Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697634826431.pdf (Australia)
Submission to Parliamentary Joint Committee on Human Rights- Section 18 C. Submitted by: Douglas Spence This submission may be published in whole or in part on the Internet.

Freedom of speech in AustraliaSubmission 381 SUBMISSION TO PARLIAMENTARY JOINT COMMITTEE ON HUMAN RIGHTS INTRODUCTION: I am a retired solicitor.

Before retirement, I was Senior Paiiner at Thynne and Macartney, solicitors, Brisbane.
From 1970 until my retirement in June, 2008, I was the principal advisor to Queensland Newspapers Pty Ltd, the printer and publisher of the Sunday Mail and the Courier Mail, Brisbane, on all aspects of media law, particularly defamation law, the law of contempt and legislative provisions for newspapers.

I advised the two newspapers throughout the Fitzgerald Commission of Inquiry having approved the articles of Mr Phil Dickie which together with the ABC's "Moonlight State" ultimately led to the Inquiry.
Throughout my career, I regularly lectured journalists, other lawyers and public and private bodies on Media Law.

I am familiar with the Terms of Reference of this Inquiry, ALRC 129, and the relevant issues.

I am a committed supporter of Freedom of Speech and Freedom of the Press.

EXECUTIVE SUMMARY: In this submission, I address only the first paragraph of the Terms of Reference.

Given my views, I do not address the many proposals in the second paragraph.
I regard attempts to ameliorate the present processes and actions of the HRC as a distraction and a failure to address the real problem.

G/12/16.

11 39 an Paae ·1 ol ( Freedom of speech in AustraliaSubmission 381 The law in the 1995 Amendments to the RDA, particularly 18C, 18D and 18E, is misguided.

That law is bad law.

Offending or insulting or humiliating people for whatever reason should never be regulated by government, whatever the animus of the speaker or writer.
To have legislated the 1995 Amendments was a fundamental and inexcusable restriction on free speech.

SUBMISSIONS When introducing the 1995 Amendments to the RDA, A/G Michael Lavarch said: "This Bill is an appropriate and measured response to closing the identified gap in the legal protection of all Australians from extreme racist behaviour.

It strikes a balance between the right of free speech and the other rights and interests of Australia and Australians".

It did none of those things.


The Committee will be familiar with the famous quote of Justice Lionel Murphy that free speech is what is leftover after consideration of defamation laws, contempt laws, legislative restrictions.

It is becoming patently clear that Section 18C etc.

is another onerous restriction on freedom of speech.

"The other rights and interests" referred to by the A/G are never directly identified.
Apparently it now means prevention of "Hate Speech" or "Racial Vilification", however those elusive terms are defined.

As the Race Discrimination Commissioner, Tim Soutphommasane, has publicly stated in the Fairfax press on 22 November, 2016, Australia is not a racist country: "Those who are uncomfortable about multi-culturalism do not constitute some silent majority ..... Australia remains a successful and harmonious nation of immigration".
In 1995 and now there was and is no "gap in the legal protection of Australians from extreme racist behaviour".

6/12/16.

11.39 a0· Paqe2ofG Freedom of speech in AustraliaSubmission 381 One wonders what needed to be responded to in 1995.

Existing State criminal and other laws on intimidation and harassment were sufficient to meet our international obligations on the seven Treaties referred to in ALRC129.
The introduction of "insult, offend and humiliate" w'J.J an unnecessary and grave error and an onerous restriction on free speech.

~j1__ To quote former PM, John Howard, in comments on the Bill Leak case (C.M.

5/11/' 16) "we do live in an age of creeping political correctness that is restricting freedom of speech".

I adopt as my guiding light this passage from the European Court of Human Rights in HANDYSIDE v. the United Kingdom (1979-'80) 1 E.H.R.R.
It underlines the role of freedom of expression and of assembly and religion in a democracy: "Freedom of expression constitutes one of the essential foundations of (democratic) society, one of the basic conditions for its progress and for the development of every man.
Subject to Article 20 (2), it is applicable not only to information or ideas that are favourably received or regarded as impressive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.

Such are the demands of that pluralism tolerance and broad mindedness without which there is no 'democratic society"'.

Article 20(2) of the ICCPR requires states to prohibit hate speech.
There is little debate internationally that restrictions on hate speech can be justified.

Nevertheless Article 20(2) is highly controversial and can be criticised as being overly restrictive of free speech.

It does not require states to prohibit all negative statements concerning groups, races or religions but it must be banned where a statement "constitutes incitement to discrimination, hostility or violence".
States, including the USA take the view that only incitement which is intended to cause imminent violence justifies restricting such a fundamental right.

6/"12/16, 11:39 an' Page3of6 Freedom of speech in AustraliaSubmission 381 U.K.

POSITION: A progenitor of Section 18C and other statutes which proscribe "insulting, offensive or humiliating" speech is section 5 of the U.K. Public Order Act 1986.

The section which is well known to the Commission is headed: 5.
Harassment, Alarm or Distress Section 4A of the Public Order Act deals with Harassment, Alarm or Distress caused intentionally while Section 4 of the POA deals with the offence of causing fear or provocation of violence.

The Committee will be aware that following a strong public push for amendment of Section 5, the U.K.Government has removed since 1 March, 2014 the word "offend".

Full details appear on-line at "reformsection5.org".
I commend to the Committee the opinion of a former U.K. DPP, Lord Macdonald of River Glaven QC, which effectively demolished the UK government's expressed concerns with the Protestation of Freedoms Bill U.K.

In summary, not only should "insult" be abandoned but the law should not be dealing with "offensive" or "humiliating" words under any pretext, racial or otherwise.
UNITED STATES OF AMERICA In the United States, "hate speech", however that term is defined, is not a recognised exception to the Free Speech protection under the First Amendment.

In Brandenburg v. Ohio (1969) and the line of cases since , the Justices of the Supreme Court have consistently ruled that hate speech is protected free speech.

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11:39 n· Pac1e <!


of G Freedom of speech in AustraliaSubmission 381 For those who claim in the US (as occurs regularly) that hate 1 ~ speech is not free speeclp~ plainly false.It is true that some hate speech coupled with " fighting words" may lie outside First Amendment protection.

The.

US judicial interpretation points to the imprudence of allowing a centralised authority to regulate not just what one is allowed to say but what one is allowed to hear.

.
.

I I would commend to the Committee a similar regime in Australia.

We should recognise the force of the argument that the parliament should be reluctant to pass laws that abridge freedom of speech or of the press.

VALIDITY OF SECTION 18C UNDER AUSTRALIAN LAW The Committee will be aware of a new book, "No Offence Intended: Why 18C is Wrong" by Finlay, Forrester and Zimmerman.
At the time of its introduction the Parliamentary Research Service wained that Section 18C may be vulnerable to constitutional challenge.

Section 18C may be unconstitutional based on two arguments.

The first is that the section is not supported by the external affairs power found in Section 51(xxix) of the Constitution.

The second is that 18C impermissibly infringes the freedom of communication about government and political matters implied from the Constitution.
I commend to the Committee these arguments.

RELEVANT CASES The Andrew Bolt case, the QUT case and the Bill Leak case are all cogent examples of the flawed law.

The HRC is becoming widely discredited not only by its 6/12/16, 11:39 am Page 5 ot 6 Freedom of speech in AustraliaSubmission 381 handling of these incidents but also by its inability to recognise the flaws in the legislation outlined above.
The repeal or amendment of Section 18C and associated sub sections is not a nic_he issue as some would dismissively claim.

The public~ coming to recognise the serious flaws in the legislation and the issue is not going away.

~J PARAGRAPH 2 OF THE TERMS OF REFERENCE I see no reason to make submissions on these ancillary issues as to do so would only acknowledge the legitimacy of the basic law in Section 18C.

Douglas Spence 6/12116.

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6 of E; Freedom of speech in AustraliaSubmission 381