The right to free speech and the prohibition against discrimination

The right to free speech and the prohibition against discrimination

As published in The Age There is much to admire in Tony Abbott’s recent speech on the right to freedom of expression given to the Institute of Public Affairs.

He is right to affirm, for example, that freedom of speech is a cornerstone of democracy, echoing the words of the UN Human Rights Committee, which has described the rights to freedom of opinion and expression as “the foundation stone for every free and democratic society”.

Mr Abbott is also right to affirm that freedom of expression extends to the right to offend. Again, he finds an ally here in the UN’s Human Rights Committee, which has said that article 19 of the International Covenant on Civil and Political Rights – which enshrines the rights to freedom of opinion and expression – “embraces even expression that may be regarded as deeply offensive”.

Finally, Mr Abbott is right to concede that the right to free speech is not absolute but rather, as the Human Rights Committee puts it, may be subject to restrictions that are strictly necessary and proportionate. Prohibitions against the production and distribution of child pornography, or misleading and deceptive conduct in business, are good examples. Mr Abbott himself has personally profited from the law against defamation.

At least since the Holocaust, the international community has also accepted that the right to freedom of expression carries with it “special duties and responsibilities” and that speech which incites racial or religious hatred, discrimination or hostility should be prohibited. So while Mr Abbott may be right to say that section 18C of the Racial Discrimination Act, which protects against speech which is likely to “offend, insult, humiliate or intimidate another person or a group of people” because of their race, is overbroad, he is wrong to call for its repeal. At a minimum, consistent with Australia’s obligations under the ICCPR and the Convention on the Elimination of Racial Discrimination, the Racial Discrimination Act should make it unlawful to engage in public speech which is likely to incite race-based hatred, hostility, violence or discrimination.

Mr Abbott was also wrong to accuse “all the commentators and organisations that have ever thundered in defence of free speech” as being “highly selective when it’s their commercial rivals or philosophical opponents who are in the dock”. Organisations like the Human Rights Law Centre, the Castan Centre for Human Rights Law and Liberty Victoria have all long stood for the right to freedom of expression and stated that section 18C may need to be amended to strike the right balance between freedom of speech and freedom from race-hate. Mr Abbott’s speech, as with many critics of section 18C, also neglected to acknowledge that section 18D of the Act already provides that section 18C does not apply to speech made “reasonably and in good faith”.

Indeed, if anyone is highly selective in their defence of free speech it is perhaps Mr Abbott.

Where, for example, was his indignation at parole conditions imposed on Aboriginal activist Lex Wotton, for whom it is a criminal offence to attend public gatherings and who is “prohibited from speaking to and having any interaction whatsoever with the media”? Where was his outrage at section 132(1) of the Queensland Corrective Services Act, which makes it a criminal offence for a journalist to interview or obtain a written or recorded statement from a prisoner, including a person on parole in the community, without the written approval of correctional authorities?

Where was his critique of Melbourne’s Lord Mayor, Robert Doyle, who urged police to forcibly evict peaceful Occupy Melbourne protesters from City Square because they were “disrupting business and community events”?

And where was Mr Abbott’s criticism of Premier Ted Baillieu, who reacted to a magistrate’s decision to dismiss charges against peaceful protesters targeting Max Brenner’s Chocolate Bar, by asking his Attorney-General to consider whether there is a need for legislation to ban protests which “interrupt the fair conduct of a business”? If free speech may be limited merely to ensure the amenity of public space or to protect the profits of business, then the bar for restrictions is set very low indeed.

Well may Mr Abbott have invoked Voltaire, "I disapprove of what you say, but will defend to the death your right to say it", but it is revealing and concerning that Mr Abbott’s defence of free speech was primarily concerned with restrictions applied to very powerful media interests and certainly not in aid of any of his so-called “rivals or philosophical opponents”.

Phil Lynch is Executive Director of the Human Rights Law Centre