The federal government’s draft religious discrimination bill highlights – no doubt unconsciously – some of the limitations on freedom of speech in already existing Australian legislation.
This is because one objective of the bill is to override State and territorial anti-discrimination laws that would in some circumstances make statements of religious belief unlawful on the basis that they are offensive or insulting to some groups in the community.
It was under the Tasmanian anti-discrimination legislation that the Catholic Archbishop of Hobart was the subject of a complaint in relation to church booklets on marriage that he had authorised and were said to be offensive and insulting to same-sex couples. The complaint was ultimately not proceeded with but only after it had resulted in considerable expenditure of time and money on the part of the church.
By giving this protection to statements of religious belief, however, the bill underlines the fact that all other publications made in the course of public debate are open to complaints from hyper-sensitive groups who consider themselves offended or insulted. Ironically one of the statutes that authorises these kinds of complaints is federal legislation – section 18C of the Racial Discrimination Act 1975 – although it must be noted that the Turnbull government tried to amend this aspect of the legislation in 2017 but was not able to obtain enough votes in the Senate to achieve this object.
It is no doubt a good thing that statements of religious belief are protected from these limitations on freedom of speech, but it is unsatisfactory that these are the only statements that are so protected. None of this, of course, is to say that incitements to violence against particular groups in the community should not be unlawful. As it happens, they have always been unlawful under the criminal law. But this is very different from expressions of opinion that may be offensive or insulting. There is a very great difference between “hate speech” and material that might be offensive to some persons in the context of serious public debate. But for some commentators “hate speech” is simply anything with which they disagree.
It might be thought that the answer to this and other problems concerning freedom of speech is a bill of rights but there are two reasons why that is not a solution. The first reason arises out of democratic political theory because 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. This is simply the judicialisation of politics.
The second objection to a bill of rights is a more practical one but well-illustrated by the notion of freedom of speech under the First Amendment to the US Constitution. Courts in the United State have started with the general proposition that speech 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.
There have, of course, always been some traditional limitations on freedom of speech that are based on competing values. The law of defamation represents an attempt to strike a balance between freedom of speech and protection of individual reputation, although how that balance is struck has long been the subject of dispute, especially on the part of the media. The law of contempt is designed to strike a different balance – between freedom of speech and the administration of justice, particularly by placing an inhibition on publications that might prejudice a pending criminal trial, although it has become more difficult in recent years to enforce because of the explosion of information by way of the internet and social media. Another value that competes with freedom of speech is that of national security – a balance that has been the subject of considerable public debate since search warrants were executed by the Australian federal police in June on journalists employed by the ABC and News Corporation. These balancing exercises demonstrate that freedom of speech is not an absolute value, but they certainly seem to involve weightier considerations than hurt feelings on the part of persons who are easily offended or insulted.
Perhaps the greatest threat to freedom of speech in Australia, however, is not enshrined in legislation but in the political correctness that has become embedded in most public and many private institutions in this country. There is a politically correct view on a whole range of subjects, such as climate change, border security, immigration and freedom of speech itself, that is maintained by large sections of the media, most teaching staff in universities and schools, major sporting bodies, legal professional bodies, literary festivals and awards, and quite a number of the boards of large corporations. Some of these views may be entirely 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 career in any of those areas.
This might seem like a wild exaggeration. But, as someone who was once familiar with university common rooms, I would be prepared to wager a large sum that any young aspiring academic who consistently contradicted the politically correct position on current political, social and economic questions in the staff common room in 2019 would find his or her career prospects severely affected. And most young academics would know this and would confine their public views accordingly. Much the same position would hold for young people working in the federal and State bureaucracies and in many large corporations. This is not because everyone in those bodies subscribes to the conventional wisdom but those that do not know better than to expose their views. This is the cultural challenge to freedom of speech in Australia and it is even more formidable than section 18C and its counterparts.
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