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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.

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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.

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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.

The ASIO detention regime makes it an offence to disclose "operational information" about a person's detention within two years of that person being detained. Operational information is defined very widely to include information that ASIO "has or had" or "an operational capability, method or plan" of ASIO's. Revealing such information, even the mere fact that someone was detained, can incur up to five years' imprisonment. There are no exceptions for fair reporting, such as a story that reveals that ASIO has abused its powers or mistreated (or even tortured) detainees.

If someone is mistreated while being detained, we may have to wait at least two years to find this out. Combined with the secrecy that surrounds so many of our new terror laws, and the fact that it is a crime to even identify an ASIO officer, this is a grave threat to government accountability.

Then there is the sedition law passed in Australia late last year. This law criminalises people for what they say if, among other things, they urge by force or violence the overthrow of the constitution or the government. The penalty is jail for up to seven years. Sedition had, at least until recently, been regarded as a discredited offence because of its use in Australia and other nations against political oppositions. Those charged with sedition include Mahatma Gandhi, Nelson Mandela and even Peter Lalor after the 1854 Eureka Stockade.

To define terrorism is notoriously hard, and our law provides no leeway for why someone has committed violence or damaged property. Former South African leader and Nobel Peace Prize winner Mandela was called a terrorist by many during his fight against the apartheid regime. He would certainly have been classified as such under Australia's new laws.

Sedition has been re-enacted in a form that suggests that it is an important part of the Federal Government's war on terror. While it has been "modernised", it provides few exceptions. There is no clear protection for academic works or even comedy or satire. Black humour, such as on ABC TV's The Chaser's War on Everything, that uses the words or an image of Osama bin Laden has the potential to become a criminal offence.

Attorney-General Philip Ruddock has said he will not use the sedition law in such circumstances. But there is no guarantee about how this or future governments will apply the law, and this also neglects the larger problem of self-censorship. Sedition and other laws have an inevitable chilling effect on what we say. Artists and commentators are now less likely to use robust critical speech about the war on terror or other sensitive topics due to concern they may breach the law. When people do not have free on-the-spot legal advice, they may not speak for fear of the consequences.

Exactly how the new sedition law will make Australians safer from terrorism has not been made clear. Indeed, there is a risk that the law will further ostracise members of those communities that feel, rightly or wrongly, that they are already the target of government action. There is also the potential that the law will push speech underground that promotes political violence rather than enabling it to be contested in public debate. Unfortunately, banning speech can even make the ideas it embodies more popular to some.

These examples, among many others, demonstrate how fragile freedom of speech is in Australia. They expose how we assume, rather than actually protect, freedom of speech. The changes since September 11 are especially troubling. To a greater extent even than nations such as Britain and the US, our law has come to reflect the maxim of President George Bush that "you're either with us or against us".

Unlike Australia, those nations protect free speech through a clear statement of law. The US has its 1791 constitutional Bill of Rights; Britain has an act of Parliament, the 1998 Human Rights Act.

In Australia, the vulnerability of freedom of speech and other rights, such as to vote and freedom of association, has led to renewed calls for a rights bill or charter. While John Howard has said that this will never occur under his watch, change is afoot. The ACT was the first to move, with its Human Rights Act passed in 2004. Victoria has followed, with its Charter of Human Rights and Responsibilities enacted just this week. Tasmania has also begun an inquiry into a charter and Western Australia may not be far behind.

These new laws are ordinary acts of parliament that can be changed but cannot bind the Federal Government. Nonetheless, they provide better protection than is now the case for freedom of speech. They show that the status quo in Australia is shifting. In the meantime, though, there is less space for comment by the critical writer or thinker. Such a person may see shades of grey rather than black and white, or right and wrong.

If Philip Ruddock gets his way there may soon be more books that we cannot buy. TV shows like Big Brother may also only be able to provide more sanitised version of reality.

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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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