Laws that interfere with freedom of speech

3.30       A wide range of Commonwealth laws may be seen as interfering with freedom of speech and expression, broadly conceived. Some of these laws impose limits on freedom of speech that have long been recognised by the common law, for example, in relation to obscenity and sedition. Arguably, such laws do not encroach on the traditional freedom, but help define it. However, these traditional limits are crucial to understanding the scope of the freedom, and possible justifications for new restrictions.^[52]

3.31       Commonwealth laws prohibit, or render unlawful, speech or expression in many different contexts, and include:

• criminal laws;

• secrecy laws;

• contempt laws;

• anti-discrimination laws;

• media, broadcasting and telecommunications laws;

• information laws; and

• intellectual property laws.^[53]

3.32       These laws are summarised below. Some of the justifications that have been advanced for laws that interfere with freedom of speech, and public criticisms of laws on that basis, are also discussed.

Criminal laws

3.33       A number of offences directly criminalise certain forms of speech or expression. Some of these have ancient roots in treason and sedition, which since feudal times punished acts deemed to constitute a violation of a subject’s allegiance to his or her lord or monarch.

3.34       Following the demise of the absolute monarchy and the abolition of the Star Chamber by the Long Parliament in 1641, the law of sedition was developed in the common law courts. Seditious speech may, therefore, be seen as falling outside the scope of traditional freedom of speech. However, the historical offence of sedition would now be seen as a ‘political’ crime, punishing speech that is critical of the established order. Prohibiting mere criticism of government that does not incite violence reflects an antiquated view of the relationship between the state and society, which would no longer be considered justified.^[54]

3.35       Offences that may restrict speech or expression include the modern offences of treason, urging violence, and advocating terrorism contained in the following provisions of the Criminal Code (Cth):

• s 80.1AA (Treason—materially assisting enemies);

• s 80.2 (Urging violence against the Constitution);

• s 80.2A (Urging violence against groups);

• s 80.2B (Urging violence against members of groups); and

• s 80.2C (Advocating terrorism).

3.36       In addition, the offence of treachery contained in s 24AA of the Crimes Act 1914 (Cth) covers the doing of any act or thing with intent: to overthrow the Constitution of the Commonwealth by revolution or sabotage; or to overthrow by force or violence the established government of the Commonwealth, of a state or of a proclaimed country. In 2006, in the context of its review of sedition laws, the ALRC recommended that the treachery offence be reviewed to consider whether it merited retention, modernisation and relocation to the Criminal Code.

3.37       There are other terrorism-related offences that may involve speech or expression, such as providing training connected with terrorism, making documents likely to facilitate terrorism, and directing the activities of, recruiting for, or providing support to a terrorist organisation.^[55] The power to prescribe an organisation as a ‘terrorist organisation’ under div 102 of the Criminal Code—which triggers a range of these offences—may also be seen as infringing rights to freedom of speech.^[56]

3.38       Counter-terrorism offences were criticised in some submissions on the grounds that their potential interference with freedom of speech is not justified.^[57]

In the context of counter terrorism, the pursuit of national security is quintessentially a legitimate aim. However, a number of provisions risk burdening free speech in a disproportionate way. The chilling effect of disproportionate free speech offences should not be underestimated, nor should the normalising effect of gradually limiting free speech over successive pieces of legislation.^[58]

Advocating terrorism

3.39       A number of stakeholders submitted, for example, that the scope of the ‘advocating terrorism’ offences in s 80.2C of the Criminal Code is an unjustified encroachment on freedom of speech.^[59]

3.40       Section 80.2C makes it an offence if a person advocates the doing of a terrorist act, or the commission of a terrorism offence, and is reckless as to whether another person will engage in that conduct as a consequence. A person ‘advocates’ the doing of a terrorist act or the commission of a terrorism offence if the person ‘counsels, promotes, encourages or urges’ the doing of it. A defence is provided covering, for example, pointing out ‘in good faith any matters that are producing, or have a tendency to produce, feelings of ill-will or hostility between different groups, in order to bring about the removal of those matters’.^[60]

3.41       In relation to proportionality in restricting freedom of expression, the statement of compatibility with human rights stated:

The criminalisation of behaviour which encourages terrorist acts or the commission of terrorism offences is a necessary preventative mechanism to limit the influence of those advocating violent extremism and radical ideologies.^[61]

3.42       The parameters of the offence were considered by the Parliamentary Joint Committee on Human Rights (the Human Rights Committee) and the Senate Standing Committee for the Scrutiny of Bills (the Scrutiny of Bills Committee) in their deliberations on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014.^[62]

3.43       The Human Rights Committee concluded that the provision was ‘likely to be incompatible with the right to freedom of opinion and expression’.^[63] In reaching this conclusion the Human Rights Committee noted that a number of existing provisions in the Criminal Code contain offences that may apply to speech that incites violence and expressed concern that, despite the good faith defences, this offence was ‘overly broad’ in its application:

This is because the proposed offence would require only that a person is ‘reckless’ as to whether their words will cause another person to engage in terrorism (rather than the person ‘intends’ that this be the case). The committee is concerned that the offence could therefore apply in respect of a general statement of support for unlawful behaviour (such as a campaign of civil disobedience or acts of political protest) with no particular audience in mind. For example, there are many political regimes that may be characterised as oppressive and non-democratic, and people may hold different opinions as to the desirability or legitimacy of such regimes; the committee is concerned that in such cases the proposed offence could criminalise legitimate (though possibly contentious or intemperate) advocacy of regime change, and thus impermissibly limit free speech.^[64]

3.44       The Scrutiny of Bills Committee highlighted the definition of ‘advocates’ and stated that this is a broad definition that ‘may therefore amount to an undue trespass on personal rights and liberties as it is not sufficiently clear what the law prohibits, and have a ‘chilling effect on the exercise of the right of free expression’.^[65] It also noted existing offences in the Criminal Code which may already cover conduct intended to be captured by the proposed offence.^[66]

3.45       The Attorney-General responded to these concerns by emphasising that terrorist offences generally require a person to have three things: the capability to act, the motivation to act, and the imprimatur to act (for example, endorsement from a person with authority).

The new advocating terrorism offence is directed at those who supply the motivation and imprimatur. This is particularly the case where the person advocating terrorism holds significant influence over other people who sympathise with, and are prepared to fight for, the terrorist cause.^[67]

3.46       In relation to the availability of other offences, the Attorney-General advised that where the Australian Federal Police (AFP) has sufficient evidence, the existing offences of incitement or the urging violence offences would be pursued. However, these offences require the AFP to prove that the person intended the crime or violence to be committed. There will not always be sufficient evidence to meet this threshold because ‘persons advocating terrorism can be very sophisticated about the precise language they use, even though their overall message still has the impact of encouraging others to engage in terrorist acts’. ^[68]

It is no longer the case that explicit statements (which would provide evidence to meet the threshold of intention) are required to inspire others to take potentially devastating action in Australia or overseas. The cumulative effect of more generalised statements when made by a person in a position of influence and authority can still have the impact of directly encouraging others to go overseas and fight or commit terrorist acts domestically. This effect is compounded with the circulation of graphic violent imagery (such as beheading videos) in the same online forums as the statements are being made. The AFP therefore require tools (such as the new advocating terrorism offence) to intervene earlier in the radicalisation process to prevent and disrupt further engagement in terrorist activity. ^[69]

3.47       The Scrutiny of Bills Committee acknowledged these points but concluded that, on balance, it would be appropriate to further clarify the meaning of ‘advocate’ to assist people in ‘prospectively knowing the scope of their potential criminal liability’.^[70] The Bill was not amended in this respect.

3.48       A number of stakeholders to this Inquiry raised concerns about the advocating terrorism offences. The Gilbert and Tobin Centre of Public Law submitted that s 80.2C directly infringes the right to freedom of speech as it ‘limits the capacity for individuals to voice their views and opinions on terrorism and overseas conflicts’. It observed that the offence goes beyond the concept of incitement by criminalising the ‘promotion’ of terrorism and by requiring only that the person is ‘reckless’ as to whether their words may result in terrorism (as opposed to intending that result).

The offence could apply, for example, to a person who posts online that they support the beheadings of hostages by Islamic State. Such a comment would be highly disagreeable, and it could legitimately attract the attention of the security services and law enforcement to ensure that the person does not become involved in terrorism. However, the law has not traditionally treated such actions as criminal acts unless the person encourages another person to commit an unlawful act, and intends that the unlawful act should be committed.^[71]

3.49       The Gilbert and Tobin Centre stated that the broader approach adopted in the offence of advocating terrorism is unjustified because of its significant impact on free speech, and because it ‘may contribute to a sense of alienation and discrimination in Australia’s Muslim communities if they feel like the government is not willing to have an open discussion about issues surrounding terrorism and Islam’.^[72]

3.50       The Public Interest Advocacy Centre (PIAC) questioned the need for the new offence, in view of the offence in s 80.2 of the Criminal Code (criminalising ‘urging violence’ against the Constitution or a Commonwealth, state or territory government) and the offence of incitement, which covers urging another person to commit a terrorist act.^[73] They also questioned the assertion that the provision is proportionate.

The new advocacy offence is far wider in scope than the targeted offence of incitement, requiring a person only to be reckless as to whether their expression of a view ‘counsels, promotes, encourages or urges’ another to commit a terrorist act, rather than intending them to do so.^[74]

3.51       The Law Council of Australia (Law Council) observed that div 80 and s 80.2C are framed broadly, and may have the ‘potential to unduly burden freedom of expression’. The good faith defence ‘may not address concern of criminal liability experienced by those engaged in publishing or reporting on matters that could potentially fall within the broad scope of the offences’.^[75]

Prescribed terrorist organisations

3.52       Similar concerns about overreach have been identified in relation to prescribed terrorist organisations under div 102 of the Criminal Code. These provisions allow an organisation to be prescribed by regulations as a terrorist organisation where it is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or advocates the doing of a terrorist act.^[76] Professor George Williams has commented that, while it is understandable that the law would permit groups to be banned that engage in or prepare for terrorism, ‘it is not justifiable to ban an entire group merely because someone affiliated with it praises terrorism’.^[77]

3.53       The Gilbert and Tobin Centre stated that, as a result, members of an organisation may be exposed to serious criminal offences for expressing radical and controversial (but not necessarily harmful) views about terrorism and religion.

An organisation may be proscribed on the basis of views expressed by some of its members, which means that other individuals may be exposed to liability when they do not even agree with those views. Indeed, an organisation may even be proscribed on the basis that the views it expresses might encourage a person with a severe mental illness to engage in terrorism.^[78]

Using a postal service to menace, harass or cause offence

3.54       Another provision of the Criminal Code that received comment in submissions was s 471.12, which provides that a person is guilty of an offence if the person uses a postal or similar service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive. This provision was the subject of the High Court’s deliberations in Monis v The Queen.^[79]

3.55       The University of Melbourne Centre for Comparative Constitutional Studies submitted that s 471.12 unjustifiably interferes with freedom of speech, and political communication in particular for the following reasons:

• application to core political speech—the broad scope of the provision means that it can operate to suppress core political speech; and

• the ‘offensiveness’ standard is not sufficient to justify a law that criminalises political speech.^[80]

3.56       The Centre for Comparative Constitutional Studies suggested that s 471.12 should include ‘clear exceptions for communication pertaining to matters that are in the public interest in order to protect core political speech’ and that offensiveness should not be used as a criterion of the offence, leaving only ‘menacing’ and ‘harassing’.^[81] Alternatively, the provision could specify matters that the court must consider when determining whether the communication was offensive.^[82]

Other criminal laws

3.57       Many other Criminal Code provisions potentially engage with freedom of speech, including those creating offences in relation to providing false or misleading information or documents;^[83] distributing child pornography material; and counselling the committing of suicide.^[84]

Incitement and conspiracy laws

3.58       The concepts of incitement and conspiracy have a long history in the common law. Traditional freedom of speech has never protected speech inciting the commission of a crime.

3.59       Under s 11.4 of the Criminal Code (Cth) a person who urges the commission of an offence is guilty of the offence of incitement. Incitement may relate to any offence against a law of the Commonwealth and is not limited to serious offences, such as those involving violence. Therefore, a person may commit the offence of incitement by urging others to engage in peaceful protest by trespassing on prohibited Commonwealth land.^[85]

3.60       Similarly, a person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence.^[86]

3.61       The Law Council observed that various features of the terrorism offences in div 101 of the Criminal Code—including the preparatory nature of some offences, and the broad and ambiguously defined terms on which the offences are based, when combined with the offence of incitement may ‘impact on freedom of speech more than is necessary to achieve the putative objective and is not specific enough to avoid capturing less serious conduct’.^[87]

Secrecy laws

3.62       The secrecy of government information has a long history.^[88] The notion that the activities of government should be secret goes back to a period when monarchs were motivated by a desire to protect themselves against their rivals and official information was considered the property of the Crown, to be disclosed or withheld at will. Two principal rationales for secrecy in the modern context are the Westminster system of government and the need to protect national security.^[89]

3.63       The exposure of state secrets may be seen as falling outside the scope of traditional freedom of speech. However, while the conventions of the Westminster system were once seen to demand official secrecy, secrecy laws may need to be reconsidered in light of principles of open government and accountability—and modern conceptions of the right to freedom of speech.

3.64       Many Commonwealth laws contain provisions that impose secrecy or confidentiality obligations on individuals or bodies in respect of Commonwealth information. Statutory secrecy provisions typically exhibit four common elements:

• protection of particular kinds of information;

• regulation of particular persons;

• prohibition of certain kinds of activities in relation to the information; and

• exceptions and defences which set out the circumstances in which a person does not infringe a secrecy provision.

3.65       In its 2009 report Secrecy Laws and Open Government in Australia (ALRC Report 112), the ALRC identified 506 secrecy provisions in 176 pieces of primary and subordinate legislation.^[90]

3.66       Provisions in Commonwealth legislation that expressly impose criminal sanctions for breach of secrecy or confidentiality obligations include, for example:

• Crimes Act 1914 (Cth) s 70, 79;

• Aboriginal and Torres Strait Islander Act 2005 (Cth) ss 191, 193S, 200A;

• Aged Care Act 1997 (Cth) ss 86-2, 86-5, 86-6, 86-7;

• Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) ss 121, 122, 123, 127, 128(5) and (10), 130, 131(4);

• Australian Border Force Act 2015 (Cth) s 24, pt 6;

• Australian Prudential Regulation Authority Act 1998 (Cth) s 56;

• Australian Securities and Investments Commission Act 2001 (Cth) s 127(4EA), (4F); and

• Australian Security Intelligence Organisation Act 1979 (Cth) ss 18, 34ZS(1) and  (2), 35P(1) and (2), 81, 92(1) and (1A).

3.67       Other provisions impose secrecy or confidentiality obligations but do not expressly impose criminal sanctions. Such provisions create a ‘duty not to disclose’, which may attract criminal sanctions under s 70 of the Crimes Act 1914 (Cth). These include, for example:

• Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 189B, 251(3), 324R, 341R, 390R;

• Export Finance and Insurance Corporation Act 1991 (Cth) s 87(4); and

• Food Standards Australia New Zealand Act 1991 (Cth) s 114.

3.68       The ALRC recommended, among other things, that the general secrecy offences in ss 70 and 79 of the Crimes Act should be repealed and replaced by new offences that require that the disclosure of Commonwealth information did, or was reasonably likely to, or intended to cause harm.^[91]

3.69       The ALRC concluded that specific secrecy offences are only warranted where they are ‘necessary and proportionate to the protection of essential public interests of sufficient importance to justify criminal sanctions’ and should include an express requirement that the unauthorised disclosure caused, or was likely or intended to cause, harm to an identified essential public interest.^[92] These recommendations have not been implemented.

3.70       PIAC endorsed, in the context of freedom of speech, the ALRC’s earlier recommendations with regard to reform of secrecy offences and observed:

Blanket restrictions on the dissemination of information regarding government activity should generally be viewed with a critical eye. Australia’s constitutionally-mandated system of democratic, responsible government requires transparency and openness and, as such, any such restrictions are only justifiable if they are tightly defined and closely tied to a legitimate purpose.^[93]

Australian Border Force Act

3.71       The scope of secrecy and disclosure provisions enacted in the Australian Border Force Act 2015 (Cth) have been criticised by the Law Council because the provisions ‘may discourage legitimate whistle-blowers from speaking out publicly’.^[94]

3.72       Part 6 of the Australian Border Force Act makes it an offence to record or disclose any information obtained by a person in their capacity as an entrusted person, punishable by imprisonment for 2 years.^[95] An ‘entrusted person’ is defined to include the secretary, the Australian Border Force Commissioner and any Immigration and Border Protection Department worker.^[96] The latter category of person may, by written determination of the secretary or Commission, include any consultant, contractor or service provider—such as a doctor or welfare worker in an offshore immigration detention centre.^[97]

3.73       Sections 42­­–49 of the Act provide an extensive range of exceptions. In summary, however, unauthorised disclosure is only permissible if it is ‘necessary to prevent or lessen a serious threat to the life or health of an individual’ and the disclosure is ‘for the purposes of preventing or lessening that threat’.^[98]

3.74       The Law Council submitted that the relevant provisions of the Bill should be amended to include a public interest disclosure exception; and that the secrecy offences should include an express requirement that, for an offence to be committed, the unauthorised disclosure caused, or was likely or intended to cause, harm to an identified essential public interest.^[99]

ASIO Act secrecy provisions

3.75       Particular secrecy provisions have been subject to criticism for interfering with freedom of speech or expression including, for example, in the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act), where secrecy offences have been extended to apply to the unauthorised disclosure of information relating to a ‘special intelligence operation’.^[100]

3.76       Section 35P(1) of the ASIO Act provides that a person commits an offence if the person discloses information; and the information relates to a ‘special intelligence operation’.^[101] Recklessness is the fault element in relation to whether the information relates to a special intelligence operation.

3.77       Section 35P(2) provides an aggravated offence where the person intends to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation; or the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.

3.78       The Explanatory Memorandum stated that these offences are ‘necessary to protect persons participating in a [special intelligence operation] and to ensure the integrity of operations, by creating a deterrent to unauthorised disclosures, which may place at risk the safety of participants or the effective conduct of the operation’.^[102]

3.79       The Human Rights Committee examined provisions of the ASIO Act in its consideration of the National Security Legislation Amendment Bill (No. 1) 2014, and concluded that these offence provisions had not been shown to be a reasonable, necessary and proportionate limitation on the right to freedom of expression.^[103] The provisions were incompatible with the right to freedom of expression because they appeared to impose disproportionate limits on that right.^[104]

3.80       While the statement of compatibility highlighted the existence of defences and safeguards, the Human Rights Committee observed that because s 35P(1) ‘applies to conduct which is done recklessly rather than intentionally, a journalist could be found guilty of an offence even though they did not intentionally disclose information about a [special intelligence operation]’.^[105]

As [special intelligence operations] can cover virtually all of ASIO’s activities, the committee considers that these offences could discourage journalists from legitimate reporting of ASIO’s activities for fear of falling foul of this offence provision. This concern is compounded by the fact that, without a direct confirmation from ASIO, it would be difficult for a journalist to accurately determine whether conduct by ASIO is pursuant to a [special intelligence operation] or other intelligence gathering power.^[106]

3.81       The Scrutiny of Bills Committee also considered these provisions and criticised the broad drafting:

First, they are not limited to initial disclosures of information relating to a [special intelligence operation] but cover all subsequent disclosures (even, it would seem, if the information is in the public domain). In addition, these new offences as currently drafted may apply to a wide range of people including whistleblowers and journalists.

Second, the primary offence (unlike the aggravated version) is not tied to the underlying purposes of the criminalisation of disclosure. This means that the offence (under subsection 35P(1)) could be committed even if unlawful conduct in no way jeopardises the integrity of operations or operatives.^[107]

3.82       The Scrutiny of Bills Committee added that its concerns were heightened by the fact that the application of the offences depends on whether or not the information relates to a special intelligence operation, which in turn depends on an authorisation process which is internal to ASIO.^[108]

3.83       The Attorney-General provided a detailed response to these concerns, restating that the wrongdoing to which the offences are directed is the harm inherent in the disclosure of highly sensitive intelligence-related information; and that the provisions were ‘necessary and proportionate to the legitimate objective to which they are directed’. For example:

• the offences need to be capable of covering information already in the public domain because risks associated with disclosure of information about a special intelligence operation (including its existence, methodology or participants) are just as significant in relation to a subsequent disclosure as they are in relation to an initial disclosure;

• the offences need to be capable of applying to all persons, consistent with avoiding the significant risks arising from disclosure, and it would be contrary to the criminal law policy of the Commonwealth to create specific exceptions for journalists from legal obligations to which all other Australian persons and bodies are subject; and

• the policy justification for adopting recklessness as the applicable fault element is to place an onus on persons contemplating making a public disclosure to consider whether or not their actions would be capable of justification to this standard.^[109]

3.84       Section 35P of the ASIO Act was enacted unchanged.^[110] In December 2014, the Prime Minister announced that the newly appointed Independent National Security Legislation Monitor would review any impact on journalists of the provisions.^[111]

3.85       Stakeholders in this ALRC Inquiry expressed concerns about the secrecy provisions of the ASIO Act.^[112] The Joint Media Organisations expressed a range of concerns about s 35P, including that it

• criminalises journalists for undertaking and discharging their role in a modern democratic society;

• does not include an exception for journalists and the media for public interest reporting; and

• further erodes the already inadequate protections for whistle-blowing and has a chilling effect on sources.^[113]

3.86       Free TV Australia expressed concern that the offences remain capable of capturing ‘the activities of journalists reporting in the public interest’. Section 35P, it said, appears to capture circumstances where a person does not know whether the relevant information relates to an intelligence operation; or knows that the information relates to an intelligence operation but does not know it is a special intelligence operation.^[114] Free TV Australia wrote that problems with the provisions include that:

•        It is unclear whether [special intelligence operation] status can be conferred retrospectively;

•        It appears to apply regardless of who the disclosure is made to, for example, if a journalist discloses the material to his/her editor and the story is subsequently not published, the offence provision may still apply;

•        If a number of disclosures are made in the course of preparing a story, it appears to apply to all disclosures (for example, it could apply to the source, the journalist and the editor, even if the story is not ultimately published);

•        It applies to whistle-blowers, further discouraging whistleblowing.^[115]

3.87       The Law Council stated that s 35P may not include sufficient safeguards for public interest disclosures, ‘suggesting a disproportionate infringement on freedom of speech’.^[116] The Human Rights Law Centre submitted that the offences in s 35P ‘disproportionately and unjustifiably limit freedom of speech and expression and should be repealed’.^[117]

3.88       PIAC observed that the ‘natural and ordinary meaning of the provision suggests a broad scope: it could apply, for example, to a journalist publishing information in circumstances where there may well be an overriding public interest to do so’. PIAC recommended that s 35P be repealed.^[118]

3.89       The UNSW Law Society stated that the lesser offence under s 35P(1) ‘unnecessarily restricts the freedom of communication’ because there is ‘no public interest defence for unauthorised disclosure, which is likely to restrict legitimate scrutiny of security agencies’,^[119] and because there is no harm element.

The prosecution has to prove that the accused was reckless as to whether the information related to a [special intelligence operation], and consequently a person can face up to 5 years imprisonment for disclosure that does not endanger lives or prejudice the [special intelligence operation].^[120]

Other secrecy provisions

3.90       Other provisions identified as raising freedom of speech concerns included:

• Criminal Code s 105.41, which provides for a range of offences in relation to disclosing that a person is in preventative detention;^[121]

• Criminal Code s 119.7, which prohibits the advertising or publishing of material which discloses the manner in which someone might be recruited to become a foreign fighter;^[122]

• Crimes Act s 3ZZHA, which prohibits the unauthorised disclosure of information in relation to the application for or execution of a delayed notification search warrant;^[123] and

• Crimes Act ss 15HK, 15HL, which prohibit the disclosure of information relating to a ‘controlled operation’.^[124]

Public interest disclosure

3.91       The Public Interest Disclosure Act 2013 (Cth) is intended to encourage and facilitate the making of public interest disclosures by public officials and, in some circumstances, provides public officials with protection from liability under secrecy laws.

3.92       The Joint Media Organisations criticised this protection as inadequate, a problem that is ‘further exacerbated when laws, such as the three tranches of 2014–2015 national security laws, not only provide no protection but criminalise information disclosure (external or otherwise)—and therefore unjustifiably interfere with freedom of speech’.^[125]

Contempt laws

3.93       The law of contempt of court is a regime of substantive and procedural rules, developed primarily within the common law, whereby persons who engage in conduct tending to interfere with the administration of justice may be subjected to legal sanctions.^[126] These rules may be seen as interfering with freedom of speech.

3.94       In addition, s 195 of the Evidence Act 1995 (Cth) provides that a person must not, without the express permission of a court, print or publish any question that the court has disallowed nor any question in respect of which the court has refused to give leave under pt 3.7 (in relation to credibility). This is a strict liability offence.

3.95       A range of other legislative provisions protect the processes of tribunals, commissions of inquiry and regulators. These laws interfere with freedom of speech by, for example, making it an offence to use insulting language towards public officials or to interrupt proceedings, and include:

• Administrative Appeals Tribunal Act 1975 (Cth) s 63;

• Bankruptcy Act 1966 (Cth) s 264E;

• Copyright Act 1968 (Cth) s 173;

• Defence Act 1903 (Cth) s 89;

• Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 119;

• Fair Work Act 2009 (Cth) s 674;

• Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth) s 61;

• Law Enforcement Integrity Commissioner Act 2006 (Cth) s 94;

• Royal Commissions Act 1902 (Cth) s 6O; and

• Veterans’ Entitlements Act 1986 (Cth) s 170.

3.96       Some of these same laws also make it an offence to use words that are false and defamatory of a body or its members; or words calculated to bring a member into disrepute.^[127]

3.97       The Centre for Comparative Constitutional Studies submitted that such laws unjustifiably interfere with freedom of speech—and may in some cases be unconstitutional—having regard to

• the content-based nature of the laws—that is, the laws regulate speech because of the harm caused by the communication of a message rather than being directed to the ‘time, place and manner’ in which speech occurs;

• the provisions directly target criticism of public officers engaged in performing public functions, affecting ‘core political speech’; and where

• less restrictive means are available to achieve the ends pursued by these laws, such as existing defamation law and powers to exclude individuals from proceedings.^[128]

3.98       The Human Rights Committee in its consideration of the Veterans’ Affairs Legislation Amendment (Mental Health and Other Measures) Bill 2014 requested further advice from the Minister for Veterans’ Affairs as to the compatibility of s 170 with the right to freedom of opinion and expression. In particular, the Committee asked whether the measure was rationally connected to its stated objective; and proportionate to achieving that objective.^[129]

3.99       The Minister responded that the provision was likely to be effective in achieving the objective of protecting the Board and its hearings because it would act as a deterrent to inappropriate and disruptive behaviour. As to the question of proportionality, it was noted that, on occasion, the Board operates from non-secure, non-government premises, and protections are required to ensure the safety and proper function of the Board and its members.^[130]

Anti-discrimination laws

3.100   Commonwealth anti-discrimination laws may interfere with freedom of speech by making unlawful certain forms of discrimination, intimidation and harassment that can be manifested in speech or other forms of expression. At the same time, such laws may protect freedom of speech, by preventing a person from being victimised or discriminated against by reason of expressing, for example, certain political or religious views.

3.101   The Racial Discrimination Act 1975 (Cth) (RDA) makes unlawful offensive behaviour because of race, colour or national or ethnic origin.^[131] The Sex Discrimination Act 1984 (Cth) makes sexual harassment unlawful in a range of employment and other contexts.^[132]

3.102   The Age Discrimination Act 2004 (Cth) and Disability Discrimination Act 1992 (Cth) make it an offence to advertise an intention to engage in unlawful age and disability discrimination.^[133] Each of these Acts also makes it an offence to victimise a person because the person takes anti-discrimination action.^[134]

3.103   More generally, these Acts, together with the Australian Human Rights Commission Act 1986 (Cth), prohibit breaches of human rights and discrimination on the basis of race, colour, sex, religion, political opinion, national extraction, social origin, age, medical record, criminal record, marital status, impairment, disability, nationality, sexual preference and trade union activity. The conduct prohibited may include speech or other forms of expression.

3.104   Similarly, the general protections provisions of the Fair Work Act 2009 (Cth) provide protection from workplace discrimination because of a person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.^[135]

Racial Discrimination Act

3.105   There has been much debate over the scope of s 18C of the RDA. Section 18C provides that it is unlawful to ‘do an act’, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

3.106   Importantly, s 18C does not create a criminal offence. Under s 46P of the Australian Human Rights Commission Act 1986 (Cth), a person may make a complaint about an unlawful act to the Australian Human Rights Commission. Where the complaint is not resolved, an application may be made to the Federal Court or the Federal Circuit Court. If the court is satisfied that there has been unlawful discrimination, the court may make orders, including for compensation.^[136]

3.107   Section 18D provides exemptions. It states that s 18C does not render unlawful anything said or done reasonably and in good faith for various purposes, including artistic work and reporting on events or matters of public interest.^[137]

3.108   On 25 March 2014, the Attorney-General, Senator the Hon George Brandis QC, announced that the Government proposed amending the RDA to repeal s 18C and insert a new section prohibiting vilification and intimidation on the basis of race, colour or national or ethnic origin.^[138] This announcement followed controversy about s 18C occasioned by the decision of Eatock v Bolt.^[139]On 6 August 2014, after consultation on an exposure draft Freedom of Speech (Repeal of s 18C) Bill, the Prime Minister, the Hon Tony Abbott MP, announced that the proposed changes to s 18C had been taken ‘off the table’.^[140]

3.109   A number of submissions to this ALRC Inquiry presented views on whether s 18C unjustifiably interferes with freedom of speech. Some stakeholders raised concerns about the breadth of s 18C.^[141]

3.110   Professor Patrick Parkinson AM observed that s 18C is broader in its terms than art 20 of the ICCPR, which provides that any ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’.^[142] In his view, s 18C should be similarly confined and not extend to matters likely only to offend.^[143]

3.111   FamilyVoice Australia submitted that s 18C does not fall within the ‘justifiable limitations of protecting personal reputation, national security, public order, public health or public morals’ set out in the ICCPR and, therefore, constitutes an unjustifiable limitation on freedom of speech.^[144]

3.112   The Church and Nation Committee submitted that the state ‘cannot legislate against offence and insult without doing serious damage to wide-ranging freedom of speech’.^[145] The Wilberforce Foundation stated that s 18C is flawed because it ‘essentially makes speech and acts unlawful as a result of a subjective response of another or a group or others’. The flaw, it said, is compounded by s 18D, which does not make truth a defence.^[146]

3.113   Others submitted that the scope of the provision does strike an appropriate balance between freedom of speech and other interests, including the right to be free from racial discrimination,^[147] or should be extended to other forms of speech.^[148] For example, the Law Society of NSW Young Lawyers (NSW Young Lawyers) submitted that s 18C of the RDA, as it currently stands, ‘finely balances fair and accurate reporting and fair comment with discrimination protections’.

The ‘reasonably likely’ test provided for in section 18C allows for an objective assessment to be made, and ensures that the threshold for racial vilification is appropriate. Section 18D of the RDA provides adequate safeguards to protect freedom of speech by imposing a list of exemptions for ‘anything said or done reasonably and in good faith’. The Australian Courts have historically interpreted sections 18C and 18D in a fair and reasonable manner, and with the public interest in mind.^[149]

3.114   NSW Young Lawyers considered that, rather than going too far, s 18C only limits freedom of speech to the extent required to ensure that communities are protected from racial vilification:

Racial vilification can have a silencing effect on those who are vilified. In the absence of a federal bill of rights and constitutional guarantees of human rights, the need to strike a clear and equitable balance between the right to free speech and the right to be free from vilification is obviously all the more pressing. Protection from racial vilification is key to the protection that underpins our vibrant and free democracy, and therefore its abolition cannot be seen as a reasonable or proportionate response to ‘restrictions’ on freedom of speech.^[150]

3.115   PIAC stated that s 18C is an example of a justifiable limitation of free speech, because the need to protect against harmful speech is clearly contemplated in international law.^[151] It observed that, in relation to racial vilification, ‘the law must strike a balance between permitting the expression of views that might be disagreeable or worse, but draw a line to prohibit speech that causes unreasonable harm to others’. One of the key motivations for PIAC’s opposition to the proposed rollback of restrictions on racist speech, in 2014, was said to be evidence of the wide-ranging impact of racially motivated hate speech on PIAC’s clients.^[152]

3.116   Jobwatch stated that s 18C should remain unchanged as it does not ‘unnecessarily restrict free speech, restrict fair comment or reporting of matters that are in the public interest’.^[153] The Law Council observed that, while there is a case for amendment of the current provisions of the RDA ‘from a civil and political rights perspective’, there is also ‘a strong view among a number of constituent bodies of the Law Council that the balance was correctly struck in the existing legislation’.^[154]

3.117   Australian racial vilification laws have long been the subject of academic and other criticism. For example, in 2004, Dan Meagher found Commonwealth, state and territory laws, including s 18C of the RDA, lacked ‘sufficient precision and clarity in key respects’. He stated that, as a consequence, an incoherent body of case law has developed, where too much is left open to the decision maker in each individual case.^[155]

3.118   Meagher concluded that the primary goal of racial vilification laws in Australia—to regulate racial vilification without curbing legitimate public communication—is compromised by this lack of precision and clarity.^[156] In relation to s 18C specifically, he wrote that the critical problem is that its key words and phrases are ‘sufficiently imprecise in both their definition and application as to make the putative legal standards they embody largely devoid of any core and ascertainable content’.^[157]

3.119   Meagher highlighted, in particular, that the meaning of the words ‘offend’ and ‘insult’ in s 18C of the RDA

is so open-ended as to make any practical assessment by judges and administrators as to when conduct crosses this harm threshold little more than an intuitive and necessarily subjective value judgement. The fact that an act must be ‘reasonably likely’ to cross this harm threshold, though importing an objective test of liability, does not cure the definitional indeterminacy of these words that a decision-maker must objectively apply.^[158]

3.120   More recently, Darryn Jensen has written that, under s18C, the reasonableness requirement works to demand that the court make what is essentially a ‘political decision’ about the boundaries of permissible speech. He highlights that, in contrast, Tasmanian anti-vilification legislation avoids this particular problem by confining the question to whether the speaker acted honestly in the pursuit of a permissible purpose.^[159]

3.121   Other common law countries have anti-vilification legislation. In New Zealand, the Human Rights Act 1993 (NZ) makes it unlawful to use words in a public place which are ‘threatening, abusive, or insulting’ and ‘likely to excite hostility against or bring in contempt any group of persons … on the ground of the colour, race, or ethnic or national origins of that group of persons’.^[160]

3.122   In the United Kingdom, it is an offence for a person to ‘use threatening, abusive or insulting words or behaviour’ if the person ‘intends thereby to stir up racial hatred’ or, having regard to all the circumstances, ‘racial hatred is likely to be stirred up thereby’.^[161]

3.123   The New Zealand and UK provisions seem narrower than the Australian provision—leaving aside the operation of the exemptions in s 18D. For example, the provisions do not cover offensiveness, and require that the person provoke hostility or hatred against a group of persons defined by race or ethnicity.

3.124   Before 2013, the Canadian Human Rights Act 1985 (Can) prohibited the sending of messages ‘likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination’.^[162]

3.125   The repeal of this provision, introduced by a private members’ bill and subjected to a conscience vote,^[163] was controversial.^[164] Repeal was justified on a number of grounds, including that the provision conflicted with the ‘freedom of thought, belief, opinion and expression’ protected by s 2(b) of the Canadian Charter of Human Rights and Freedom;^[165]and because provisions of criminal law were considered to be the ‘best vehicle to prosecute these crimes’.^[166]

Media, broadcasting and communications laws

3.126   Obscenity laws have a long history in the common law,^[167] and censorship of publications dates back to the invention of the printing press.^[168]

3.127   In Australia, freedom of expression is subject to the restrictions of the classification cooperative scheme for publications, films and computer games implemented through the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (Classification Act) and complementary state and territory enforcement legislation.^[169]

3.128   Under the classification cooperative scheme some publications, films and computer games may be classified as ‘RC’. In addition, s 9A of the Classification Act provides that a publication, film or computer game that advocates the doing of a terrorist act must be classified RC. The RC classification category is the highest classification that can be given to media content in Australia. Such content is effectively banned and may not be sold, screened, provided online or otherwise distributed.

3.129   The Law Council observed that s 9A of the Classification Act may ‘inadvertently capture genuine political commentary and education materials, and stifle robust public debate on terrorist-related issues’.^[170]

3.130   The Broadcasting Services Act 1992 (Cth) provides for restrictions on online content. The Act sets out provisions in relation to internet content hosted outside Australia, and in relation to content services, including some content available on the internet and mobile services hosted in or provided from Australia.^[171] Broadly, the scheme places constraints on the types of online content that can be hosted or provided by internet service providers and content service providers. This is expressed in terms of ‘prohibited content’.^[172]

3.131   Following the passage of the Enhancing Online Safety for Children Act 2015 (Cth), these provisions, and a new scheme addressed at cyber-bullying material, are to be administered by the Children’s e-Safety Commissioner.

3.132   More generally, the Broadcasting Services Act regulates aspects of the ownership and control of media in Australia, including through licensing. These rules can also be characterised as interfering with freedom of expression.

3.133   Other communications laws place restrictions on freedom of speech and expression. For example, the Do Not Call Register Act 2006 (Cth), Spam Act 2003 (Cth) and Telecommunications Act 1997 (Cth) all place restrictions on various forms of telephone and online marketing. The Do Not Call Register Act prohibits the making of unsolicited telemarketing calls and the sending of unsolicited marketing faxes to numbers on the Register (subject to certain exceptions) and, to this extent, may limit the rights of some people to impart information about commercial matters.

3.134   The Human Rights Committee considered the Do Not Call Register Act in its examination of the Telecommunications Legislation Amendment (Consumer Protection) Bill 2013. The Committee sought clarification from the Minister for Broadband, Communications and the Digital Economy as to whether the prohibitions in the Act were compatible with the right to freedom of expression.^[173]

3.135   The Minister responded that under art 19(3) of the ICCPR, restrictions on the right to freedom of expression are permitted in limited circumstances, including to secure or promote the rights of others (but only to the extent necessary and proportionate). In this instance, the relevant right was the right to privacy protected by art 17.^[174] The Minister observed:

While telemarketing and fax marketing are legitimate methods by which businesses can market their goods and services, the DNCR Act enables individuals to express a preference not to be called by telemarketers or receive marketing faxes. Notably, the DNCR Act does not prohibit the making of telemarketing calls, or the sending of marketing faxes, to a number on the Register where the relevant account-holder or their nominee has provided prior consent.^[175]

3.136   Australian Lawyers for Human Rights submitted that s 313 of the Telecommunications Act unjustifiably limits freedom of speech.^[176] This section imposes obligations on telecommunications carriers, carriage service providers and carriage service intermediaries to do their best to prevent telecommunications networks and facilities from being used in the commission of offences against the laws of the Commonwealth or of the states and territories.

3.137   Commonwealth agencies have used s 313 to prevent the continuing operation of online services in breach of Australian law (for example, sites seeking to perpetrate financial fraud). The AFP uses s 313 to block websites which contain child sexual abuse and exploitation material. Questions about how government agencies use this provision to request the disruption of online services were the subject of a report, in June 2015, by the House of Representatives Standing Committee on Infrastructure and Communications.^[177] The Committee recommended that the Australian Government adopt whole-of-government guidelines for the use of s 313, proposed by the Department of Communications.^[178]

3.138   Australian Lawyers for Human Rights suggested that only services established to be involved in serious crimes or that directly incite serious crimes should be covered by s 313. They stated that ‘blocking has resulted in the disruption of thousands of legitimate sites with completely legal content, to the commercial disadvantage and inconvenience of the owners’. They went on to argue that s 313 should be redrafted ‘so as to draw a proper balance between the potential infringement of human rights and State interests’, and made subject to new accountability and oversight mechanisms.^[179]

3.139   Finally, a number of stakeholders expressed concern about the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015 (Cth)—including in relation to its implications for journalism and the protection of media sources.^[180] In March 2015, the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) was enacted, including some safeguards applying to the release of metadata that might identify a journalist’s source.

Information laws

3.140   In some circumstances, Commonwealth information laws, including the Privacy Act 1988 (Cth) and Freedom of Information Act 1982 (Cth) (FOI Act) may operate to interfere with freedom of speech and expression.

3.141   The Privacy Act regulates the handling of personal information about individuals by most Australian Government agencies and some private sector organisations, consistently with 13 Australian Privacy Principles. The application of these principles may sometimes limit freedom of speech and expression, because disclosure would breach privacy.

3.142   Free TV stated that the range of privacy-related laws and codes that apply across Commonwealth, state and territory jurisdictions, and at common law, ‘collectively operate to limit the ability of the media to report on matters’.^[181]

3.143   While the objectives of the Freedom of Information Act include promoting public access to information, the application of the exemptions may sometimes mean that information cannot be released, potentially restricting freedom of speech. Freedom of information has been recognised in international law as an ‘integral part’ of freedom of expression.^[182] For example, the ICCPR defines the right to freedom of expression as including freedom to ‘seek’ and ‘receive’ information.^[183]

3.144   Free TV identified aspects of the current FOI regime that may stifle ‘the media’s ability to report on government information in a timely way’. In particular, they identified

• routine delays past the 30 day time frame for decision making on FOI requests from media organisations;

• agencies often advise journalists that an FOI request has been refused because of s 24AA of the FOI Act, which provides that the work would involve a substantial and unreasonable diversion of agency resources; and

• there is no direct right of appeal to the AAT except in the case of decisions made by the Minister or the head of an agency.^[184]

Intellectual property laws

3.145   Intellectual property laws, including the Copyright Act 1968 (Cth), Trade Marks Act 1995 (Cth) and Designs Act 2003 (Cth) are intended to encourage creativity and innovation and protect businesses that develop original intellectual property by providing limited monopoly privileges.^[185]

3.146   While the history of intellectual property protection goes back to the 1710 Statute of Anne, intellectual property rights can be seen as affecting others’ freedom of speech and expression.^[186]

3.147   A number of stakeholders commented on the impact of copyright law on freedom of expression. The Australian Digital Alliance and Australian Libraries Copyright Committee (ADA and ALCC) observed a ‘fundamental tension’ between copyright and free speech. The ADA and ALCC submitted that current copyright exceptions unjustifiably interfere with freedom of speech and should be repealed and replaced with a ‘fair use’ exception^[187]—as recommended by the ALRC in its 2014 report Copyright and the Digital Economy.^[188]

3.148   Other laws relating to intellectual property place restrictions on freedom of speech and expression, including those relating to the use of national and other symbols. In some cases, the use of certain words and symbols, such as defence emblems and flags, is an offence:

• Defence Act 1903 (Cth) s 83;

• Geneva Conventions Act 1957 (Cth);

• Major Sporting Events (Indicia and Images) Protection Act 2014 (Cth);

• Olympic Insignia Protection Act 1987 (Cth);

• Protected Symbols Determination 2013 (Cth); and

• Protection of the Word ‘ANZAC’ Regulations 1921 (Cth).

3.149   The Tobacco Advertising Prohibition Act 1992 (Cth) and Tobacco Plain Packaging Act 2011 (Cth), prohibit the advertising of, and regulate the retail packaging and appearance of, tobacco products. The Therapeutic Goods Act 1989 (Cth) regulates the advertising of therapeutic goods.^[189]

3.150   In a response to a question from the Human Rights Committee, the Minister for Health stated that, while the Tobacco Advertising Prohibition Amendment Regulation 2012 (Cth) ‘could be said to engage the right to freedom of expression as it regulates advertising content’, art 19(3) of the ICCPR expressly permits restricting this right where necessary for protecting public health.^[190]

3.151   The Human Rights Committee also considered the Major Sporting Events (Indicia and Images) Protection Bill 2013 (Cth). The Major Sporting Events (Indicia and Images) Protection Act 2014 (Cth) provides special protection in relation to the use for commercial purposes of indicia and images connected with certain major sporting events such as Cricket World Cup 2015 and the Gold Coast 2018 Commonwealth Games. In its report on the Bill, the Committee stated that it

accepts that the limitation on freedom of expression is proposed in pursuit of the legitimate objective of promoting or protecting the rights of others (being the right of people to participate in the events in question and the protection of the intellectual property of the event sponsors), and that the proposed restrictions are rationally connected to that objective in seeking to protect the financial interests of event sponsors and investors, and thereby the financial viability of such events.^[191]

3.152   In relation to the proportionality of the restriction, the Human Rights Committee noted that exemptions were provided for the purposes of criticism, review or the provision of information.^[192]

Other laws

3.153   Many other Commonwealth laws may be characterised as interfering with freedom of speech and expression.

3.154   The Competition and Consumer Act 2010 (Cth) places restrictions on engaging in secondary boycotts, including through activist campaigning. A secondary boycott—where a party engages with others in order to hinder or prevent a business from dealing with a third party—is prohibited by s 45D if the conduct would have the effect of causing substantial loss or damage to the business of the third person.

3.155   The Charities Act 2014 (Cth) provides that a charity cannot promote or oppose a political party or a candidate for political office.^[193]

3.156   The Commonwealth Electoral Act 1918 (Cth) regulates the printing and publication of electoral advertisements and notices, requirements relating to how-to-vote cards, and prohibits misleading or deceptive publications and canvassing near polling booths.^[194]

3.157   Many laws impose prohibitions on forms of false, deceptive or misleading statements, including the Competition and Consumer Act (Cth) (Australian Consumer Law)^[195] and the Corporations Act 2001 (Cth).^[196]

3.158   Other laws impose restrictions on the use of certain words or expressions in various contexts. For example:

• Commonwealth Electoral Act 1918 (Cth) s 129 (restrictions on political party names);

• Business Names Registration Act 2011 (Cth) ss 27, 28 (restrictions on words that can be used in business names);

• Banking Act 1959 (Cth) ss 66 and 66A (restrictions on the words ‘bank’, ‘building society’, ‘credit union’ or ‘credit society’); and

• Corporations Act 2001 (Cth) ss 923A, 923B (restrictions on the use of the words ‘independent’, ‘impartial’ or ‘unbiased’, ‘stockbroker’, ‘sharebroker’ and ‘insurance broker’).