Senator Leyonhjelm on the presumption of innocence

This week, Liberal Democratic Senator David Leyonhjelm (New South Wales) gave a great defence of the presumption of innocence, and the importance of the Magna Carta as a basis of the rule of law in Australia.

After noting that the presumption of innocence lies at the heart of the rule of law, he later concluded by saying:

Why is the presumption of innocence so remarkable? Because it represents a decisive rejection of the just-world fallacy. The just-world fallacy holds that a person’s actions always result in fair and fit consequences, and it exists because people are uncomfortable accepting the suffering is random and that sometimes bad things happen for no reason at all. It is common to believe people must have done something to deserve what they get, including being accused of a crime. The argument goes: if bad things only happen to those who deserve them and I am a good person, then I can be sure nothing bad will ever happen to me. It is equivalent to: if you have done nothing wrong, you have nothing to fear. We hear that all too often.

We do not live in a just world. We ought not to ascribe characteristics to people before applying justice to them. When we do ascribe bad things to people before rendering justice, we create a situation where people can be subject to raids, police harassment, inhuman treatment and injustice, purely for what they are. Our society owes many of its liberties to the Magna Carta. We need to remind ourselves of that from time to time and not abandon them.

15 June 2015 will mark 800 years since King John and his Barons agreed to the Magna Carta. As this “great charter” is a fundamental part of the development of liberal societies, FreedomWatch will have much more to say as the anniversary approaches. For your convenience, Senator Leyonjelm’s speech is included below.



Welcome to the IPA’s new FreedomWatch

An update on freedom of speech

We are delighted to publish our first guest post from Professor James Allan on the day of FreedomWatch‘s relaunch. Professor Allan has written on the justifications for laws which restrict ‘offensive’ speech:

… You see the thing is that none of us can be sure which set of ideas will stand the test of time. So throwing them into the cauldron of competing views where near on everything has to stand up to testing and enquiry has remarkably good long-term consequences. (And [John Stuart] Mill was nothing if not a Benthamite consequentialist at the end of the day.) To deny this you have to see yourself as some sort of privileged and super-competent member of an elite, who can be trusted to weigh ideas while many others cannot.

Democracy is not compatible with such elitism. Plus Mill argued forcefully that such speech-suppression is wrong-headed. It is incredibly pessimistic about the abilities of one’s fellow citizens. And the facts as seen in the US (no hate speech laws at all) and in Canada (their national equivalent of 18C laws repealed over a year ago without a single noticeable bad effect) compare incredibly well to countries that have tried strong hate speech laws to foster integration (and that have not worked well, as in France, to put it as kindly as I can).

Read Professor Allan’s whole article here.


As a special offer, the first five IPA members who respond to this email will receive a complimentary copy of Professor Allan’s book Democracy in Decline.

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Does freedom of speech need constitutional protection?

Professor Dean Jaensch has put forth his case in Adelaide’s The Advertiser, that the Australian Constitution should be amended to include a provision protecting freedom of speech in Australian law. Convinced of the simplicity in the wording in the United States Constitution, Professor Jaensch concludes that, rather than focus on section 18C of the Racial Discrimination Act 1975, parliament should “support a referendum to insert a real freedom of speech clause into the constitution.”

FreedomWatch applauds Professor Jaensch’s sentiment, and his ardent support for freedom of speech in Australia. The IPA’s own Chris Berg has written in support of entrenched rights in the past, indicating a minimalist bill of rights “rather than a mishmash of economic and cultural aspirations” might be desirable. Professor George Williams also supports a bill of rights, noting here that “if we are serious about protecting freedom of speech, it deserves the sort of protection that only the constitution can provide.” While sympathising with these arguments, it is this writers opinion that  it is unwise to entrench such rights into constitutional documents. There are a number of reasons for this.

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Support for Senator Day’s bill strengthens

There is momentum building among coalition back-benchers to amend section 18C of the Racial Discrimination Act 1975.

Since Senator Day proposed the bill in September, it languished in the Senate, with only the express support of co-sponsors Senators Dean Smith, Cory Bernardi of the Liberal Party, and Senator David Leyonhjelm of the Liberal Democratic Party. However, since the new year, and in response to the terror attacks in Paris, France, support of freedom of speech generally, and amending section 18C in particular, have become more pronounced.

In The Australian, Christian Kerr summarises this sentiment presently among Coalition backbenchers, quoting Senator Bernardi who believes that it would be “hard to find more than half a dozen people in our partyroom who don’t believe it is a reasonable measure.”

In particular, Senator Sean Edwards, a Liberal from South Australia, commented that “anything that enhances freedom of speech – which has clearly got some traction around the world now in democracies – should be supported. He similarly gave this forthright defence of freedom of speech in The Advertiser.

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Section 18C of the Racial Discrimination Act would apply to religious based complaints

Professor David Flint, writing in The Spectator, has provided an excellent commentary on the applicability of section 18C of the Racial Discrimination Act 1975 (Cth) to religious based complaints.

In his analysis, Professor Flint dispenses with the notion, common among defenders of section 18C, that the provision only applies where offensive conduct is directed to a particular racial group.

While the wording of section 18C provides that an act must be “done because of the race, colour or national or ethnic origin of the other person”, much commentary ignores the role ‘extrinsic material’ plays in courts interpreting a statute. In particular, the use of the explanatory memorandum for the bill which introduced section 18C, the Racial Hatred Act 1995 (Cth), to ascertain the meaning of the words ‘ethnic origin’ and ‘race’. As Professor Flint explains;

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