Freedom of speech

Social media censorship bill passes the Senate

Cyber-bullying is a subset of traditional, school-yard bullying. Tackling it online only is unlikely to be effective:

Cyber-bullying is a subset of traditional, school-yard bullying. Tackling it online only is unlikely to be effective:


It is disappointing to see that the Senate has approved proposals to establish a social media censorship regime. The Enhancing Online Safety for Children Bill 2014, which proposes to establish the Children’s e-Safety Commissioner, was passed with bipartisan support.

However, not all Coalition Senators supported the move without reservation. Senator Cory Bernardi (South Australia) made the point that the commissioner would become overwhelmed with frivolous complaints from “over-protective parents”. He also questioned the wisdom of this approach, saying:

Wrapping children in cotton wool created a much more fragile adult society, he told parliament on Wednesday.

“Ultimately, children need to be taught a bit of resilience in some ways,” Senator Bernardi said.

“There is not always going to be someone there to pick up the hurt feelings.”

Senator David Leyonhjelm (New South Wales) was the only Senator to oppose the bill.

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Senate debates the government’s approach to freedom of speech laws

Yesterday, the Senate debated the government’s approach to freedom of speech laws. In particular, Senators Bob Day (South Australia), Cory Bernardi (South Australia) and Dean Smith (Western Australia) made statements in support of freedom of speech.

Senator Bernardi criticised the low threshold that “offensive and “insulting” provide in Section 18C of the Racial Discrimination Act 1975:

What I do not consider unacceptable is the fact that you are [not] able to be critical of someone. You are able to say something that someone else may find offensive or insulting. That is a subjective term. And why are we subjecting ourselves to this arbitrary decision when someone says, ‘I’m offended by what you’ve got to say’? The offence is quite often conjured up just to stop someone from saying something that they do not want to hear. That is what has happened in the debate around the hate preachers in some of the mosques. That is what has happened in some of the debate around tackling some of the extremists that are taking up in this country. That is what happens when you call it out and say, ‘We are wasting money by throwing it into circumstances where people are not lifting themselves out of poverty or making a better contribution to society.’ You get called a racist or a bigot. Or someone has taken offence. When someone like Andrew Bolt, who I am proud to call a friend, says that there are people gaming the system, he is taken to court over it and he is found guilty because someone took offence. That is absolutely wrong.

A transcript of what Senator Bernardi had to say can be seen here.

Senator Smith highlighted the fact that amending section 18C to remove the words “offend” and “insult” is a mainstream view, using examples from human rights academics such as Sarah Joseph and Julian Burnside. FreedomWatch has compiled a list of people who think section 18C should be reformed, which include The Age, David Marr and Jonathan Holmes, among many others. Read Senator Smith’s transcript here.

Senator Day, who has introduced the Racial Discrimination Amendment Bill 2014, which would remove the words “offend” and “insult” from the legislation, argued the importance of using free speech to criticise particular groups:

An example of what my co-sponsors and I are on about is the recent case where the Prime Minister singled out a certain Islamic group for critique and, potentially, legal sanctions. Yet, if you look at an interview on Lateline with a spokesperson for that group, you will see the great public benefit gained by allowing that organisation to have as much free speech as it wants. Professional, forensic interviews and critiques of the positions advocated by that group will expose to the public the very disturbing aspects of their beliefs and the serious problems with their statements and whether or not they sit well with the Australian people. Banning that group’s freedom to speak, however, is not the answer.

A transcript of Senator Day’s speech can be seen here, while a video can be viewed here.

Update: A video of Senator Dean Smith’s portion of the debate has been uploaded to YouTube. It has been embedded below.

Use freedom of speech to combat Hizb ut-Tahrir


Janet Albrechtsen has a great article in The Australian today, about the need for greater freedom of speech to combat Islamist groups. She begins:

IT’S tempting to agree with the Prime Minister and ban the Islamic extremist group Hizb ut-Tahrir. It is divisive. It is odious. It ­preaches racial and religious hatred. It is committed to a caliphate and to overthrowing democracy.

But in a liberal democracy, this is where the rubber hits the road for our most cherished value of freedom of speech. The reason we shouldn’t ban this foul group is simple. We are better than them. Our values are superior to theirs. And it’s time we said so more often. By doing so, and for the sake of human rights, we may encourage Islam to adapt to modernity in the same way other religions have.

When Hizb ut-Tahrir exploits our liberties to espouse its freedom-loathing notions, let’s exploit them in the best way a liberal democracy can — using our own freedoms, by confronting them and their ideas, by critiquing them, by exposing their agenda as medieval and immoral.

The article is strongly recommended reading. You can access it here.

Update: Journalist Andrew Bolt has made similar comments on his blog:

The Abbott Government has signalled a crackdown on the right of groups such as the extremist Hizb ut-Tahrir to preach their hatred and their excuses for terrorists.

But the real problem is not that such groups preach a vile message. It is that too few of us dare argue back – especially by criticising the faith that fuels such enemies of our freedoms.

Why don’t we argue back more? For many it’s because we fear the laws against free speech that this Government now seems about to tighten even further to prevent “religious vilification” – to often interpreted to include valid criticism or well-deserved mockery.

Free speech gives us security

The IPA’s Chris Berg has an excellent piece in The Sunday Age today. Chris explains why the proposal to restrict freedom of speech is the wrong response to the threat of Islamist terror:

Yet over the past six months the Prime Minister has been saying that, in the light of the real threat of terrorism, the balance between liberty and security must tilt further towards security.

This is a false choice.

None of have us the liberty to kill, plot to kill, or incite killing. Preventing and punishing murder is no restraint on freedom. The problem comes when the government proposes to do much more than just enforce the law. Like when it proposes to criminalise non-inciting speech. Like when it proposes to invade everybody’s privacy with mandatory data retention – not just the privacy of those suspected of a crime.

Much of the Abbott government’s earlier national security legislation was necessary and important, particularly the elements that cracked down on foreign fighters. The government now proposes to strip dual citizenship from those who go to fight for Islamic State.

At the same time those necessary legislative changes have been mixed in with some extraordinary overreach. A bill passed in October means journalists who report on “special intelligence operations” could go to jail for 10 years. Another bill passed that month made it a crime to advocate (“counsel, promote, encourage, or urge”) terrorism. But incitement to violence has always been illegal. And there have been laws against advocating terrorism on the books for a decade.

Read Chris’ piece here.

Bishop confirms anti-free speech laws will be criminal

The prime minister delivered a national security statement this week and in it he announced that the federal government would be seeking to implement “stronger prohibitions on vilifying, intimidating or inciting hatred.” We are yet to see a draft bill so it’s not exactly clear what the government is seeking to do. One of the questions the statement raises is whether these new laws will be civil or criminal laws. Although ‘prohibitions’ does suggest a criminal law that aspect of the announcement was left ambiguous.

Until today. Foreign Minister Julie Bishop this morning clarified that aspect of these proposals on the Bolt Report – they will be criminal laws.

Andrew Bolt: The PM this week gave a speech about needing to tackle Islamic extremism. One thing that did worry me was freedom of speech. He says he’s going to crack down on racial and religious vilification to fight the extremists. Surely we don’t need even tougher laws against free speech when you see how they’ve been misused in the past?

Julie Bishop: 18C for example are civil remedies. What we’ve been doing is looking at the criminal law relating to the advocating and promoting of terrorism. We’ve now made advocating terrorism a crime. And so we are trying to close down opportunities for ISIL to take hold and radicalise young Australians. What’s concerning us greatly is the number of Australians who appear to have fallen for the narrative that ISIL is promoting. It is not a noble cause. It is a violent criminal terrorist organisation. And so we have to do all we can to dissuade people from think figure they go over to fight with ISIL in Iraq and Syria, somehow they’re a martyr in pursuit of a noble cause. They are not. So we are doing all we can to prevent…

AB: Cracking down on free speech?

Civil laws are bad enough. Bishop’s interviewer knows more about that than anyone else.

But criminalising speech is an order of magnitude worse. It can involve imprisonment and there’s no guarantee that these laws will only be used in the way that government intends. The risk of these laws being used in reverse against journalists criticising Islamist radicals is very real and very concerning.

We need more free speech, not less.

Email: Did you know Australia has a constitution?

A troubling Ipsos MORI survey showed that over a third of Australian adults had not heard of the Australian Constitution. Furthermore, only 53% of respondents had heard of the Magna Carta and 14% the Statute of Westminster.

To address this issue FreedomWatch is delighted to present its newest guest writer; Suri Ratnapala, Emeritus Professor of Public Law at the University of Queensland. Professor Ratnapala answers the question of whether this lack of awareness of the constitution really matters.

The experience of nations shows without the slightest doubt that having a constitution is not the same as having constitutional government. Constitutional government is a government of limited powers that secures substantial freedom under the rule of law. This is the kind of state that Aristotle called Politeia. Its modern names are Nomocracy and Rechtsstaat. It is the government of laws and not of men, what F A Hayek called the Constitution of Liberty. Such a constitution exists not simply on paper but in the daily experience of the people.

Constitutional documents are important and we must know what they say and mean. But not everyone, even some lawyers, can command the intricacies of constitutional law. What is absolutely necessary is that the basic values and doctrines of the constitution are understood and embraced by officials and the general public. Constitutional government is sustained ultimately by a robust set of less formal supporting institutions and a civic culture that understands and values the priceless freedoms that form the basis of our civilisation.

Continue reading Professor Ratnapala’s entire piece on FreedomWatch here.

You can also read more of Professor Ratnapala’s work in 100 Great Books of Liberty: The Essential Introduction to the Greatest Idea of Western Civilisation. The book includes two chapters written by Professor Ratnapala: ‘Friedrich Hayek (1973): Law, Legislation and Liberty’ and ‘Adam Smith (1959): The Theory of Moral Sentiments’.

As a special offer to IPA members, the first five members to respond to this email will receive a complimentary copy of this book. All you need to do is tell us what your favourite book on liberty is. The first five distinct answers win!

Aside from the Ipsos MORI survey, FreedomWatch covered a number of other stories this week relating to the constitution and the rule of law

On the 24th of February, I commemorated the anniversary of the US Supreme Court decision in Marbury v Madison (1803). This judgment developed the principle of ‘judicial review’, which is essential for permitting a court to strike down unconstitutional laws. Read what I had to say about the importance of that decision here.

Also, a survey released by the Australian Chamber of Commerce and Industry this week has revealed the detrimental effect of over-regulation on business. I also considered how over-regulation is a betrayal of the rule of law.

Recent developments in the freedom of speech debate

On Monday, Prime Minister Tony Abbott delivered a national security statement, in conjunction with a Review of the Commonwealth’s counter terrorism arrangements. Mr Abbott announced a number of proposals in his statement, including a call to ‘strengthen prohibitions on vilifying, intimidating or inciting hatred’.

The IPA’s Simon Breheny appeared on ABC News on Monday night to respond to this proposal:

Terrorism is a threat that warrants a specific government response. However, as the IPA’s Chris Berg noted last year, ‘it is not a case of any legislative change will do’. Further restrictions on freedom of speech will not make us safer.

On the day of Mr Abbott’s comments, Simon put out this media release, stating:

‘The prime minister’s statement raises concerns about what this might mean for freedom of speech. If the proposal is to replicate section 18C of the Racial Discrimination Act 1975 in the criminal law, these new laws could be used to send people to jail for expressing an opinion,’ says Mr Breheny.

‘We need freedom of speech to fight Islamist terror. Australians must be free to engage in a vital debate about the threats we face without laws restricting freedom of speech.’

Executive Director of the IPA, John Roskam, commenting in the Australian Financial Review and the West Australian, asked the prime minister to clarify these potentially ‘very alarming’ proposals.

Institute of Public Affairs executive director John Roskam said some Liberal MPs contacted him yesterday expressing deep concern.

‘It would be very worrying if the Government strengthened Section 18C and further restricted freedom of speech, especially since the Government had previously promised to repeal Section 18C,’ he said.

Australia’s Human Rights Commissioner, Tim Wilson, is ‘seriously concerned’ freedom of speech is going backwards. As reported in The Australian:

Mr Wilson was concerned any further bans would restrict the free and open discussion that was necessary in a liberal democracy.

‘Censorship always limits what the good say and does nothing to what the bad say. There’s a significant potential it could backfire and Australia would not be any safer or more secure,’ he said.

See all of FreedomWatch‘s coverage of this issue here. Rest assured, we will continue to keep you updated on threats to freedom of speech, and will fight hard to protect this most fundamental liberty.

Some other recent highlights from FreedomWatch:

Kind regards,

Morgan Begg
Editor of FreedomWatch – Institute of Public Affairs

The failings of the Human Rights Commission

The Sydney Morning Herald_grey_resized

A 2013 profile on Professor Gillian Triggs’ was republished yesterday by The Sydney Morning Herald. The writer is clearly supportive, but highlighted criticisms of the president of the Australian Human Rights Commissioner, including those from the IPA’s Simon Breheny. Regarding the former government’s dangerous Human Rights and Anti-Discrimination Bill 2012:

Triggs … offered qualified support for the bill’s “offence” and “insult” provision, seeing it as a kind of speed bump that prevents an escalation into outright vilification. But her stance … enraged conservative columnist Andrew Bolt, who [found] it “extraordinary that [the Commission] is cheering on restrictions while it should be fighting for liberty”.

Shadow Attorney General Senator George Brandis is only slightly less damning, claiming the Commission has a left-wing ideological bias “in choosing some rights over others”, while Simon Breheny, from the Institute of Public Affairs, says Triggs has quite simply “failed”.

The trouble with the Human Rights Commission,” Breheny says, “is that it picks and chooses particular victim groups, from racial minorities to the aged. But everyone is entitled to human rights; it shouldn’t matter if you come from a particular group.”


The Australian: Human Rights Commissioner “seriously concerned” free speech is going backwards


Friend of the IPA and Human Rights Commissioner Tim Wilson was featured today in The Australian, in a piece by Nicola Berkovic.

Mr Wilson told The Australian the nation already had federal laws banning the incitement or urging of violence.

“I see no evidence to justify the need for further restrictions on free speech,” he said. “It does raise serious concerns about how we could actually be going backwards and not forward on improving free speech in Australia.”

Mr Wilson was concerned any further bans would restrict the free and open discussion that was necessary in a liberal democracy.

“Censorship always limits what the good say and does nothing to what the bad say. There’s a significant potential it could backfire and Australia would not be any safer or more secure,” he said.

Mr Wilson also considered the Prime Minister Abbott’s comments that some were not fit to have the ‘benefit of the doubt’.

“People should always be presumed innocent until proven guilty and there should always be an evidentiary burden before police and government act,” Mr Wilson said. “We have to make sure people are safe and secure, but that doesn’t mean throwing out the principles of the system that keeps us safe and secure in the process.”

Ms Berkovic’s article is well worth a read. Access it here ($).

Federal government must clarify freedom of speech proposals


“The federal government must rule out further restrictions on freedom of speech,” says Simon Breheny, director of the Legal Rights Project at free market think tank the Institute of Public Affairs.

Prime Minister Tony Abbott yesterday delivered a national security update at the Australian Federal Police headquarters in Canberra. In the statement, the prime minister proposed “stronger prohibitions on vilifying, intimidating or inciting hatred.”

“The prime minister’s statement raises concerns about what this might mean for freedom of speech. If the proposal is to replicate section 18C of the Racial Discrimination Act 1975 in the criminal law, these new laws could be used to send people to jail for expressing an opinion,” says Mr Breheny.

“We need freedom of speech to fight Islamist terror. Australians must be free to engage in a vital debate about the threats we face without laws restricting freedom of speech.”

“The federal government should be seeking to repeal laws that restrict free speech, such as section 18C of the Racial Discrimination Act 1975. Laws that restrict free speech send a signal that it is acceptable to silence anyone who disagrees with you. In the face of violence and threats of violence, the government must send a strong signal that it is never acceptable to shut down public debate,” says Mr Breheny.

Section 18C of the Racial Discrimination Act 1975 currently makes it unlawful to “offend, insult, humiliate or intimidate” a person on the grounds of “race, colour or national or ethnic origin.” This provision was used against News Corp Australia journalist Andrew Bolt for two articles he had published in 2009.

“These new laws proposed by the Prime Minister could be used to send Andrew Bolt, or anyone who said what Andrew Bolt said, to jail. That is completely unacceptable in a free society,” says Mr Breheny.

“The federal government should also support South Australian Family First Senator Bob Day’s Racial Discrimination Amendment Bill 2014. Senator Day’s private members’ bill seeks to amend section 18C by removing the words ‘offend’ and ‘insult’ from the law,” says Mr Breheny.

For media and comment: Simon Breheny, Director, Legal Rights Project, 0400 967 382, [email protected]