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Countries have two kinds of constitutions – the paper Constitution and the living Constitution. What matters is whether the living Constitution in the country is robust enough to protect the rights of the people and their liberties.

I have been living in this country for 30 years. As you can all see my skin is pretty dark. I have been waiting for someone to call me a ‘monkey’ or a black man, but I have still not been told that.

I am disappointed because I have a good answer, suggested to me by my wife, in case someone calls me a ‘monkey’. The answer is, ‘hello, cousin!’ (Laughter) That is not quite accurate. We are apes, not monkeys.

My point is this: Australia has a living Constitution which is quite robust. That does not mean it cannot be improved or that we do not need vigilance. What it means is that political culture, informal institutions and etiquette play an important role in protecting our freedoms and liberties.

It is not enough to focus on the formal provisions of our Constitution. It depends on the culture of the people – and for that, all of us are responsible.

–  –  –

Tim Wilson:

With the idea of culture as an important part of protecting free speech in the Democratic tradition, we are talking about things that are very philosophical. How do we make them real and tangible for people? Any takers?

Professor Suri Ratnapala:

The culture of liberty and freedom in England did not happen overnight. It happened over centuries of development through historic processes. We have, to some extent, been the beneficiaries of that legacy. Civil society and private institutions can play a very important part.

I can give you a very good example while we are in the middle of the football season. The Australian Football League (AFL), the National Rugby League (NRL), and the Australian Rugby Union (ARU) are private bodies based on contracts amongst hundreds of organisations and players. They do not permit any member of any club to engage in racial vilification. It is not the law that prevents this happening – it is contract and the culture that has been developed within these organisations.

What are churches for? There are churches, religious organisations, sporting bodies that are giving some leadership. It is possible to develop this culture from the grassroots; it is already there, quite strong in this country, that’s why we do not have racial conflict.

Professor George Williams:

I’d like to make a couple of comments about Australia’s culture when it comes to free speech. Australian’s culture is very tolerant of high levels of government intervention in free speech.

That is one of the greater concerns we have to deal with. The law has limits. The other thing I want to say about culture is that it is shaped by knowledge. I am always struck by how little Australians know about the legal system.

I went on a bit of a road show as we were drafting legislation in Victoria. One of the most common answers I got was that we just don’t need it. It is already protected by the Australian Constitution and our Bill of Rights.

This was backed up in a survey that Newspoll did a number of years ago – 61% of people said our rights were enshrined. We are dealing with a culture based on an overwhelming majority of Australians who believe that freedom of speech is well protected in this country.

That has an impact on shaping the views of voters, because they see it in the light of strong protection.

The other thing the community came up with, knowing their Bill of Rights, was their ability to ‘take the fifth’.

It shows how much our legal knowledge is based on United States cop shows. We are a confused culture when it comes to freedom of rights because it is based on not just ignorance, but false knowledge, which is a problem for educators and people looking for strong free speech protections.

Tim Wilson:

The suggestion is to go to various television shows, and for them to possibly reiterate the point that we do not have freedom of speech protection?

Professor Spencer Zifcak:

We have a bit to learn from the Canadian spirits. In the 1980s, the Prime Minister of Canada, Pierre Trudeau, tried to think of a strategy to bring the nation together.

What the study came up with was to repatriate the Constitution from the UK to Canada, and to include in the Canadian Constitution the Canadian Charter of Rights and Freedoms. The strength of the dedication of Canadians with the Constitution, and more particularly their Charter of Rights and Freedoms, was extraordinary.

Compare that to Australia. A survey of civics a decade or 15 years ago done by Stuart McIntyre discovered that only 10% of Australians know that we have a Constitution. If we are serious about protecting free speech then I agree with George: let us look at legal protection, first through a Human Rights Act and eventually through providing it with constitutional protection.

In that way, Australians may come to know a bit about the form of the Constitution and the sorts of values to which most Australians might commit.

Tim Wilson:

There is a component of the mob that can develop. We saw this recently on the subject of honour killings. How much can we rely on fellow citizens not to behave like a mob and shut down debate?

Dr Gary Johns:

The notion that we could educate the electorate to the satisfaction of three professors of law has flaws.

(Laughter) My father died at 93 and I’m 61. If I spent the next seven years I’ve got trying to educate the electorate… It was that ignorance that destroyed the attempts to have Australia become a republic because so many on the republic side wanted a direct elect president because that’s what they had seen on television. Sensible republicans, like myself, who didn’t want a direct elect president, had to fight against such ignorance.

Ignorance or knowledge is not the test here. I think the point Suri is making is that it is in the habits – free speech has been one in this country and has been for a long time. Its threats are specific, I agree, and they often come from government.

But by the time you get the generals together, the professors of law, to win the great battle of constitutional change, we will all be dead. Meanwhile, Attorneys-General will have come and gone and written and tweaked and moved freedom of speech against our broad interests.

I will finish on this point: it is a delight that at the completion of each election in Australia the losing leader rarely complains about the electoral process – ‘we were robbed’ – as would take place after an election in Indonesia.

To save face you have to say the other side cheated. There is only one person who has done so recently in Australia and that is Clive Palmer. He needs some education and enculturation.

Tim Wilson:Did anyone else want to answer the question about public pressure?

Professor Spencer Zifcak:

It depends what public pressure you are talking about. Our whole system of government depends to some extent on what kind of parliament and parliamentary representatives we have elected, and we can’t call that mob rule. It is a normal part of democracy.

But if we are talking about small pressure groups speaking intensely and, to some degree, threateningly, the answer is a mixture of further expression of contrary views and courage.

Professor George Williams:

The main driver of expression is media reports. It worries me, the number of restrictions we have as journalists.

Think of the enormous debate in the U.S. because of media reporting due to leaks and other concerns.

In Australia we have a bill that means that if a journalist reports the same information here, he or she may be jailed for a decade. I think we should ask ourselves, is it right that we will jail a journalist in those circumstances? We should look closer to home. Laws are already on the books to head off any capacity we might have to bring about those changes. It is not debated in this country, partly because the laws are so effective in cutting the debate off before people are even worrying about what they lose.

–  –  –

Tim Wilson:

You should wait for the discussion with Bret Walker this afternoon. Suri?

Professor Suri Ratnapala:

I wanted also to mention the fact that there is a fairly strong interconnection between economic, progressive austerity and the strength of the institutions, cultural institutions.

In many countries it is not that the people are less moral than, say, Australians or Englishmen or New Zealanders.

It is because of poverty that they behave in the way that they do.

It is a question of the chicken and egg; which comes first? The strong institutions promote economic growth and economic strength promotes strong institutions.

If we don’t know what comes first, perhaps there is a lot of luck involved, but we do know that there is a strong link.

I come from a country in which you couldn’t leave goods outside a shop without them disappearing in two minutes.

One of the culture shocks I got when I came to Australia 30 years ago was to see these goods outside, unguarded and people simply going into the shop and paying for it.

I don’t think there is a moral difference between Australians and Sri Lankans. Sri Lankans in their current state are very poor and the incentive to take it and not pay for it is too great. There is a close nexus.

One of the ways to protect liberty is to protect the economy. If you destroy the economy, undermine the economy, you also undermine the liberties and the Constitution.

Tim Wilson:

If you were to name your major concern in terms of free speech restrictions in Australia today, what would it be?

Anyone want to jump ahead? Something practical. Go, George.

Professor George Williams:

Where do you start? I could give you a long list.

–  –  –

Professor George Williams:

I would certainly start with some of the national security laws that prevent things coming to light, including the misuse of power. I would also turn to some of the provisions in the electoral laws.

Albert Langer went to jail for advocating a formal vote. The law makes it a criminal offence to cast the vote and Amnesty declared him to be the first Australian prisoner of conscience in over 20 years.

I would also put on the table a bill in the Tasmanian Parliament that will mean a mandatory jail sentence of three months for people who engage in speech through protest.98 It goes further than any other bill I’ve seen and it is directed particularly at the environmental movement, encompassing even protest on a footpath that might disrupt business. It looks like it will get through.

Let’s look at the Queensland bikie laws.99 I could give you a large number of examples – wearing a certain shirt could land you not just in jail but attract mandatory minimum sentences of a couple of decades.

We have long lists of concerning laws but no remedies in sight.

Tim Wilson:Spencer, do you want to add something to the list?

Professor Spencer Zifcak:

Yes, I do. I live in North Carlton, not far from the proposed freeway, a very controversial proposal. They have an election coming up in November. The government has been so concerned to reduce protest and opposition to this particular road that it has introduced legislation which shuts down a protest in certain areas in the immediate vicinity of the proposed link route.

Not only that. In the course of the consultation, which was compulsorily required by the government, it took off the table certain kinds of criticism and certain forms of – how shall I say – certain kinds of arguments that were not essentially economically founded from consultation meetings.

The chairs of the meeting were simply able to rule certain kinds of objections to the road off the agenda and consequently those views were not capable of being heard by the consultation and review panel. We have a Charter of Rights and Freedoms in Victoria.100 It seems to me that both those pieces of legislation were contrary to the Charter. But you need to have money and nobody at this point had the money or capability to challenge...

Gary Johns:

Can I just ask, so the Charter did not save the right of the protesters? It would have saved the rights of the protesters, had they had the financial resources?

Tim Wilson:

Isn’t this one of the challenges where you have a parliament that legislates a Charter of Rights and they are able to override that through legislation? Its efficacy makes it significantly diminished, so that means the only game in town is a constitutional revision?

Professor Spencer Zifcak:

I think most people on the panel agreed that the Constitution makes it desirable.

Professor Suri Ratnapala:

Compulsory voting is a long-standing component of free speech.

But, it is still not recognised that the right not to vote is part of freedom of expression. That is an important thing.

One of my students went to jail, unfortunately, having refused to vote. He did so – I feel a little guilty about it having listened to my lecture criticising the High Court decision on compulsory voting.

Tim Wilson:

Apart from the Racial Discrimination Act, do you have anything else on your list?

Dr Gary Johns:

The Premier has said he will withdraw the legislation fairly soon because he copped an 18% swing against him in a recent by-election, in an adjoining seat. It is possible for people to speak out, at little cost, even compulsorily, when they vote, to straighten politicians out.

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