Racial origin should not be something that divides us

The concept of free speech appears to be almost universally misunderstood. Speech is only 'free' to the extent that is does not infringe on other rights.

While Australia does not have an explicit right to free speech, in 1992 the High Court found representative democracy to be constitutionally entrenched and recognised an implied right to freedom of communication on all political matters applying to all three levels of government, local, state and federal. It should be noted, however, that the Court did stress that this freedom is not absolute.

Australia is also a signatory to the UN Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR).

The qualified nature of the right to free speech is recognised by article 19 of the Universal Declaration of Human Rights, which states that:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 19(2) of the ICCPR states that:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

However, this is followed by article 19(3), which qualifies this right:

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order, or of public health or morals.

It can be seen, therefore, that the application of any notion or expectation of free speech will inevitably be subject to a balancing act between competing rights. Is it any wonder then that this legal labyrinth creates confusion?

In this context, I am concerned that the consultation period (which closed on 30 April 2014) for the Freedom of Speech (Repeal of s.18C) Bill 2014 (Cth) has been insufficient in terms of allowing concerned Australians an opportunity to be heard on these proposed amendments. To this end, I have written to both the Prime Minister and the Attorney-General requesting that this deadline be extended. Democracy should not be subject to an egg timer and there should never be a deadline on any government's willingness to listen to its people.

In many respects it galls me that freedom of speech and racial hatred speech are even being considered as competing concepts, but such is the level of confusion that appears to pervade the country.