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Other reforms to better protect freedom of speech
This chapter focuses on the fourth term of reference of the inquiry:
Whether the operation of the [AHRC] should be otherwise
reformed in order better to protect freedom of speech and, if so, what those
reforms should be.
Related to this question, the terms of reference also require the
...consider the recommendations of the Australian Law Reform
Commission [(ALRC)] in its Final Report on Traditional Rights and Freedoms—Encroachments
by Commonwealth Laws [ALRC Report 129 – December 2015], in particular
Chapter 4 – "Freedom of Speech".
The committee received relatively little evidence in relation to these
aspects of the terms of reference and given their open-ended nature the views
expressed varied widely.
AHRC's engagement in freedom of speech issues
In addressing the question of whether the operation of the AHRC should
be otherwise reformed in order to better protect freedom of speech, the AHRC noted
that it has undertaken a wide range of activities in relation to freedom of
speech or freedom of expression and the freedom to participate in public
affairs. These activities include:
making submissions on proposed legislation which has the potential
to impact on the right to freedom of speech;
in response to complaints from members of the public, conducting
inquiries into acts and practices of the Commonwealth that may be inconsistent
with or contrary to the right to freedom of speech;
intervening as amicus curiae in court proceedings that raise
freedom of speech issues in order to provide assistance to the court in
applying the law in a way that sufficiently takes this right into account; and
convening public forums to discuss freedom of speech issues that
arise in a range of areas including media and internet regulation, intellectual
property and defamation laws.
The AHRC noted that these activities have been carried out in accordance
with the AHRC's existing statutory functions. These current functions include:
to examine enactments and proposed enactments, for the purpose of
ascertaining whether they are inconsistent with or contrary to any human right;
to inquire into any act or practice by or on behalf of the
Commonwealth or under a Commonwealth enactment that may be inconsistent with or
contrary to any human right;
to intervene in court proceedings that involve human rights
issues where the AHRC considers it is appropriate to do so, with the leave of
the court hearing the proceedings and subject to any conditions imposed by the
to promote an understanding and acceptance, and the public
discussion, of human rights in Australia;
to undertake research and educational programs for the purpose of
promoting human rights.
The AHRC noted that it will continue to promote an understanding and
acceptance, and the public discussion, of all human rights including the right
to freedom of speech. The AHRC considers that its existing functions are
sufficient for it to carry out this work.
The Human Rights Law Centre noted the work that the AHRC has undertaken
in relation to promoting freedom of speech and concluded that it 'supports the [AHRC],
as our national human rights institution, being properly resourced to continue
to protect and promote freedom of speech in Australia'.
Similarly, the Australian Council of Human Rights Authorities submitted
that there 'is no evidence to suggest that the [AHRC]'s operation should be
otherwise reformed to better protect freedom of speech'.
Equal Opportunity Tasmania, in noting that the AHRC is responsible for public
education on human rights including international human rights obligations,
Preparation and publication of guidelines on forms of public
expression that meet obligations under sections 18C and 18D of the [Racial
Discrimination Act 1975 (RDA)]would assist in increasing community
understanding of the rights and freedoms recognised in international human
rights obligations and how to exercise and enjoy those rights.
On the other hand, several submissions were critical of the
operation of the AHRC, suggesting that it has not protected freedom of speech.
Part of the concern expressed related to the current terms of section 18C. For
example, Mr Graham Young, the Executive Director of the Australian
Institute for Progress, noted, '[t]his section is not
about racism; it is about censorship.'
For several submitters the view that the AHRC had not protected freedom
of speech was also related to their experiences with the AHRC's complaints
Both of these issues are discussed in detail in chapter 3 above.
The committee received relatively little evidence in relation to the
question of 'whether the operation of the [AHRC] should be otherwise reformed
in order better to protect freedom of speech and, if so, what those reforms
The AHRC indicated to the committee that it considers that its existing
functions are sufficient for it to carry out its work in relation to freedom of
speech issues. Process issues for complaint handling have been the subject of
detailed consideration in chapter 3.
The committee considers that broader questions in relation to the
operation of the AHRC would be best addressed in a targeted inquiry focusing on
specific future proposals for reform. In this way such proposals could be
carefully examined separately from considerations relating to the operation of
Part IIA of the RDA, which has been the focus of this inquiry.
The ALRC Freedoms Inquiry and other laws impinging on freedom of speech
This section relates to the recommendations of the ALRC in its Final
Report on Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (Freedoms
Inquiry Report) insofar as they relate to freedom of speech and the terms of
reference for this inquiry.
On 11 December 2013, the Attorney-General asked the ALRC to review
Commonwealth legislation to identify provisions that unreasonably encroach upon
traditional rights, freedoms and privileges.
The terms of reference identified what constituted traditional rights or
freedoms for the purposes of the inquiry, and included amongst these freedom of
The ALRC accepted submissions relevant to the terms of reference of the
inquiry and held consultations with a number of stakeholders with relevant
knowledge or expertise. An interim report was released on 3 August 2015, and
the final Freedoms Inquiry Report was tabled by the Attorney-General on 2 March
Laws which may unjustifiably limit
freedom of speech
The ALRC's final report identified a number of Commonwealth laws which
may be said to interfere with the common law rights and freedoms listed in the inquiry's
terms of reference. While not making conclusive judgments about these laws, the
report provided an extensive survey of the relevant laws and highlighted laws
that may unjustifiably limit common law rights and freedoms and may therefore
warrant further review. Laws suggested for review to determine whether they
unjustifiably limit freedom of speech included:
Part IIA of the RDA (in conjunction with consideration of
anti-vilification laws more generally);
legislative provisions that protect the processes of tribunals,
commissions of inquiry and regulators, for example section 170 of the Veterans'
Entitlements Act 1986;
secrecy offences, including the general secrecy offences in
sections 70 and 79 of the Crimes Act 1914;
various provisions of the Criminal Code including
section 80.2C (advocating terrorism), sections 102.1, 102.3, 102.5
and 102.7 (prescribed terrorist organisations), and section 105.41
(preventative detention orders) (the ALRC noted that these provisions are
reviewed by the Independent National Security Legislation Monitor (INSLM) and
the Parliamentary Joint Committee on Intelligence and Security (PJCIS) as part
of their ongoing roles); and
section 35P of the Australian Security Intelligence
Organisation Act 1979 relating to special intelligence operations (these
provisions are also reviewed by the INSLM and the PJCIS).
The ALRC also suggested that the government give further consideration
to recommendations that it made in its 2009 report on secrecy laws,
and to whether Commonwealth secrecy laws—including the Australian Border
Force Act 2015—provide for proportionate limitations on freedom of speech.
Few submissions to this inquiry considered whether these laws (other
than Part IIA of the RDA) unjustifiably limit freedom of speech.
The laws identified by the ALRC for review to determine whether they
unjustifiably limit freedom of speech are significant and, as the Law Council of
Australia noted, a balance must be struck between open government and freedom
of speech on the one hand and the protection of sensitive and classified
information from disclosure on the other:
Secrecy provisions such as those above are generally in
pursuit of a legitimate objective to ensure the limitation of disclosures that
would endanger the health or safety of any person or prejudice Australia's
interests or criminal prosecutions. The question, however, is whether these
provisions are proportionate vis-à-vis that objective and whether they are
Noting the significant number of laws identified by the ALRC as
infringing on freedom of speech,
the Australian Lawyers Alliance suggested that 'a broader inquiry into limits
on freedom of speech is warranted without any restriction as to the legislation
The AHRC suggested that if further inquiry is needed into freedom of
speech issues as they arise in other areas of law the AHRC would be well placed
to undertake such an inquiry.
In its Freedoms Inquiry Report the ALRC identified a number of
significant laws that it considers warrant review to determine whether they
unjustifiably limit freedom of speech. The committee agrees with the sentiments
expressed by the Law Council of Australia that in relation to these laws a
balance must be struck between open government and freedom of speech on the one
hand and other important objectives.
Noting the significance of these matters and the significant questions
to be examined to determine where the appropriate balance lies in this regard,
the committee considers that a further inquiry may be warranted into Commonwealth
laws generally to build on the work of the ALRC to identify which laws may
unjustifiably impinge on freedom of speech and to make specific recommendations
Mr Ian Goodenough MP
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