Monday, January 21, 2013

Is freedom of speech in Australia protected by international treaty obligations?

A few weeks ago, Jim Spigelman, ABC chairman and former New South Wales chief justice, criticised the federal government's proposed Human Rights and Anti- Discrimination Bill on the grounds that it poses risks to freedom of speech.

Spigelman seems to have been more successful in alerting members of the public to the risks associated with the proposed legislation than have media interests and other advocates of free speech.

Spigelman's drew attention particularly to the provision of the proposed Bill, to be carried over from earlier legislation, that make it unlawful to 'offend' another person. He argued: 
'The freedom to offend is an integral component of freedom of speech.  There is no right not to be offended'.
He went on to say:
'I am not aware of any international human rights instrument, or national anti-discrimination statute in another liberal democracy, that extends to conduct which is merely offensive'.

Spigelman's contribution made me wonder whether the government has considered the incentives that are created when they seek to mute criticism of the practices or attitudes of groups whose members are easily offended and prone to respond to criticism by claiming that they feel insulted or humiliated. When any group can gain advantage by appearing to be easy to offend, insult or humiliate, it is reasonable to predict that other groups will quickly learn how to play that game. Attempts to discuss contentious issues are likely to be increasingly stifled by emotional outbursts of people threatening legal action.

While Spigelman's contribution was welcomed by free speech advocates, James Allan made the interesting observation at Quadrant Online that it was a fairly enervated defence of free speech. He questioned whether it would make would any practical difference if it was lawful to offend people but not to humiliate them. Allan also noted that Spigelman claims to have been influenced by a book by Jeremy Waldron, which actually favours restrictions on freedom of speech in the United States. While arguing for laws to protect 'people's dignity against assault', Waldron suggests that it is not an appropriate objective for the law to 'protect people's feelings against offence'.

Spigelman gives the impression that his defence of freedom of speech is based on the desirability of Australia being seen to comply with its international treaty obligations:
'We should take care not to put ourselves in a position where others could reasonably assert that we are in breach of our international treaty obligations to protect freedom of speech'.

I hope Australia's international treaty obligations do protect freedom of speech. Article 19 of the Universal Declaration of Human Rights seems to provide such protection: 
'Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers'.
But the Universal Declaration is not a treaty, so it may not directly create legal obligations for Australia.

I don't know whether any other treaty obligations protect freedom of speech. Having just read In Defence of Freedom of Speech, by Chris Berg, I am not confident that they do. Berg describes how our international treaty obligations were contaminated by restrictions on freedom of speech insisted upon by the Soviet Union. For example, in negotiating the International Covenant on Civil and Political Rights, the Western countries proposed limiting restraints on speech to those that were an 'incitement to violence'. The Soviet Union proposed extending those restraints to 'incitement to hatred'. The wording adopted by the UN requires governments to ban 'incitement to discrimination, hostility or violence'. I fear that a government could even use that provision to help justify suppression of speech that it deems to be hostile to itself.

I will write more about Chris Berg's book in my next post. 

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