How new anti-vilification laws for the plebiscite undermine free speech

Conservatives should always be vigilant when it comes to guarding freedom of expression. This freedom is not something that societies have historically tended towards. It must be cultivated. It must be fiercely protected. It must be fought for.

Conservatives should be wary of any attempts by the state to limit the scope of expression that individuals have. Individuals cannot insulate themselves from opposing views. Neither should the state actively suppress individual expression. Democracy rests on the foundation of there being conflicting opinions within society which are able to be heard, considered and debated in an open environment.

Anti Vilification Laws rushed through Parliament this week are intended to provide protections while the Postal Survey on Same Sex Marriage is conducted nation wide. It is now unlawful to vilify , intimidate or threaten to harm someone based on their gender, sexual orientation or religious views. Penalties of up to $12600 could be imposed on those who break the rules. This law completely cuts across the maintenance of open public discourse.

What are the rules? Who is drawing the line and who is to decide when it has been crossed? It boils down to the question of what one perceives to be vilification, intimidation or threatening.

Conservatives should feel a profound sense of unease as they suspect that yet another muzzle is being placed on open speech in Australia. They should feel a sense of alarm as they remember that this is just the latest in a string of erosions of civil liberties. Indeed, in light of the Coalition and Labor’s failure to spell out any tangible legislative measures to protect freedoms post-survey, this emergency law is just a precursor to greater curtailment of liberty in the very near future. These concerns have been put forward by Howard and John Anderson on the No side, while Classical Libertarians on the Yes side, such as James Paterson are in the minority when it comes to defining clear protections for freedom or merely advocating for strong protections of freedom.

While Prime Minister Malcolm Turnbull and the Leader of the Opposition, Bill Shorten, have both come out this week signalling their belief in freedom of speech and religion, their support of these emergency laws undermines their outward advocacy of freedom of speech and their failure to clearly spell out any legislation undermines their outward support of freedom of religion.

It is disturbing that increasingly, individuals have to fight and justify for why they have the right to speak freely. The onus of proof has shifted: away from those seeking to limit speech they arbitrarily deem to be inappropriate and shunted on citizens exercising their fundamental and previously unchallenged right to have an opinion made known in the public arena.

When the Anti Discrimination Board attempts to reconcile existing anti-vilification laws with freedom of speech it states that the law “makes allowances” for it (freedom of speech). Conservatives would have winced at this statement. Freedom of speech has somehow been subordinated as something that can only exist if allowance is made for it. The political and intellectual elite are the ones who are increasingly defining what is and is not allowable and forcing these standards on everyday Australians. The Anti Discrimination Board goes on to cover what it deems to be free speech in three brief dot points. It is sinister that they choose to leave out mentions of religion or conscience.

The Anti Discrimination Board sees free speech as a mere add on. A nice but unnecessary and frankly irrelevant extension in their view. Surely, it’s more than just something we allow? Surely it forms a key part of the bedrock upon which Western society has flourished?

These laws are a fundamental failure to recognise the centrality of freedom of expression in upholding and enabling other manifestations of free agency. Being free to speak naturally stems from freedom of thought. Freedom of religion and freedom to express one’s religious views are synonymous. It is naturally accompanied by freedom of association. An attack on one facet of individual freedom, is an explicit attack on all freedoms.

While the laws have been implemented temporarily until November 15 it is unclear if they will be extended of if they will be made permanent. The IPA’s Simon Breheny asserts that a Labor Government would “no doubt” make such laws permanent. A dangerous precedent and trajectory away from open debate has been set and its course is hard to deviate from.

To get legislation through is one thing, to apply it is another. How will these laws be applied as the debate rages between the Yes and No camps? Classifying Benjamin Law’s lewd “hate f–k” tweet and the initial No Campaign’s TV ads as ‘in breach’ of the rules would no doubt be major points of contention in the public sphere. It could be argued that one is a threat while the other discriminates. Such a vague law, rushed through without amendment or substantial debate, has little chance of safeguarding anything. Quite the opposite in fact: it creates uncertainty which breeds fear and forces people into silence.

What is clear is that the Left at USyd cannot abide by any dissent. Their counter rally on the 14th of September against a peaceful group of Catholic students on the No side involved instances of stealing, physical aggression and the signalling of one Yes campaigner that he would stomp on heads. Police had to step in at one point to take away a violent Yes campaigner. Would the new emergency laws be applied here? There was certainly scope for felling threatened and intimidated.

Subsequent self congratulatory social media posts from the Yes counter protestors spoke of a deeper sickness, not just about campus politics, but about Australian society in general. Their actions and their intent to silence signalled the death of the basic rule of debate: that I may disagree with you , fundamentally and vehemently so, but I will protect your right to say it. Personal feelings of hurt and offence have taken precedence. Australia has by and large turned its back on true tolerance. Tolerating has been twisted into conforming.

The bottom line is that we should not automatically look to the state to legislate away what we perceive to be offensive and to erect unnecessary and dangerous barriers to public discourse. The state exists to protect individual liberties, freedom of speech being chief among them. It does this best when it minimises its interference.

Any supposed silent majority may remain silent, for good. A new minority has emerged: those who still hold freedom dear.



One thought on “How new anti-vilification laws for the plebiscite undermine free speech

  1. Great article. I guess it is hard in Australia as there is no statutory source of free speech. We have access to free political communication which has been developed in our courts. If we value freedom so much though, why are we letting those on the ‘no’ side limit the freedoms of those on the ‘yes’ side? I understand this is an issue that MUST be open to public debate, but there is a point where certain speech unnecessarily restricts the civil freedoms of others. Couldn’t freedom of speech, particularly from those on the ‘no’ side, become antithetical to individual autonomy and liberty? Maybe laws like this, in a round-about way, increase individual autonomy?


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