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Who stands for free speech?

By David Leyonhjelm - posted Monday, 16 March 2015


The free speech debate in Australia is not in good shape. In the federal Parliament, I am the only politician to consistently defend freedom of speech. It's a lonely mission and needs to change.

It is obvious the Government only believes in freedom of speech in theory. Before the last election, Tony Abbott gave a commitment to modify section 18C of the Racial Discrimination Act, the provision used against Andrew Bolt. I was in the audience when he made the undertaking.

Not only has Abbott changed his mind about that – so we're all still prohibited from offending or insulting anyone on the basis of race – but in his recent National Security statement he talked about introducing 'stronger prohibitions on vilifying, intimidating or inciting hatred'.

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Somehow, things have moved from a promise to repeal 18C, to reneging on that promise, to a suggestion – if not a promise – to further undermine freedom of speech.

But that's not all. In the national security legislation, section 35P introduced harsh penalties for journalists who report on Special Intelligence Operations, even when they report historical misconduct. The Foreign Fighters legislation criminalised reporting on certain police searches and 'advocating terrorism', which is defined in the broadest terms.

Then there's the net-nanny, which will prompt social media sites to take down content, including private messages, if one person thinks they constitute bullying. And still to come is mandatory data retention, which will compromise journalists' sources, whistleblowers and other private communications.

Labor's approach is no better. It always opposed changing 18C and gave supine support for the government's national security and net-nanny laws. Labor has also indicated support for the data retention legislation. Yet, in the wake of the Charlie Hebdo attacks, both Labor and Coalition loudly proclaimed their free speech credentials.

The Greens are better in parts. They opposed the national security legislation and also oppose data retention. However, they passionately support 18C and are in favour of 'hate speech' laws generally. And of my fellow crossbench Senators, only Nick Xenophon and John Madigan opposed some of the national security legislation while not one of them opposed the net-nanny.

For my part, I have not only opposed every one of these impositions on free speech but I co-sponsored Bob Day's bill to remove 'insult or offend' from 18C. I have also been speaking out against data retention at every opportunity.

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The crime of 'advocating terrorism' and the 'insult or offend' provision in 18C are both premised on the assumption that certain words will make people go out and do something vile. The problem is, these laws only serve to outlaw words that do not motivate bad deeds, because words that actually do motivate criminal acts are already dealt with through existing laws against incitement.

The blanket bans on reporting special intelligence operations and various police searches, combined with data retention, will prevent the media, bloggers and commenters from reporting without fear or favour and reduce government transparency. And the net-nanny encourages children to believe that if you don't like what people say, you should get the state to silence them.

What all this means is that free speech is defended in some situations - when the speech is agreeable, linked to privacy, or relevant to a certain political constituency - but not others. It amounts to not supporting free speech at all. To make an old joke, selective support for freedom of speech is like being partly pregnant.

Shutting down speech by claiming you're 'offended' or that something should not be said, or inhibiting speech by criminalising journalism, is an admission of failure to understand the whole concept of free speech. And if you don't understand free speech, you don't understand freedom.

Freedom of speech is the paramount freedom. Without it, we struggle to exercise our other freedoms. With it, we can fight for those freedoms. It may be offensive, insulting and make governments uncomfortable, but if this is the price to be paid for living in a society where all claims are open to question, then it is a price worth paying.

I compromise on certain issues on the grounds that some progress in the direction of liberty is better than none. But I believe all politicians in a liberal democracy should be uncompromising in defence of free speech. My fellow politicians should make their voices heard while they still can.

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This article was first published by the Australian Financial Review.



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About the Author

David Leyonhjelm is the Liberal Democrat Senator for NSW.

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