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Seen but not heard

By George Williams - posted Friday, 4 August 2006

When it comes to freedom of speech we are in danger of losing our sense of perspective, as well as our sense of humour. The latest proposal from Attorney-General Philip Ruddock is to ban books that praise terrorism and to censor TV shows like Big Brother.

As Australians, we take freedom of speech for granted. It is one of the bedrocks upon which our democracy is built, an assumption that underpins our law and politics. Yet far from being liberal about what we can say, the law already prohibits many things that are the subject of public debate in other nations.

We cannot hear on the radio, and are unable to buy, the most popular musical work of political satire in Australia from the past decade. We even now have laws that make it more difficult to express an unpopular opinion or to hold government to account. People can find themselves in jail for what they say and not just for what they do.


Over the past decade there have been clear signals that when it comes to speech Australians are not nearly as free as we like to think.

Our democracy depends upon voters being able to speak freely during elections. We must be able to criticise policies, parties and candidates without fear of prosecution and tell others about how the electoral process works. However, in 1996 Albert Langer was jailed for advocating a formal, valid vote. Langer, a political agitator, described John Howard and Paul Keating as "Tweedledum and Tweedledee" and urged voters to put them and their parties equal last on the ballot paper.

The Commonwealth Electoral Act specifically allowed for such a vote. However, it also made it a crime to advocate the vote, something that Langer did with great gusto. About 46,000 people voted in 1996 using the Langer method, an increase of 500 per cent from 1993. Langer was prosecuted. An appeal to the High Court failed and he was sent to jail for ten weeks for telling people about a method of voting that was perfectly legal.

Amnesty International declared him to be the "first prisoner of conscience in the country for over 20 years". The law has since been changed to make such a vote informal - it will no longer count.

Australia is also plagued with undue censorship, even about matters of obvious political importance. In 1997, Pauline Pantsdown released her hit song Backdoor Man, a parody of One Nation Party founder Pauline Hanson, then nearing the height of her fame and political influence. The song, a ridiculous compilation of Hanson's own words, contained the famous lines: "I'm a backdoor man. I'm homosexual. I'm proud of it ... I'm a backdoor man for the Ku Klux Klan with a very horrendous plan. I'm a very caring potato ... Please explain."

It was a huge hit on youth radio network Triple J, where it was requested so often that it leapt to No. 5 on the hottest 100 list of that year. Six days after Triple J began playing Backdoor Man Hanson sought and gained a court injunction, under defamation law, that made it illegal to play the song. The injunction has never been lifted, and though it only applies to the ABC, other radio stations do not play the song.


When I tried to buy Backdoor Man to play to my students, I was told by the store that it did not stock it because it was illegal to sell. In fact, I found out that the song had never been released as a single because of how quickly it was banned. It is listed in, but the track is not actually contained on, Triple J's hottest 100 for 1997.

This would not occur in other nations, such as New Zealand, the US, Canada and Britain, which, unlike Australia, have protected freedom of speech in a bill or charter of rights.

My next two examples fall after September 11. We have gained new laws that were unthinkable prior to the attack. One of those laws allows ASIO to detain Australian citizens for questioning for up to a week even when they are not suspected of any crime. While detained, a person can be compelled to reveal information about family members, sources or anything else they may know, upon pain of five years' jail.

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First published in the Sydney Morning Herald on July 29, 2006.

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About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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