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Craven cave in on free speech

By James Allan - posted Thursday, 7 August 2014

So now we know. When given the choice between trying to honour its pre-election commitment to free speech in this country, or caving in to the special pleading lobby groups opposed to free speech, the government opted for the latter. Never mind that Section 18C of the hate speech laws impose a wholly unjustified curtailment on what you and I and the Andrew Bolts of the world can say. Never mind that similar legislation was repealed in Canada last year, the most politically correct place on earth. Canadian Prime Minister Harper stared down the many lobby groups with a vested interest in this kind of hate speech legislation. Our Attorney-General, George Brandis, and Prime Minister Tony Abbott did not.

Apparently it was not worth the fight. Not enough votes in it, they must have reckoned. Of course that sort of calculation depends on the people who want this hate speech legislation kept in place voting for the Coalition because it succumbed to them. Good luck with that.

It depends too on there being a lot of MPs in electorates where there will be more votes for them in caving in than there would be for proceeding on principle. I'm sceptical. Heck, the government did not even put their repeal proposals to the Senate. I know the government is calculating that people like me will vote for the Coalition anyway, come the next election, that, like the government itself, we don't really care about free speech. Otherwise it would at least have introduced its bill, passed it through the House and made the Senate block it. But some Coalition MPs obviously did not want to be in this position.


Yet, there are no hate speech laws of any sort in the US and the various Jewish, Islamic and other lobby groups that oppose repealing our hate speech laws do just fine there. Better than in almost every European country with hate speech laws. Apparently the government now implicitly agrees that you can't trust your average Australian to see through the rantings of Neo-Nazi Holocaust deniers.

Yet, this is the same government that has yet to dump its paid parental leave scheme. And is going to take some set of proposals on amending our Constitution, to put in place Lord knows what, to recognise indigenous people, whatever ''recognise'' means. Any recognition of indigenous people, in the preamble or elsewhere, could well be used by our High Court to strike down and invalidate democratically enacted laws. It could turn into a tool that serves as a sort of proto-bill of rights.

In the last decade our High Court has, in my view, made up a limited right for prisoners to vote. The textual warrant for that was supposedly the one that says that our senators shall be "directly chosen by the people". Shortly after that the High Court decided that it, not parliament, could decide when the electoral rolls could close. And the High Court struck down a democratically enacted law on no basis other than a couple of dozen references to the earlier prisoner voting case and the "directly chosen by the people" phrase.

Those back at Federation who argued about each word, comma and phrase would have been stunned at the results in both cases. So don't tell me that inserting a few words about recognising indigenous people might not have serious ramifications. Neither Brandis nor Abbott will interpret these new words. It will be a committee of ex-lawyers.

At least, though, the constitutional referendum is motivated by good intentions, however much we might worry where they lead. By contrast, yesterday's decision to leave in place our hate speech laws was a terrible and cowardly one made worse by the cynical political calculations that lay behind it.

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This article was first published in The Australian.

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About the Author

James Allan is Garrick Professor of Law at the University of Queensland.

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