Freedom of speech is not in danger in Australia (2013)

Author: Gillian Triggs, President of the Australian Human Rights Commission.

Published in The Australian, Monday 25 February 2013

(A slightly edited version of this piece appeared in The Australian on 25 Monday 2013 under the heading, ‘Freedom of speech can become vilification if safeguards ignored.)

Freedom of speech is alive and well in Australia but, with respect to Voltaire, we will not defend to the death those who abuse this right by vilifying others in public on the ground of race.

Recent events have stimulated a public discussion about the limits to free speech in contemporary Australia.

It is an important and healthy discussion.

The visiting Dutch politician, Geert Wilders, is hardly a modern day Socrates posing questions in the market place of Athens. He is without doubt, a very controversial figure. Yet the Minister for immigration granted Mr Wilders a visa to speak publicly in Australia about his views on Islam, offensive though his views may be to many. The fact that his speaking tour of Australia is allowed to proceed amply demonstrates that the right to freedom of speech is flourishing in this country. The demonstrations he is greeted with at each engagement are a further example of this freedom.

In stark contrast, Malaysia imposed a travel ban on Senator Nick Xenophon, presumably because of his speeches on the need for free elections in that country.

The Wilders visit comes in the wake of instances of racial abuse on public transport in Melbourne and Sydney and debate about the provisions in the exposure draft of the Human Rights and Anti-Discrimination Bill relating to conduct that insults or offends.

It has long been recognized that the right to free speech comes with special duties and responsibilities. Article 20 of the International Convention on Civil and Political Rights makes clear that ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’ should be prohibited by law. A prohibition on racial hatred has long provided a legitimate restriction on free speech. 

On any comparison, Australia is one of the freest countries in the world. While we have legislation on many human rights, including the rights not to be discriminated against on the grounds of sex, age, disability or race, it is curious that Australia does not have legislation to protect the right to freedom of speech. Rather, courts have relied on common law and an implied right to freedom of political communication.

The Commission has long argued for legislation to give effect to the International Convention on Civil and Political Rights, including the right to ‘freedom of expression’.

Paradoxically, it is those very parties who are arguing for stronger protections for freedom of speech who are among the most vociferous opponents of any form of Charter of Rights. While all comparable common law countries have human rights acts, Australia is at risk of being isolated from legal protections that are taken for granted in the UK, Canada, New Zealand, Europe and the United States.

Many of these commentators have been particularly concerned with the 1995 law making racial vilification an offence under the Racial Discrimination Act. The offence applies to conduct likely to “offend, insult, humiliate or intimidate” a person on the grounds of race.

At first blush, this language appears to set the threshold for vilification at a low level of ‘merely’ offending and insulting. The common criticism is that such a threshold is out of step with the cut and thrust of Australian life and has a chilling effect on the right to freedom of speech.

On closer analysis, however, it becomes clear that, in the few cases of racial vilification that have come before our courts, judges have set the bar high in requiring speech to be profoundly insulting or offensive before it is caught by the legislation. In other words, this provision has only been applied in the most extreme of cases.

To illustrate, one such case was Jones v Toben, which concerned material published on the internet that not only cast doubt on the occurrence of the Holocaust and the existence of homicidal gas chambers in Auschwitz, but also implied that Jewish people who were offended by such denials were of limited intelligence or driven by financial gain.

Outside of Israel, the Australian Jewish community has the highest percentage of Holocaust survivors of any Jewish community in the world.

In this case, the judge concluded that such material would make Jewish Australians feel treated contemptuously, disrespectfully and offensively.

I’m sure most reasonable people would agree that this type of hate speech has no place in modern Australia and that the use of the Racial Discrimination Act provisions to condemn its expression is perfectly reasonable.

Before going to court, all complaints under anti-discrimination law must come to the Australian Human Rights Commission, where an attempt is made to conciliate the matters. Of the over 17000 inquiries or complaints made to the Commission each year, on average, we receive only three complaints about a breach of freedom of speech or political opinion.

It should therefore be clear that, not only does the restriction on freedom of speech created by the racial vilification law apply in only the most egregious of cases, but also that the offence is rarely prosecuted in practice.

By contrast with the few complaints about freedom of speech, there is a worrying trend of complaints over the last five years alleging racial vilification. The Commission received 120 complaints in 2012, rising from 50 in 2008.

In short, Australians do not fear that their right to freedom of speech or political opinion is at risk. Rather they are justly concerned that they and their families will be racially abused in a public place - in shopping centers, on public transport, in restaurants and movie theatres. 

It is at this point that the balance needs to be found between the right to say whatever you please, and the right not to be vilified in a public place on the ground of your skin color.

The right to freedom of speech is a fragile flower that must be protected vigorously by each new generation. However modern society, including Australia, will continue to grapple with the complex task of balancing this right with other freedoms.