

ABC Lateline Interview May 7, 2013

Thursday 21 March – the last sitting day before Parliament rose for the Easter recess – will long be remembered as one of those days of frenzy and madness which infrequently, but memorably, punctuate the pages of our political history. It was, of course, the day of the famous leadership challenge that wasn’t. We will long remember Simon Crean’s stupendous press conference, as much as we remember the confused hours and bizarre outcome which it called forth. The political shenanigans of that day masked an event which was, in its way, even more consequential: the announcement earlier that morning by the Minister for Communications, Senator Stephen Conroy, that the Government would not proceed with its attempt to create a statutory office of Public Interest Media Advocate – the most overt interference by an Australian government with the freedom of the press since Governor Darling’s (also unsuccessful) attempt to licence newspapers in the colony of New South Wales in 1825.

Just 24 hours earlier, the Attorney-General, Mr Mark Dreyfus, had announced that the Government was also abandoning another of its ill-conceived assaults on political freedom, the bizarrely titled Human Rights and Anti-Discrimination Bill, which famously – or perhaps I should say infamously – proposed to make actionable the expression of political opinions on the ground that they might be insulting or offensive to other citizens – and, for good measure, proposed to test that requirement by the subjective standard and with a reverse onus of proof.

That same morning, as Mr Dreyfus was announcing the government’s backdown on the Anti-Discrimination Bill, Mr Crean gave a little-noticed speech in the House of Representatives – although he did not know it at the time, his last Parliamentary speech as Arts Minister – introducing the Australia Council Bill. This Bill, currently before the Parliament, is the product of an extensive review of Australia’s principal arts funding body, whose operations have hitherto been governed by a Whitlam-era statue, the Australia Council Act of 1975. Although Mr Crean told the House that “the core principles of the Council … enshrined in the [1975] Act … are … retained by this bill”, there is one core principle which has disappeared entirely.[1] S. 5 of the existing Act defines the functions of the Australia Council as being to formulate and carry out policies designed, inter alia, “to uphold and promote the right of persons to freedom in the practice of the arts”. However, when one inspects the comparable clause of the new Bill, one discovers that the protection of artistic freedom has mysteriously disappeared from among the Australia Council’s core functions: a development not missed by the arts community themselves.

And so, in the space of a remarkable 24 hours, two significant Parliamentary victories for freedom of speech, and one discreetly-concealed setback. It was but a coincidence that all three events took place at the same time, but it does serve to illustrate the argument I wish to make tonight: that this government is engaged in a multi-front war against the traditional liberal conception of freedom of speech – sometimes by overt acts, but just as commonly by fostering a climate of opinion in which the centrality of the right to freedom of speech, as one of our society’s core values, is increasingly being questioned in a way which was unthinkable even a decade ago. This is not just an instance of the instinct of Labor politicians of a certain type to stop at nothing in bullying their opponents – I think Senator Stephen Conroy is a bully before he is a social engineer. But, at least on the part of some – the former Attorney-General, Nicola Roxon, comes to mind, and she is far from being the only one – it is a conscious, systematic attempt to change the culture, so that freedom of speech and expression is degraded among our public values, in place of other newly-imagined rights, whose very vagueness conceals an ideological agenda as illiberal as anything this country has seen in the political mainstream. The ideological character of that deliberate distortion of the rights debate cannot be better seen than in the fact that, almost invariably it is commentators or observers who represent a liberal – in the classical, not the modern American, sense of that word – or conservative point of view who are silenced. Intolerance is back in vogue; indeed, if you are a social engineer or left-wing activist of a particular hue, then intolerance of those whose thinking does not conform to your agenda is not a defect; it is an emblem of righteousness. It is not the spirit of Voltaire which informs the thinking of this Labor government and its ideological avatars; it is the spirit of Robespierre.

Of course, I have never had a lot of confidence in Labor governments to defend freedom – although, in decades past, it was economic freedom rather than political freedom which was mostly in their sights. What is more disappointing – in fact, alarming, is the pusillanimity and indifference of those for whom, one would have thought, the defence of freedom would be second nature. Let me give you three recent examples; three recent reports from the front, as it were, in the freedom wars. And let us start with journalists.

Last Friday night, in this very city, I attended an event which was grandly styled the 2013 “Australian Press Freedom Dinner”. Almost 500 journalists had gathered to celebrate freedom of the press – or so I thought. Coming within weeks of the Government’s abandonment of its attempt to limit press freedom, I thought that there would be a lot to celebrate, and having played my own modest role in the freedom debates of the past year, I was expecting a companionable evening among fellow freedom-lovers. How silly was I! A foretaste of the evening came from a pre-dinner conversation with David Marr, who – in full, theatrical, couch of the Insiders style – upbraided my colleague Malcolm Turnbull and me that he hoped we weren’t going to confuse press freedom with Andrew Bolt’s shameful defamation of innocent people. As the evening got underway, the MC, Hugh Riminton, made fleeting reference to the failure of the government’s media regulation plan, before warming to his real topic: journalists’ shield laws. “There isn’t a more pressing issue for journalists in this country,” intoned Mr Riminton. Given that this country had just escaped the first peacetime attempt at government control over the content of the press in almost two centuries, I must say that I felt a little more might have been made of that at a dinner ostensibly convened to celebrate the freedom of the press. But at least Mr Riminton hadn’t actually praised press censorship. But then came, by video link, none other than Mr Jonathon Holmes, who described the laws as having perhaps been “a missed opportunity to impose a modicum of responsibility on those who control the media in our country.” Finally, Mr Chris Warren, the head of the journalists’ trade union, made a spirited speech in which the topic was not touched upon at all. I certainly didn’t feel that I had happened upon a nest of freedom-fighters. Indeed, I had the rather unsettling sense that I had come to the wrong dinner. But I left with the very strong impression that if a fight for freedom of the press is to be fought in this country, it will not be being fought by journalists. Or, at least, not by those of their profession who convened at the bacchanal at Cockle Bay last Friday.

The second illustration of changing attitudes to freedom of speech comes from another of the institutions which, traditionally, prided themselves as being the bastions of intellectual freedom: the universities. There is, sadly, so much evidence of the new culture of intolerance in at least some of Australia’s universities that seldom does a week go by without a new instance of the erosion of intellectual freedom being reported. Let me give you just one recent example, so far as I am aware unpublicized save in the Quadrant online magazine.[2] The field evidence comes from Mr John Speer, who is a law student at the University of Melbourne, and a member of the Melbourne University Liberal Club. He reports an incident – or series of incidents – which occurred during Orientation Week this year.

In the University of Melbourne’s Orientation Week in February of 2013, the MULC did as it has always done, and set about promoting itself to attract new members. Orientation Week has traditionally been our biggest recruitment drive of the year. In addition to manning our allocated booth at the Clubs & Societies Expo, we also set up a number of stalls around the Parkville campus. These stalls are generally decorated with various Liberal Party corflutes, publications, stickers, and various other promotional giveaways.

This year one of the corflutes, kindly donated to us, originated from the 2001 federal election campaign. This particular corflute pictured then-Prime Minister John Howard and his quote “we will decide who comes to this country and the circumstances in which they come.” On one particular day of O-Week, The Club displayed this corflute proudly at our stall, a reminder of one of the Howard government’s most successful policies.

Within minutes of displaying this corflute, members of the MULC were approached by university academics who believed it to be ‘racist’ and ‘disgusting’. In addition to this, they insisted we had no right whatsoever to display it at our stall. Senior members of The Club explained that whilst they were free to hold those opinions, we were perfectly within our rights to voice our own beliefs and display a piece of official election material.

With the debate ending rather quickly, our stall was soon approached by the University of Melbourne’s security staff, who stated they had received “complaints” about the corflute. They then ordered the MULC booth off campus.

After it was explained that all present were both MULC members and students of the university, thus having a right to be present on university grounds, the security staff then attempted to remove the corflute from the grounds of the university.

Now let us remember what the offending comment was. It was a remark made by a recent Prime Minister of Australia, while serving as Prime Minister, during the course of an election campaign, briefly encapsulating in a sentence one of his Government’s key policies. It was, in fact – and we have this from no less an authority than Mr David Marr[3] – the very policy on which he went on to win the election. Indeed, so strongly approved of was that policy by the Australian people that Mr Howard not only won the election, but won it with an increased majority. As you know, it is a rarity in Australian politics for a long-established incumbent government to increase its majority; one of the few other times when this happened was in 1966, when Mr Harold Holt took to the people his policy of strong support for the American intervention in Vietnam – “All the way with LBJ”. The academics who sought to politically censor Mr Speer and his friends were, of course, the lineal successors of those who sought, in the 1960s, to prevent Australia having a peaceful, civil debate about the wisdom of Australian participation in the Vietnam War.

As Mr Speer rightly concludes:

Whilst this incident may seem trivial, it typifies the difficulties and harassment experienced by conservative and libertarian student organisations. The mentality of the left in the practice of freedom of speech, equating to “I don’t want to see it therefore it can’t be displayed”, is arrogant and abusive. We might also call it absurd, if not for the chilling glimpse of the totalitarian mindset determined to crimp and control all conversation and thought on campus.

And remember, it was not left students who complained about our display but academics, who should be dedicated to the free and unfettered discussion and dissection of ideas.

Whilst the fight for freedom of expression and speech may be at a temporary ceasefire in Canberra, it continues to escalate in the tertiary institutions of this nation.

My third instance of the assault upon freedom of speech is the agency which the Parliament created for the very purpose of defending it: the Human Rights Commission. Now, let us remember that when the Commonwealth Human Rights Commission was established in 1986, its statutory charter made it responsible for “promot[ing] an understanding and acceptance … of human rights in Australia.”[4] Human rights were defined to mean the rights and freedoms recognized in the International Covenant on Civil and Political Rights, as well as a number of other international human rights instruments. The Covenant is in fact incorporated as Schedule 2 of the Act. It contains, of course, a miscellany of various human rights, which, it is important to remember, are not ranked according to priority. Article 19 deals with intellectual freedom and freedom of expression. It provides:

1.Everyone shall have the right to hold opinions.

2. Everyone shall have the right to freedom of expression; and 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.

Section 3 of Article 19 recognizes qualifications to those rights, but only in relation to such matters as the protection of reputation, national security, public order, and “public health or morals.”

During the Senate Estimates last February, I asked the new President of the Human Rights Commission, Professor Gillian Triggs – a distinguished international lawyer with a human rights specialization – what the Commission had done, during the press freedom debate which had raged for most of the previous year, to advance the cause of freedom of the press, and freedom of speech more generally. The answer was not encouraging – indeed, apart from providing a platform to Mr James Spigelman to deliver a human rights lecture last year, which he had used to attack the Anti-Discrimination Bill, Professor Triggs was unable to offer any example at all. (It should also be pointed out that at the time the invitation was issued, the Commission had no idea what topic Mr Spigelman would choose.) Professor Triggs went on to say this:

Because the public debate has focused, as you say, stimulated by the Bolt case and by the Human Rights and Anti-Discrimination Bill and the Hon. Mr Spigelman’s speech—

Senator BRANDIS: And the Finkelstein report.

Prof. Triggs : we have had an emphasis on the proper limitations of freedom of speech. I think it would be fair to say that we have been very much in action over the last few months on this question, but we have not been emphasising the right to freedom of speech; we have been emphasising the way in which the balance in relation to it is established either under the current legislation or under the bill that is now proposed for the future.[5]

Now, just reflect upon that statement. At a time when, stimulated by the Bolt case, provoked by the Finkelstein Report, freedom of speech and of the press has been the subject of public discussion to an unprecedented degree, the immediate response of the Government’s own human rights watchdog was to emphasize its limits. Of course, there are proper limits to freedom of speech, as there are to all other rights. However I doubt the Human Rights Commission would approach its anti-discrimination function so negatively by concentrating on the limitations of the law, rather than giving it the fullest scope.

It was, by the way, during the course of that exchange that I made my suggestion – since taken up by some conservative commentators like Janet Albrechtsen and Chris Kenny – that since there is no officer dedicated to upholding the various freedoms which the Covenant protects, we should appoint some “Freedom Commissioners”. Now, I hasten to reassure you that the last thing I want to do is bloat the size of the human rights bureaucracy; my point was really a rhetorical one.

Nevertheless, there are, I should remind you, no fewer than 7 human rights Commissioners: the President, along with 5 who deal specifically with anti-discrimination issues: the Aboriginal and Torres Strait Islander Social Justice Commissioner; the Age Discrimination Commissioner; the Disability Discrimination Commissioner; the Race Discrimination Commissioner and the Sex Discrimination Commissioner; and one, the Children’s Commissioner, who has essentially a protective role which duplicates the various child protection functions of the States and Territories. Given that the Covenant establishes no priority between egalitarian and libertarian rights, even a single commissioner dedicated to the latter might seem to be a reasonable redress of the balance.

I am sorry to say that the picture I have painted is a pretty bleak one. While Labor Governments may come and go, how did we get to a point in Australia that there are so many journalists will not fight for the freedom of the press; so many academics who will not uphold intellectual freedom on university campuses; and when even the Commonwealth’s own human rights agency is more interested in the limits of freedom than its avowal?

Who defends freedom of speech in Australia today? Is it really to be left to a few conservative commentators like Andrew Bolt and Janet Albrechtsen; a couple of think tanks like the Sydney Institute and the Institute of Public Affairs; and the Liberal Party? What is most striking about the freedom debates today is not just the fact that the attacks upon freedom have come from the radical Left, but the almost complete absence of those of the moderate Left in freedom’s defence.

For left-liberals and progressives, freedom of speech is not the passionate cause it once was; ‘respect’ (whatever that may mean) matters more. And increasingly, that means controlling what people may say.

Historically, parties of the democratic Left championed liberty – at least civil, if not economic liberty – as well as equality. They preached the fairer distribution of mankind’s resources, but they also preached emancipation. Progressives of the Left shared many of the values of liberalism, and they adopted much of its language. The emancipation of women from patriarchal social structures was called women’s liberation. Following the Wolfenden report in England, the repeal of laws which prohibited homosexual conduct, and the ready acceptance of gay people into the community, came to be called gay liberation. The relaxation of censorship was a liberal cause, supported by the Left, based upon the belief that adults should be free to make their own decisions about what they read and saw. In the 1960s and 1970s, progressive public policy was all about the extension of freedom. Within the Liberal Party, and similar centre-right parties elsewhere, this created tension between the liberalising elements and those conservatives who continued to value social control over personal freedom.

Today, it is the self-styled ‘progressives’ of the Left who want to ban things. In particular, they want to eliminate the expression of opinions which they find offensive. Sometimes this takes the form of overt prohibitions, of which s. 18C of the Racial Discrimination Act is an egregious example. As witnessed in the Bolt case, freedom of speech — and its corollary, freedom of the press — are for these people values of less importance than respect for certain favoured groups, who are identified in their minds by their alleged victimhood. Thus, paradoxically, victimhood becomes the basis of a new kind of privilege: showing respect to their special status is a more important value than the freedom to call that status into question. And so, as in the Bolt case, by making certain classes of citizens immune from criticism, the boundaries of legitimate political discussion are restricted.

But more often, the censorship is more subtle. The key technique here is to control the language, because the Left have learnt well the lesson George Orwell taught us: that if you want to control what people think, then control what people may say. It is no coincidence, for instance, that one of the great prophets of the New Left, the American writer Noam Chomsky, began his career as a professor of linguistics, whose pathbreaking work was in the study of the relationship between language and the cognitive structures of the brain. As Winston Smith discovered, there is no distance at all between speechcrime and thoughtcrime.

In the path of such attempts to control social behavior by controlling the language stands freedom of speech. It is for that reason, I believe that freedom of speech has not just ceased to be a cause of the Left, but has come to be seen by many of the Left as an obstacle. And so, in the course of perhaps the last quarter century, the democratic Left in western nations has abandoned its liberalizing instincts, or at least subordinated them to a kind of secular moralizing, which seeks to refashion society not by arguing its case, but by silencing those who differ.

In parallel with that development, we have seen the emergence of a new moral righteousness. The advocacy of the Left’s favourite causes – be it climate change, gay marriage, the treatment of asylum seekers, s. 18C of the Racial Discrimination Act – ceases to be an “argument”, in the traditional sense of the word at all. Rather, it becomes a series of declarations of civic virtue, in which the alternative view is not just disputed, but treated as morally flawed. Think of any random Q&A audience and you’ll see what I mean.

And so, the moralizing new secular Left has come to resemble the moralizing old religious Right, united by their shared assumption that since they know best how people should live, their unique insight gives them the privilege of dictating what people may do, what they may say – even what they may think. This might seem to be a paradox, but it isn’t really: all arguments for censorship have an essential commonality: that I may make choices for you, but you may not make choices for me.

And this leads to a further paradox. For, as the Left abandoned its commitment to the most important of all the civil liberties, freedom of speech, it began to walk away from its commitment to equality as well. The idea that there is a certain section of society, to whom has been vouchsafed an appreciation of moral truth on controversial social political questions which is inaccessible to the common run of people, is a profoundly inegalitarian one. It leads ineluctably to the emergence of a new, self-selecting caste which considers itself to be above the rough-and-tumble of the democratic fray, in which all ideas and opinions should be equally entitled to a hearing.

There is no doubt that the current Labor Government – and its Green allies – have encouraged the developments of which I have spoken. Minds that thought it was a good idea to outlaw the expression of offensive or insulting political opinions; to interfere with press freedom; to remove freedom of artistic expression as a core principle of Australia’s cultural policy, are minds for whom freedom of speech is no longer a fundamentally important value. That mindset reflects a wider and more concerning movement, in the attitudes and strategies of parties of the Left during the course of the last quarter-century, which not merely condones but defends the narrowing of political discourse in the service of other ideological ends. It is a profoundly dangerous development, and we have seen it reach its culmination during the time of the Gillard Government.

But at least the debates about freedom of speech and freedom of the press, which we have seen in the past couple of years, have been a sharp reminder to the Liberal Party of its historic mission. For in the freedom wars, there has been only one party which has stood steadfastly on the side of freedom.

[1] House of Representatives Hansard 20 March 2013.

[2] “The Academics Who Hate Free Speech”, Quadrant Online, 16 April 2013.

[3] Marr & Wilkinson, Dark Victory, Sydney: Allen & Unwin, 2003.

[4] Human Rights and Equal Opportunity Commission Act 1986 s. 11(1)(g).

[5] Senate Legal and Constitutional Affairs Estimates Committee, Hansard, 12 February 2013.

Margo’s ‘You must remember this, George’ reading list:

Howard’s blueprint for Abbott to stifle dissent

Brandis, free speech charlatan

The Forgotten People

A day in the life of Our House under siege

Nazi Greens an enemy of democracy, government decrees

Brandis: Enemy of free speech, friend of false speech, on children overboard

Full ‘Brandis Remember This Freedom’ Archive

Richard Ackland

Brandis has huge job being seen as a freedom fighter

Silence says a lot on free-speech stance

Jonathan Holmes

Correcting the record on ‘The Freedom Wars‘.