Freedom of speech

Preacher arrested, held for 11 hours for made up offensive speech complaint

This story from the UK just goes to show that you don’t even have to say the “wrong” thing to fall on the wrong side of offensive speech laws.

As the Daily Mail reports, Rob Hughes, a Christian preacher, was arrested in 2013 after a member of the public complained to police of his ‘homophobic and offensive speech’.

The problem? Aside from the absurdity of complaining to the police for offensive speech, the complaint itself was completely made up. In Hughes’ own words:

I was interviewed by the police, they asked me a number of questions – “why were you out”, “what were you saying”, “did you say what the people said” – I said “no”, of course. I was polite and courteous.

I did say that “you have my dictaphone in your possession, you can listen to the recording, the audio, if you like”. They dismissed that. Not sure why, but I just continued with the interview, finished the questions.

Remarkably, despite having a recording of the incident, Essex police still required 11 hours to dismiss the unsubstantiated complaint and conclude that no offensive speech had taken place.

Even more remarkable is that the police saw this event as a reasonable use of police resources at all.

UK minister slams pre-broadcast censorship

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The UK’s Office of Communications (Ofcom) may be about to receive extraordinary new powers to vet British broadcasters’ programmes before they are transmitted, following pre-election proposals from the home secretary, Theresa May.

Fortunately, the proposals have faced stiff opposition from other members of the Conservative front-bench, with new business secretary Sajid Javid writing this great letter to the prime minister.

From the leaked memo:

[The proposals] would involve a fundamental shift in the way UK broadcasting is regulated, away from the current framework which is designed to take appropriate account of the right to freedom of expression…

See the full letter here.

Senator Bernardi on the “common sense revolution” to reform 18C

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Liberal Senator Cory Bernardi (South Australia) spoke with Emma Alberici on ABCs Lateline, on the push for amending section 18C of the Racial Discrimination Act.

Emma Alberici: On the issue of section 18C of the Racial Discrimination Act, are we now going to see some changes?

Senator Cory Bernardi: Well, I certainly hope so. The governments position when they first announced they were going to change it was meant to be a starting point, not an ending point. When they abandoned the idea of reform of 18C, a group of us got together and we supported a bill to remove “insult” and “offend” from section 18C of the Racial Discrimination Act. It now appears that that has met with with widespread acclaim, and Malcolm Turnbull is the latest to join what I would call the common sense revolution.  Continue Reading →

Turnbull in favour of amending section 18C

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Federal Communications Minister Malcolm Turnbull was interviewed on Channel Ten’s the Bolt Report this morning. Among a range of issues discussed during the interview was section 18C of the Racial Discrimination Act 1975. This exchange will be of particular interest to FreedomWatch readers:

Andrew Bolt: Do you support reforming the Racial Discrimination Act to allow more debate on the race politics that is now confronting us?

Malcolm Turnbull: …there was a broad consensus among lots of interested groups and stakeholders that the words ‘insult’ and ‘offend’ could be removed, leaving the words ‘humiliate’ and ‘intimidate’.

AB: Did you support that?

MT: I think that was broadly supported across the board.

AB: By you too?

MT: I was very comfortable about that. I didn’t think that would have any negative impact.

You can watch the video here (the relevant part of the discussion begins at 5:17, though you’ll be interested in the whole segment).

It’s a welcome development. We haven’t heard this from Turnbull before and it is encouraging to hear the communications minister make clear his position on the issue.

There’s another interesting aspect to this. Turnbull’s position is entirely consistent with the Racial Discrimination Amendment Bill 2014, introduced into the parliament by Senator Bob Day last year. We trust Turnbull will be making the argument in cabinet that the correct position for the Abbott government on Senator Day’s bill is a resounding ‘yes’.

Latika Bourke has also covered this story at the Sydney Morning Herald.

Silencing opposing views weakens our understanding of issues

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Dr Natasha Moore on ABC’s The Drum today, writing about the trend towards silencing opposing views, and how human knowledge suffers because of it:

Not only are we unable definitively to judge which opinions are absolutely true or false, but to kill off discussion of even the most widely-accepted and deeply-held verity, [as John Stuart] Mill argues [in On Liberty], is only to weaken it. If our convictions are not to be tested and contested, held up to the most thorough scrutiny, pitted against the strongest of contrary convictions, how can they become properly robust?

Dr Moore’s article is certainly worth a read. Find it here.

Was the Gillard government’s media regulation policy politically motivated?

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The shocking answer revealed in a terrific edition of The Australian‘s Cut & Paste ($) today:

The truth behind the Gillard government’s media laws and a new budget pitch emerge.

Politics at play? Perish the thought. Stephen Conroy announces the Gillard government’s media laws, March 12, 2013:

The government passionately believes in freedom of the press as the cornerstone of democracy.

Nothing political at all. Julia Gillard, Hansard, the following day:

This is about a system of better self-regulation which would mean, of course, that we see a functioning press council, or press councils, self-regulating the media. I think that is appropriate and certainly in line with the best of freedom of speech.

No, no, no. Conroy, also from Hansard, March 13:

All the package that we have put forward is about, is promoting principles of privacy, fairness.

No threats. Conroy continues:

At no time have this government threatened the media or intimidated the media.

Just policymaking as usual. More Conroy from Hansard, March 13:

This is just a hate-media attack according to those opposite. This is what you claim: vengeance is what you claim. This has been policy that I have already demonstrated: seven discussion papers throughout 2011; 340 detailed submissions; and over 28,000 comments, and that is just in the convergence review before we get to the Finkelstein inquiry. Many people have many views.

Except … Gillard speechwriter Michael Cooney on Conroy in his just-released book, The Gillard Project:

The bloke is a lion … No other person would have risked introducing a package of media reforms designed to break the irresponsible, politicised editorial culture of News Limited.

Irresponsible and politicised? Cooney continues:

If you remember there was still an election to win, then taking on this virtual monopoly on popular print news was irresponsible … By February we were cooked and had one last chance to strike a blow for progress, then maybe it was worth a try.

Bitter and vindictive, more like it. Cooney concludes:

As a result of not acting in 2013 we will all simply have to wait for technology or succession to fix the News Corp problem.

Aftermath of Eatock v Bolt not so ironic

In a forthcoming paper in the Melbourne University Law Review, Professor Adrienne Stone examines the “ironic” campaign to amend or repeal section 18C of the Racial Discrimination Act 1975, following the Federal Court decision in Eatock v Bolt [2011].

Unfortunately, Professor Stone missed a number of key facts. Sinclair Davidson has a must read post over on the Catallaxy Files, explaining just how error-riddled the article is.

Blocking websites is censorship

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On The Drum today, the IPA’s Chris Berg discusses the looming copyright amendments:

There are lots of problems with this bill. Its language is absurdly vague and broad. What counts as “facilitating” copyright infringement? Maybe it would block sites that offer virtual private networks, perhaps – those VPNs that Malcolm Turnbull has been encouraging us all to use.

But these are legislative technicalities. More importantly, blocking websites is censorship. The bill is an internet filter, no matter how stridently the Abbott Government rejects the comparison.

For more on this bill, and the nature of intellectual property, continue reading here.

Read Chris’ expert comments to the senate inquiry into Copyright Amendment (Online Infringement) Bill 2015, held last week, here.

Senate inquiry into the Copyright Amendment (Online Infringement) Bill 2015

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My colleague Chris Berg just gave expert evidence at the Senate inquiry into the Copyright Amendment (Online Infringement) Bill 2015. These were his opening remarks:

* * *

Copyright is a privilege granted by the state to authors of creative works for a specific, utilitarian purpose: to encourage the development of new creative works.

This is the proper frame in which to consider any changes to copyright law or any new mechanisms to control copyright infringement such as are proposed in the Copyright Amendment (Online Infringement) Bill 2005 . To what extent will changes encourage or discourage the creation of new works?

Here parliament has a complicated balancing act to perform. Copyright constrains what we might be otherwise able to do with our property. It prevents us from exercising common law rights to how we might use our printing presses, musical and television equipment, or internet connections.

Continue Reading →

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.