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Free speech

By David Leyonhjelm - posted Monday, 23 July 2018

Free speech is under threat in Australia, although few realise just how seriously. Politicians of the left point to our national security legislation and its unnecessary restrictions on speech, while politicians of the right point to over-reach in anti-discrimination legislation. Both are correct, yet neither recognises the big picture.

I am trying to do something about it, with four weighty bills to remove unwarranted restrictions on free speech from Commonwealth law. Three of these were introduced in the final sitting week in June.

My first bill repeals section 18C of the Commonwealth Racial Discrimination Act - which bans acts that offend, insult, humiliate or intimidate where the acts are done, at least in part, because of national or ethnic origin, race or colour. The general ban on intimidation in State and Territory law would remain.


Those who support retaining S18C correctly point out that there is a defence for acts done reasonably and in good faith. However, the courts have interpreted this defence as only providing protection if the values of the Racial Discrimination Act are honoured conscientiously, with sufficient care and diligence taken to minimise offence and guard against the reinforcement of racial prejudice. Such a straitjacket on language might be fine when writing in an academic journal, but it is not much use when writing a social media post or newspaper column, as Andrew Bolt discovered. It should be legal for anyone to argue against affirmative action policies, even if their argument is flawed or insensitive.

My second bill removes various other bans on speech that people find insulting or offensive. Thus it would repeal bans on insulting various parts of executive government, such as tribunals dealing with bankruptcy, copyright, defence personnel, veterans, competition law, environmental regulation or workplace regulation. The bans on disrupting the effective operation of these tribunals would remain.

This bill also removes a ban on offensive conduct online, while maintaining the ban on menacing and harassing online content.

Both of these bills should be supported for the same reasons: they legalise insults. Taking offence at insults is a personal matter and should not be a matter for the law. Those who advocate making it legal to insult on the grounds of race, but not to insult in other contexts, are probably racist.

My third bill will be loved by the lefties but hated by the right. It removes restrictions on journalists and everyday Australians from reporting on and discussing the operations of security agencies, provided that such reporting or discussions does not endanger anyone's health or safety.

If security agencies want to keep secrets, it is their responsibility to do so and not the responsibility of journalists or the public. Our security agencies serve us, not the other way around. Thus if there are matters that these agencies intend to remain secret but are nonetheless aired, this represents a failure within the agencies, not criminal activity by journalists or the public.


This bill also removes a bizarre criminal offence confronting anyone who is detained under a preventative detention order and is allowed contact with a family member or associate. This person faces five years' imprisonment if they tell the family member or associate that they are being detained. This is particularly oppressive given that people detained under preventative detention orders are not charged and may not be suspected of any crime.

My fourth bill will remove the government's power to ban publications, films and computer games based solely on the grounds they might offend against standards of morality, decency and propriety. This ban is an excessive restriction on what adults can choose to read, watch, play and listen to. Bans on material that depicts child sex or promotes, incites or instructs in crime would continue to be banned, while dealing in child pornography would remain a serious criminal offence.

This bill would also remove a ban on pornography in select parts of the Northern Territory that is legal in the rest of Australia. This ban is, quite simply, straight out racism.

Free speech is fundamental to our democratic society and a key part of what makes life enjoyable. Importantly, it doesn't mean you are under any obligation to politely listen to what others have to say.

If those on the left and right could find a rare point of agreement on the importance of free speech, we'd all be better off.

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This article was first published in the Australian Financial Review.

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About the Author

David Leyonhjelm is a former Senator for NSW who is contesting the current New South Wales state election for the LDP.

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