This week has seen the further eroding of free speech in Australia with the passing of the Marriage Law Survey (Additional Safeguards) Bill 2017. The Bill seeks to provide a “further safeguard against vilification, intimidation and threats to cause harm” based on “the religious conviction, sexual orientation or gender identity or intersex status of a particular person or group”. The new legislation is designed to apply to both sides of the debate and will be in effect only until mid-November after the survey results have been announced. Possible fines of up to $12,600 apply for any breaches.
At first glance, this bill seems fair. It targets campaigners on both sides equally. Vilification of LGBT people is off limits, but so is vilification of people based on their religious beliefs. All campaigning material including that posted on social media must be clearly authorised. Even the ABC and SBS must allow ‘reasonable opportunity’ for both sides to broadcast their views.
But what seems like a win for both sides, is in reality confirmation that many on both the left and right sides of politics are only willing to impinge on our right to freedom of political expression when it suits their own purposes. Very few MPs have batted an eyelid about the fact we now have ‘fresh’ new legislation that places a subjective limit on how people can express their political point of view on SSM. As Kerry Packer once said: ‘every time you pass a new law, you take somebody’s privilege away from him.’
What does this new piece of legislation say about the attitude of the political class towards ordinary Australians? Malcolm Turnbull told us at the launch of the Liberals and Nationals for Yes Campaign that he respects the wisdom, good sense and decency of the Australian people. He said “the worst argument against the plebiscite or the postal survey is the proposition that Australians are not capable of having a respectful debate on such an important social issue. That holds the Australian people in contempt.” And yet within three days he oversaw the passing of legislation that is based on the complete opposite view.
Mathias Cormann has said that the bill sends a message that “hateful and malicious conduct will not be tolerated”. Mark Dreyfus has said that he expects Australians to debate the issue with “grace and kindness”. They both sound like a couple of schoolmarms. How patronising and infantilising it is to be told by the political elite that we must all be on our best behaviour. That we’re so mentally feeble that we can’t bear to be called a homophobe or a bigot or hear someone say that they believe gays will go to hell.
The thinking behind this legislation is to protect us from bad or offensive ideas, and yet as Penny Wong points out, the bill can’t “stop all of the hurt, all of the prejudice that’s being expressed”. Once a hurtful thing has been said, issuing the perpetrator with a fine is not going to change that. The idea that we need to be protected from our feelings by the benevolent hand of government shows a distinct lack of faith in the Australian people’s ability to participate in no holds barred, robust debate. Are we so feeble that we need a law that seeks to save us from hurt?
The most insidious thing about this bill is that it represents a further erosion of our already threatened right to freedom of communication on political matters implied in the Constitution of Australia as well as our natural rights to freedom of speech and expression. This bill restricts speech based on the subjective criteria of vilification or intimidation, similar to section 18C of the Racial Discrimination Act. As with all hate speech laws, it comes down to a select few privileged individuals who get to decide what constitutes a breach.
As Cory Bernardi noted, Attorney General George Brandis is effectively the gatekeeper on which misconduct complaints are referred to the court. A single member of parliament who has a public position on the SSM debate is not the ideal person to perform such a role. Even Sam Dastyari has expressed some concerns about the risks some people may face sharing social media content, unaware of the legal implications.
Even though the bill is temporary, it sets a dangerous precedent. Already there has been a call by a Just Equal activist for these laws to become a permanent fixture. “Federally we have permanent, national anti-hate speech laws for race and religion only, yet clearly there is a need for permanent laws to include sexuality and gender identity.” Once hate speech laws exist for one group, it’s inevitable every identity group will eventually want in.
These calls echo comments made by Mark Dreyfus earlier in the year when 18C was under review. At the time he gave an indication that Labor would be open to consolidation of discrimination legislation so that offence laws like 18C would also cover sexual orientation, gender, age and disability should they win government. Perhaps religion would be next, heralding in a new era of blasphemy law. Anne Aly has already suggested it.
It may seem like a great idea to restrict speech when those being restricted are on the opposite side of the ideological fence or hold offensive and bigoted opinions. And yet once we become complacent with laws that limit how people express themselves, it is only a matter of time before we find ourselves on the receiving end.
In these times we would do well to remember the words of HL Mencken who once said “the trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.” Instead of making oppressive new laws to try and combat hateful speech from a minority of ‘scoundrels,’ we could perhaps take the advice of Matt Canavan and ‘grow a spine’.
Nicola Wright is a writer and editor at LibertyWorks.
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