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Edition 57

Contents
Essay

Held on trust

Rights, institutions and freedom of speech

ONE OF THE key reasons that freedom of expression is so hotly contested in Australia, as elsewhere, is that it can be viewed from so many different perspectives. For some, free speech is a personal right, never to be abridged, no matter how offensive or dangerous the speech may be to others. Another view is that free speech is more of a structural or community value, capable of limits where its benefit to the community is outweighed by community harm. Sometimes again, it is helpful to think of free speech as a privilege, to be responsibly used.

However free speech is viewed, I think it is important to recognise that most of the time the limits on free speech rest in personal morality, taste and judgment. The role for the law to step in, to regulate free speech, should be limited to those cases where it is really necessary, and later I will discuss what those cases might be.

My second point will take a little longer to develop, but it is crucial to my argument. It seems to me that we can better understand many of our current dilemmas about free speech in Australia by drawing on the political and legal context of the United States. Politically, it is impossible for many Australians not to have watched with increasing trepidation the events unfolding across the Pacific since 20 January 2017. Donald Trump, unfortunately, is seeking to do many of the destructive things that he promised to do.

Republicans in Congress, with a few notable exceptions, enthusiastically cheer him on. His base still supports him, even if the majority of Americans are said to remain unconvinced. Democrats seem to be still reeling from the shock of losing the presidency, the Congress and many state legislatures.

Where then is the functioning opposition to Trump and the dangerous path down which he is leading America? What implications do these matters have for freedom of expression in Australia?

To answer these questions, we need to appreciate some of the legal landscape of the US. America is the land of the First Amendment. The First Amendment provides that Congress shall make no law abridging the freedom of speech, or of the press.

The United States Supreme Court has repeatedly held that the First Amendment creates a personal right of every citizen, and the ability of the US Congress or a state legislature to restrict that right is very limited. The First Amendment influences US politics in some very different directions. On the one hand, both the act of making a donation to a politician, and the act of spending money to help promote that politician’s campaign, are regarded as forms of protected speech. Political donations can only be limited to stamp out narrow quid pro quo corruption (money for direct favours). More recently, the US Supreme Court has held, in cases like the 2010 decision in Citizens United, that Congress cannot pass laws restricting expenditure by the wealthy and the powerful to support their favoured political candidates’ cause. Thus if we want to understand why any viable candidate for elected office must amass a vast war chest, we find the answer in the First Amendment’s protection of free speech, indeed as a right extending beyond individuals to corporations.

On the other hand, the First Amendment’s guarantee of a free press has traditionally placed the media at the heart of the democracy. The media is protected so that it can bare the secrets of government and inform the people. The extent of this protection can be seen from the famous Pentagon Papers case in 1971, where the US Supreme Court (by a majority of six to three) rejected the attempt by President Nixon to stop The New York Times and The Washington Post from publishing the contents of a classified study revealing how the US got into the Vietnam War.

The media is again now operating as perhaps the most functioning form of opposition to the conduct of the Trump presidency. By ‘media’ I mean the media in all of its traditional and modern social forms.

What is concerning is that Trump is seeking, by executive order as much as by Twitter, to disturb particular aspects of the media’s traditional First Amendment protections so as to weaken the potential scope for critique and accountability. He remains happy to accept a large flow of funds from those who wish to influence and benefit from his policies, happy to use his own speech to critique, humiliate, ridicule, condemn and attack the public and private conduct of those who don’t support him, but then seeks to shut down the freedom of the press that critiques his actions in office.

The media, by which he means some outlets such as The New York Times, CNN and MSNBC – but not others, including Fox – is now ‘the enemy of the people’. Note, not his enemy, but somehow a force seeking to bring down the people themselves. Disliked journalists, or news organisations, are banned from White House briefings. He refuses to engage on the merits of negative reporting, instead branding it as ‘fake news’. He threatens to jail journalists who publish the very type of information that founded the Pentagon Papers case.

The media is not alone in suffering Trump’s attacks. He disparages any other institution that plays its role in a way he dislikes. In February 2017, the Ninth Circuit appellate court gave a cogent judgment upholding an injunction against his poorly thought out migration ban; he tweets that the judges are being ‘political’, that they are abandoning their judicial oaths. His acting Attorney-General, Sally Yates, had earlier advised him that she could not in legal conscience uphold his position in court. He sacked her. Never mind that the appellate court’s decision demonstrated the probity of her advice, and Trump was not game enough to appeal to the Supreme Court. In another instance, he potentially compromised the fair trial of a US soldier by publicly calling him a traitor. In general, public speech in the US over the last four months has been much coarsened by his actions.

 

LET ME BRING these observations closer to free speech in Australia. It would be tempting to think that what is occurring in the US is merely a passing phase, no more than an American excess that we can safely ignore. Perhaps we need not worry that the media and basic public institutions in the US are under direct attack. Self-correcting mechanisms may win the day. Or again, perhaps the importance of the US–Australia alliance means that we should not be too precious over the niceties of Trump’s behaviour. Perhaps we should just be transactional with a transactional man. I beg to differ.

My thesis is that the Trump attacks on the media and on basic US institutions should be exposed for what they really are: part of a larger attempt by some in power in Western liberal democracies – including Australia – to shut down one of the critical aspects of freedom of expression: the central part played by the media in the legitimate analysis and criticism of the work of governments, including work done in tandem with big business, lobby groups and vested interests.

We need to be vigilant. We need to defend and strengthen those institutions within our society that seek to hold those who exercise public power to account. And we need to identify and reform those laws that are the real impediments to that freedom.

To advance my argument further, I identify three key features of our Australian legal landscape that set the framework for legitimate freedom of expression in Australia. First, unlike in the US, the Australian Constitution has no express parallel for the First Amendment. What we do have is something lawyers love, namely an implication. In 1997, in a defamation suit brought by David Lange, former prime minister of New Zealand, the High Court ruled that when you read together a range of express provisions of the Constitution, and you understand the system of government provided for in it, there is an implication that there are some forms of speech that no parliament in Australia can restrict. This is not a personal right of citizens, but rather a structural guarantee for the benefit of the community as a whole. We call this the ‘Lange principle’.

So what are the forms of speech that our parliaments cannot restrict? Well, the Lange principle has two broad limbs, as well as a lot of refinements. The first limb is that the only types of speech that are protected are those which involve communications on matters of government or politics, not speech more generally. The second says that even if a law burdens free speech on a matter of government or politics, it will be still be permitted if it is a reasonable way of advancing some other legitimate interest within our system.

The result of the second limb is that the High Court has found a different balance between free speech and other societal interests to that prevailing in the US. For example, in 2015 in the McCloy decision, the High Court upheld NSW laws that capped the amount of political donations that individuals could give candidates, and banned donations from some classes of person – such as property developers – altogether. The High Court held that parliament could validly impose broad-ranging campaign finance restrictions to achieve any of the following purposes: to prevent narrow quid pro quo corruption (that is, money for direct favours as can be done in the US); to prevent the buying of access to politicians that might easily, yet undetectably, slide into influence or actual corruption; or to prevent some candidates or parties building up ‘war chests’ that drown out the voices of others in the system.

Because the Lange principle strikes a different balance to the First Amendment between free speech and other societal interests, only two laws that impact on free speech have been struck down under the Lange principle. (Also, at the time of writing, Bob Brown, former leader of the Greens, has an outstanding challenge in the High Court over Tasmania’s anti-protest laws.)

The second key feature is that where speech is not protected under the Lange principle, we fall back on the common law, which regards freedom of expression as an important value to be protected where possible. The High Court has made clear that an Act of Parliament can always override the common law protections of free speech if the act uses sufficiently clear language to do so.

The third feature follows. Unfortunately, we now have such a raft of statutes that place direct or indirect burdens on freedom of expression that it is almost impossible for a skilled lawyer, let alone an ordinary conscientious law-abiding citizen, to know where the freedom begins and where it ends. Further, many of these statutes burden the form of speech, which I have identified as one of the most fundamental forms of free expression in a liberal democratic society: legitimate analysis and criticism of the work of governments, including as governments interact with big business, lobby groups and vested interests. This is simply a frank factual assessment of where we are now. This state of affairs has come about at both federal and state levels, under governments of varying political persuasions, and has been exacerbated by the demands of national security.

 

IF WE ARE to strengthen and protect legitimate freedom of expression in Australia, a key part of the exercise should be to identify those statutes that various parliaments have passed which pose the biggest threats to that freedom; to expose the related administrative practices tolerated by the law which also threaten that freedom; and ultimately to lobby for political change, even if that means persuading those in power to wind back laws which protect their own actions from scrutiny.

If we are to have a society in which there is scope for robust criticism of the actions of government, some would argue that the solution lies in a total opening up of all the workings of government and its web of connections with the powerful forces in society. Should we be winding back all laws protecting the secrecy of government decision-making? Equally, should we find a way so that the Julian Assanges or Edward Snowdens of this world receive full immunity under law for their interception and publication of vast tracts of government information? I would argue no.

The common law, as well as statute, has traditionally recognised that good decision-making by governments, businesses and other collective bodies is often aided by the confidence and secrecy of collective deliberations. The common law has developed principles of private law (such as equitable doctrine of confidence), and of public law (such as the balancing test involved in the public-interest immunity doctrine) to protect such deliberations. No doubt, sometimes overzealous claims are made to protect so-called confidential information. Courts are scrupulous to reject such claims when they come before them. Administrative decision-makers should apply those same high standards when assessing claims where they are often effectively the final word.

These parts of our law are broadly sound, and equally I see no case to offer the Assanges or the Snowdens immunity for their actions. Their wholesale publications can threaten the lives of loyal government employees and their families, and, as we are now seeing from the US and Europe, potentially influence and corrupt electoral processes. We do not want to encourage these forces in Australia.

Second, others would argue from the opposite direction that the primary statute burdening free speech is section 18C of the Racial Discrimination Act. If only 18C could be repealed, or at least watered down, the heavy pall of ‘political correctness’ would lift from our nation. A disgusting racial insult can always be countered by other speech pointing out its vice. The community will be all the more enlightened from witnessing the interchange. Some would go further and argue that the Australian Human Rights Commission (AHRC) should be gutted.

To understand whether 18C is an angel or a devil, or perhaps something in between, we should recall that the law has always recognised some limits on free speech. Precisely where those limits are to be drawn can vary between societies, and vary over time. But all proper limits have two things in common: speech is restricted only where the speech endangers some sufficiently important countervailing societal interest; and that danger cannot readily be remedied merely by others engaging in their own free speech.

Section 18C is a modern example in this larger tradition. It was inserted into the Racial Discrimination Act in 1995 with the express purpose of protecting vulnerable minority groups. It is an implementation of Australia’s international obligations under a convention which Australia ratified some twenty years earlier. Section 18C serves to civilise a particular form of debate, not for the sake of shutting it down, but because those most harmed by the insults it targets are those in society least able to protect themselves merely through their own speech.

Some public commentators in modern Australia wish to debate whether immigrants of particular races or religions are properly assimilating into Australian society, or are taking local jobs (or conversely social security benefits) when they shouldn’t. Bill Leak, the late cartoonist for The Australian, wanted to use his ample skills to suggest a widespread problem in Indigenous society of fathers neglecting their children’s wellbeing.

Free speech affirms that there should be an ability to express, to hear and to debate such views. The primary limits on free speech rest in the good judgment and conscience of the speaker. However, the role for a provision such as 18C is to recognise that some forms of speech may cause such harm to vulnerable others, harm which they cannot readily avert by their own speech, so that the matter should not be left merely to the speaker’s conscience.

It also follows that we should be proud that we have a body such as the AHRC in this county. We should be proud of the many ways, of which 18C is only one, in which it assists in applying the law to the plight of the more vulnerable among us. And when it comes to recording this recent history, I am confident it will be shown that Professor Gillian Triggs, as its former president, amply upheld the role of the commission. Moreover, by calmly and intelligently explaining over and over again, under sordid criticism and attack, why the commission was doing what it was doing, she helped to educate all of us on Australia’s domestic and international obligations to the more vulnerable. How richly Professor Triggs deserved the prestigious Voltaire Award recently bestowed on her by Liberty Victoria.

 

LET ME COME to what I see as the more pressing issue of the law being used to suppress legitimate criticism of those who govern us. In May 2015, the Commonwealth Parliament passed legislation going under the unassuming title of the Border Force Act. One of the things it did was to make it a crime, punishable by up to two years jail, for any person who was contracted to supply services to the Border Force to make any public disclosure of anything learnt in the course of that work. Virtually no defences were allowed.

It soon became clear publicly that the government intended this legislation to silence doctors, teachers, community workers, or indeed anyone else working in the offshore processing camps, from revealing anything they learnt there, even if it involved a human rights abuse or conduct which was unconscionable by any standard, including under Australia’s international obligations.

The legislation put conscientious professionals into a grave predicament. Presumably, some took their chance and privately relayed their concerns to journalists: we saw stories based on such disclosures in outlets like The Guardian. Others must have remained silent, a prudent legal course, but perhaps at a cost to their consciences and indeed their psychological wellbeing. Few who work in the frontline in any traumatic environment benefit from a culture of enforced silence.

It took until mid-2016, when a group of pro-bono lawyers acting for a group called Doctors for Refugees launched a High Court challenge to this draconian legislation, for the government to execute a partial back down. The secretary of the department used a power under the act to exempt doctors and health workers from the risk of future criminal liability, but did not exempt other professionals or cause the act to be repealed. The challenge remains in the High Court in re-formulated terms. We will learn later from the High Court if the law breaches the Lange principle. If it does, it should never have been passed. Even if it does not, in my view it is still not a good law. Why are our politicians – of both major parties – silencing this important speech? Why are we, the community, banned from knowing what is really going on in our offshore processing centres?

Other things are going on that also create real threats to legitimate speech. The broad subject of what I am now going to deal with can be described as the excessive use by parliament of the delegation of overly wide discretions to ministers.

It is a feature of our constitutional arrangements that the separation of powers between the three branches of government is neither strict nor absolute. Unlike the US, our executive ministers are MPs. Parliament can confer discretions on ministers that are administrative in character, such as where the minister, or his or her delegate, has the ability to decide how a general rule should be applied or modified to the facts of a particular case. For example, a discretion to relieve from a strict obligation on grounds of individual hardship. Obviously, it makes sense that each and every decision of this kind does not have to go to parliament.

It is also well established, but far more wide reaching, that parliament can delegate to a minister part of its legislative power. A raft of the rules that now govern modern life lie in ‘subordinate legislation’, rules made by ministers or the Governor-General on their advice. There are mechanisms for parliament to consider and overturn such rules, but in reality this occurs rarely. What our parliaments have increasingly done over the past twenty years is to delegate more functions to ministers. I say ‘functions’ because the line becomes blurred between delegating mere administrative discretions and delegating law-making powers.

The free speech issue arises this way. How do we as a community get to know what decisions ministers are making? Or why? Should we even be concerned about those decisions?

Earlier this year, newspapers reported that a mother and practising doctor who had been here for eight years faced deportation with her autistic child. When first reported in the media, the minister for immigration said he would do nothing. As pressure built the next day, he reversed his decision. A good result for the individual case, and well done by the media, but how many other cases slip by, with an unfair or harsh decision made and no effective way for the community to know about it or to protest?

These problems are not unique to Australia. The UK faces them on a massive scale with Brexit. The May government plans a ‘Great Repeal Bill’, which will import all current European law into English law, but then allow the executive the ability, by regulation, to amend or modify any such law. A conscientious UK citizen will not be able to know what UK law is for the future, let alone examine the propriety and wisdom of what the government is doing, without a study of any and every regulation made over time modifying the law imported by the Great Repeal Bill. An almost impossible task.

What has made these problems worse in Australia is the current trend for discretions to be conferred on ministers using one or more of these techniques:

Framing the discretion in the broadest of terms (such as ‘the national interest’ or ‘public interest’);
Relieving the minister of any duty to even consider whether to exercise the discretion;
Sometimes denying the subject a fair opportunity to be heard on the decision or reasons afterwards;
Sometimes preventing a court asked to review the decision from seeing the evidence.

Indeed there is currently a challenge before the High Court to a law which allows the minister to cancel a person’s visa in reliance on information that cannot be seen by a court.

The result of all these devices is that parliament escapes having to take real responsibility for the exercise of power; it becomes difficult for courts to exercise their judicial review function; and it becomes very difficult for the community to know what has gone on, or why, and to engage in informed commentary or criticism of government action.

 

THIS OUTLINE OF threats to legitimate free speech exposes the actions of governments. There are remedies, and it is not too late to implement them. Parliament should not pass laws gagging public officials or persons working for the government without the greatest prior scrutiny of the laws and the clearest justification for the silencing of speech. If there is any risk that the law contravenes the Lange principle, parliament should have before it, and expose for public scrutiny, the constitutional advice on which it is asked to act.

Second, parliament should cease delegating core legislative functions to ministers unless the case to do so is overwhelmingly compelling. Delegation should not be the norm. At the same time, there should be a wholesale review and repeal of current delegations. The norm should be that the law is found in statutes passed only after they have been openly tested and argued over in parliament, and subject to community and media comment. If that means parliament has to sit more weeks in a year, or spend more time debating laws and less time on other activities, so be it.

Third, where parliament does confer discretions on ministers, it should always err in favour of defining the discretions as tightly as possible, and preserving the common-law right of the person affected – whether the person be a citizen, a resident or an alien – to be given a real and fair hearing before his or her interests are affected. There should be clear legal standards around that power so the courts can conduct meaningful judicial review. There should be a general obligation to give reasons for any decision, so that the person affected can know why he or she missed out, and can prosecute any legal or public challenge, and the wider community can know and comment on how public power is being exercised. The withholding of any part of the evidence or reasons on the ground that it would involve a matter of national security or public interest should be confined to the absolute minimum.

 

THE VALUES THAT I am espousing are not some new-fangled or leftie concern. They are core values of a liberal democracy. These issues also have particular bite in the area of surveillance. Australia has three intelligence agencies: ASIO, meant to deal with domestic intelligence; ASIS with foreign intelligence; and something called the Australian Signals Directorate, which sits in the Department of Defence. The origin of these agencies goes back to the period immediately following World War II. They work in close co-operation with MI5 and MI6 in the UK, and with the various intelligence agencies in the US, Canada and New Zealand, who complete the ‘five eyes’.

Few would challenge that intelligence is necessary, sometimes, and that an intelligence agency must operate in secret, usually. Equally, the threats to national security and the safety and wellbeing of our citizens seem to be on the increase in number, scale and diversity. The horrific bombing in Manchester in May 2017 only confirms this. Our leaders should respond – proportionately.

Where does freedom of expression come in? Spy agencies must be governed by law, and must act within that law. Regrettably, Australian parliaments have chosen to give an extraordinary range of powers to individual ministers to sanction the activities of spy agencies. What our spy agencies are doing, what our ministers know of what they are doing, and what our ministers are permitting agencies to do, remains largely inscrutable.

The Rudd Labor Government realised there was a problem. It came up with the halfway house of a National Security Monitor. The theory was that an eminent lawyer, as the monitor, would have access to the secret operations of the spy agencies and could report to parliament and the community on how our laws are operating and whether more needed to be done to reign in the agencies. The first monitor was Bret Walker SC, an eminent and fiercely independent lawyer. His reports, and the then Labor government’s evasive responses to his substantive recommendations, make depressing reading.

The Abbott Government had even less enthusiasm for a monitor, leaving the post vacant for a while. Eventually the equally eminent, if not more pugnacious, Roger Gyles QC was appointed – an excellent choice. His reports show he was starved of adequate funds to do the job properly. His final report in February 2017 concluded, with a lawyer’s penchant for understatement, that Australia’s current security laws contain the ‘potential for oppression’.

In the meantime we have had the metadata debacle, funny except it is so serious. Information is collected and stored for two years on the activities of every Australian. It can be shared with a whole variety of agencies for a whole variety of purposes, many of which seem to have little to do with national security or protecting Australian lives. Warrants from a judicial officer are generally unnecessary. There is no legal mechanism for a person to find out – ever, it would seem – whether their data has been shared with government agencies, and if so which agencies, or why.

Making things worse, in 2014 parliament passed a law enabling the Attorney-General, without going to a court, to authorise a spy agency to intercept actual communications if considered necessary for something called a ‘special intelligence operation’. This is defined as an operation carried out for a purpose relevant to the performance of one of ASIO’s functions that may involve an ASIO employee engaging in conduct that would otherwise be unlawful. A journalist or any person who discloses wrongdoing, or that the power has been used illegitimately, may be jailed for up to five years.

The head of ASIO admitted to the Senate this year that a number of warrants have been issued under this power. He refused to say how many or against whom, other than assuring us the number was ‘small’.

One of the dangers of the operations of our security agencies is that, when you read the statute book, you cannot find any limit on the length of time that intercepted intelligence will be kept or any mechanism by which you can ever find out whether you have been wire tapped. We saw a worrying instance of this intelligence gathering in NSW in late April 2017 when police were caught filming protestors at a rally to defend science. Hardly subversive radicals one might think. The NSW police, when questioned, assured the public that the film was taken only in the event the march turned sour, that no facial recognition was used on the film, and that as the march proved peaceful they would destroy the film. We have their word for it. But we as a society have no evident law to regulate this decision of the NSW police.

 

IN NOVEMBER 2016, I visited the former Stasi archives in a run-down part of the old East Berlin. After the Berlin Wall fell in late 1989, the remnant Stasi, the East German secret police, tried to destroy the archives to hide their misdeeds. With great courage, locals of East Berlin, including some who had been held and interrogated by the Stasi, rose up to secure the archives from destruction.

The museum has a powerful sense of history and of misuse of state power. It is also about partial redemption: those spied on – and there were many – can now inspect their file. I left troubled that the various Australians who have been and are being spied on cannot hold their government to account. Recall that East Germans were shocked when they learnt after 1991 that hundreds of thousands of citizens had been spied on, and many more took part in the spying. What is the truth in Australia?

Spying is not just an invasion of privacy. A climate of spying, ungoverned and unknowable except in its pervasiveness, has a chilling effect on speech – all the more so where we have no First Amendment.

Surveillance is but one of the many areas where our parliaments have given too sweeping powers to individual ministers or public servants. They have left us with inadequate protections against possible misuse of power, and inadequate means to find out how these powers are being exercised, rendering public critique of that exercise next to impossible. Legitimate speech is thereby silenced.

How can these problems be addressed? First, it is necessary for us as citizens who elect our leaders, whatever our individual political views, to recognise that this is a problem that should be brought out in the open, and which our leaders, federal and state, of whatever political persuasion, should be called upon to address. The most senior public servants in this country should provide wise advice to politicians that things have gone too far, that we have lost essential parts of the freedoms that the common law bequeathed to us and on which our written constitution is silent.

The ultimate solution may then lie in the drawing up for parliament’s consideration of Australia’s own ‘Great Reform Bill’, not a Brexit-type bill, but rather a bill which winds back state power to a core minimum that remains respectful of the freedom of speech and other property liberties of the community.

Will this happen? Where is the impetus for any politician to take on any of the suggestions I have made today? I can only answer that I believe the issues are sufficiently important to debate, to exercise our legitimate free speech about, and that one day their time will come – perhaps sooner than we expect. The valuable work of PEN will assist in the process. We will share in a much richer, fuller and ultimately fairer society when across all areas of government parliament does its job of debating and making the laws rather than passing the job down to ministers; parliament only gives powers to ministers which are properly confined so their limits can be fully tested in the courts; and powers of gagging or surveillance are cut back to an absolute minimum.

Ultimately, one of the core propositions of a liberal democracy is that all public power is held on trust for the citizen-body. That public trust is best enforced by the most liberal possible scope for public knowledge of and discussion on how those powers are exercised.


From Griffith Review Edition 57: Perils of Populism © Copyright Griffith University & the author.

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