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Suppression of free speech: the real fear of social unrest

By John de Meyrick - posted Thursday, 24 December 2015


Free speech has never been entirely free. Article 19 of the Universal Declaration of Human Rights in 1948, although far from having universal acceptance (being rejected mostly by Muslim countries), 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.

That article however, is countervailed by article 29(2) which states that:

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In the exercise of [one’s] rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose  of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

Critically, when having to deal with  cultural conflicts between the cultures of western democracies, including Australia, and those imported with the migrants from other countries, the tendency is to yield far beyond the provisions of Art.29(2) than is reasonable or necessary to address particular concerns. Freedom of speech suffers.

The latest controversy relates to our Prime Minister’s endorsement of ASIO Chief, Duncan Lewis, request that certain members of the Coalition Government, be more “temperate” in what they say of their concerns about the link between Islam and terrorism for fear of a backlash, or (as Assistant Minister, Alan Tudge, has put it) “there is a risk of a Pauline Hanson figure arising and really dividing the community.”

The real risk of dividing the community, with respect to the PM, Duncan Lewis and Alan Tudge, is in not allowing for free speech on such issues. For it was the suppression of free speech in the 1990s during the worst epidemic of political correctness that gave rise to Pauline Hanson and the wide community support she received.

That support did not divide the community. Just the opposite. Pauline Hansen spoke for many Australians and raised many concerns that people had been deterred from discussing openly.

What divided the community came later and was twofold: the courageous but very naïve Ms Hanson’s inability to express her concerns in non-provocative terms, and all the wrong people who came to her cause. The opportunists, the ratbag element and the mischievous. She became captive to their ideas and their subversive manipulation and soon lost general support, in the end being humiliated by the media and her detractors as just a raving “fish shop owner” (as though the running of a fish shop as a lone provider for her children denied her the right to an opinion). 

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The importance of free speech within our community and to our system of law is emphasised by many judges in many cases and in many courts. One of the best assertion of this right is that of Lord Justice Steyn, who observed that “…freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve…It acts as a break on the abuse of power by public officials. It facilitates exposure of errors in the governance and administration of justice…” (quoted in [2013] HCA 3 at 151).

It is only when freedom of speech gives rise to likely or actual harm that the law may intervene. That is to say, when freedom of speech or other forms of expression are used to incite hatred or harm to others and possible civil unrest leading to riots and insurrection, that the law has a duty to act.

By the same token, suppression of rational discussion, debate and concern is more likely to build up and explode into irrational and ill-informed public reaction. Keeping the balance between the two extremes is the role of government and the responsibility of us all.

But therein lies the difficulty for, whilst the common law has long been the upholder of free speech, by contrast statutory law made by governments, in adopting and codifying or overriding the common law, or in the making of entirely new laws, may fetter the rights of free speech.

For example, the misplaced section 18C of the Racial Discrimination Act 1975 (Cth) is all about protecting people from disparaging expressions of opinion and from having their feelings hurt by things other people may say about them in respect of their race, colour or national or ethnic origin.

Similarly, sections 16 and 17 of the Tasmanian Anti-discrimination Act 1998 (which is similar in its terms to those of comparable acts in other states and territories) provides grounds for the suppression of free speech, as demonstrated by the recent decision of the Tasmanian Anti-discrimination Commission that a booklet opposed to same-sex marriage, entitled “Don’t Mess With Marriage”, issued by the Catholic Archbishop of Hobart, discriminates on the grounds of sexual orientation.

Indeed, the interpretation of many anti-discrimination provisions, when given to political correctness and the misguided notion of mutual tolerance and respect, finds purpose to exceed the legitimate need for such regulation in a way that harms the offender more than it does to alleviate any hurt to the offended. The rights of freedom of speech, of expression, of religion and of such other social norms of the majority are then subjected to the mere appeasement and comfort of the minority.

Thus, not only is the majority required by law to recognise, allow and accommodate for the cultural norms of minorities in order to avoid hurting their feelings and causing displeasure, by the same law minorities do not have to modify anything or yield in any way to majority norms or wishes.

This is like the distinction to be made when having a boarder or an honoured guest in your house. One is expected to fit in with the household routine and the norms of the existing occupants. The other to be afforded special privileges and considerations to the disadvantage of everyone else who lives there.

This pandering to the sensibilities of minorities is observed at this time of the year, by the pressure in some communities not to publicly celebrate Christmas too openly and joyfully, or at all, should it happen to offend some non-Christian in our midst.  This ‘requirement’ is taking hold in some shopping centres and is especially the case in our public schools, where the display of nativity scenes and children’s end-of-year concerts and plays, with Christmas trees and decorations are now being regarded as anti-secular.

The Minister for Education in Victoria, James Merlino, has just issued a directive to public schools that “praise music”, being “any type of music that glorifies God or a particular religious figure or deity [meaning baby Jesus and perhaps Santa as well]” is now banned. So Christmas carols are not to be played or sung in Victorian public schools from now on.

If truth be the first casualty of war, then freedom of expression is the first casualty of cultural conflict. Should that be the price of multiculturalism? I think not. It resolves nothing. It breeds resentment and distrust, and results in greater disharmony.

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About the Author

John de Meyrick is a barrister (ret’d), lecturer and writer on legal affairs.

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