McCloy case shows why courts can not be relied on to protect free speech

Last week, the High Court handed down a significant judgment which determined whether various limitations on political donations breached the implied right of political communication in the Australian Constitution.

The case was brought forward by property developer and former Newcastle lord mayer Jeff McCloy, who was the target of a compulsory examination by the controversial anti-corruption agency, ICAC.

This time, ICAC won. However, as Chris Merritt reported in The Australian, there is a second appeal coming up in November.

In this case, the Court was specifically asked to consider whether provisions of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) that:

were “impermissible burden freedom of communication on government and political matters.

All judges accepted the position that the Australian Constitution contains unwritten rights. Likewise, the judges accepted that the laws did indirectly undermine freedom of political communication.

However, almost as unanimously, the court rejected that the laws were not justified, saying the laws were aimed at a legitimate end of preventing “corruption and undue influence”. Even the “perception of corruption” was enough to justify the restrictive laws.

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Top 3 articles from this week you must read


Viscount Ridley

1. NSW Finance Minister Dominic Perrottet had an excellent piece in The Spectator, on the “mindless conformism” of the modern student Left ($)

2. In the United States, the Democrats had the first of a series of presidential debates this week. Robert Trasinski collected the 25 craziest moments over at The Federalist

3. And in The Times this week, Matt Ridley slammed mad new EU regulations which treat e-cigarettes worse than actual cigarettes. See it here.


Should athletes be jailed for doping?

David Howman, director general of the World Anti-Doping Agency

David Howman, director general of the World Anti-Doping Agency

Someone needs to tell World Anti-Doping Agency boss, David Howman, that it’s only a game.

Speaking at a sports law conference in Melbourne this week, Howman proposed that athletes caught using performance enhancing drugs should be jailed:

We think…that the real deterrent that cheating athletes fear is the fear of going to prison. Not the fear of being stood down from their sport for a year, two years, four years but a fear of going to prison.

Howman also suggested that sport needed a new international body that would police all integrity issues, in light of the recent FIFA fiasco (which I have previously written about on FreedomWatch here).

How big a disaster do you need to start reflecting on the issue of governance?…Don’t we need an independent body to oversee the governance of sport?

Howman is certainly on the money when he says international sporting bodies are corrupt and lack integrity. But I don’t think a big, unaccountable, international organisation is the best way to deal with other big, unaccountable, international organisations.

And, as much as anyone who watched the 2000 Grand Final might think Essendon players belong in jail, it is clearly ridiculously over the top for people who cheat in a sport to spend time in prison. Not to mention being a huge waste of taxpayers’ money.

Sport must get its own house in order – not turn to the big coercive stick of the state.


Political donations are political speech

Lawyer and deputy Victorian state director of the Australian Taxpayers’ Alliance Vladimir Vinokurov has a thoughtful piece on a recent decision of the High Court on political donations. This is Vinokurov’s most important point:

If special interest groups are banned from making political donations, the public is denied the right to hear their arguments, at least to a degree. To that extent the public is left less informed than they would otherwise be. If the point of our electoral laws is to ensure that the public make an “informed choice” during the election campaign as the Court claims, then it is illogical to censor the information they receive.

Moreover, those who lack the capacity to argue their case have every right to donate to political candidates that do.

Read the piece on Menzies House here.


The 13 senators who support changes to section 18C


Senator Zed Seselja

FreedomWatch readers will be delighted to learn that senators Zed Seselja, Ian Macdonald and Chris Back all spoke in favour of restoring freedom of speech in the Senate today.

The speeches were delivered in the context of parliamentary debate on Family First Senator Bob Day’s Racial Discrimination Amendment Bill 2014, which proposes to remove the words ‘offend’ and ‘insult’ from section 18C of the Racial Discrimination Act 1975.

Senators Seselja, Macdonald and Back join co-sponsors of the bill, senators Bob Day, David Leyonhjelm, Dean Smith and Cory Bernardi who all spoke in favour of the bill on 2 October 2014.

The complete list of current senators who are on the record in support of amendments to section 18C are as follows:


Renewables no substitute for grid power for the poor


On Tuesday, the Courier Mail published my opinion piece on the exciting role that Australian coal can play in helping to bring millions of people in India out of energy poverty.

Opponents to increasing coal exports typically cycle through a range of invented arguments including the alleged health effects (ignoring the health effects of cooking with dung, oils or refuse), the coal price (ignoring that it is merely back to its historic average) or the move to divestment (ignoring that it hasn’t really taken off).

One of the strongest cases put in favour of a mainstream electricity grid can be found in this June article from The Guardian, a paper not exactly considered pro-fossil fuel.

The piece by Edinburgh University lecturer in social anthropology Dr Jamie Cross explains the reality of life for people who have no access to a modern electricity grid. One telling anecdote is of a family that used to crush seeds to make its own castor oil for light and heat, and now burns kerosene in a home-made lamp.

Interestingly, the solar lanterns previously distributed throughout the local village by Dr Cross and others lie largely unused.

While the inventiveness of the human mind is something to be celebrated, products like solar lanterns and gravity lights are hallmarks of innovation, and nobody knows what future options technology may bring, the last line of Dr Cross’ article sums it up best of all:

People living without electricity don’t just want to see in the dark, they want to live in light as others do.


No room for freedom in safe spaces


Brendan O’Neill’s latest article in The Spectator provides a chilling insight into the effect of political correctness, moral relativism and speech codes in modern universities:

During my speech, students had hollered ‘Shame! Shame!’ when I suggested that Robin Thicke’s ‘Blurred Lines’ should not be banned on campuses. And yet they listened intently, with soft, understanding, patronising liberal smiles on their faces, as [Agshar] Bukhari [of the Muslim Public Affairs Committee] implied that Charlie Hebdo brought its massacre on itself. This is how screwed-up the culture on Western campuses has become

The slow march of universities towards an enforced conformity of views and censored speech has been going on for quite some time. Nowhere is this pathology more evident than in the concept of the “safe space”.

Safe spaces are designated places within university campuses where students can gather and not be exposed to ideas or expressions that they may find hurtful, distasteful or objectionable. In recent years, these spaces have been rolled out in universities across the United States, Canada and the United Kingdom, while Australian universities have also toyed with the idea.

There is something particularly perverse about a culture which deems fully functioning and legally responsible adults as too fragile to be exposed to ideas that may confront, challenge or even, heaven forbid, offend them. The freedom to challenge the consensus and subject a statement to the rigours of a free market of ideas lies at the very heart of Western Civilisation. To prevent university students from engaging in this process is to deny them participation in one of the essential aspects of free society.

University students have a choice. They can be safe from words they don’t like. Or they can be free. But they can’t be both.


Bob Day confronts “a plague of political correctness”

Ahead of further debate in the Senate tomorrow on Senator Bob Day’s Racial Discrimination Amendment Bill 2014, the Family First Senator for South Australia delivered an important speech on free speech this afternoon:

A plague of political correctness seems to be sweeping this country, seeking to push out of the public arena those who the ruling elites don’t agree with. When in opposition, those who are now in government spoke powerfully about the need to halt the growing threats to free speech. However, in office they seem to have gone quiet. Yes, the Human Rights Commission is reviewing rights and responsibilities focussing on religious freedom. That begins next month. However, the central and specific commitment to reform 18C of the Racial Discrimination Act was abandoned until Senators Leyonhjelm, Smith, Bernardi and I picked it up again. I look forward to further debate on that tomorrow.

Language is very powerful. The framing of these debates is powerful. Opponents of free speech like to talk about ‘hate speech’. They say that certain things should be censored because they might offend or insult someone. Simply calling words ‘hate speech’ is an affront to free speech.

You can watch Senator Day’s whole speech here:


Free speech bill an opportunity for the Turnbull government


Senator Day’s Racial Discrimination Amendment Bill 2014 is a significant opportunity for the Turnbull government to demonstrate its commitment to freedom of speech, according to free market think tank the Institute of Public Affairs.

The Senate will debate Family First Senator for South Australia Bob Day’s Racial Discrimination Amendment Bill 2014 today. The bill proposes to remove the words ‘offend’ and ‘insult’ from section 18C of the Racial Discrimination Act 1975, which currently makes it unlawful to “offend, insult, humiliate or intimidate” a person on the basis of their race, colour or national or ethnic origin.

“The Day amendment allows the Turnbull government to show where it stands on freedom of speech,” says Simon Breheny, director of the Legal Rights Project at the Institute of Public Affairs.

“Prime Minister Malcolm Turnbull has promised to lead a ‘thoroughly liberal government committed to freedom, the individual and the market’. A sure way to prove this would be by supporting a bill that helps to restore free speech in Australia.”

“It should not be unlawful to offend or insult someone. Freedom of speech goes to the heart of liberal democracy.”

“Senator Day’s bill is not a full repeal of section 18C. Removing the words ‘offend’ and ‘insult’ does not fully restore freedom of speech in Australia. But the bill is a significant improvement.

“Supporting this bill would send a positive message about the direction of the Turnbull government,” says Mr Breheny.

For media and comment: Simon Breheny, Director, Legal Rights Project, Institute of Public Affairs, [email protected] or 0400 967 382.


Bet on stupid ideas in Gambling Awareness Week


Poker machine participation rates in Victoria have declined by 50 per cent since 1999.

That is one of the interesting facts which can be found on the website of the Victorian Responsible Gambling Foundation (VRGF), a statutory body set up by the Victorian government “to foster responsible gambling”.

Much of the material produced by the VRGF contains sensible advice on how to avoid becoming a problem gambler. However, this week the VRGF is running Responsible Gambling Awareness Week, and the special week has prompted a spate of public reports and commentary.

Given the decline in poker machine participation rates, it is perhaps unsurprising that the VRGF’s main focus has been on gambling’s big growth area, sports betting. Equally predictable is the fact that much of the commentary has been predicated on the assumption that sports betting is a social evil which should be subject to ever tighter regulation.

A report on “The Marketing of Wagering on Social Media” has allegedly found that wagering companies are using cartoon characters to make impressionable kids grow up thinking gambling is “cool and fun“. Victorian gambling minister, Jane Garrett has weighed in with her concern about sports betting ads contributing to “the normalisation of gambling as part of sport“.

Sports betting’s status as the main source of gambling concern has been caused not just by its growth, but because, unlike the pokies or the races, it intrudes much more into the world of non-gamblers who, like Minister Garrett, see ads for it while watching televised sport.

These ads may sometimes be irritating, but that does not mean that there is anything abnormal about betting on sport.