Mass-murderer Castro dies unpunished

If there is a Latin American nation in which human rights and the rule of law seem to have completely vanished, that nation certainly is Cuba. And yet the recently deceased dictator Fidel Castro remains revered by those who regard him as a revolutionary hero who bravely stood against ‘capitalism’ and ‘American imperialism’.

Amongst these leftist admirers of Castro are the Prime Minister of Canada, Justin Trudeau and the leader of the Opposition in Australia, Bill Shorten. Mr Shorten has been to Cuba and he deeply admired a notorious six-hour speech delivered by Castro. ‘It was amazing,’ Shorten said. Of course, he is not the only Labor leader to deeply admire the brutal dictator. British Labour leader Jeremy Corbyn said Castro was a ‘champion of social justice’ — a nonsensical statement given all the people Castro brutally murdered and all the human rights he grossly violated.

The fact that so many left-wing leaders have expressed admiration to Castro should be a reason for great concern. After all, since the adoption by Castro of Marxist-Leninism in 1959 the Cuban regime has sanctioned the brutal assassination of dissidents, the introduction of retroactive criminal legislation, the confiscation of property for political reasons, and numerous other ’emergency measures’ against the so-called ‘enemies’ of the communist regime.

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Free speech and open debate under threat from anti-discrimination laws

Archbishop Julian Porteous, the subject of a complaint to the Tasmanian Anti-Discrimination Commissioner

It is deeply disturbing that a Catholic archbishop is being dragged to an anti-discrimination authority for simply expressing a traditional view on the subject that until quite recently was shared by both the major political parties as well as a large segment of the population. This exposes religious organisations to attack from outsiders and leaves their practices and beliefs unguarded.

If religious organisations can be punished for simply expressing their traditional views on marriage, family and a child’s right to a father and mother, then I wonder what else they and their followers might be punished for once same-sex marriage is legalised in Australia.

Before a plebiscite on same-sex marriage can even take place in this country, it is necessary to address the intolerable impact that anti-discrimination laws are having on free speech. As a society we really need to ask ourselves if we should undermine the rights of one group in order to protect or promote the interests of another.

A real democracy – and we must never forget this – requires that controversial issues will be resolved by the people only after a truly open and robust debate has taken place.

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The not-so-secular foundations of Australia’s legal-political institutions

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While the Australian legal-political tradition cannot lay claim to the historical depth of America and the United Kingdom, it too was built on solid foundations—starting with the first British fleet departing for Australia in 1787, when Captain Arthur Phillip was instructed to take such steps as were necessary for the celebration of public worship.

At the time of British settlement in Australia, Christianity formed an integral part of the theory of English law and civil government. In his seminal work, A History of English Law, Sir William Holdsworth expressed the traditional view of the close relationship between Christianity and the common law:

Christianity is part and parcel of the common law of England, and therefore is to be protected by it; now whatever strikes at the very root of Christianity tends manifestly to dissolution of civil government.

While the penal colony of New South Wales was established in 1788, English law was not recognised until the passage of the Australian Courts Act 1828 (Imp.). This Act determined that all laws and statutes in force in England at that time were to be, as far as it was possible, applied in the courts of New South Wales and Van Diemen’s Land.

When the English common law was transplanted to Australia, the supreme courts of the colonies were empowered to decide which English laws were applicable to Australia. It was at that moment that Christianity was included in the law of the land.

The place of Christianity in the common law was not only acknowledged, but unconditionally adopted by the Supreme Court of NSW in the case of Ex Parte Thackeray (1874). The reception of these principles was perhaps best encapsulated in that case by Justice Hargrave, who famously commented that:

We, the colonists of New South Wales, “bring out with us” … this first great common law maxim distinctly handed down by [Sir Edward] Coke and [Sir William] Blackstone and every other English Judge long before any of our colonies were in existence or even thought of, that ‘Christianity is part and parcel of our general laws’; and that all the revealed or divine law, so far as enacted by the Holy Scripture to be of universal obligation, is part of our colonial law….

It has been said that a people without historical memory can be easily deceived by false and destructive philosophies. Although undeniably diminished and rarely acknowledged, the Christian religion has an enduring role in the Australian legal-political system. In these days of political correctness and cultural relativism, it is always good to be reminded of our Christian heritage, which still permeates most of the present laws and socio-political institutions of this democratic nation. To state this obvious fact is not to be ‘intolerant’ but to simply stress an undeniable truth.

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Legal attacks on freedom of speech in Australia

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In recent years there have been numerous attempts to restrict and limit freedom of speech in Australia, most often in the name of encouraging tolerance, social harmony and ‘responsible’ public debate. Some examples have included the media reforms proposed by the Finkelstein Report and the proposed consolidation of Commonwealth anti-discrimination laws in 2012.

As Opposition Leader, Tony Abbott appeared to signal renewed efforts to re-assert the importance of protecting freedom of speech. In a famous address given to the Institute of Public Affairs, in August 2012, he referred to freedom of speech as ‘the essential pre-condition for any kind of progress’. Abbott went on to observe that:

[f]reedom of speech is an essential foundation of democracy. Without free speech, free debate is impossible and, without free debate, the democratic process cannot work properly nor can misgovernment and corruption be fully exposed. Freedom of speech is part of the compact between citizen and society on which democratic government rests.

In terms of specific policy announcements, Abbott promised that a Coalition Government would repeal s 18C of the Racial Discrimination Act 1975 (Cth) (‘RDA’) ‘in its current form’.  Hence, following the election, in March 2014, the federal Government released an Exposure Draft for community consultation outlining its proposed amendments to the RDA which the Attorney-General stated were:

an important reform and a key part of the Government’s freedom agenda. It sends a strong message about the kind of society that we want to live in where freedom of speech is able to flourish and racial vilification and intimidation are not tolerated

As everybody knows, these proposed reforms proved highly controversial. After several months of public debate the Government then announced, in August 2014, that it would no longer pursue the amendments. This was done at a press conference announcing proposed new counter-terrorism measures. Remarkably, the Prime Minister claimed that he was abandoning the proposed changes because they were a ‘complication’ in the Government’s relationship with the Australian Muslim community, adding that this would compromise the efforts to protect so-called ‘national unity’.

The repercussions of this development are two-fold. First, the government has revealed a complete disregard for the right to freedom of speech, a right which exists at the centre of every true democracy.

Second, the Prime Minister has exhibited a remarkable lack of understanding of the legislation since the RDA actually does not address the matter of discrimination on the grounds of religion, but rather discrimination solely on the basis of race, colour and/or national or ethnic origin.

Essentially, the issue is the basic right of Australian citizens to express freely and without risk of persecution their opinions, no matter how undesirable those opinions might be. For in a true democracy, of course, every value and belief must be subject to public scrutiny, to competing perspectives and to critical analysis.

Curiously, the High Court has already found if political speech involves what one might call abuse (i.e., serious contempt, revulsion, severe ridicule and even hatred on political grounds), such speech, by its very definition, constitutes speech that is constitutionally protected. So it follows that any law that prohibits the strong criticism of religion or ideology on political grounds, in at least some of its applications, constitutes a relevant burden on the constitutional right to freedom of political communication. Such a law must be declared as constitutionally invalid.

Arguably, if properly construed, anti-discrimination laws might be constitutionally valid in limited circumstances; otherwise, these laws must be held invalid due to an inconsistency with the freedom of political communication. These laws must be tested according to constitutional principles that leave sufficient room for manifesting the expression of values and beliefs that are relevantly political. This means that any legislative prohibition on free speech must always be interpreted narrowly, and the exceptions construed widely to leave enough room for proper political communication.

At the same time, to the extent that any law is not or cannot be interpreted in this particular way, there is a good reason to believe that such law must be declared constitutionally invalid. The High Court of Australia must have the courage to do so. After all, this court has constantly relied on the implied right of freedom of political communication to hold that at the foundation of the country’s democratic system is a fundamental right of the citizen to speak freely on political issues. Assuming that this fundamental right also implies that speech can only be suppressed if it is likely to cause immediate violence, any suppression of other forms of political speech amounts to an unconstitutional violation of the implied right to freedom of political communication, which is derived from our democratic system of representative and responsible government.

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