It has become a sort of trump card in debates over 18C for its defenders to ask its critics what they wish to say that they think they cannot say as long as 18C prevails. We hear it glibly asked by journalists, MPs, and, amazingly, human rights commissioners: “What exactly are you afraid of saying?” To 18C defenders it is as though the meaning of “to offend, insult, [and] humiliate” is crystal clear, and that the only speech that it could possibly capture must be utterly unjustifiable, akin to screaming “Fire!” in a crowded theatre.
Let’s examine this approach to justifying 18C as it currently reads from another angle.
When Tony Abbott introduced anti-terrorist legislation in 2013 his critics accused the legislation of being vague and potentially undermining of all sorts of civil freedoms, including freedom of speech and freedom of association. Terms in the legislation such as “public interest” and “special intelligence functions” were judged to be too vague to prevent excessive invasion into individual liberties, claimed spokespeople from Muslim organisations and civil liberties groups.
One of Australia’s most noted free speech scholars, Professor Katharine Gelber, at the University of Queensland has recently criticised such laws in her book Free Speech after 9/11, warning that “freedom of speech is at grave risk from counter-terrorism policy in the United States, the United Kingdom, and Australia….”
Explaining how such vague laws can have a chilling effect on freedoms, she says: “Certainly there is evidence that Muslim communities are fearful of using the internet and telephones, in case their communicative activities become monitored, and that at times this fear has led them restricting their online activities.” For Gelber, this fear born from vague legislation supports her thesis that freedom of speech, foundational to democracy, is now seriously under threat. The upshot of Gelber’s analysis? The terror laws need to be reformed.
Gelber may have a point.
Now, how would it go down with critics of this terror legislation if its defenders’ response was simply: “What is it that members of the Islamic community want to say or do that they are afraid they cannot under these laws?”
Many critics of anti-terror legislation would quite plausibly respond that the very question misses the point. For the whole point is that laws that regulate and punish citizen’s actions must be both public and clear. In other words, a necessary condition of any free and open society is that laws are clear enough for us to know what actions will fall foul of them. The vaguer the laws the less freedom we have. Thus, anyone who asks the above question merely declares their obliviousness to what makes a free and open society free and open.
The vagueness of so-called “hate speech” laws, including 18C as it currently reads, is evident in the history of their invocation. Think of Bishop Porteous of Tasmania who was brought before a tribunal for distributing a leaflet defending traditional marriage without a word of vitriol against same-sex marriage proponents. Goodness knows how long that would have dragged on had the complainant not dropped the case. Think of the Queensland students hauled before the Human Rights Commission for criticising Indigenous-only computer rooms by saying “ending segregation with segregation” in a Facebook post. Think of the ill-fated Bill Leak, forced to testify before the same Commission regarding his cartoon criticising the state of Indigenous communities.
None of these individuals hauled before the tribunals were accused of being abusive or spreading lies, nor were they inciting hate or violence. They had simply fallen foul of what the non-democratically appointed tribunal members deemed to be appropriate.
What do we want to say that we fear we many not be able to? Simple – the things said by the individuals listed above. We want to be able to criticise racial segregation policies. We want to be able to put a case forward for traditional marriage. We want to highlight problems in Aboriginal communities through satire and irony.
Vagueness in anti-terror laws may be more justifiable than in hate-speech laws, for the immediate consequences of intelligence agencies being hamstrung by definite limitations could be catastrophic. No such catastrophe comes from even the vilest hate speech. If we should be protesting vague conditions of freedom in anti-terror legislation, how much more should we protest the same vagueness in speech legislation!
The scary thing is that the people who scoff and ask critics of 18C what they are afraid of saying that might fall foul of its vague wording are people who wield cultural power: journalists, MPs, and human rights commissioners. Where is our society heading when those who are supposed to be the custodians of its openness are oblivious to what openness means, and delight in seeing it increasingly close?
Steve Chavura is a Senior Research Associate at Macquarie University, and a Lecturer in History and Political Theory at Campion College and the Lachlan Macquarie Institute.
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