It hardly needs saying that freedom of speech, even under the protection of the First Amendment in the United States, has never been an absolute value but has always been subject to a range of qualifications. Everyone is aware of Oliver Wendell Holmes’ dictum that no one is at liberty to shout ‘Fire!’ in a crowded theatre.
When considering the qualifications to freedom of speech in Australia, the much-discussed section 18C of the federal Racial Discrimination Act is still a useful place to begin because there are somewhat similar provisions – but dealing with a much wider range of community groups – in legislation at the State and Territory level. 18C makes it unlawful to do an act that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people because of the race, colour or national or ethnic origin of the other person or some or all of the persons in the group. There is an exemption in section 18D for anything said or done reasonably and in good faith in a number of situations, including academic and scientific discussions or for ‘any other genuine purpose in the public interest’.
The real complaint about 18C is that it is not always possible to have a robust public debate without offending or insulting persons or groups with a high level of sensitivity. Yes – there are some exemptions in the legislation but, amongst other problems, it is necessary to show that what was said was said reasonably and in good faith. This can be a highly subjective judgment on the part of a court or tribunal and, in any case, can only occur after the publisher has already been involved in lengthy and costly legal proceedings.
At the State and Territory level, a good example is the Tasmanian Anti-Discrimination Act which prohibits conduct that offends, humiliates, intimidates, insults or ridicules another person on the basis of 14 kinds of status, including marital status, relationship status and family responsibilities. This provision had some publicity in late 2015 when a complaint was made about a booklet distributed by Church authorities to Catholic school students on the subject of marriage. Presumably it would be open to anyone in Tasmania living in an unmarried heterosexual relationship to make such a complaint as well. Anyone who has read Brideshead Revisited will recall that it is Catholic teaching that unmarried heterosexual couples are ‘living in sin’ and doomed to the eternal fires of hell. That sounds like an insult to me!
It is true that, unlike 18C, the Tasmanian provision has the requirement that a reasonable person would have anticipated that the other person would be offended or insulted. But, putting aside the fact that this is another value judgement for a court or tribunal, it may well be that a publisher does anticipate that some persons with be offended or insulted in the course of a vigorous public debate on moral questions. It is also true that, somewhat similar to 18C, the Tasmanian legislation has an exception for a public act done in good faith for any purpose in the public interest. But again this can involve highly subjective judgments and requires this defence to be made out affirmatively by a publisher in the course of lengthy and expensive legal proceedings
These kinds of provisions also raise the question of whether there could be a proper public debate in the context of a plebiscite on same-sex marriage or referendum on indigenous recognition in the Constitution. It is easy to imagine some groups in the community being offended by propositions put forward by those arguing a ‘No’ case in any plebiscite or referendum on these issues. None of this, of course, is to say that incitements to violence against particular groups in the community should not be unlawful. They have always been so under criminal law.
It might be thought that the answer is a bill of rights – but that is not a solution. What happens under a bill of rights is that political, social and economic questions are transferred from elected parliamentarians to unelected judges. It is important to realise that political, social and economic questions do not become legal questions when given to a court. They remain what they have always been but they are now decided by a court. Courts in the US have started with the general proposition that speech under the First Amendment is to be absolutely free and then devised numerous qualifications to that principle. So really nothing has changed except that the qualifications are imposed by courts rather than parliament.
John Kenneth Galbraith coined the phrase the ‘conventional wisdom’ in the 1960s and there has developed in Australia in recent years a conventional wisdom on a whole range of subjects, for example, climate change, boat arrivals, same sex marriage and coal mining to name a few. This consensus is maintained by large sections of the media; all legal professional bodies; most teaching staff in universities; most of those in the senior ranks of the federal and State bureaucracies; and quite a number of the most prominent spokespersons for the business community. Some of these views may be quite supportable. But that is not the point. The point is that no young person in our society could publicly espouse a contrary view if he or she wished to pursue a serious career in any of these areas.
There can be little doubt that any young aspiring academic who consistently contradicted the conventional wisdom at morning tea in the staff common room would find his or her career prospects severely affected. Most young academics would know this and would confine their public views accordingly. As would young persons working in bureaucracies and many large corporations. This is not because everyone subscribes to the conventional wisdom but those that do not know better than to expose their views.
There are strong strains of ‘political correctness’ in England and the US but this development seems to have been taken to extremes in this country, perhaps because in a much smaller society there is simply less scope for diversity of opinion.
All of this may sound rather pessimistic when considering the position of freedom of speech in Australia in the immediate future, where public debate has become more inhibited in recent years. There are, however, still individuals and journals who are prepared to initiate robust public discussions. They often have a problem getting any response from the smug holders of the conventional wisdom but they can only hope that eventually there will be a reaction against the current claustrophobic climate of opinion.
Michael Sexton’s latest book is On the Edges of History: A Memoir of Law, Books and Politics
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