Freedom of speech

Tongue tied by the “big stick” of the law

Interesting article by Nicola Berkovic in the Weekend Australian today, featuring recent instances of anti-discrimination laws being used to chill speech across Australia. It is well worth reading ($).

My colleague Simon Breheny was also quoted in relation to the Arhcbishop Porteous case in Tasmania:

The IPA’s Simon Breheny believes section 17 of Tasmania’s Anti-Discrimination Act sets an “unreasonably low threshold” for unlawful conduct and should be amended. He says the legitimacy of the plebiscite result will rely on the freedom of Australian citizens to voice their opinions.

“It is too easy to ‘offend’, ‘humiliate’, ‘insult’ or ‘ridicule’ a person in the course of robust debate,” he says.

“These words should be removed to ensure that a free discussion can take place.”


See what this state MP had to say about FreedomWatch in parliament


Peter Katsambanis MLC

FreedomWatch readers may be interested to read this speech from WA state MP Peter Katsambanis, who spoke in the Legislative Council yesterday afternoon to a motion in support of free speech. In the course of his speech, Katsambanis made this interesting reference:

[L]ast week I noticed something on the FreedomWatch website that is run by the Institute of Public Affairs Australia of which I am proud member. It is a great freedom fighter for freedom of speech in particular.

Published on that FreedomWatch site were the results of a global survey from Pew Research Center. It indicated that Australians have strong support for free speech and free expression. Australia is ranked seventh out of 38 countries that were polled on their attitudes to freedom of expression…

It found that 95 per cent of Australians supported criticism of government policies, 56 per cent supported statements that are offensive to minority groups and, interestingly, 62 per cent of Australians supporting freedom of expression even when that expression led to statements that were offensive to their own religion or beliefs, because Australians value the opportunity to debate rather than to be shut down. They value the opportunity to have a proper public discourse rather than to hound away people with threats, intimidation and criticism.

Well done to the Institute of Public Affairs for continuing to highlight those figures.

See his whole speech on page 18-19 of Hansard, here.


Judges are not perfect


Michael Sexton SC

Michael Sexton SC makes a good point ($) in The Australian today:

…the Tasmanian legislation — and similar legislation in some of the other states and territories — poses real problems on its face for churches and other religious groups.

To take an example, as anyone who has read Brideshead Revisited will recall, it is Catholic teaching that unmarried heterosexual couples are “living in sin” and so doomed to the eternal fires of hell.

Why is it not open to such a couple to complain that they are offended and insulted by church publications to this effect because those publications are made on the basis of their relationship status?

It then would be up to the church to argue that a reasonable person would not have this reaction but that decision might depend very much on the personal views of the Anti-Discrimination Commissioner.

This last paragraph is an important point, and it’s one that tends to be missed by lawyers. Judges are not automatons. Judges are people that bring their own values to bear on legal decisions they are required to make. They are not infallible, and personal biases often play a role.

The correct response is to ensure that contentious decisions about thoughts, ideas, and the limits of public debate are not left to judges, but are debated freely by individual citizens.


State law makes it unlawful to argue in support of federal law


FreedomWatch has mentioned before the chilling effect of anti-discrimination laws on free speech, but the Archbishop Porteous case in Tasmania goes even further. The Archbishop’s booklet ‘Don’t Mess with Marriage’ makes the argument which is currently reflected in federal law.

Sinclair Davidson explains at the Catallaxy Files:

To make the argument for heterosexual marriage is to make an argument for the law of the land as it currently stands. To make the argument for the law of land as introduced in 2004 and reaffirmed by a vote in the national parliament as recently as 2012. The issue is now so controversial that the Federal Parliament has decided to abrogate all responsibility for marriage and to allow a plebiscite on the matter. Yet a State government – that has absolutely no constitutional authority in the matter – has decided the issue already. At least the unelected bureaucrats of that State government have decided the matter already.

The message is clear – anyone who wants to argue against same-sex marriage and for the current law of the land in a federal plebiscite will be prosecuted under State government laws. Sounds crazy? It is crazy.


Email: Freedom of speech under attack

The latest attack on free speech – this time in Tasmania

Freedom of speech is under attack in Tasmania after the state Anti-Discrimination Commissioner decided on 13 November that a complaint against Catholic Archbishop Julian Porteous should proceed to a hearing.

In particular, the Commissioner has decided the Catholic Church has a case to answer in relation to a complaint made regarding a booklet outlining the Catholic teachings on marriage distributed to parents of students enrolled at Catholic high schools across Australia.

The IPA’s Chris Berg wrote in the Sunday Age yesterday:

To be offended by the booklet is to be offended by what was, until very recently, the mainstream view on gay marriage, and one still shared by a large minority of the population… For this reason if nothing else, the complaint ought to have been dismissed as laughably frivolous.

It should never be an offence to offend a person. This is particularly chilling in light of the proposed plebiscite on the definition of marriage. As IPA Executive Director John Roskam stated in October:

A vote in a plebiscite or referendum, in which one side is not allowed to present its case, is not a legitimate vote. That’s why both supporters and opponents of same-sex marriage should be concerned by the complaint against Archbishop Porteous and the Catholic Church.

Continue Reading →


EXCLUSIVE: LNP state council calls for free vote on section 18C reform

Well done to IPA members Martin Proctor and Jack Piggott of the Young LNP in Queensland who succeeded over the weekend in passing a resolution at the LNP State Council calling on the federal government to reverse its opposition to free speech reforms.

Proctor, who is also the IPA’s Campus Co-ordinator at the University of Queensland, moved the motion which read:

That this State Council of the LNP calls upon the Federal Government to:

a) reverse its decision to abandon reforms to section 18C of the Racial Discrimination  Act 1975 (Cth);

b) recognise the importance of these reforms which reaffirm our Party’s core philosophical belief in the freedom of speech; and

c) allow Coalition Members and Senators to exercise a free vote on any bill that proposes to remove the words  ‘offend’ or ‘insult’ from the current legislation.

Three of the six LNP senators representing Queensland are on the public record in support of section 18C reform, currently in the form of Family First senator Bob Day’s amendments. You can read the whole list of supporters in the Senate here.


When did dissent become discrimination?


In the Sunday Age today, Chris Berg looks at the Tasmanian anti-discrimination case against Archbishop Porteous, and the chilling effect of such laws on free speech:

[The Tasmanian anti-discrimination laws are] symptomatic of the spread of no-go areas in Australian public discourse. Governments increasingly believe that protecting us from being offended – on whatever spurious grounds – is more important than allowing us to speak our mind.

[There] is no caveat in the Tasmanian act that even purports to protect free expression… In a parliamentary debate in 2013, the Attorney-General dismissed concerns by insisting the bill “does not impinge on free speech; it provides protection from bullying”.  All words are cheap. The words of politicians – even when they’re interpreting their own legislation – are junk.Both supporters and opponents of gay marriage should be very unhappy with the Tasmanian case. Even if the Catholic Church successfully defends against the anti-discrimination complaint, damage has been done. Free-speech theorists talk about the “chilling effect” when the cost of defending oneself against baseless claims hampers the open expression of views.

Continue reading here.


Global survey shows Australia ranks 7th out of 38 countries in support for free expression


global survey published by the American Pew Research Center on Wednesday should give supporters of free speech some hope, after it showed Australians exhibit above average support of freedom of expression.

The results are based on responses to various questions relating to individual and media liberty. Broken down by question relating to individual liberty, it looks like this:

Freedo_Pew_Graph 1

One interesting aspect of this is that, according to the survey, the majority of Australian support people being free to make statements that are “offensive” to minority groups.

This is significant, as it suggests the suggests the 14 senators who have pledged to cross the floor in support of Family First senator Bob Day’s section 18C reforms – which propose to remove the words ‘offend’ and ‘insult’ from the Racial Discrimination Act – are not out of step with the Australian people.

All of the data used in the graphs in this post is from the data given in the Pew Research Center’s global survey “Global support for principle of free expression, but opposition to some forms of speech”, which can be found here.


Hodgman flags review of state’s anti-discrimination laws


Good to see the Tasmanian premier at least recognises a problem. The Australian reports:

Tasmania is poised to wind back elements of its anti-discrimin­ation laws to ensure opponents of gay marriage are not silenced in the national debate on the issue.

Premier Will Hodgman, who supports same-sex marriage, yesterday flagged a review of the state’s Anti-Discrimination Act following a recent ruling that a booklet explaining Catholic opposition to the concept was a “possible breach” of the law.

“There is concern that it could become a landmark case and compromise some people’s ability to participate in the national debate as we head towards the plebiscite (on same-sex ­marriage),” Mr Hodgman said yesterday. “That is why we believe it is appropriate to look at these matters and assure ourselves the ­balance is right.”

What the premier should also realise is that regardless of the outcome of any case or conciliation, the damage is already done. That a case like Archbishop Porteous’ can go this far has a chilling effect on free speech.


From political correctness to “now mobilising the machinery of big government to silence those with different views”


NSW Finance Minister Dominic Perrottet gave an excellent speech in the Legislative Assembly yesterday on freedom of speech and the Archbishop Porteous case in Tasmania. You can find the must-read speech here, but here’s a snippet:

This issue is not about religious freedom. It’s about freedom itself.

All parties in a debate – whether politicians, think tanks, religious institutions, lobby groups or anyone else – should be able to express their views freely without censure. The state licensing freedom to a particular group is no freedom at all.

Whatever your views on the definition of marriage, we should all be uncomfortable the government now has the power to intimidate, investigate and prosecute you if it finds your views somehow inappropriate.

Yesterday, The Australian reports that the case is set to go to conciliation, following a response from the Archbishop expressing regret that he had caused offence. Perrottet states who should really be apologising:

Madam Speaker, either we are free or we are not.

All of us – by virtue of our intrinsic value as human beings – have the fundamental right to speak our views, without the government in its infinite wisdom trying to regulate our private beliefs.

I have read several statements from Bishop Julian Porteous regretting any offence.

He should stop apologising. This is his point of view and no one else has to agree with him. He should not regret saying it just because some people have chosen to take offence. If they disagree, they should engage in debate. That is how free societies work.

Mr Speaker, this case should be dismissed immediately and the Tasmanian Anti Discrimination Commissioner should issue an apology to the community – followed by her immediate resignation for this grave error of judgement.