No Offence Intended: Why 18C is Wrong
by Joshua Forrester, Lorraine Finlay and Augusto Zimmermann
Connor Court, 2016, 270 pages, $29.95
I suppose some readers will recall the story of the visiting US delegation to the Soviet Union. One of the Americans was chatting to his Soviet counterpart. The American said, “In the US we have freedom of speech. I can go into the office of my President, pound on his desk, and criticise Ronald Reagan on any basis I want.” The delegate from the Soviet Union replied, “We too have freedom of speech. I also can go into the office of my President, pound on his desk, and criticise Ronald Reagan on any basis I want.”
Alas, free speech these days in the West is no laughing matter. Sure, spineless politicians are happy to spruce up their French language skills and say “Je suis Charlie”. But they’re not really prepared to do anything to help that sort of magazine. They don’t support free speech, not when the going gets tough. When the Danish cartoon saga happened they rolled over faster than a snoring drunk. And so did most of the world’s press. Can you imagine the effect if every major publication in the world had said, “We think these depictions of Mohammed are distasteful and we would not normally run them, but given the murderous violence we will run them each day all this week. If there is any more violence we will then double that and run them for a fortnight and continue to double it thereafter if there is more violence.” That is how bullies are properly dealt with. That is how a self-confident culture responds. Ours, alas, is these days somewhat deficient on that front.
Readers of Quadrant see the value of wide-ranging protections for free speech. Like me, they are worried about the inroads into those protections in Australia. And it’s a pretty depressing state of affairs. You can sum up the Liberal Party’s attitude as: “We used to believe in free speech but now we think it’s over-rated—a second or third order concern.” And that’s at the national level. The state Liberal parties are worse, with the possible of exception of Western Australia.
Remember the John Stuart Mill defence of free speech, which goes something like this: “Truth and the best long-term consequences are most likely to emerge when people are free to say anything short of advocating physical harm to others. They can mock you, ridicule you, offend you, humiliate you, you name it. Because in the cauldron of competing ideas bad ideas lose out, eventually, and good ideas get tested and have to earn their place. So to live in a free society, citizens have to grow a thick skin. Because once government gets in the speech-regulating game, they will always over-extend, over-reach and over-regulate.”
The notion of free speech is worthless if all you’re talking about is nice, Coke-commercial “We are the world” fluff where the speech in question amounts to people saying stuff you like hearing. I am never going to want to silence people who are saying, “Jim Allan is a clever, charming, witty and unbelievably attractive fellow.” That point can be generalised to anyone else, to particular groups, to governments, to religions. So protecting free speech only matters when the substance of the speech is stuff you don’t like hearing, when it’s the offensive, uncomfortable, wounding and, yes, nasty and biting that’s in play. You might think that point was by now well known in the West, but it seems our gutless politicians haven’t got a clue. Remember Mill again: “There is a value even to hearing stuff that is wrong and false because it forces you to re-examine your positions, which are made stronger by that process.”
Things are not good in Australia on the free speech front, so it’s nice to pick up No Offence Intended: Why 18C is Wrong and be amongst free-speech partisans. And it’s just as nice to find that this book is insightful and powerfully argued. It takes you through the legal case for thinking that our egregious s.18C hate-speech law provision is in fact unconstitutional.
First, the authors give us the federalism argument, why they think this 18C provision does not fall within any s.51 head of power (more particularly the external affairs power). Then, in the alternative or as an additional point, they tell the reader why the provision runs foul of the so-called implied freedom of political communication. And the authors even give us a legislative alternative of their own devising. It’s a very nicely argued book-length argument for why this law should fail if it were challenged in the High Court.
The three authors not only think 18C is unconstitutional, they also think it is philosophically wrong—that this law should never have been enacted in the first place. I strongly agree.
Of course as free-speech partisans, Quadrant readers tend not to shy away from old-fashioned disagreement and debate. So let me tell you where I think the authors of this fine book get things wrong.
I will start with a confession. I am a big-time democrat. I think big social-policy decisions, even ones related to crucial issues such as who can marry, whether prisoners can vote, euthanasia, capital punishment, and yes, the allowable scope for speaking one’s mind at law, ought to be made by the elected legislature—not by a handful of unelected top judges. And that means that while I agree with the vast preponderance of the legal analysis in this book, at the same time I strongly disagree with the implicit remedy the authors suggest.
I believe it would be a mistake for 22 million Australians to have their free-speech problems sorted out for them by a committee of seven unelected ex-lawyers because the people you vote for haven’t got the courage to repeal what needs to be repealed. That, in my view, is a terrible mistake on any view that takes account of long-term consequences. We are better off as a country to be stuck with 18C for a few more years than to go to the judges and have them fix it for us.
Just think about how same-sex marriage was brought about in the US—by an “innovative” approach to constitutional interpretation in which five of nine judges basically made it up. Compare that to Ireland, where every citizen got an equal say in a referendum, or New Zealand, where a party signalled its intentions before an election and then the MPs voted for it. My view is that the American judge-led way, which is also the Canadian way, is not the right way to do things in a democracy. And it’s not the right way to do things even if you like the outcome. Were 18C to be struck down by our top judges I would like that outcome very much. But the process that had brought it about would appal me.
So go back and consider the second basis this book’s authors give for thinking a legal challenge to 18C should succeed. This is the so-called implied freedom of political communication. The authors treat this implied freedom as a legal given, as something that is there and can be used—no questions needing to be asked. And in one sense, they are right. Yet what the authors don’t say is that the whole “implied freedom of political communication” doctrine was simply made up out of thin air by our High Court judges. (If you’re a barrister who makes a living at this and has to stay on side with the judges then you would say that this implied freedom was “discovered in the structure of the text.”) But really, the drafters of our Constitution debated a bill of rights—including a US-style First Amendment provision—long and hard and they deliberately opted not to have one. Wisely, they left it to the elected Parliament to protect our freedoms, including the extent to which free speech should be protected.
There were later two constitutional referenda in this country where proponents tried to have some sort of bill of rights inserted, with a free speech right, and both failed. In 1988 the bill-of-rights proposal was slaughtered, losing all around Australia.
After this failed 1988 referendum more than a couple of top judges were very disappointed. And surprise, surprise, four years later they “discovered” this implied freedom of political communication (which had supposedly been so undetectable that proponents pushing for one had had to try—twice!—to get something similar in place via a constitutional referendum amendment).
The reasoning that brought this so-called implied freedom of political communication into existence is no more credible—in terms of being an honest interpretation of our written constitution—than the bogus judicial reasoning used in the US and Canada to decide the same-sex marriage issue. Actually, the reasoning used by the High Court here was probably worse. If you have even a scintilla of attachment to honest interpretation, and to rule-of-law values, then this was not interpreting; it was making it up. Interpretation of a legal text, be it a statute or a constitutional provision, is not the same task as answering, “What would I like the text to say if I were able to draft it myself?” Yet that, in my view, is what Chief Justice Mason’s “reasoning” amounts to. It is interpreting in the service of an agenda, and one that has the ancillary effect of increasing the power of the judges doing this “discovering” of these long-invisible implied powers only now being spotted.
Have a look at our Constitution and tell me where this implied freedom resides (judicial wish-fulfilment not counting). Well, you start with the phrase “directly chosen by the people” in s.24 (which the evidence makes plain was there to rule out a US-style indirectly chosen legislative body). And then you take four, or was it five, inferential steps eventually to arrive at something—a degree of free-speech protection outside the decision-making ambit of Parliament—that we know those who drafted and ratified our Constitution had explicitly left to Parliament. And this implied freedom will stay there till the judges opt to change it. Or, in the Rowe case, to extend it to cover when the electoral rolls can close (a few days after what the Howard government legislation that was struck down had said, apparently) or, in the Roach case, when prisoners can vote (if their sentences are a bit longer than what the Howard government legislation had laid down, apparently) as though those decisions were given to our High Court by our Constitution. If that’s interpretation of the constitutional text then I’m a kangaroo.
Even if we had a bill of rights—and thank God we don’t—I still wouldn’t support running off to the judges, in part because I don’t trust them and in a bigger part because it diminishes a properly-run democracy. It infantilises the voters. And the judges get to thinking of themselves as philosopher-kings who can tell the rest of us such things as who can marry based on extremely implausible interpretations of actually existing bills of rights.
Look at my native Canada, with its potent bill of rights. Twice its equivalent of our 18C hate speech law was challenged in the Supreme Court and twice it was upheld. But eventually, over thirty years after it was enacted, the Canadian Parliament repealed their 18C equivalent. They did it the right way: they convinced enough of their fellow citizens to pressure the MPs to vote for repeal.
Once you read this book you will understand how precarious 18C is against the backdrop of existing judicial understandings of our Constitution. But where the authors and I diverge is that I do not want the judges to strike down 18C. I want Parliament to repeal it. Our judges are already too big for their boots. Pander to that and you won’t get to pick and choose when those same judges will over-ride the elected Parliament in other matters using the same sort of “creative” interpretive approach, though you can be certain that it will happen at future times when you don’t like the substantive outcome.
A guidebook on how to run a constitutional challenge puts someone like me in an odd position. This book sets out how to make a powerful case for how 18C might be successfully challenged in our High Court; it does that very well; it was written by three authors who share my dislike of 18C; and it is a book well worth buying and reading.
And yet, I don’t want any High Court challenge to succeed. I think the long-term consequences of that, not least in lending a veneer of legitimacy to recent judicial adventurism, are considerably more bad than good. The right way to do this is to work to inject some spine into the invertebrate MPs of the Liberal Party—the Labor Party is a lost cause when it comes to free speech. That might take thirty years or more, but free speech is worth the fight.
Of course other free-speech partisans will be happy to call in the judicial cavalry. They’ll disagree with me, perhaps vociferously. That’s what we supporters of free speech would expect—disagreement and differences.
James Allan is Garrick Professor of Law at the University of Queensland.