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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-11-13 Daily Xml
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FREEDOM OF SPEECH

The Hon. S.G. WADE (15:39): Australia is one of the most free countries in the world. We have been entrusted with the English common law tradition and we have built our own constitutional law, including the implied right to political communication. The incoming federal Abbott Liberal government has lost no time in reaffirming our commitment to preserving and enhancing this tradition by acting on its election promise to protect and preserve fundamental rights. In his first piece of legislation, Senator George Brandis is introducing a bill to the federal parliament to repeal the controversial section 18C of the Racial Discrimination Act, a section that says that speech that is found to be merely offensive and insulting can constitute grounds for unlawful racial vilification.

There has been widespread concern that the threshold for racial vilification under this section has been set too low, in that it applies to conduct likely to offend, insult, humiliate or intimidate. This bill is a first step by the government to reaffirm fundamental democratic rights. The federal government is drawing up terms of reference for an Australian Law Reform Commission inquiry into statutory infringements of traditional rights and freedoms and will appoint a freedom commissioner to safeguard and protect traditional rights.

As Liberals, we are committed to respecting the basic freedoms of thought, worship, speech, association and choice. Freedom is essential to a healthy diverse liberal society, but of course freedom cannot be absolute or unfettered. The rights of any individual are limited and constrained by the equal rights of others.

In the recent street preachers case, the High Court found that even though an Adelaide City Council by-law restricted free speech, the council could exercise its power in creating a by-law to maintain public order. In another case, a radical Muslim cleric, Sheik Man Haron Monis, was charged under the commonwealth criminal code with using the postal service to harass the families of deceased service personnel. The judges were split 3-3 as to whether Monis' offences were a reasonable limitation on the right to political communication.

These cases demonstrate that there is a fine line between restricting freedom of political discourse out of fear of offending some people, and restricting political opinion itself. Laws which restrict the expression of political views can effectively penalise the holding of those views that politicians have deemed unattractive or objectionable in mainstream society.

There is a risk that, in the process of individuals exercising their right to freedom of political communication, others may be offended. That is a fact of life of living in a free society, and freedom of speech and expression should be embraced as an affirmation of our diverse and multicultural society. To quote John Stuart Mill, one of England's greatest political philosophers and economic theorists:

The acts of an individual may be hurtful to others, or wanting in due consideration for their welfare, without going the length of violating any of their constituted rights. The offender may then be justly punished by opinion, though not by law.

In Mill's view, the best response to the pen is the pen. Later he went on to say:

There are many who consider as an injury to themselves any conduct which they have a distaste for, and resent it as an outrage to their feelings; as a religious bigot, when charged with disregarding the religious feelings of others, has been known to retort that they disregard his feelings, by persisting in their abominable worship or creed. But there is no parity between the feeling of a person for his own opinion, and the feeling of another who is offended at his holding it; no more than between the desire of a thief to take a purse, and the desire of the right owner to keep it. And a person’s taste is as much his own peculiar concern as his opinion or his purse.

Feelings of collective outrage or offence in the community, in my view, are a vital part in developing and reaffirming the shared values of our communities. It is important in a rapidly evolving technological society that open and free debate provides us with the opportunity to reaffirm our shared values.

For example, the controversial Piss Christ display, or exhibition, by Andres Serrano generated enormous criticism from the religious community for its depiction of a small plastic crucifix submerged in a glass of the artist's urine. The incredible controversy that Piss Christ generated demonstrated and reaffirmed the importance of religious symbols within the Catholic community. Such is the virtue of a democratic society, one in which a free and open discussion can take place. Through it, we become stronger, freer and more enlightened.

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