Freedom of speech

The IPA’s opening statement to the Parliamentary Joint Committee on Human Rights’ hearing into section 18C

The following remarks were given by the IPA’s Simon Breheny to the Parliamentary Joint Committee on Human Rights’ hearing into section 18C in Melbourne yesterday. The opening statement was followed by questioning directed to Simon and the IPA’s Dr Chris Berg. Readers can watch the video at this link.


Freedom of speech is a basic Australian value.

A survey commissioned by the Institute of Public Affairs, published today, finds that ninety-five per cent of Australians say freedom of speech is important. Fifty seven per cent say it is very important.

Australia’s commitment to freedom of speech makes this country one of the most diverse, prosperous and socially welcoming on the face of the planet.

Laws that undermine free speech put at risk our success story as a socially inclusive nation.

Section 18C of the Racial Discrimination Act is one of the most significant restrictions on freedom of speech in this country.

Along with the rest of the provisions in Part IIA of the Racial Discrimination Act, Section 18C ought to be repealed outright.

It is an excessive, unnecessary and counterproductive restriction on Australians’ liberties.

Alternative proposals for reform would not solve the problems with the legislation that have been identified by recent court cases involving section 18C.

Simply removing some of the words from the section or, worse, replacing them with new words, would be, in our analysis, either ineffective, or redundant, or create even more uncertainty about the scope of the law.

Some participants in this debate argue that freedom of speech is protected by section 18D. But section 18D is a weak and unstable foundation for such an important right.

Section 18D has been applied in just three out of more than 70 cases that have been decided by the courts since Part IIA was first inserted into the Racial Discrimination Act in 1995.

Nor should parliament imagine that section 18D provides any certainty about the law. In the QUT case Judge Jarrett noted a “conflict in the authorities about the way in which s.18D might operate.”

More fundamentally, section 18D places a burden on the respondent to prove why he or she should have the right to speak freely. This is not a requirement that a free country like Australia should be proud of.

Offence is not a moral trump card. Australia is driven by other values – including individual freedom and democracy. Section 18C harms these values.

We urge this committee to recommit to the liberal democratic values that make this country great, and to recommend the full repeal of Part IIA of the Racial Discrimination Act.

Thank you.

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Poll: Australians value freedom of speech

Ahead of an appearance before the Parliamentary Joint Committee on Human Rights’ inquiry into section 18C today, the Institute of Public Affairs has released polling conducted by Galaxy Research that shows 95% of Australians value freedom of speech:

The committee has received more than 11,000 written submissions and is this week conducting hearings in five capital cities. Today in Melbourne it will be given polling by Galaxy Research commissioned by the Institute of Public Affairs showing rising public support for changes to counter criticism that the campaign is a niche or fringe issue.

The poll of 1000 people taken last month shows 48 per cent approve of calls to remove the words “insult” and “offend” from section 18C, an increase of three points from the previous survey in ­November.

Some 36 per cent of people were opposed to the change, down from 38 per cent. The Galaxy Poll found 52 per cent of men approved of the change to remove the words compared with 44 per cent of women…


IPA director of policy Simon Breheny said the poll also showed that 95 per cent of Australians rated freedom of speech as important with 57 per cent saying it was very important.

“Much to the surprise of some members of the media and the political class, free speech matters,” Mr Breheny said.

“It is time for our elected representatives to listen rather than trying to tell the public it is a niche or fringe issue.

“On top of the incredible overwhelming support for freedom of speech, support is also growing for changes to be made to section 18C of the Racial Discrimination Act so that it is no longer unlawful to insult or offend someone.”

Read the whole article here ($).

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The IPA’s 18C report welcomed by The Australian

The IPA’s latest report – The case for the repeal of section 18C – was also featured in the editorial of The Australian today. Here is the key paragraph:

In this unrepentant climate, the Institute of Public Affairs’ submission calling for the repeal of 18C is welcome. It argues the law smothers free speech and is anti-democratic because it limits the airing of ideas. It contends the provision is self-defeating because freedom of expression makes society more cohesive and it mounts the case that the extent of the law — particularly the words offend and insult — put it beyond what is required by UN treaties, making it unconstitutional. Yet the more obvious criticisms probably carry more weight. Under this law the process has become the punishment, so justice can be denied at the outset. Also, to the extent speech does cause harm (such as inciting violence or damaging reputations) it is covered by other laws, making 18C redundant. If the law aims to defeat racism, it cannot — no law can dictate how people think. The best way to combat racist attitudes must be through open dialogue and the organic adoption of community standards.

Read the full editorial here ($).

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IPA report: only full repeal will fix problems created by 18C

Dennis Shanahan’s coverage of the IPA’s comprehensive Case for the repeal of section 18C was featured on page 2 of The Australian today ($):

… the Institute of Public Affairs argues the laws deny freedom of speech, erode democracy, undermine attempts to combat racism and have a “chilling effect” on debate about serious social issues.

“Only by removing the law from the statute books entirely can parliament restore Australians’ right to freedom of speech, improve our liberal democracy, and eliminate the sundry abuses that it has caused,” the submissions from the conservative think tank says.

… The IPA said section 18C “does not protect any other natural right that might reasonably be said to countermand the right to freedom of speech. There is no right not to be offended. Nor does individual dignity demand this kind of restriction on free ­expression”.

The submission said 18C was also bad for democracy and limited the range of ideas people could express by its “chilling ­effect” on debate.

“Moreover, freedom of speech strengthens social cohesion by exposing bad ideas and malevolent actors, rather than allowing them to fester in silence,” the submission said. “The third limb of the case for repeal is that in practice the law has proved unworkable and unfair. The law does nothing to prevent the kinds of racism that people are most likely to encounter, overlaps with other laws to the point of redundancy, and is so poorly drafted that significant uncertainty about its key terms persists.

“Indeed, the law may well be an unconstitutional exercise of the external affairs power or an unconstitutional burden on Australians’ implied right to freedom of political communication.”

It said proposals to amend the act and substitute “vilify” for ­“insult” or “offend” or simply remove insult and offend and leave “humiliate” would be inadequate.

Read the full coverage here ($). For the IPA’s report, The case for the repeal of section 18C, click here.

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IPA Poll: Most support 18C change

A Galaxy Research poll commissioned by the IPA has found that – of those that have an opinion – most support a change to section 18C that would remove the words “offend” and “insult”. This was covered in The Australian by Joe Kelly today:

A new poll shows a majority of Australians disapprove of the Human Rights Commission for its pursuit of The Australian and Bill Leak over a political cartoon, while there is also widespread support for an overhaul of section 18C of the Racial Discrimination Act.

A Galaxy Research poll commissioned by the Institute of Public Affairs shows 64 per cent of respondents disapproved of the HRC investigating a “news­paper cartoonist” because an individual had found a cartoon offensive or insulting.

Of the 1000 people surveyed between last Thursday and Sunday, fewer than one in five (19 per cent) approved of the probe while 17 per cent said they didn’t know.

IPA executive director John Roskam said the poll showed “two-thirds of Australians know what is happening is wrong” and argued the results showed “widespread support” for restoring freedom of speech.

“It is outrageous in a free country that any citizen should be forced to justify their political opinion to the government,” he said. “Labor and the Greens claim that freedom of speech is ‘not a mainstream issue’ is just wrong. The public understands the government should not censor Bill Leak’s cartoon.”

The poll shows only 15 per cent of those older than 50 approved of the commission investigating a cartoonist, and only 17 per cent of those aged between 35 and 49.

The 64 per cent opposition to the commission’s investigation into The Australian and Leak is higher than a Newspoll recently that showed 57 per cent of respondents opposed the lawsuit against university students under 18C.

Under that action, which was rejected by the Federal Circuit Court, students at the Queensland University of Technology were being sued for $250,000 for commenting on Facebook about segregation after they were requested to leave an indigenous-only room.

The Galaxy poll also surveyed attitudes towards changing section 18C. It found 45 per cent of those surveyed approved of changing 18C so it was no longer unlawful to “offend” or “insult” someone based on their race or ethnicity, while 38 per cent ­opposed removing the terms.

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Albrechtsen on the “cult of taking offence”

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Janet Albrechtsen

Janet Albrechtsen had an excellent article in The Australian today on the dangerous “cult of taking offence” ($) stifling free expression in the West:

To be sure, America is the home of the modern-day propensity to find offence. If this was a cult called Scientology, progressives would be carefully deconstructing its concerning presence in modernity. But the cult of taking offence is a slyer virus because it is largely unchecked. And it’s running rife on university campuses, where it threatens to do the most damage.

… The cult of taking offence has become a determined game of what Jonathan Rauch has called the “offendedness sweepstakes”, and it keeps lowering the bar on what words, ideas and freethinking analysis are to be mowed down to protect the hold identity politics has over academe. Political correctness, the soul brother of identity politics, may have started out briefly in some quarters as a sweet-sounding search for a very civil utopia imbued with respect for minorities. Now it is the weapon of choice in the pursuit of power and control over ideas, words, books, teaching and much more.

Students seek “safe spaces” to avoid ideas they don’t like and even comedians are not welcome: Chris Rock no longer appears on campus because students are more interested in not offending anyone than sharp humour that may offend. Jerry Seinfeld has said he has been warned to stay off campuses too because they’re too PC.

And the result, best described by Greg Lukianoff and Jonathan Haidt, has been the coddling of the American mind where emotional reasoning now determines the limits of university debates. “A claim that someone’s words are ‘offensive’ is not just an expression of one’s own subjective feeling of offendedness,” they write. “It is, rather, a public charge that the speaker has done something objectively wrong” and must apologise or be punished for committing the offence.

This made-in-America phen­om­e­non is no longer an only-in-America one. Students studying archeology at University College London were recently given permission to leave class if they encounter “historical events that may be disturbing, even traumatising” — in other words, if they are freaked out by bones.

The coddling of the Australian student mind is under way too. Last week at the University of NSW a well-meaning lecturer teaching a class on 20th-century European history told his students he felt obliged to issue a trigger warning about material they would cover. At the same university last year, a lecturer teaching a course on terrorism and religion issued a trigger warning too. Isn’t the trigger in the title? Isn’t history replete with traumatic events?

The Australian asked UNSW, the University of Sydney, Melbourne University, Monash University, Queensland University, Queensland University of Technology and the Australian National University in Canberra about their policies, formal or informal, about trigger warnings. Those that responded issued bland comments about having no formal policy, with some offering statements such as this one from Melbourne University: “We encourage academics to be sensitive to student needs and some may choose to give warnings about confronting content.” Or this from Merlin Crossley, UNSW’s deputy vice-chancellor education: “Some of our academics and teaching teams may choose to provide trigger or content warnings depending on course materials and in some cases possible confidential sensitivities of their students.”

In 2017 Monash University will introduce what it calls “a radical and far-reaching reform of our education and pedagogy” involving an “optional inclusion of content warnings where appropriate”.

… Indeed, there are few signs of Australian academics trying to ward off the American-born disease taking hold on our campuses. Quite the contrary. QUT vice-chancellor Peter Coaldrake told this newspaper last month that the university did not choose to be associated with the current public debate about section 18C of the Racial Discrimination Act. That’s unfortunate because section 18C, which makes it unlawful for someone to act in a manner that is reasonably likely to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity, is the legislative extension of trigger warnings that stifle open debate and infantilise students.

… Where does it end? That depends on where we start when it comes to freedom of expression, and currently too many self-indulgent Westerners are starting in entirely the wrong place.

Read the full article here.

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How much does it cost to tell a joke in the UK?

It’ll be £2,000 ($3450)!

That’s what former England footballer Paul Gascoigne found out after he made a tasteless joke about a personal security guard at a show earlier this year.

Gascoigne has pleaded guilty to racially aggravated abuse in a British court, and will be forced to pay a fine for his misdeeds.

The BBC reports that the anti-joke judge expressed his approval that Gascoigne was prosecuted in the case.

Gascoigne has denied that he is racist, and apologised stating that he did not intend to cause offence.

However, under UK law that’s apparently not enough. This case sets an extraordinary precedent, dragging people through courts for making a joke!

It’s no longer clear what jokes are and are not acceptable. A judge can now arbitrarily declare what types of humour is acceptable.

As Brendan O’Neill explains in The Spectator:

[The judge] went on to tell Gazza: ‘We live in the 21st century — grow up with it or keep your mouth closed.’ This captures the tyrannical essence of the state’s clampdown on hate speech. What is being said here is that if you have not fully imbibed today’s mainstream moral outlook — in this case that it’s bad to tell racial jokes, in other cases that you shouldn’t mock Islam, make offensive gags on Twitter, or even engage in ‘uninvited verbal contact with a woman — then you should not speak publicly. You should STFU, keep your warped ideas and humour and morality to yourself, thanks. And if you don’t, then expect a knock on the door from the cops, a fine, and maybe jail. This is profoundly illiberal. Under the cover of tackling ‘hate speech’, everything from people’s humour to their moral attitudes to our everyday conversation is being intensively policed and sometimes punished. The seemingly PC war on racist, sexist and Islamophobic language has opened the door to state monitoring of thought, speech and behaviour.

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Nobody actually distressed? Just say it anyway!

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An Institute of Public Affairs freedom of information request has revealed that our universities are seeking to protect students from distress – even when it’s not clear anyone’s feelings have actually been hurt.

Back in April a furore erupted at the University of Melbourne after anti-Islam graffiti was sprawled on campus. The offensive writing included the phrases “Islam is not a race”, “Freedom of Speech”, and “Stop the Mosques”.

The graffiti was discovered before 7.30am, and immediately wiped off by students, as well as university cleaners.

Nevertheless, the little bit of chalk instigated frenzied activity within the highest echelons of the university, the IPA’s freedom of information request has discovered.

Just after midday a teleconference was convened with the chancellery, security, cleaning and media. The student union and the university co-ordinated statements.

For maximum effect the university put a statement on Facebook in the vice-chancellor’s name:

Many are aware a number of offensive slogans were written in chalk on the Parkville campus today. While the University community moved quickly to identify and remove offensive messages, they still have caused distress.

Interestingly, however, before putting out the statement the university leadership was informed by email that:

No students have come forward to UMSU (the student union) expressing personal distress arising from the chalkings and hopefully, given the very prompt cleaning… few people witnessed the slogans.

Despite no actual reports of personal distress and a quick cleaning process, the university felt the need to release a statement claiming the opposite.

The university simply assumed that somebody must have been distressed. And, as a communications strategy, published a statement accordingly.

In fact, it is likely the mass publicizing of the graffiti, giving it an audience far beyond that it was ever naturally going to achieve, may have helped establish distress that otherwise did not exist.

This series of events signals a worrying developing culture at our universities.

University administrators are being forced to spend hours of their day not on teaching and education, but rather responding to relatively minor cases of graffiti.

Meanwhile, Australian academics are using trigger warnings, seeking to protect students from emotional responses in class. It is no longer about resilience to challenging ideas, it’s about covering students with bubble wrap from the realities of life outside campus.

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Waleed Aly does not deserve a free speech prize

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Liberty Victoria have just announced that broadcaster Waleed Aly will receive their annual free speech award, the Voltaire Award.

Notably, he was not awarded the prize for actually supporting free speech, but rather his “contributions to many areas crucial to public life,” including on the topics of terrorism and treatment of refugees.

Aly is not being awarded for his views on free speech because he doesn’t actually support Voltaire’s axiom: I do not agree with what you have to say, but I’ll defend to the death your right to say it.

In a 2013 lecture, after giving the cursory statements in favour of free expression, he argued for retaining section 18C of the Racial Discrimination Act.

He used the metaphor of the free market to argue against free speech, misusing the idea of ‘market power’ to silence voices he considers powerful:

If free speech is meant to be analogous to the free market, if bad ideas are to be vanquished by good ones in the contest of ideas, then what happens where that contest scarcely exists? Really, it’s like an abuse of market power: a kind of market distortion. There is at the very least a case to be made for regulating speech in these circumstances to ensure that the discourse of the socially empowered is held accountable in some way.

He, of course, seems to miss the point that government intervention in the free speech ‘market’ is an exercise of social power by the powerful, silencing ideas one group happens to find distasteful.

Aly went on to say that society should regulate the tone of inflammatory ideas:

We can also require that, particularly in the case of dangerously inflammatory ideas, that they are conducted with a certain tone that reduces the likelihood of some manner of social explosion.

Liberty Victoria’s decision to award a free speech prize to someone who does not support free speech makes a mockery of the supposedly prestigious prize.

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