What Next For Freedom of Speech?

A freedom lost is a freedom not so easily restored, writes Morgan Begg.

Upon becoming prime minister, Malcolm Turnbull declared that the government he was to lead would be a ‘thoroughly Liberal government committed to freedom, the individual and the market.’

This was no doubt pleasing to those who were dismayed by the Abbott government’s decision in August 2014 to abandon its promise to substantially reform section 18C of the Racial Discrimination Act 1975 (RDA).

That the promise was abandoned in the flimsiest of pretexts is highly disappointing. It also demonstrated how difficult it is to turn back the clock on laws that undermine fundamental individual liberties. A freedom lost is a freedom not so easily restored.

Since then, the fight for free speech has been an uphill one. But progress is being made.

The case for repealing section 18C is as compelling as ever. And there is growing support across the political spectrum for amendments in some form. It was inevitable that others would pick up the slack where the Coalition failed to take a stand for free speech.

In September 2014, Family First Senator Bob Day introduced the Racial Discrimination Amendment Bill into parliament:

It is well known that freedom of thought, freedom of belief, freedom of opinion and expression and freedom of the press are fundamental to the rule of law. For the rule of law to function properly, a country’s citizens must be able to observe, comment and critique the existence or nonexistence of laws, the making of laws, and the application thereof in the courts system.

Co-sponsored by Liberal Democrat Senator David Leyonhjelm and Liberal backbenchers Senators Cory Bernardi and Dean Smith, the ‘Day amendments’ would amend section 18C so that acts which ‘offend’ or ‘insult’ would no longer be considered a breach of the RDA.

OPPOSITION TO SECTION 18C WAS ONE OF THE POLICIES THAT COST ABBOTT SUPPORT FROM CONSERVATIVES IN THE LIBERAL PARTY

After all, as Senator Leyonhjelm pointed out in his 2014 column for the Australian Financial Review:

[W]hether anyone is indeed offended, insulted, humiliated or intimidated is up to the receiver of the message… Given an inability to know in advance how the recipient might choose to feel, the only option is to avoid saying anything much at all. This can have significant consequences for the way we speak.

The Day amendments are a modest and uncontroversial compromise that removes the most restrictive elements of section 18C—making it legal again to cause offence and to insult is not radical— and would leave the remainder of 18C as is. In other words, it would remain unlawful to humiliate or intimidate another person on the basis of race, colour or national or ethnic origin.

Since its introduction, and in the face of government policy to keep the RDA as it is, this bill has slowly gathered supporters among Liberal backbenchers in the Senate. This is extraordinary when you consider that Australian politics is characterised by an unreasonably strict level of conformity to the party line.

Those that have indicated they will cross the floor are Senators Chris Back, Sean Edwards, Ian Macdonald, Linda Reynolds and Zed Seselja. As at the time of writing, Senator Eric Abetz is the latest senator to indicate he will cross the floor, writing in a Young Liberal Policy Book:

Section 18C of the Racial Discrimination Act is something that divides, promotes sectionalism and is corrosive to that societal foundation of free speech. In particular, the provisions that make it an offence to offend or insult are an anathema to the kind of free and open society that we should be promoting … when Senator Day’s Private Senator’s Bill comes before the Parliament for a vote, I will exercise that great freedom we enjoy in the Liberal Party – the right to cross the floor and to support this eminently sensible amendment. It is still my hope though that the Party Room decides to support this Bill as a whole. It will be a sad day if Liberals have to cross the floor to protect one of the great human freedoms – free speech.

Perhaps the biggest potential supporter is the prime minister himself. In May, the then Minister for Communications said on The Bolt Report that he was ‘very comfortable’ about removing the words ‘insult’ and ‘offend’ from the RDA, adding that he ‘didn’t think that would have any negative impact’.

The Day amendments would have proven to be a spectacularly simple way to back up both his comments on The Bolt Report, as well as his declaration at the beginning of his prime ministership. Unfortunately, the prime minister backtracked and in October of this year stated in the House of Representatives:

[T]here has been a very lively debate about whether … “insult” and “offend” are more than is required to achieve the purposes of the act. There has been a very reasonable and legitimate debate about that from people on both sides of politics. There is a bill in the Senate. It has not been considered by the government. I can say that the government does not have any plans to reopen this matter, to reopen consideration of amendments to section 18C… the government has no plans to change the Racial Discrimination Act at all, but it is an important debate that we should have in a free society, about the limits of speech and the way in which we can best ensure that we preserve social harmony and security and at the same time ensure that there is free speech.

Opposition to section 18C was one of the policies that cost Abbott support from conservatives in the Liberal party. It is not smart politics for Turnbull to make the same mistake, particularly with a dozen Coalition senators in the Senate already indicating they will cross the floor.

Undoubtedly, much of the resistance will be founded on the idea that achieving change would be too difficult and too controversial, as the Abbott government’s fumbled efforts show.

But as difficult as it is to overcome entrenched, status-quo, progressive opposition, it is possible to reform restrictive speech laws, as our Commonwealth cousins have proven when faced with remarkably similar circumstances.

MUCH OF THE RESISTANCE WILL BE FOUNDED ON THE IDEA THAT ACHIEVING CHANGE WOULD BE TOO DIFFICULT AND TOO CONTROVERSIAL

Until February 2014, section 5(1) of the United Kingdom’s Public Order Act (1986) criminalised, among other things, ‘insulting words or behaviour’. Crossbench peer Baron Dear tacked onto government legislation in 2013 an extra amendment to remove the word ‘insulting’ from the law. The amendment was passed by the House of Lords, and was ultimately accepted by the Conservative government in the House of Commons.

Across the Atlantic, section 13 of the Canadian Human Rights Act (1985) made it unlawful to communicate, by phone or by internet, ‘any material that is likely to expose a person or persons to hatred or contempt’ based on a number of prescribed grounds of discrimination, including race, national or ethnic origin, colour, and religion.

A private members bill introduced by a Conservative backbencher Brian Storseth in 2011 to repeal section 13 was accepted by the House of Commons, and ultimately passed the Senate in June 2013.

By backing the uncontroversial Day amendments, the prime minister would simultaneously extend an olive branch to conservatives within the party who are dissatisfied with the ousting of Abbott, maintain consistency with his earlier statements, and remove one of the worst elements of the Racial Discrimination Act 1975. Most importantly, the prime minister would restore a fundamental liberty to Australian citizens.