples that show a great willingness on the part of our politicians to pass laws that dramatically infringe on basic free speech rights.

What should we do about it? What is the answer, in a country like Australia? It falls into two categories. The Australian approach – let’s trust our elected representatives to pass and write laws, let us trust them to put political opportunity aside, let’s trust them to act according to basic democratic values.

What we know from that system is that it often works but in key cases the system lets that freedom down.

Free Speech 2014 • Symposium papers • 41 4 What are the limits of free speech and how should it be protected?

We are the only democratic nation that puts all our eggs in one basket. In other countries where you ask how free speech is protected it goes to a very general protection of free speech – the UK Human Rights Act,94 the United Nations International Bill of Human Rights95 and the United States Constitution all reflect a willingness to pass the laws I have talked about.

Australia should move on from being a nation that takes the approach that our political culture will fix it. If we value freedom of speech and need to overcome a legal problem, given the laws that have been passed, we need a legal solution. That means protection for freedom of speech in the Constitution, along with existing rights, or as part of a Human Rights Act. These can be invoked to provide protection that has been shown to be absent.

Dr Gary Johns:

Everyone here should be aware that the new Chief Justice of the Supreme Court of Queensland, Tim Carmody, was appointed under difficult circumstances. At his ‘un-welcome’ last week, Tim made the following statement: ‘to be truly free you have to forget what other people think or say about you’. That is my starting proposition and I agree with it entirely.

To particularise it, I think speech in Australia is less free because of the 1994 amendments to the Racial Discrimination Act,96 which I and two others in caucus opposed at the time.

But, of course, caucus, once they made the decision, you go into Parliament and vote with the party. I understand those rules.

But the Abbott government has decided to drop its amendments to the Act. If I were Mark Latham I would describe it in crude terms; I would say it is ‘weak’ to have walked away from a perfectly reasonable proposition.

The political ploy of dropping their amendments to 18C under cover of introducing other terrorist-related laws could be tested – for instance, why didn’t they drop the paid parental leave when they knew the budget was failing? Why don’t they drop the RET (renewable energy target) under cover of the complete, known ineffectiveness of a carbon abatement strategy?

I think they just didn’t believe firmly enough in the fact that the ‘94 amendments have curtailed freedom of speech.

The key quibble that I have with the Racial Discrimination Act as it stands is that in the one celebrated test case, the Bolt case,97 the substance of the critique of Bolt is missed. The substance was that a group of people maintained their Aboriginal heritage but you couldn’t know it to look at them. They are quite entitled to maintain it and Andrew was asking why they were even competing for prizes that are for Aborigines.

The question was, why does the benefit exist for a particular group of people? And I think the judge became a literary critic at the time rather than a judge. But, to be fair to the judge, he had a lot to work with.

The amendment was that the words ‘vilify and intimidate’ would be a replacement. Many of us, including many here, would agree. To vilify or intimidate are serious matters. To offend or humiliate are not.

If you forget those who offend or humiliate you, then you are free, in the words of Tim Carmody.

Tim Wilson:

Suri, what are the limits of free speech? How best should we protect it?

Professor Suri Ratnapala:

Let me first emphasise the importance of free speech. Free speech is part of freedom. Freedom of speech is part of individual freedom; it cannot be removed without harming freedom generally. The person who is free has the freedom to eat, breathe, drink and express oneself.

Freedom of speech has been the cornerstone and the basis of every great revolution of humankind. We would not have had the Hellenic civilisation without freedom of expression and the Roman liberties; we would not have had the Reformation, the Counter-reformation, the Enlightenment of the 17th and 18th centuries and we would not have the kind of commercial society that we have today.

One other reason that I think has not been, perhaps, emphasised sufficiently: information is not the monopoly of any one authority. It is not the monopoly of government; information is scattered among millions of individual persons. How a society can harness that information for the benefit of society is through what we know as the market process and the price signal.

That can only happen if there is freedom of expression, freedom for individuals to use the knowledge they have in expressing their wishes and choosing the way they want to live.

What is the principle by which this freedom should be limited? The general principle has twice or thrice been referred to – John Stuart Mill’s ‘Harm Principle’. The problem is, there is no agreement about what harm is.

A previous speaker in relation to the law of defamation said that defamation should not have as its objective the protection of property but of dignity. I take the opposite view. Defamation law, as well as every other law, indeed any limitation on free speech should be focused on a person’s individual rights and property.

In the case of defamation you have to quantify the harm, whether it is to dignity or to reputation. Damage to reputation can be quantified, for example in relation to income loss. There is no way to quantify damage to dignity.

Defamation law should compensate only quantifiable harm and not harm to a person’s emotions because it is not possible to do that, to calculate how much harm someone’s emotions or sentiments have suffered.

This has been the basis of the common law and the civil law of defamation. Emotional hurt should not be a justification to limit free speech.

I also think that it is not possible – as pointed out by previous speakers – to separate commercial speech from political speech and I also agree that it is not possible to limit freedom to express opinions about a religion from other freedoms such as the freedom to make political statements.

How do you protect it? There has to be legislative vigilance and there is of course a question of entrenching these freedoms in the Constitution.

We heard a very good exposition of the different sides of this debate. The fear that some of my colleagues have of entrenching or constitutionalising these freedoms is that it would further increase the power of judges to make decisions that are essentially moral or political.

Professor Williams was clearly right in saying that we are the only country that does not have some form of a Bill of Rights. I might also add – and this is a point I would like everyone to keep in mind – that the existence of a Bill of Rights or a constitutional statement of our rights and freedoms does not necessarily guarantee them.

Zimbabwe has a fine Bill of Rights; North Korea has a fine Bill of Rights in its Constitution. Most nations have a Bill of Rights in the Constitution but that does not mean that those rights exist in the lives of the people.

What is the basis on which rights can be protected? I don’t disagree that it would be good to have rights entrenched in the Constitution, if that was possible, but that is not the end of the story.

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