Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

I was born like this, I had no choice; I was born with the gift of a golden voice… On the Freedom of Expression Bill 2019

You might have missed it.  While we were all distracted by God knows what political stunt was filling the airwaves this week, Centre Alliance Senators Stirling Griff and Rex Patrick introduced a Bill into the Senate which will, if passed (it won’t), insert a new clause, s 80A, into the Constitution to read:

80A Freedom of expression
The Commonwealth, a State or a Territory must not limit freedom of expression, including freedom of the press and other media.
However, a law of the Commonwealth, a State or a Territory may limit the freedom only if the limitation is reasonable and justifiable in an open, free and democratic society.

It’s a bit of fun because it will never, ever get passed.  But let’s chat about it anyway.

This provision would be entirely unlike anything else in the Constitution.  Some people point to s 116 of the Constitution:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

But it’s really narrow.  So narrow that it probably doesn’t have any practical value except.  In Quick & Garran, we find:

The Federal Parliament is a legislative body capable only of exercising enumerated powers. Its powers are determined and limited by actual grants to be found within the Constitution. Anything not granted to it is denied to it. If it is not granted the power to deal with religion, it cannot legislate concerning religion. It is superfluous to deny to it what is not granted—what it does not possess.

As a consequence, I can’t think of any case which used s 116 to prevent imputed government interference in religion.  The High Court has found that it doesn’t protect conscientious objectors on religious grounds, nor does it protect Jehovah’s Witnesses from having all of their property confiscated for opposing a War.  It’s super narrow.

The drafting of this new clause contains a tension: the first part says that the Commonwealth and State are prohibited from limiting the freedom; the second part says that the Commonwealth and State may limit the freedom where reasonable and justifiable.

In some senses, I find this namby-pamby, fence-sitting drafting really irritating.  If you’re going to put in a Constitutional protection for a right, go whole hog.  Bite the bullet that you’re going to end up with shitty outcomes, like Klansmen getting constitutional protections, or tobacco companies being able to advertise to children and shit.  Have a spine.  Stand your ground.

The modern drafting style is because people want to have a bet both ways.  Thus we get the Canadian Charter of Rights and Freedoms 1983 which, right in the opening section, puts in a complex release valve:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

But who should make that call?  Who should be the one to make the decision that something is or is not justifiable in a free and democratic society?  Unelected judges or a democratically elected Parliament?

In R v Keegstra, the Canadian Supreme Court was asked whether a law which regulated hate speech was a breach of the Charter of Rights and Freedoms.  Mr Keegstra was a high school teacher who, inexplicably, decided that he would teach antisemitic conspiracy theories.  The democratically elected parliament had passed a law saying this was a criminal offence, but now it came to the unelected judges to decide whether or not it was reasonable and demonstrably justifiable.

But let’s be more careful about what happened.  Mr Keegstra was found guilty at trial.  He appealed, and the appellate court agreed with Mr Keegstra.  For a while, it was good law in Canada that you couldn’t legislate against hate speech because the Canadian Charter of Rights and Freedoms prohibited it.

The Government appealed that decision to the Supreme Court, and the Supreme Court split.  It was a 4:3 decision in favour of the Government.  That is insane.  Canada was within spitting distance of not being able to legislate that a teacher cannot teach antisemitic conspiracy theories to children.  That is wild.

Do you really trust the High Court of Australia to get the decision right?  In Monis v The Queen (2013), the High Court of Australia split evenly on the question of whether or not Parliament could legislate to prevent a person (Man Haron Monis, who was later responsible for the Lindt cafe siege in Sydney) from sending offensive letters to the families of dead soldiers.  And that was just with the current ‘Implied Freedom of Political Communication’.  Imagine what would have happened if we’d had this new s 80A in the Constitution.  Madness.

The Canadian Supreme Court also found in favour of tobacco companies who opposed regulations on tobacco packaging.  Forcing a tobacco company to write ‘WARNING: THESE WILL KILL YOU’ on the label was a breach of their freedom of speech protected by the Charter.  Australia, meanwhile, is praised for leading the way on reducing tobacco consumption.

If this passes (which it won’t), it’s not you or me who wins court cases based on s 80A.  It’s alt-right clowns who want to appeal convictions for throwing pig heads at mosques.  It’s trollumnist media hacks who use the provision to defend writing insane things about Indigenous Australians.  It’s Nazis on Twitter using our legal system to make Australia a worse place to live for the rest of us.  And if the High Court gets it wrong, there’s no way for a democratically elected Parliament to correct the problem.  Every member of Parliament could stand on an election platform of getting rid of the Nazis, but they would be utterly powerless to fulfil their election promise simply because the High Court once made a bad call.

It is noteworthy that the Centre Alliance wants the new provision put into Chapter III of the Constitution.  Chapter III is about the Judicature, and Australia has a long tradition of ‘Chapter III jurisprudence’ which is about the separation of judicial powers from the other branches of government.  If enacted, this would be about shifting further away from parliamentary sovereignty and forcing the Court further into the role of a policy engine: Parliament can pass this law only if the Court thinks it’s okay.

Finally, it is worth noting that there are two freedoms in the proposed new section: it’s freedom of expression and, as a sub-right, the freedom of the Press.  This would be a constitutionally enshrined protection of an industry that the vast majority of us (rightly) do not trust.

There is little doubt that the media contributed to the Christchurch massacre.  Why would you want to give them constitutional protections to prevent democratic regulation of their content?  Australia is leading the way with its calls to hold media companies responsible for carrying extremist messages.  Its main obstacle is human rights law in other jurisdictions: other countries have indicated that they cannot do as much to combat extremism because their human rights legislation prevents it.  It’s grotesque.

Australia is really lucky that it can regulate its media companies.  We can pass laws that stop tabloid gutter nonsense from completely flooding the airwaves.  Other countries can’t.  No matter how awful Fox News is, it gets First Amendment protections.  In Australia, media companies rely on public sentiment for its protections.  And that’s exactly how it should work in a free democracy: no industry gets a special protection that puts it outside of democratic regulation.

Fortunately, Centre Alliance’s bill will never, ever pass and so we don’t really need to be worried.


Are you struggling to relax and need a meditation?  Are you vaguely interested in legal theory?  I have just the audio recording of my voice that combines them both!  Take a moment to centre your thoughts, unwind, and think about the tension at the heart of liberal democracy.

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