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ABSTRACT
In recent years, free speech debates have featured unusually prominently in public debate in Australia. At the same time, significant restrictions on freedom of speech have been enacted in the context of counterterrorism legislation, asylum-seeker policy, and anti-protest laws. This article critically analyses these policy developments through the lens of a capabilities approach-informed analysis of the importance of free speech. This engenders an understanding of the constitutive role of speech in individuals’ lives, and through that its vital role in democratic deliberation and legitimation. I will argue that many of the restrictions placed on free speech in Australia in recent years place democratic processes of deliberation and legitimation at risk.
Acknowledgements
The author would like to thank Louise Chappell and Carolien van Ham for inviting her to give a paper at a panel at the Australian Political Studies Conference 2016, from which this article was developed, and Carolien van Ham, Lisa Hill and the two anonymous reviewers for constructive and helpful comments. The research for this article was partially funded by the Australian Research Council (FT110100114).
Disclosure statement
No potential conflict of interest was reported by the author.
References
Domestic cases
United States.
ACLU v Clapper, 785 F.3d 787 (2nd Cir., 2015).
Domestic legislation
Australia.
Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
Anti-Terrorism Act (No. 2) 2005 (Cth).
Australian Secret Intelligence Organisation Act 1979 (Cth).
Border Force Act 2015 (Cth).
Classification (Publications, Films and Computer Games) Act 1995 (Cth).
Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007.
Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth).
Crimes Act 1900 (NSW).
Criminal Code (Cth).
Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 (WA).
Inclosed Lands, Crimes and Law Enforcement Amendment (Interference) Act 2016 (NSW).
Inclosed Lands Protection Act 1901 (NSW).
Intelligence Services Act 2001 (Cth).
National Security Legislation Amendment Act (No. 1) 2014 (Cth).
National Security Legislation Amendment Act 2010 (Cth).
Public Interest Disclosure Act 2013 (Cth).
Racial Discrimination Act 1975 (Cth).
Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth).
Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth).
Telecommunications Act 1997 (Cth).
Workplace (Protection from Protestors) Act 2014 (Tas).
United States.
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act 2001.
United Kingdom.
Data Retention and Investigatory Powers Act 2014.
International legal materials.
Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the Retention of Data Generated or Processed in Connection with the Provision of Publicly Available Electronic Communications Services or of Public Communications Networks and Amending Directive 2002/58/EC, 2006 O.J. (L105/54).
Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and others (Court of Justice of the European Union, C-293/12, 8 April 2014).
International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171.
Notes
1. For example, a Factiva search for the terms ‘free speech’, or ‘freedom of speech’, or ‘freedom of expression’ and ‘Australia’ in the Sydney Morning Herald, The Age, and The Australian produces 4236 results for the period 2011–2016, compared with 2733 for the period 2005–2010, and 1715 for the period 1999–2004.
2. Abbott’s reasoning was criticised on the grounds that it implied both that the Muslim community was not cooperating in countering terrorism already, and that the Muslim community was a strong opponent of the proposed changes to the racist hate speech laws. The then Director General of the Australian Security Intelligence Organisation, David Irvine, gave a public address in which he stated that it was ‘grossly unfair to blame Muslims, who see themselves as a committed component of Australia’s multicultural society, for the sins of a tiny minority’, and that ‘recent uninformed criticisms of the leadership of Australia’s Muslim community ignores that fact that most Muslim leaders … have striven hard to address the problem of a few misguided people in their midst’ (Irvine Citation2014).
4. Human Rights Legislation Amendment Bill 2017 (Cth).
5. Human Rights and Anti-Discrimination Bill 2012 (Cth), s 19(2)(b).
6. Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth).
7. Previously, I have argued that there are immense difficulties in defining ‘political speech’ in a coherent way (Gelber Citation2010).
8. It is beyond the scope of this article to examine whether the policies I discuss below would, or would not, be considered valid exercises of governmental power in the context of the implied freedom.
9. There are others on which I could also focus, including, for example, the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth), which requires internet and phone providers to retain their customers’ metadata for 2 years. There is no room here for a comprehensive discussion of all the counterterrorism policies that restrict freedom of speech (Gelber Citation2016).
10. National Security Legislation Amendment Act (No. 1) 2014 (Cth).
11. Australian Secret Intelligence Organisation Act 1979 (Cth), s 35P.
12. Counter-Terrorism Legislation Amendment Act (No. 1) 2016 (Cth), Schedule 18.
13. National Security Legislation Amendment Act (No. 1) 2014 (Cth), amending the ASIO Act 1979 (Cth), ss 18A, 18B, and amending the Intelligence Services Act 2001 (Cth) in relation to the Australian Secret Intelligence Service (ss 40C, 40D), the Australian Geospatial-Intelligence Operation (ss 40E, 40F), the Australian Signals Directorate (ss 40G, 40H), the Office of National Assessments (ss 40J, 40K), the Defence Intelligence Organisation (ss 40L, 40M). A separate provision amended the Telecommunications Act 1997 (Cth), s 22 to define a computer for the purposes of a warrant as all or part of any computer system or computer network or combination, thereby allowing one warrant to be used to secure access to an entire computer network.
14. PATRIOT Act, s 215, amending 50 U.S.C. §1861(a)(1) (2001), §1862, §1863.
15. ACLU v Clapper, 785 F.3d 787 (2nd Cir., 2015).
16. Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the Retention of Data Generated or Processed in Connection with the Provision of Publicly Available Electronic Communications Services or of Public Communications Networks and Amending Directive 2002/58/EC, 2006 O.J. (L105/54).
17. Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and others (Court of Justice of the European Union, C-293/12, 8 April 2014).
18. Anti-Terrorism Act (No. 2) 2005 (Cth).
19. Defined as acting or threatening to act to promote a political, religious or ideological cause, with the intention of coercing the government or intimidating the public (Criminal Code, s 100.1).
20. The word ‘substantial’ was added before ‘risk’ in 2010: National Security Legislation Amendment Act 2010, Schedule 2.
21. Classification (Publications, Films and Computer Games) Act 1995 (Cth), s 9A, as enacted by the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007.
22. Anti-Terrorism Act (No. 2) 2005 (Cth).
23. National Security Legislation Amendment Act 2010 (Cth).
24. Criminal Code Act 1901(Cth), ss 80.2C, 80.2C(1)(b), introduced by the Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth).
25. Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth), Schedule 13, amending s 102.1 (1A) of the Criminal Code Act 1901(Cth).
26. Counter Terrorism Legislation Amendment Act (No. 1) 2016 (Cth), adding s 80.2D to the Criminal Code Act 1901 (Cth).
27. Border Force Act 2015 (Cth), Part 6, esp. ss 7, 42.
28. In August 2017 the government stated it would amend this provision (Sydney Morning Herald, 13 August 2017, online).
29. Workplaces (Protection from Protestors) Act 2014 (Tas), s 4.
30. Brown & Anor. v Tasmania, Case H3/2016. At the time of writing, judgment had not yet been handed down in this matter.
31. Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 (WA).
32. Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 (WA), s 4.
33. Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 (WA), s 4.
34. See progress of the Bill at: http://www.parliament.wa.gov.au/parliament/bills.nsf/BillProgressPopup?openForm&ParentUNID=1E00CF48C52EF57848257DF6000AA4DF
35. Schedule 1 of the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW), which created s 4B of the Inclosed Lands Protection Act 1901 (NSW).
36. Schedule 2 of the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW), which amended s 201(2) of the Crimes Act 1900 (NSW).
37. Schedule 3 of the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW), which inserted ss 45A, 45B, 45C into the Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
38. Schedule 3 of the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW), amending s 200 of the Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
39. Examples of these types of speech include hate speech, where such speech is conceptualized as incurring the kinds of harm on its targets that restrict their ability to participate equally in democratic practices, for example by systemically marginalizing and excluding their ability to speak and to be heard by audiences as genuinely saying what they intend to say. There is no room, however, to develop this point here.
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Katharine Gelber
Katharine Gelber is Professor of Politics and Public Policy and a former Australian Research Council Future Fellow (2012–2015). She recently published Free Speech After 9/11 (Oxford UP, 2016).