Enemies of free speech hide behind a bill of rights

An intriguing feature of the debate about freedom of the press in Australia has been the attempt by some proponents of a national bill of rights to harness this issue to their cause.

It will be recalled that a campaign about press freedom was launched by media organisations after Australian Federal Police raids in June of last year on the ABC headquarters in Sydney and a News Limited journalist in Canberra. The raids appear to have been looking for material that may have been given to journalists in breach of the federal official secrets legislation. The search warrants relied on by the AFP were challenged in both cases. The ABC challenge was rejected recently by the Federal Court. The News Limited challenge was heard in the High Court in November and the court’s judgment has still not been delivered.

One reason why the introduction of a national bill of rights into this debate is intriguing is that most advocates for a bill of rights, whether at the state or national level, do not believe in freedom of speech or freedom of the press. They have long supported laws like section 18C of the federal Racial Discrimination Act and its state counterparts which make it unlawful to publish material that is offensive to various groups in the community. This obviously affects the press as the usual vehicle for such publications and it is no accident that journalists like Andrew Bolt and Bill Leak were amongst the principal targets of section 18C complaints and investigations. When the Turnbull government tried to amend this legislation in 2017 not a word was heard in support of this exercise from any of those proposing a national bill of rights.

As it happened, of course, the government lost the vote on this question in the Senate.

And where were these supposed defenders of press freedom in 2012 when the Gillard government was prepared to adopt the findings of the Finkelstein inquiry into the media? That inquiry proposed a government body that would have effectively controlled media content. This was consistent with the inquiry’s rejection of any traditional notion of free speech in the following terms:

While it may be accepted that freedom of expression is important for self-fulfilment, it is not clear that unlimited free speech is essential for self-fulfilment … the speech that warrants protection is not all speech but ‘that speech that is constitutive of the formation and planning of one’s life in ways commensurate with one’s informed conception of the good’.

When this almost incomprehensible verbiage is decoded, it is clear that the inquiry proceeded on the assumption that most members of the community are simply not clever enough to make their own judgments about material published in the media without some guidance. Its report said that, in order to engage in public debate, citizens must have the ‘relevant critical and speaking skills’ but that there is ‘real doubt as to whether these capacities are present for all, or even most, citizens.’ Presumably such members of the community should not be allowed to vote either! Even some sections of the media, who are now vociferous in their demand for press freedom, were silent in the face of this plan for government regulation of their publications.

There are two chief problems for the media under existing Australian law and neither would be solved by a bill of rights. The first is the law of defamation which obviously restricts the publication of material that damages an individual’s reputation unless one of the various defences, such as truth or honest opinion, is available.

The law of defamation is an attempt to strike a balance between the protection of reputation and freedom of speech so that a bill of rights with a generalised provision about freedom of speech is not going to determine this balance. It might be noted, however, that the draft legislation circulated last November for public comment, as part of the defamation reform process supported by all Australian governments, contains a new defence designed to protect what can be described as responsible journalism. If finally adopted, this would be an attempt to alter the balance to some extent in favour of the media.

The other legal problem for the media, highlighted by the AFP raids, is the question of the publication of material covered by official secrets legislation at the federal level. This kind of legislation also requires a balancing exercise between the protection of national security and freedom of speech.

Again, a generalised provision in a bill of rights about freedom of speech will not resolve this problem. There are, of course, matters relating to national security that any government needs to keep secret but there is a long-standing tendency in the Canberra bureaucracy to label as secret a great deal of material that is relatively innocuous, although it must be recognised that the official secrets legislation was substantially amended in 2018 to place greater emphasis on the question of real damage to national security in any prosecutions for breaches of its provisions.

It should not be forgotten that the underlying premise of a bill of rights is to transfer the decision-making power on political, social and economic issues from elected parliamentarians to the courts. Advocates for a bill of rights make no apology for this because they believe that judges are better qualified than parliamentarians to decide these questions. There are no doubt many deficiencies in the parliamentary process at both the federal and state levels but one is reminded of Churchill’s comment that democracy is the worst possible system of government except for all the others.

All this suggests that those with a genuine interest in freedom of speech and freedom of the press should view with some scepticism the attempts by proponents of a national bill of rights to use the issue of press freedom in, what is for them, a very different exercise and one that is not really designed to promote freedom of speech in Australia.