Laws that interfere with freedom of speech

4.67     A wide range of Commonwealth laws may be seen as interfering with freedom of speech and expression, broadly conceived. Commonwealth laws prohibit, or render unlawful, speech or expression in many different contexts and include:

• criminal laws;

• secrecy laws;

• privilege and contempt laws;

• anti-discrimination laws;

• media, broadcasting and telecommunications laws;

• information laws; and

• intellectual property laws.^[76]

4.68     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.^[77]

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

Criminal laws

4.70     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.

4.71     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.^[78]

4.72     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:

• 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).

4.73     In addition, the offence of treachery contained in s 24AA of the Crimes Act 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.

4.74     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.^[79] 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.^[80]

4.75     Counter-terrorism offences were criticised in some submissions on the grounds that their potential interference with freedom of speech was not justified.^[81]

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.^[82]

4.76     Counter-terrorism and national security laws, including those mentioned above, should be subject to further review to ensure that the laws do not interfere unjustifiably with freedom of speech, or other rights and freedoms.

Advocating terrorism

4.77     Section 80.2C of the Criminal Code 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’.^[83]

4.78     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.^[84]

4.79     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.^[85]

4.80     The Human Rights Committee concluded that the provision was ‘likely to be incompatible with the right to freedom of opinion and expression’.^[86] 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 additional 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.^[87]

4.81     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’.^[88] It also noted existing offences in the Criminal Code which may already cover conduct intended to be captured by the proposed offence.^[89]

4.82     The Attorney-General responded to these concerns by emphasising that terrorist offences generally require a person to have: 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.^[90]

4.83     In relation to the availability of other offences, the Attorney-General advised that where the Australian Federal Police (AFP) has sufficient evidence, the existing incitement or 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’.^[91]

4.84     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’.^[92] The Bill was not amended in this respect.

4.85     Stakeholders in this Inquiry submitted that the scope of the offences in s 80.2C of the Criminal Code constituted an unjustified encroachment on freedom of speech.^[93]

4.86     For example, 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’.^[94] Such an approach 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’.^[95] Councils for Civil Liberties considered that the provision ‘disproportionately burdens free speech beyond what is necessary to protect national security’.^[96]

4.87     Problems with the offence were said to include:

• the broad meaning of the word ‘advocates’;

• the use of a recklessness standard;

• the limited scope of defences; and

• the existence of other offences covering similar conduct.

4.88     Councils for Civil Liberties submitted that a person exercising free speech and arguing publicly in support of ‘oppressive and non-democratic’ regimes may be a person who ‘advocates’ (which is defined to include ‘encourages’) the doing of a terrorist act ‘merely because that regime has engaged in terrorist activity in the past’.^[97] The National Association of Community Legal Centres (NACLC) stated that the breadth of the definition of ‘advocates’ poses a ‘significant risk of criminalising legitimate exercises of free speech by seriously impacting on the confidence of individuals and organisations to voice radical and controversial (albeit not illegal) views regarding overseas conflicts and terrorism’.^[98]

4.89     The use of a recklessness standard was criticised, among other reasons, because a person can never be certain as to whether they are acting recklessly in making a statement and, therefore, such a test may ‘discourage public speech, in particular robust speech concerning contentious national and international political and military matters’.^[99] The offence was said to go 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).^[100]

4.90     The Law Council of Australia (Law Council) observed that the good faith defence in s 80.3(1)(d) may not address concerns about the criminal liability of ‘those engaged in publishing or reporting on matters that could potentially fall within the broad scope of the offences’.^[101]

4.91     Stakeholders also questioned the need for s 80.2C, 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,^[102] which covers urging another person to commit a terrorist act.^[103]

Prescribed terrorist organisations

4.92     Similar concerns about overreach have been identified in relation the definition of a terrorist organisation under div 102 of the Criminal Code. These provisions allow an organisation to be specified 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.^[104]

4.93     The prescription of a terrorist organisation by the Minister is by disallowable instrument, subject to review by the Parliamentary Joint Committee on Intelligence and Security,^[105] and judicial review.

4.94     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’.^[106]

4.95     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.^[107]

4.96     Councils for Civil Liberties considered that the definition of what constitutes a terrorist organisation has the potential to capture organisations ‘which are legitimate religious or other organisations’ because an organisation can be prescribed where it is ‘indirectly … fostering the doing of a terrorist act’.^[108] If a legitimate religious organisation is found to be a ‘terrorist organisation’ under the provisions, its members ‘may come within the associated criminal offence provisions in carrying out day to day activities such as worship, welcoming new followers, making donations and fundraising’.^[109]

Using a postal service to menace, harass or cause offence

4.97     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.^[110]

4.98     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:

• it applies 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.^[111]

4.99     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’.^[112] Alternatively, the provision could specify matters that the court must consider when determining whether the communication was offensive.^[113]

Other criminal laws

4.100  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;^[114] distributing child pornography material;^[115] and counselling the committing of suicide.^[116]

4.101  Section s 474.29A of the Criminal Code makes it an offence to use a carriage service to access, transmit or publish material that counsels or incites committing or attempting to commit suicide. Civil Liberties Australia stated that this law is used to restrict access to materials relating to euthanasia and clearly restricts freedom of speech. It observed that the law is ‘a rare (and perhaps the only instance) where it is an offence to counsel the commission of an act that is not in itself an offence’.^[117]

Incitement and conspiracy laws

4.102  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.

4.103  Under s 11.4 of the Criminal Code 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.^[118]

4.104  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.^[119]

4.105  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’.^[120]

Secrecy laws

4.106  The secrecy of government information has a long history.^[121] 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.^[122]

4.107  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.

4.108  The constitutional implied freedom of political communication is particularly relevant in this context. In Bennett v HREOC, for example, a blanket secrecy provision in reg 7(13) of the Public Service Regulations 1999 (Cth) was held to be constitutionally invalid by the Federal Court.^[123]

4.109  Finn J applied the Lange test and found that, under the second limb of the test, while there may be public interests, or ‘legitimate ends’, that justify the burden that secrecy provisions impose on freedom of political communication—including national security, cabinet confidentiality, protection of privacy and the maintenance of an impartial and effective public service—a ‘catch-all’ provision that did not differentiate between the types of information protected or the consequences of disclosure went too far.^[124]

4.110  The Attorney-General’s Department (Security and Intelligence Law Branch) conducts scrutiny of draft legislation and legislative instruments containing secrecy provisions and administers the secrecy offences in pts VI and VII of the Crimes Act. In relation to the breadth of secrecy provisions, the Department considers and gives advice on, among other things, whether prohibitions on disclosing official information may infringe the implied constitutional freedom of political communication.

4.111  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.

4.112  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.^[125] Provisions in Commonwealth legislation that expressly impose criminal sanctions for breach of secrecy or confidentiality obligations include, for example:

• Crimes Act ss 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 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)–(2), 35P(1)–(2), 81, 92(1) and (1A).

4.113  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. 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.

4.114  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.^[126] For example, s 70 might be replaced with a new offence requiring that the disclosure of Commonwealth information did, or was reasonably likely to, or intended to:

• damage the security, defence or international relations of the Commonwealth;

• prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;

• endanger the life or physical safety of any person; or

• prejudice the protection of public safety.^[127]

4.115  The ALRC also 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.^[128] These recommendations have not been implemented.

4.116  A number of stakeholders expressly supported the ALRC’s earlier recommendations.^[129] The Law Council recommended that the Australian Government give further consideration to the implementation of the ALRC’s 2009 secrecy report, which it stated would ‘assist in ensuring that official secrecy is justified, proportionate and necessary to achieving legitimate objectives’.^[130]

4.117  Stakeholders highlighted a number of specific secrecy provisions as being of particular concern for their impact on freedom of speech in Australia. These are discussed below.

Australian Border Force Act

4.118  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 (‘protected information’),^[131] punishable by imprisonment for 2 years.^[132]

4.119  An ‘entrusted person’ is defined to include the Secretary of the Department of Immigration and Border Protection, the Australian Border Force Commissioner and any Immigration and Border Protection worker.^[133] The latter category of person may, by written determination of the Secretary or Commissioner, include any consultant, contractor or service provider—such as a doctor or welfare worker in an offshore immigration detention centre.^[134]

4.120  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’.^[135] In addition, in some circumstances, an entrusted person who makes a disclosure may be protected by the Public Interest Disclosure Act 2013 (Cth), as discussed below.

4.121  The Explanatory Memorandum to the Australian Border Force Bill 2015 (Cth) noted that the secrecy provisions

are necessary to provide assurances to law enforcement and intelligence partners in Australia and internationally and to industry that information provided to the Department will be appropriately protected … The application of the secrecy provisions across the integrated department will ensure the disclosure of sensitive information is appropriately regulated.^[136]

4.122  Stakeholders in this Inquiry submitted that the scope of the secrecy and disclosure offences in the Australian Border Force Act constitute an unjustified encroachment on freedom of speech.^[137]

4.123  The Law Council stated that it was concerned that the Australian Border Force Act may unjustifiably encroach on freedom of speech because it did not include an adequate public interest disclosure exception to the secrecy provisions; and operated extraterritorially without the associated protections that apply in Australia.^[138]

4.124  One concern is the breadth of the definition of an entrusted person, which can include external consultants, contractors or service providers ‘such as doctors and welfare workers performing work by contract for the Department’^[139] and any person employed by an entrusted person.

The first people to find themselves silenced under this law will be those who work in Australia’s regional processing centres in Nauru and Papua New Guinea (PNG). However, the law may reach far beyond this, to silence every person involved in the provision of legal, counselling and welfare services to refugees, if their non-government employer is in receipt of government funding.^[140]

4.125  Councils for Civil Liberties observed that an organisation like the Victorian Foundation for the Victims of Torture ‘may be caught by the legislation solely on the ground that the Foundation provides counselling services for refugee clients of the Immigration Department’.^[141] The Law Council submitted that any review may wish, among other things, to consider whether the definition of ‘entrusted person’ should be more narrowly defined.^[142]

4.126  Academics at the Sydney Centre for International Law submitted that pt 6 of the Act violated international law and the constitutional implied freedom of political communication. In relation to the first point, they argued that the secrecy provisions were not necessary for the protection of national security or public order, or for protecting rights and reputations, in terms of art 19.3 of the ICCPR.

It is difficult to see how all ‘protected information’ as defined by the Act—that is, including any information at all, obtained by an [immigration and border protection] worker in the course of his or her work—has the potential to damage national security or public order, and thus why such a broad restriction is ‘necessary’.^[143]

4.127  Further, they suggested that even if it is accepted that the Act is protecting legitimate national security or public order interests, the imposition of criminal sanctions (up to two years’ imprisonment) was arguably unnecessary and disproportionate to protecting any potential legitimate objective.^[144]

4.128  The provisions were also said to breach the implied freedom of political communication because ‘any entrusted persons who in their working capacity come across any objectionable conduct or content which could be the basis for legitimate criticism of government policy will be forced to risk imprisonment by disclosure of such information’ and the necessary element of proportionality was lacking.^[145]

ASIO Act secrecy provisions

4.129  Secrecy offences in the ASIO Act have been extended to apply to the unauthorised disclosure of information relating to a ‘special intelligence operation’.^[146] 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’.^[147] Recklessness is the fault element in relation to whether the information relates to a special intelligence operation.^[148]

4.130  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.

4.131  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’.^[149]

4.132  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.^[150] The provisions were incompatible with the right to freedom of expression because they appeared to impose disproportionate limits on that right.^[151]

4.133  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]’.^[152]

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.^[153]

4.134  The Scrutiny of Bills Committee 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.^[154]

4.135  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.^[155]

4.136  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.^[156]

4.137  Section 35P of the ASIO Act was enacted unchanged.^[157] In December 2014, the Prime Minister announced that the INSLM would review any impact on journalists of the provisions.^[158] The INSLM, the Hon Roger Gyles AO QC, announced on 30 March 2015 that his first priority was the review of s 35P. As at 1 November 2015, the report on the INSLM’s review of s 35P was being prepared.^[159]

4.138  Stakeholders in this ALRC Inquiry expressed concerns about these secrecy provisions of the ASIO Act, which ranged from points of drafting through to broader arguments about the possible impact on journalism generally, and suggested repeal or reform because of the impact on freedom of speech and of the press.^[160] Some stakeholders suggested a new public interest disclosure exception should be incorporated.^[161]

4.139  The adoption of recklessness as the fault element, in the lesser offence under s 35P(1), caused some concern.^[162] However, unless otherwise specified, recklessness is the fault element provided for under the Criminal Code for a ‘physical element that consists of a circumstance’, such as that information relates to a ‘special intelligence operation’.^[163] It is applied to similar offences under the Crimes Act relating to the disclosure of information about controlled operations conducted by the AFP.^[164]

4.140  The scope of the available defences was criticised. The UNSW Law Society, for example, stated that the lesser offence unnecessarily restricts freedom of speech because there is ‘no public interest defence for unauthorised disclosure, which is likely to restrict legitimate scrutiny of security agencies’,^[165] and because there is no harm element. The Public Interest Advocacy Centre (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’.^[166]

4.141  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.^[167]

4.142  Free TV Australia expressed concern that the offences remained capable of capturing ‘the activities of journalists reporting in the public interest’. Section 35P, it said, appeared 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.^[168]

4.143  Councils for Civil Liberties were concerned that the impact of s 35P ‘cannot be confined to journalists or whistle-blowers’ and that academics, members of civil society and religious groups, community advocates and ordinary members of the community may be affected. The new offences ‘could be used to prevent or deter publication or disclosure of important information regarding the use and misuse of official power that is essential to the proper functioning of a democratic state’ and appear intended to have ‘a major deterrent effect on legitimate whistle-blowers, on the freedom of the media to report on abuses of power by ASIO and on debate relating to intelligence and counter terrorism issues—even when these pose no threat to national security’.^[169]

Other secrecy provisions

4.144  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;^[170]

• 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;^[171]

• 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;^[172] and

• Crimes Act ss 15HK, 15HL, which prohibit the disclosure of information relating to a ‘controlled operation’.^[173]

Public interest disclosure

4.145  The Public Interest Disclosure Act 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.

4.146  The Joint Media Organisations criticised this protection as inadequate, a problem that was ‘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’.^[174]

4.147  Councils for Civil Liberties recommended that the INSLM conduct a review of counter-terrorism and national security legislative provisions that

erode legitimate journalistic freedom and weaken protections for legitimate whistle-blowers with the intention of developing a comprehensive set of effective shield laws for journalists and comprehensive and effective whistle-blower legislation which protects all citizens.^[175]

Court and tribunal orders

4.148  Courts have powers to suppress information relevant to court proceedings, or may be empowered to do so by legislation. These powers can be seen to be inherent to the scope of freedom of speech at common law.

4.149  The federal courts have such implied powers as are incidental and necessary to exercise their jurisdiction and express powers conferred on them by legislation.^[176] The Federal Court has held that it has power to make suppression orders as a result of these implied powers, including in relation to documents filed with the Court.^[177] Part VAA of the Federal Court of Australia Act 1976 (Cth) sets out expressly when and how these powers can be exercised by providing for suppression and non-publication orders.

4.150  Commonwealth administrative tribunals also have power to make orders for private hearings, non-publication and non-disclosure in relation to administrative review proceedings.^[178]

Privilege and contempt laws

Parliamentary privilege

4.151  Parliamentary privilege is derived from art 9 of the Bill of Rights Act 1688 in which it was declared that the ‘freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’. However, in protecting freedom of speech of parliamentarians and witnesses before Parliament and its committees, privilege can interfere with others’ freedom of speech.

4.152  One of the effects of s 16 of the Parliamentary Privileges Act 1987 (Cth), which declares and enacts art 9, is that it limits the freedom of members of the public to question directly or indirectly, in judicial proceedings, what is said in Parliament. Section 16(3) provides:

(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

   (a)     questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

   (b)    otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

   (c)     drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

4.153  The provision also limits the ability of citizens sued for defamation by a member or a witness before Parliament to defend themselves, by introducing evidence of what may have been said in parliamentary proceedings.

4.154  The question of whether s 16 violates the implied freedom of political communication has not been authoritatively determined by the High Court, but other courts have rejected constitutional challenges.^[179]

Contempt of Parliament

4.155  The law of contempt of Parliament can be used to limit criticisms of the Parliament or of individual parliamentarians.

4.156  Section 4 of the Parliamentary Privileges Act defines contempt as excluding conduct (including the use of words) ‘unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member’s duties as a member’. Section 6 expressly abolishes defamatory words or acts as a punishable contempt.

Contempt of court

4.157  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.^[180] Powers to punish for contempt of court are part of the inherent jurisdiction of superior courts, and are also provided for in legislation.^[181]

4.158  Section 264E of the Bankruptcy Act 1966 (Cth) makes it an offence to insult or disturb a court registrar or magistrate conducting an examination in bankruptcy.^[182] Section 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.

Tribunals, commissions of inquiry and regulators

4.159  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 (Administrative Appeals Tribunal);

• Copyright Act 1968 (Cth) s 173 (Copyright Tribunal);

• Defence Act 1903 (Cth) s 89 (service tribunals);

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

• Fair Work Act 2009 (Cth) s 674 (Fair Work Commission);

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

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

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

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

4.160  Some of these 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.^[183]

4.161  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.^[184]

4.162  An example of a contempt law that was found to be unconstitutional is the provision struck down by the High Court in Nationwide News v Wills.^[185] This concerned s 299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth), which criminalised the publication of a writing calculated to bring the Commission into disrepute. The judges were unanimous in holding the provision to be an interference with the implied freedom of political communication.

4.163  In 2014, the Human Rights Committee requested further advice from the Minister for Veterans’ Affairs as to the compatibility of the provision now appearing as s 170 of the Veterans’ Entitlements Act with the right to freedom of opinion and expression. Section 170 provides, among other things, that it is an offence to insult another person in the exercise of the other person’s powers or functions under the part of the Act relating to the operations of the Veterans’ Review Board. In particular, the Committee asked whether the measure was rationally connected to its stated objective; and proportionate to achieving that objective.^[186]

4.164  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.^[187]

4.165  In 2015, it was suggested in Parliament^[188] that public criticism of the Royal Commissioner in charge of the Royal Commission into Trade Union Governance and Corruption might constitute an offence under the Royal Commissions Act.^[189]

4.166  There seems reason to review the range of legislative provisions that protect the processes of tribunals, commissions of inquiry and regulators. Some of these laws may unjustifiably interfere with freedom of speech—and may be unconstitutional—in prohibiting criticism of public officers engaged in performing public functions.

Anti-discrimination laws

4.167  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.

4.168  Together, these Acts^[190] prohibit discrimination on the basis of race, colour, descent, or national or ethnic origin, sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, breastfeeding or family responsibilities, disability, and age. The conduct prohibited may include speech or other forms of expression.

4.169  The RDA makes unlawful offensive behaviour because of race, colour or national or ethnic origin.^[191] The Sex Discrimination Act 1984 (Cth) makes sexual harassment unlawful in a range of employment and other contexts.^[192] Various Commonwealth anti-discrimination laws make it an offence to advertise an intention to engage in unlawful discrimination.^[193] Each of these Acts also makes it an offence to victimise a person because the person takes anti-discrimination action.^[194]

4.170  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.^[195]

Racial Discrimination Act

4.171  There has been much debate over the scope of s 18C and pt IIA 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.

4.172  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 alleging unlawful discrimination 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.^[196]

4.173  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.^[197]

4.174  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.^[198] This announcement followed controversy about s 18C occasioned by the decision of Eatock v Bolt.^[199]

4.175  On 6 August 2014, after consultation on an exposure draft Freedom of Speech (Repeal of s 18C) Bill, then Prime Minister, the Hon Tony Abbott MP, announced that the proposed changes to s 18C had been taken ‘off the table’.^[200] On 25 September 2014, a private members’ Bill to amend s 18C was introduced in the Senate.^[201]

4.176  In the ALRC’s view, s 18C of the RDA would benefit from more thorough review in relation to implications for freedom of speech. In particular, there are arguments that s 18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to ‘offend’. In some respects, the provision is broader than is required under international law, broader than similar laws in other jurisdictions, and may be susceptible to constitutional challenge.

4.177  The ALRC received widely divergent views on whether s 18C unjustifiably interferes with freedom of speech. Some stakeholders considered that it strikes an appropriate balance between freedom of speech and other interests, including the right to be free from racial discrimination.^[202] Others considered that it significantly overreaches, and should be amended or repealed.^[203]

Scope of s 18C

4.178  Many of the arguments used to justify s 18C appear to relate primarily to vilification—rather than simply giving offence, or even causing insult or humiliation. Racial vilification, in this context, generally refers to public acts that encourage or incite others to hate people because of their race, nationality, country of origin, colour or ethnic origin.^[204] Vilification carries with it a sense of extreme abuse or hatred of its object, and can provoke hostile and even violent responses. Arguably, the words of s 18C do not convey this meaning.^[205]

4.179  Section 18C has long been criticised for extending to giving offence. In 2004, Dan Meagher of Deakin University highlighted that the meaning of the words ‘offend’ and ‘insult’ in s 18C of the RDA were ‘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’.^[206]

4.180  Stakeholders in this Inquiry echoed concerns about the scope of the provision. The Church and Nation Committee, for example, submitted that the state ‘cannot legislate against offence and insult without doing serious damage to wide-ranging freedom of speech’.^[207]

4.181  The Wilberforce Foundation stated that s 18C was flawed because it ‘essentially makes speech and acts unlawful as a result of a subjective response’. This flaw, it said, is compounded by s 18D, which does not make truth a defence.^[208] FamilyVoice Australia (FamilyVoice) submitted that, since ‘justifiable limitations on offensive speech are already available under state defamation laws, the provisions of section 18C are superfluous’.^[209]

4.182  Other stakeholders considered that the scope of s 18C, together with the defence provision in s 18D, were appropriate. The Law Society of NSW Young Lawyers, for example, stated that the provision ‘finely balances fair and accurate reporting and fair comment with discrimination protections’.^[210] PIAC 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’.^[211]

4.183  Australian Lawyers for Human Rights (ALHR) submitted that the right to be free from racist abuse and hate speech was an important right, which deserved protection even at the expense of some ‘relatively minor and proportionate limits’ upon free speech, (as provided by the RDA).^[212] It stated that the ‘evidence is that encouraging, accepting and tolerating racism causes it to increase and causes the forms that racism takes to become more harmful and more violent’.^[213]

4.184  NSW Young Lawyers considered that, rather than going too far, s 18C limits freedom of speech only 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.^[214]

4.185  The Australia/Israel and Jewish Affairs Council (AIJAC) observed that pt IIA of the RDA was ‘drafted to best balance the twin goals of maintaining maximum freedom of expression consistent with maintaining freedom from racial vilification’ and was the product of widespread public consultation and debate.^[215]

The ‘reasonably likely’ standard

4.186  Section 18C provides that an act must be ‘reasonably likely, in all the circumstances’ to cause the listed harms. This element has been criticised because the reasonableness requirement may demand that the court make a ‘political decision’ about the boundaries of permissible speech. The objective test of reasonableness in s 18C may not ‘cure the definitional indeterminacy of these words that a decision-maker must objectively apply’.^[216]

4.187  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.^[217]

4.188  In contrast, it has been submitted that the test does allow for an objective assessment to be made, and ensures that the threshold for racial vilification is appropriate, given that s 18D of the RDA provides safeguards to protect freedom of speech by imposing a list of exemptions for ‘anything said or done reasonably and in good faith’.^[218]

Section 18C in practice

4.189  Those with concerns about the potential scope of s 18C often place little emphasis on how the provision has been interpreted in practice by the courts. Broad meanings of ‘offend’ have been rejected by Australian courts. For example, in Creek v Cairns Post Pty Ltd, Kiefel J held that the section requires the harm to be ‘profound and serious effects not to be likened to mere slights’.^[219]

4.190  In Eatock v Bolt, the defendant essentially failed in his defence because he was found not to be have acted reasonably and in good faith, in terms of s 18D. Bromberg J held that s 18C is ‘concerned with consequences it regards as more serious than mere personal hurt, harm or fear’. Rather, it is

concerned with mischief that extends to the public dimension. A mischief that is not merely injurious to the individual, but is injurious to the public interest and relevantly, the public’s interest in a socially cohesive society.^[220]

4.191  The words ‘offend, insult, humiliate or intimidate’ were ‘not intended to extend to personal hurt unaccompanied by some public consequence’ of the kind pt IIA of the RDA is directed to avoid.^[221]

4.192  NSW Young Lawyers submitted that Australian courts have ‘historically interpreted sections 18C and 18D in a fair and reasonable manner, and with the public interest in mind’.^[222] The Refugee Council of Australia (RCOA) submitted that:

currently existing sections 18B, 18C, 18D and 18E protect people from the harm of racial vilification and discrimination, as exemplified by almost 20 years of case law. We argue that there is a lack of a clear rationale for these changes, which have only been brought about after extensive media attention regarding one case. Indeed, research shows that these laws have been considered in less than 100 finalised court cases since 1995 and RCOA argues that the courts have applied these laws reasonably and appropriately.^[223]

International law

4.193  One reason that s 18C might be considered an unjustified interference with freedom of speech is that it is broader in its terms than art 20 of the ICCPR. Article 20 provides that any ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’.^[224] Professor Patrick Parkinson stated that s 18C should be similarly confined and not extend to matters likely only to offend.^[225]

4.194  FamilyVoice 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.^[226]

4.195  In Coleman v Power, Kirby J observed that the widest possible meaning of the term ‘insulting’—in Queensland legislation prohibiting ‘threatening, abusive or insulting words’ in a public place—would go beyond the permissible limitations on freedom of speech set out in art 19.3 of the ICCPR.^[227]

4.196  On the other hand, the need to protect against harmful speech is clearly contemplated in international law.^[228] Federal Court cases have found that s 18C is consistent with Australia’s undertakings under international law and, in particular, with the Convention on the Elimination of Racial Discrimination (CERD) and the ICCPR.^[229]

Other jurisdictions

4.197  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 into contempt any group of persons … on the ground of the colour, race, or ethnic or national origins of that group of persons’.^[230]

4.198  In the UK, 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’.^[231]

4.199  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.

4.200  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’.^[232]

4.201  The repeal of this provision, introduced by a private member’s Bill and subjected to a conscience vote,^[233] was controversial.^[234] 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 Freedoms;^[235]and because provisions of criminal law were considered to be the ‘best vehicle to prosecute these crimes’.^[236]

Constitution

4.202  The constitutional validity of s 18C has not been tested before the High Court. The provision may be vulnerable to challenge on two fronts.^[237]

4.203  The first is the question of whether s 18C is validly supported by the external affairs power under s 51(xxix) of the Constitution. This would arise if the provision extends beyond Australia’s international obligations under the ICCPR and CERD, which may be said to ‘focus on protecting against racial vilification and hatred rather than prohibiting offence or insult’.^[238]

4.204  The second relates to the implied freedom of political communication. In this context, the High Court has observed that ‘insult and invective’ are a legitimate part of political discussion and debate.^[239] The inclusion of the words ‘offend’ and ‘insult’ raises a possibility that the High Court, in an appropriate case, might read down the scope of s 18C, or find it invalid.^[240]

Review of s 18C

4.205  Australian racial vilification laws have long been the subject of academic and other criticism. For example, in 2004, Dan Meagher suggested that Commonwealth, state and territory laws, including s 18C of the RDA, lacked ‘sufficient precision and clarity in key respects’. 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.^[241]

4.206  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.^[242]

4.207  The ALRC has not established whether s 18C of the RDA has, in practice, caused unjustifiable interferences with freedom of speech.^[243] However, it appears that pt IIA of the RDA, of which s 18C forms a part, would benefit from more thorough review in relation to freedom of speech.

4.208  In particular, there are arguments that s 18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to ‘offend’. The provision appears broader than is required under international law to prohibit the advocacy of racial hatred and broader than similar laws in other jurisdictions, and may be susceptible to constitutional challenge.

4.209  However, any such review should not take place in isolation. Stakeholders put forward arguments that people should also be protected from vilification on other grounds, including sex, sexual orientation and gender identity.^[244]

4.210  While recognising that anti-vilification laws serve a number of purposes, including providing an ‘educative and symbolic function and acting as a general deterrent’,^[245] there are also concerns that existing laws do not effectively prohibit more serious ‘hate speech’.

4.211  For example, the AIJAC suggested that the Australian Government should consider amendments to ss 80.2A and 80.2B of the Criminal Code to improve their effectiveness against ‘incitement to racially motivated violence and racial hatred including on online platforms’.^[246]

4.212  A review of pt IIA might best be done in conjunction with a more general review of vilification laws that could consider not only existing encroachments on freedom of speech, but also whether existing Commonwealth laws effectively discourage the urging of violence towards targeted groups distinguished by race, religion, nationality, national or ethnic origin or political opinion.^[247] In this context, the Counter-Terrorism Legislation Amendment Bill (No 1) 2015 (Cth), introduced on 12 November 2015, would create a new offence of advocating genocide in div 80 of the Criminal Code.^[248]

4.213  A related issue concerns Australia’s compliance with CERD.^[249] Article 4(a) of CERD states that signatory states should criminalise the dissemination of ideas based on racial superiority or hatred and all other propaganda activities promoting and inciting racial discrimination. Article 4 is not fully implemented in Australian law, because s 18C does not create a criminal offence.^[250]

4.214   In 2000, the UN Committee on the Elimination of Racial Discrimination acknowledged the ‘civil law prohibition of offensive, insulting, humiliating or intimidating behaviour based on race’ contained in s 18C, and recommended that Australia ‘continue making efforts to adopt appropriate legislation’ giving full effect to art 4(a) of CERD.^[251]

4.215  Greater harmonisation between Commonwealth, state and territory laws in this area may also be desirable. While all Australian states and the ACT have racial discrimination legislation in many ways similar to the RDA, the approaches to racial vilification and other conduct based on race hate are not uniform.^[252]

Media, broadcasting and communications laws

4.216  Obscenity laws have a long history in the common law,^[253] and censorship of publications dates back to the invention of the printing press.^[254]

4.217  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 Act and complementary state and territory enforcement legislation.^[255]

4.218  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 strongest 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.

4.219  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’.^[256] Civil Liberties Australia also expressed concern about the scope of the classification scheme.^[257]

4.220  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.^[258] 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’.^[259]

4.221  Following the passage of the Enhancing Online Safety for Children Act 2015 (Cth), a scheme addressed at cyber-bullying material is administered by the Children’s e-Safety Commissioner.

4.222  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.

4.223  Other communications laws place restrictions on speech and expression. For example, the Do Not Call Register Act, 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.^[260]

4.224  ALHR submitted that s 313 of the Telecommunications Act unjustifiably limits freedom of speech.^[261] 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.

4.225  Commonwealth agencies have used s 313 to prevent the continuing operation of online services in breach of Australian law (for example, sites intended to facilitate 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.^[262] The Committee recommended that the Australian Government adopt whole-of-government guidelines for the use of s 313, proposed by the Department of Communications.^[263]

4.226  ALHR 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.^[264]

Information laws

4.227  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.

4.228  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’.^[265]

4.229  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.

4.230  The Office of the Australian Information Commissioner (OAIC) observed the functions of that office regularly require balancing the protection of personal information under the Privacy Act with the broader public interest in the free flow of information and with an individual’s right to access government information under the FOI Act. The role of the OAIC in examining legislative proposals includes assessing whether a law or practice ‘is reasonable, proportionate and necessary and the least privacy invasive option’.^[266]

4.231  In the ALRC’s view, there is no reason to suggest that privacy regulation unjustifiably interferes with freedom of speech.

4.232  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.^[267] For example, the ICCPR defines the right to freedom of expression as including freedom to ‘seek’ and ‘receive’ information.^[268]

4.233  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’.^[269]

4.234  Freedom of information law is a recent development based on statute, and is concerned primarily with promoting government accountability and transparency by providing a legal framework for individuals to request access to government documents.^[270] While freedom to seek and receive information is linked with freedom of speech, it is not a traditional common law right.

4.235  Finally, stakeholders expressed concern about the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) including in relation to its implications for journalism and the protection of media sources.^[271] This Act, which came into force in March 2015, included some safeguards applying to the release of metadata that might identify a journalist’s source. While the effects of this law, and communications and data surveillance laws more generally, may include indirect ‘chilling’ effects on freedom of speech and expression, these concerns are beyond the scope of this Inquiry.^[272]

Intellectual property laws

4.236  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.^[273]

4.237  While the history of intellectual property protection goes back to the 1710 Statute of Anne,^[274] intellectual property rights can be seen as affecting others’ freedom of speech and expression.

4.238  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^[275]—as recommended by the ALRC in its 2014 report, Copyright and the Digital Economy.^[276] The Copyright Council submitted that to the extent that Australian copyright law may interfere with freedom of speech, it is ‘proportionate and appropriate’.^[277]

4.239  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).^[278]

4.240  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.^[279]

4.241  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.^[280]

4.242  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 the 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.^[281]

4.243  The Human Rights Committee noted, in relation to the proportionality of the restriction, that exemptions were provided for the purposes of criticism, review or the provision of information.^[282]

Other laws

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

4.245  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. Section 45DD provides some exemptions where the ‘dominant purpose of conduct relates to environmental protection or consumer protection’.

4.246  There may be a question whether s 45D of the Competition and Consumer Act prohibits campaigns that urge the general public to boycott the products of a particular business, including on the basis of the domestic or foreign policies of the nation where the business originates. It has been suggested that it should be put beyond doubt that such campaigns are not prohibited.^[283]

4.247  The Australian Industry Group strongly supported the restrictions on engaging in secondary boycotts and stated that these ‘must not be watered down or removed in favour of uncompetitive behaviour justified by a perceived freedom of speech or expression of employees (or their representatives)’.^[284]

4.248  The Charities Act 2014 (Cth) provides that a charity cannot promote or oppose a political party or a candidate for political office.^[285] 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.^[286]

4.249  Other laws impose prohibitions on forms of false, deceptive or misleading statements, including the Competition and Consumer Act (Cth) (Australian Consumer Law)^[287] and the Corporations Act 2001 (Cth).^[288]

4.250  Finally, a number of Commonwealth 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’).