Australia’s global advocacy for the suppression of free speech

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The Australian government has recently announced its plan to rejuvenate its contentious ‘misinformation and disinformation’ legislation, which had been shelved last year for lack of bipartisan support. However, perhaps not surprisingly, the Coalition has now reversed its critical stance, with its Opposition Leader, Peter Dutton, agreeing to work with the government to curb the ability of social media platforms to post ‘harmful’ material.

A livestream captured the moment the Bishop was attacked (Credit: Sky News)

The impetus for this about-face came following the attacks in Bondi Junction and the alleged stabbing of bishop Mar Mari Emmanuel, when he was conducting a livestreamed service in his church in Wakeley. The news of the stabbing was soon followed by a riot during which police officers were reportedly injured. Of course, it may well be that the riotous crowd responded to tainted or inaccurate reporting of the stabbing event and the alleged attacker, but it does not address the question of whether and, if so, to what extent, Australian adults should be able to evaluate themselves the images and videos about this horrific event posted on social media… It is interesting to note here that the bishop at the centre of the attack indicated that he wants the video to remain on the social platform.

To blunt the ability of social media to post confronting material, the government of former Prime Minister Malcolm Turnbull established the Office of the e-Safety Commissioner, headed by Commissioner Julie Inman Grant. It is this Office that is now enforcing the government’s preferred moral posturing, thus ordering X (formerly Twitter) and Meta to hide or remove the video of the Wakeley attack within 24 hours or else, heavy fines would be imposed on the platforms. Although Elon Musk, the owner of X, complied with the directive in that Australians in Australia are no longer able to access the video of the stabbing, the video is still accessible globally. Australians who have a VPN connection might still be able to see it here in Australia as well.

Musk decided to fight back by questioning the validity of the directive in the Federal Court of Australia. It remains to be seen whether the court will have the courage to protect free speech in Australia. According to former Chief Justice Robert French, free speech is embedded in the common law of Australia. It enables a public discussion and evaluation of people’s frustrations regarding the increasing violence in our society, which may be a consequence of the failure of Australia’s multicultural experiment. Rather than banning it to underground channels where it would fester and infect, an open an uninhibited discussion of these issues would undoubtedly make our society freer, stronger, more robust, and resilient.

Ideally, of course, speech should always be free. But, as we live in a society, a person’s freedom should not abrogate the freedom of others. In this context, in Chaplinsky v New Hampshire, the American Supreme Court decided in 1942 that the First Amendment to the American Constitution – which is the free speech provision of the Constitution – does not protect ‘fighting’ words. These are words which ‘by their very utterance, inflict injury or tend to incite an immediate breach of the peace’. The Amendment also does not protect obscene or pornographic material directed at minors.

The proposed misinformation and disinformation legislation is now due for resuscitation. The Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill 2023 foreshadowed the imposition of an obligation on digital platforms to police ‘misinformation’ and ‘disinformation’. The legislation would require the digital platforms to adopt a code of conduct, violation of which would constitute ‘misinformation’ or ‘disinformation’. Alternatively, or in addition, the bill provides for the empowerment of the Australian Communications and Media Authority (ACMA) (or possibly the Office of the e-Safety Commissioner) to directly intervene for the purpose of preventing ‘harm’.

Section 2 of the bill defines ‘harm’ as follows:
(a) hatred against a group in Australian society on the basis of ethnicity, nationality, race, gender, sexual orientation, age, religion or physical or mental disability;
(b) disruption of public order or society in Australia;
(c) harm to the integrity of Australian democratic processes or of Commonwealth, State, Territory, or local government institutions;
(d) harm to the health of Australians;
(e) harm to the Australian environment;
(f) economic or financial harm to Australians, the Australian economy or a sector of the Australian economy.

In other words, the concept of ‘harm’ is a flexible and indeterminate concept that potentially encompasses any type of speech which the relevant bureaucratic agencies deem to be ‘harmful’. As such, the concept acquires via the proposed legislation a malleable content that expands and contracts depending on the prevailing views of these agencies. The legislation, if adopted, will inevitably stymie discussion of controversial topics, especially if they involve criticism of government policy and actions. The proposed legislation is therefore a direct attack on the rights of Australians to free speech because digital platforms will be obliged to police commentators’ discussion of controversial topics and will be expected to remove and ban any offending video.

As can be seen, the proposed legislation targets those who by merely exercising their right to free speech and desiring to inform people, critically assess government decisions and actions. Of course, the enforcement of the proposed legislation would itself generate ‘harm’ because the banishment of views from the public forum will, inevitably, adversely affect, even diminish, people’s free speech rights which are considerably protected by the Australian Constitution through the implied freedom of political communication.

In demanding the global removal of the stabbing video, the e-Safety Commission is seeking to set itself up as the global moral arbiter of what people are allowed to see. But surely, people are adults and should be able to distinguish between what they want to see and not see. Moreover, the Commissioner’s directive clearly exceeds the powers of her Office because Australian law does not have extraterritorial effect. It is an exercise in arrogance to think that it might become the ultimate arbitrary global enforcer of a government’s preferred moral predilections.

This issue before the Federal Court is thus important because, if X is unsuccessful, then Australia has landed on a slippery slope. There is no guarantee that less horrific events or, indeed, other material which the government finds objectionable, would escape the fate of the stabbing video. In such case, the government would probably rely on the ground that the public safety is endangered by the posting of such a video. Thus, it is necessary for those who believe in the continuing and crucial role of free speech to highlight the dire consequences of the attempt to muzzle free speech. Australia would become (and may already be) a government-controlled society where adults ought to be shielded or ‘protected’ from the real world in which they live.

It is ironic to consider that views incompatible with the preferred narrative are described as something that could cause ‘harm’ to the integrity of Australia’s democracy. Of course, a healthy democracy is always dependent on the free flow of ideas, even if a government agency describes them as ‘misinformation’ or ‘disinformation’. Nevertheless, the government, aided by a spineless Opposition, is supporting the suppression of a cardinal tenet for every truly functional democracy, namely freedom of speech.

Backed by the Opposition, the government therefore is carefully strengthening its proposed legislation to ensure that it would be able to resist a constitutional challenge in the High Court. To that purpose, the Australian Communications Minister has signed, on 20 February 2024, a Memorandum of Understanding (MOU) with Michelle Donelan MP, the UK Secretary for Science, Innovation and Technology, entitled Memorandum of Understanding Between the Government of the United Kingdom and the Government of Australia Concerning Online Safety and Security.

This MOU envisages that both governments would suppress online information by banning so-called misinformation and disinformation – that is, any information not endorsed by the government. Specifically, the MOU states that: ‘Both Participants will share best practice and deepen collaboration on countering misinformation and disinformation – a threat to our democracies and social cohesion.’ It commits both governments ‘to pursue a program of targeted joint capacity building and strategic engagement with technology platforms and strengthen the impact of relevant international fora on misinformation and disinformation’.

The MOU clearly misrepresents the relevance of free speech in the maintenance of a free and democratic society. Free speech obviously is not, and has never been a ‘threat’ to democracy. Indeed, free speech is a core principle of every authentically democratic society because it gives a voice to the powerless against the established interests. Consequently, free speech prevents the concentration of power in the hands of the elites. Furthermore, in a real democracy anyone should have the right to choose words that best reflect their feelings, and ‘strong words may better convey to listeners the intensity of feeling than more conventional language’.

It is instructive to speculate on the reason as to why the federal Communications Minister has signed an MOU with her UK counterpart (and is embarking on a tour to build a consortium of like-minded nations willing to curb the power of social media platforms). The reason is to trigger or activate the ‘external affairs power’ provision found in section 51(xxix) of the Australian Constitution. As the range of topics regulated under the external affairs power has been endlessly expanded since the 1980s, the scope of this head of power encompasses any relationship with, or between, foreign States, and foreign or international organisations or other entities, regardless of whether they are the subject matter of international treaties or less formal dealings or agreements.

In this context, Justice William Deane of the High Court stated in Polyukhovich v Commonwealth (1991):

The first thing to be stressed about s 51(xxix) of the Constitution … is that its reference to ‘External affairs’ is unqualified. The paragraph does not refer to ‘Australia’s external affairs’. Nor does it limit the subject matter of the grant of power to external affairs which have some special connection with Australia. The word ‘external’ means ‘outside’. As a matter of language, it carries no implication beyond that of location. The word ‘affairs’ has a wide and indefinite meaning. … Such a construction of the phrase ‘External affairs’ in s 51(xxix) is supported by the settled principle of constitutional construction which requires that, subject to any express or implied general constitutional limitations and any overriding restrictions flowing from express or implied constitutional guarantees, the grants of legislative power contained in s 51 be construed with all the generality which the words used admit and be given their full force and effect.

In this sense, the reason as to why the Communications Minister may be signing an MOU with her UK counterpart is to bring it within the ‘external affairs power’ provision found in section 51(xxix) of the Australian Constitution. In Pape v Federal Commissioner of Taxation (2009), Justice Dyson Heydon observed that ‘the treaty or commitment need not have the precision necessary to establish a legally enforceable agreement at common law, but it must avoid excessive generality’ [emphasis ours]. As such, implementing any international ‘commitment’ provides the basis on which the federal government could defend the constitutional validity of legislation if this was challenged in the High Court. This reliance on a ‘commitment’ would only have to be evident from the preamble to the proposed legislation.

The horrendous violations of fundamental human rights over the last years have revealed the existence in Australia of an invidious trend to authoritarianism. The maintenance of a democratic society requires the greatest amount of freedom of speech and the least number of restrictions as is necessary to protect the legitimate interests of Australia and its people. Yet, this attempt of the Australian government to become a global advocate for the suppression of free speech, to possibly trigger the ‘external affairs power’, is another egregious example of governmental overreach, which ultimately aims at the imposition of an elective dictatorship that punishes the dissenting voices of those who disagree with the official narrative. Those who still cherish democracy and freedom have a moral duty to fight against this authoritarian imposition of state control of information.

This article first appeared in The Spectator Australia here.

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  • Augusto Zimmermann

    Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education and served as associate dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia.

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  • Gabriël A. Moens

    Professor Gabriël A. Moens AM is Emeritus Professor of Law, The University of Queensland. He served as Pro Vice Chancellor, Dean and Professor of Law, Murdoch University; Head, Graduate School of Law, The University of Notre Dame Australia; Garrick Professor of Law, The University of Queensland; and Professor of Law, Curtin University. He is the author/co-author/editor/co-editor of The Unlucky Country, Locke Press, 2024; Foundations of the Australian Legal System: History, Theory and Practice, LexisNexis, 2023; Emergency Powers, COVID-19 Restrictions & Mandatory Vaccination: A ‘Rule of Law’ Perspective, Connor Court Publishing, 2022; Enduring Ideas, Connor Court Publishing, 2020; Law of International Business in Australasia (2nd ed), The Federation Press, 2019; and The Constitution of the Commonwealth of Australia Annotated (9th ed), LexisNexis Butterworths, 2016. Gabriël authors novels, short stories, and opinion pieces. His debut novel, A Twisted Choice, a thriller about the origins of the COVID-19 virus, was published by Boolarong Press in October 2020. Connor Court Publishing published his second novel, The Coincidence, in November 2021. His most recent short story, The Country Prowler, was published by Boolarong Press in June 2023 in The Outback: Anthology of Short Stories (Volume 8).

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