David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Hansard source

I, and also on behalf of Senator Day, move:

That the Senate notes the Turnbull Government's failure to uphold free speech.

Treasurer Scott Morrison is currently having tax troubles with unicorns. What he means is that some of Labor's tax proposals are mythical, just like a unicorn. But what fits the definition of a unicorn even more appropriately is principled support for free speech in this parliament. It is entirely mythical. In fact, based on my experience since I was sworn in, it appears I am the only senator to consistently and without exception defend freedom of speech.

A position held across the political spectrum in the US by everyone from Bernie Sanders to Hillary Clinton to Donald Trump and Ted Cruz, and widely held in the United Kingdom by Conservative and Labour politicians, is in Australia represented by a single minor party senator—me. I have had people tell me that classical liberalism has no natural constituency in Australia. Of course, I hope they are wrong, but if they are right, we are confronted by a parliament that explicitly rejects a core part of the Western liberal tradition. That core part is freedom of speech, but freedom of speech not subjected to peculiar conditions, like notions of 'hate speech' or defamation laws that do little more than create a lawyers picnic. I do not want free speech to be a unicorn.

It is obvious the government only believes in freedom of speech in theory. Before the last election, Tony Abbott gave a commitment to modify section 18C of the Racial Discrimination Act, the provision used against Andrew Bolt. I was in the audience when he made that undertaking. He said:

The Coalition will repeal section 18C in its current form.

It won’t just be the current—

Gillard—

government that the debate over new restrictions on free speech will test. It will be all the commentators and organisations that have ever thundered in defence of free speech but find their indignation highly selective …

Mr Abbott also quoted Robert Menzies in a way that now makes his conservative predecessor seem like a regular Voltaire:

As Sir Robert Menzies declared …“The whole essence of freedom (of speech) is that it is freedom for others as well as (for) ourselves … Most of us have no instinct at all to preserve the right of the other fellow to think what he likes about our beliefs and to say what he likes about our opinions… (But) if truth is to emerge, and in the long run be triumphant, the process of free debate – the untrammelled clash of opinion – must go on”.

Somehow, things have moved from a promise to repeal 18C, to reneging on that promise, to the passage of vast swathes of legislation further undermining freedom of speech.

In the first national security bill, section 35P introduced harsh penalties for journalists who report on ASIO's special intelligence operations, even when they report historical misconduct. At the time, I warned repeatedly about the danger this provision posed to investigative journalism and the chilling effect it would have on freedom of speech. I told journalists over and over that their ability to do their job was at risk. But not until the bill became law did it dawn on them, and a few others, that I might be right. I was vindicated entirely when Roger Gyles QC, the Independent National Security Legislation Monitor, delivered his report on this, where he said:

It creates uncertainty as to what may be published about the activities of ASIO without fear of prosecution. The so-called chilling effect of that uncertainty is exacerbated because it also applies in relation to disclosures made to editors for the purpose of discussion before publication.

He then pointed out that:

… the application in this manner of broad secrecy prohibitions to outsiders is not satisfactorily justified, including by precedents in Australia or elsewhere.

So, after telling me I was wrong during the debate in this chamber, the government has in effect conceded it was wrong and is now amending this obnoxious piece of legislation. They could have done that in 2014, when I first spoke up about it. I suppose I am only a member of that pesky crossbench, so I can be ignored.

The follow-up 'foreign fighters' legislation criminalised reporting on certain police searches and 'advocating terrorism'. It also defined 'advocating' in the broadest terms. In this context, it is worth remembering that the crime of 'advocating terrorism' and the 'insult or offend' provision in 18C, which is a civil wrong, are both premised on the assumption that hearing certain words will make people go out and do something vile. The problem is, these laws only serve to outlaw words that do not motivate bad deeds, because words that actually do motivate criminal acts are already dealt with through existing laws against incitement. When I pointed this out during debates on the bills, Senator Brandis argued that the problem with incitement is that it is hard to prove. Well, isn't that the point? Otherwise people could be banged up for saying anything, really!

However, while it is well known that incitement—if proximate in time to an incident of racial violence—may have a causal effect, there is no evidence that offence and insult enjoy such a relationship. Indeed, what evidence we have flows in the opposite direction. The belief that 'insult' and 'offence' lead to racist violence has a sibling under the skin: the assertion that playing violent video games causes violent behaviour, coupled with the belief that watching pornography leads to rape. Both claims are untrue. Playing too much World of Warcraft may dent one's bank balance and watching too much porn may damage one's relationships. However, in study after study researchers have found that playing violent video games and watching lots of porn are correlated with reduced rates of violence and sexual assault.

And when it comes to hate speech laws, apart from being unsupported by anything approaching evidence, these have serious unintended consequences. Last year, UK polling firm YouGov surveyed British attitudes to Muslims, and discovered that Britons see Islam negatively but are unwilling to say so. In other words, governments and law enforcement have to rely on anonymised polls conducted by private firms to find out what people really think. It is attitudes that matter, not speech, and yet the law is aimed at what people say.

Labor's approach is no better. It always opposed changing 18C and gave supine support for the government's national security laws. Labor also supported mandatory data retention. Yet, in the wake of the Charlie Hebdo attacks, both Labor and the coalition loudly proclaimed their free speech credentials. The Greens are better in parts. They opposed the national security legislation and also opposed data retention. However, they passionately support 18C and are in favour of 'hate speech' laws generally.

It is not feasible to maintain partial freedom of speech in the long run. The fact that most Western countries now do makes our remaining freedom still harder to defend. Interest groups that might claim to support free speech but argue for exceptions to address their particular concerns cannot help but notice the inconsistencies. Only by insisting on free speech from a position of principle can this special pleading be resisted. For my part, I have not only opposed every one of these impositions on free speech but I co-sponsored Senator Day's bill to remove 'insult' or 'offend' from 18C.

The blanket bans on reporting special intelligence operations and various police searches, combined with data retention, prevents the media, bloggers and commenters from reporting without fear or favour and reduces government transparency. What all this means is that free speech is defended in some situations—when the speech is agreeable, linked to privacy, or relevant to a certain political constituency—but not others. It amounts to not supporting free speech at all. To make an old joke, selective support for freedom of speech is like being partly pregnant.

Shutting down speech by claiming you are offended or that something should not be said, or inhibiting speech by criminalising journalism, is an admission of failure to understand the whole concept of free speech. And if you do not understand free speech, you do not understand freedom. Freedom of speech is the paramount freedom. Without it, we struggle to exercise our other freedoms. With it, we can fight for those freedoms. It may be offensive, insulting and make governments and people uncomfortable, but if this is the price to be paid for living in a society where all claims are open to question, then it is a price worth paying.

I compromise on certain issues on the basis that some progress in the direction of liberty is better than none. But I believe all politicians in a liberal democracy should be uncompromising in defence of free speech. Free speech should not be a unicorn.