Free speech and human rights in Australia

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Thank you Jana, and thank you Aunty Norma for the warm Welcome to Country.

On behalf of the Australian Human Rights Commission, our commissioners and staff, is my pleasure to welcome you to this Free Speech Symposium.

I would also like to acknowledge that we meet today on the land of the Gadigal people of the Eora Nation, and pay my respects to their elders, past and present.

The aim of this symposium is to explore the nature of the right to freedom of speech and of human rights implementation under Australian law. It might be observed that the timing of this symposium has been impeccable. Over the last year we have had a national debate - termed the “freedom wars” - prompted by an election promise to amend s18C of the Racial Discrimination Act, legislation the AHRC administers through our complaints process. The key idea was to promote freedom of speech and restrict the current law prohibiting racial abuse.

Two days ago we learned that the proposed amendments to S18C will not proceed. I both respect and welcome the decision by the Prime Minister. It is consistent with the submission of the AHRC to the Government on the Exposure Draft and responds to the overwhelming rejection of the proposed amendments by the Australian community.

Instead, new laws will be introduced to respond to the terrorist threat that, it is feared, may be posed by Australians returning from fighting in the conflicts in Syria and Iraq. It is now proposed that to advocate the promotion of terrorism will be a new offence, retention of metadata for two years will be required, the burden of proof may be shifted to an accused in respect of new offences, the threshold for arrests without a warrant will be lowered and passports may be suspended. Seemingly overnight there has been a radical reversal of the public debate, from protection of the right to freedom of speech in our democratic, multicultural society to introduction of a suite of proposals to limit that right in the interests of national security.

It is accepted that freedoms are not usually absolute and there is no hierarchical order among them. It is the accommodation or balancing of freedoms that is central to understanding how freedom of speech and all human rights apply in practice. That is, for example, are anti-terrorism laws a proportionate measure to achieve a legitimate end? Can freedom of association be restrained to control criminal acts of ‘bikie’ gangs?

The current debate about freedoms has shone a welcome searchlight on how Australia protects human rights.

My task here is to provide a brief overview of Australian “exceptionalism” in its approach to protecting human rights. By this I mean that relative to comparable common and civil law systems, Australia has adopted a multifaceted and unique regime for human rights protection. We have few constitutional or legislative protections for our traditional freedoms such as freedom of speech or protection from arbitrary detention without trial. We have no Charter or Bill of rights, unlike all other common law countries; for most legal systems, all domestic laws are viewed through the prism of the rights defined in either the relevant Constitution or legislative Charter or Bill of Rights; Australia has no regional court like the European Court of Human Rights or similar courts in Latin America, Africa and the Middle East. The consequence is that Australia is increasingly isolated from evolving jurisprudence and from the legal systems with which we share common values.

Despite this exceptionalist approach by Australia, it remains true that Australia has historically been a good international citizen. Australia has been closely engaged with negotiating the major human rights treaties that have evolved since Doc Evatt, as President of the United Nations General Assembly in 1958, successfully gained a unanimous vote for the Universal Declaration of Human Rights. But, and here is the fatal flaw in Australia’s regime for protection, most of these treaties have not been legislated by Parliament into Australian law.

The failure to implement the International Covenant on Civil and Political Rights, in particular, presents significant practical impediments for the realisation of fundamental freedoms in Australia such as freedom of speech and freedom from arbitrary detention.

In the absence of constitutional and charter based rights, how then has Australia, in practice, achieved a commendable human rights record?

The answer lies in a combination of elements:

• Culture built on a ‘fair go’, tolerance and equality of opportunity
• Constitutional protection of the freedom of religion and interpretation of the Constitution to imply a freedom of political communication as in Aust. Capital Television v Cth in 1992 that a law prohibiting paid political advertising by a political party was invalid. This is not, of course, the same as the right to freedom of speech in the sense, for example, of the US First Amendment.
• Legislation dealing with specific issues such as fair trials, employment laws, landlord and tenant laws; and particularly anti-discrimination legislation on race, sex, disability and age, administered by the AHRC.
• The role of our judges in developing the common law principles of legality and principles of statutory interpretation that presume that Parliament does not intend to violate Australian international obligations.
• Principles of administrative law that require due process and natural justice
• Parliamentary Joint Committee on Human Rights…the so-called ‘Scrutiny Committee’.
• Complaints processes of the AHRC and the advocacy work of its six commissioners.

While the High Court has stated that we are free except where Parliament passes a law to the contrary, the principle of freedom from government action has become hollow in our modern democracy - for parliament so frequently covers the field with clear and unambiguous language that there is little room for any common law principles of statutory presumptions about fundamental freedoms.

The truth is that, without constitutional guarantees, the measure of our freedom of expression has become that which remains after all the laws that restrict the right have been taken into account. [Al Kateb illustrates this trumping of wider common law principles by Parliament where the Migration Act was interpreted to allow the executive to hold a stateless asylum seeker indefinitely as no other country would accept him].

Every democratic society has recognised that there may be many restrictions on speech including prohibitions on the planning of criminal acts, laws that restrict advertising, regulate political protests, and to prohibit treason. We have laws to protect privacy, to penalise perjury, or ban obscenity… But what about restrictions that prohibit copyright protections for 100 years, ban anti-abortion protesters in the vicinity of an abortion clinic, or prohibit advertising in residential areas? 

These are not easy questions for a vibrant democracy such as ours to answer.

However, a useful way to think about laws that regulate freedom of speech is that they are designed to avoid harm or to assist in attaining a legitimate and important social goal. If we focus on what the freedom is for, it is easier to consider whether a regulation is a permissible limit on the freedom.

It is not always easy, in practice, to find an answer and the recent decision of the High Court in the Monis case provides a dramatic and controversial illustration. Here the accused used Australia Post to send letters to the families of Australian soldiers killed in the conflict in Afghanistan. The legal issue was whether the letters were protected by the implied right to political communication, in this case, to object to Australians fighting in that conflict.

The Court agreed that the operative principle was whether the law prohibiting use of the postal service to threaten another person was proportional to achieve a legitimate purpose. When it came to applying this principle to the facts the Court split 3:3, the three women judges concluding that the law was reasonably proportionate to the aim and others, finding that it was not, thus leaving the lower court conviction in place.

The ‘freedoms debate’ has exposed the weaknesses in Australia’s exceptional and fragmented approach to human rights. If we are truly serious about securing the right to our fundamental freedoms in this country, as the Commission has consistently argued, we need comprehensive legislation to protect them.

It is time to reopen the public debate about a legislated form of human rights Charter to ensure that neglected freedoms such as freedom of speech are better protected and that where the freedom is limited, we are in agreement upon principles by which to determine if the limit is fair, proportionate and reasonable.

I look forward to the discussions today and hope that it contributes to a balanced understanding of how freedoms are, and should be, protected in Australia.