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January 21st 2013 print

Gillard’s greatest sin of all

Lies and incompetence are enough in themselves to warrant this government being turfed out. Its vile war on free speech should seal the deal


Imagine my surprise, over here in San Diego, to wake up a while back and learn it was being reported Prime Minister Gillard had called an election for September of this year. This came as something of a shock to me, because Ms Gillard has no power to have an election campaign go on for that ridiculous length of time.


No, on more careful reading it became clear that what Ms Gillard had done is simply to have announced to the press that it was the date when the election would happen. So let’s be clear: what Ms. Gillard opts to announce to the press has no constitutional or legal binding effect at all. It’s worthless.

It might have some sort of political effect in reining in those of her colleagues who might be inclined to be disloyal, not least because they think her unelectability is now written in stone.  Or it might put a bit of pressure on the Coalition to go along with the pretence that this is actually a real calling of an election and so commit themselves too early to policies.

But it’s not the proper calling of an election with the issuing of the writ and the obligatory government move into caretaker mode that comes with a real election announcement. So it’s unlikely that the Coalition would succumb to anything so juvenile and transparent.

Ms. Gillard could meet the Governor General tomorrow, change her mind, and call an election for whenever she likes. Or she could find that a couple of her MPs step down, Labor loses the by-elections, then a vote of confidence, and then Ms Gillard then really has to call an election.

Accordingly, this latest stunt is all smoke and mirrors. No, that’s not quite right. What it happens to be is more like a national embarrassment. This is rule by press conference diktat.

Decades back, when a New Zealand Prime Minister tried a similar sort of ‘rule by press conference’,  he was pilloried and mocked. But then he was on the political right. The members of the press in Australia are overwhelmingly on the left. And they don’t like having to apply the standards they would apply to Mr. Abbott to Ms. Gillard.

Sure, they’ll deny any such double standards till they’re blue in the face. But the facts (not least when it comes to the ABC) speak for themselves.

So I repeat that this peculiar Gillardian ploy is little more than a bad joke at best, or an embarrassment at worst.

But if you want right now really to be embarrassed about being an Australian when overseas, nothing comes close to the egregiously, outrageously, pick-your-favourite-adverb beyond-the-Pale state of the attack on free speech in Australia by this Labor government.

Let me be blunt. Every single member of this government ought to have been ashamed of himself or herself for even allowing the Roxon speech-stifling proposals to go forward. As I’ve said before, this issue of attacking free speech – more than any other – is the one on which this Labor government really must be defeated.

I tried a little experiment here at my sabbatical university in California. I asked a few members of the law school (from across the political spectrum) to guess which country in the world wanted to: stop speech that offended, insulted or humiliated some people; that for other matters applying to more potential people, just humiliated them; that reversed the onus of proving when this had happened so that the self-proclaimed victim could basically just sit back and force the accused to prove he hadn’t done this (good luck on that); that makes defendants pay their own legal bills, even if they end up winning, and more.

I got guesses ranging from various South American countries through African ones, and on to Singapore and godawful authoritarian countries in Asia and elsewhere. Not a single one of them guessed Australia. It presumably never entered their heads.

When I told them they couldn’t believe it.

As I said, it’s embarrassing being an Australian right now. And what we all need, all of us regardless of our other political views on other issues, is to fight this awful government proposal tooth and nail.

Sure, there’s been a partial backdown. But it’s only partial. And sure, Ms Roxon is now gone. But even what remains is an egregious attack on free speech. Mr. Abbott and the Coalition need to do more than just oppose this bill. They need to promise they will go to a double dissolution election if necessary to rid us of an outrageous mess.

And that cannot be all. For there already exists s.18C of the Racial Discrimination Act and all of that needs to go too, however much certain lobby groups that matter to the Coalition might be opposed to its repeal. This is about a key matter of principle. Mr. Abbott and Mr. Brandis, seeing where complacency on free speech has led us, need to be firm and make it clear that the whole proposed and existing edifice must go.

If anyone complains that that’s an extremist position, you can tell him or her that in California there would still be much more scope for people to speak their minds than in an Australia purged of these odious Nicola Roxon proposals and purged of s.18C. Even then you wouldd be more constrained in what you can say in Australia than anywhere in the US.

So claims about free speech extremism are patently ridiculous. Anyone who makes that, to be consistent, should be railing regularly against this US freedom to speak position, along with China and virtually every other authoritarian state going.

Getting rid of this speech-stifling garbage matters. It matter a lot.

James Allan, Garrick Professor of Law, University of Queensland is on sabbatical at the University of San Diego School of Law