WEBVTT 1 00:00:00.000 --> 00:00:00.960 Good afternoon, everyone. 2 00:00:01.880 --> 00:00:03.380 My name is Linda Matthews, 3 00:00:03.380 --> 00:00:05.900 and I'm South Australia's Equal Opportunity Commissioner. 4 00:00:06.940 --> 00:00:11.080 And I would like to begin today by acknowledging this land that we meet on 5 00:00:11.080 --> 00:00:13.560 is the traditional lands of the Kaurna people 6 00:00:13.560 --> 00:00:17.360 and that we respect their spiritual relationship with their country. 7 00:00:18.720 --> 00:00:21.340 And I'm delighted to have this opportunity 8 00:00:21.340 --> 00:00:23.780 to introduce this year's Mitchell Oration 9 00:00:23.780 --> 00:00:25.740 as part of the Festival of Ideas 10 00:00:25.740 --> 00:00:28.700 on the topic of freedom of speech and its limits. 11 00:00:29.840 --> 00:00:33.720 Those of you who knew her well will remember that Dame Roma Mitchell, 12 00:00:33.940 --> 00:00:36.960 in whose honour this oration was founded and named, 13 00:00:37.240 --> 00:00:41.800 was never afraid to exercise her freedom of speech on controversial topics. 14 00:00:42.780 --> 00:00:44.880 Right from the start of her public life, 15 00:00:45.140 --> 00:00:48.460 she was willing to speak out against the prejudices of the time. 16 00:00:50.000 --> 00:00:52.360 Indeed, she said on her appointment 17 00:00:52.360 --> 00:00:56.140 as the first president of the Human Rights Commission in 1981 18 00:00:56.820 --> 00:00:58.580 that a certain amount of criticism 19 00:00:58.580 --> 00:01:00.140 and controversy was inevitable 20 00:01:00.140 --> 00:01:03.960 for those who espouse the cause of human rights and equal opportunity. 21 00:01:04.440 --> 00:01:06.320 And I can certainly attest to that. 22 00:01:07.860 --> 00:01:10.360 And Dame Roma would call a spade a spade. 23 00:01:11.080 --> 00:01:14.440 In a lecture to a law student's conference as early as 1969, 24 00:01:15.880 --> 00:01:20.060 she said that the Aboriginal in Australia during the 19th century 25 00:01:20.060 --> 00:01:23.760 was treated as either a wild beast to be exterminated 26 00:01:23.760 --> 00:01:26.540 or as a helpless child to be sustained. 27 00:01:27.680 --> 00:01:28.560 She went on to say that the Aboriginal people in Australia 28 00:01:28.560 --> 00:01:31.520 went on to advocate for removal of all legislated discrimination 29 00:01:31.520 --> 00:01:33.220 against Aboriginal people 30 00:01:33.220 --> 00:01:37.960 and for full primary and secondary schooling for Aboriginal children. 31 00:01:38.640 --> 00:01:41.620 Extraordinary to think that that was controversial then. 32 00:01:42.680 --> 00:01:45.580 In her Boyer lectures in 1975, 33 00:01:46.700 --> 00:01:49.560 she asked outright whether prison overcrowding and understaffing 34 00:01:50.280 --> 00:01:54.440 might not of themselves be considered cruel and unusual punishments. 35 00:01:54.440 --> 00:01:56.960 I think a question we could still ask today. 36 00:01:58.560 --> 00:02:01.420 And she didn't hesitate to disagree with public figures, 37 00:02:01.640 --> 00:02:02.680 however respected. 38 00:02:03.820 --> 00:02:04.980 In December 1983, 39 00:02:05.460 --> 00:02:08.780 the Sex Discrimination Bill was before federal parliament, 40 00:02:09.700 --> 00:02:11.840 proposing to enact into Australian law 41 00:02:11.840 --> 00:02:14.280 the international covenant on the elimination 42 00:02:14.280 --> 00:02:18.060 of all forms of discrimination against women, known as CEDAW. 43 00:02:19.000 --> 00:02:21.400 The Dean of St George's Cathedral in Perth 44 00:02:21.400 --> 00:02:23.560 published criticism of the bill, 45 00:02:23.740 --> 00:02:27.540 suggesting that it was a tragic attempt to remodel humanity. 46 00:02:28.740 --> 00:02:30.260 Dame Roma wanted to know, 47 00:02:30.400 --> 00:02:34.200 whatever can the Dean have been reading as the Sex Discrimination Bill? 48 00:02:34.360 --> 00:02:35.680 Certainly not my copy. 49 00:02:37.380 --> 00:02:40.020 Indeed, such was her freedom of speech 50 00:02:40.020 --> 00:02:43.420 that she would sometimes say things that were not quite politically correct. 51 00:02:44.100 --> 00:02:46.240 In the early 1960s, 52 00:02:46.240 --> 00:02:49.960 she sought to persuade the Premier, Thomas Playford, 53 00:02:50.080 --> 00:02:51.840 to allow women to sit on juries. 54 00:02:52.480 --> 00:02:55.980 Looking for arguments that might persuade the Conservative Premier, 55 00:02:56.240 --> 00:02:58.540 she pointed out that women could be paid less, 56 00:02:58.560 --> 00:02:59.600 less than male jurors, 57 00:03:00.480 --> 00:03:04.720 and that they would better see through attractive young women, 58 00:03:05.800 --> 00:03:07.300 complainants in sexual cases. 59 00:03:07.600 --> 00:03:11.200 I suppose you might call that fighting sexism with sexism. 60 00:03:11.980 --> 00:03:15.940 Not something that I approve of as Commissioner for Equal Opportunity, 61 00:03:15.960 --> 00:03:17.700 but I have to admit that it did work. 62 00:03:19.060 --> 00:03:22.560 In the context of our present National Human Rights Consultation, 63 00:03:23.260 --> 00:03:25.780 it's worth pointing out that Dame Roma was willing 64 00:03:25.780 --> 00:03:28.540 to challenge our complacency about Australia's human rights. 65 00:03:28.560 --> 00:03:29.560 She said, 66 00:03:30.220 --> 00:03:34.460 and addressing a forum at the Multicultural and Ethnic Affairs Commission in 1995, 67 00:03:35.160 --> 00:03:35.700 she said, 68 00:03:35.940 --> 00:03:39.260 there has been in the past an attitude in this country 69 00:03:39.260 --> 00:03:42.480 that Australia does not have to worry about rights within Australia 70 00:03:42.480 --> 00:03:45.400 because we give the lead to other countries, 71 00:03:45.600 --> 00:03:48.260 because we recognise and cherish human rights, 72 00:03:48.440 --> 00:03:53.500 and this is a free country in which no man and no woman is in any sort of bondage. 73 00:03:53.940 --> 00:03:56.760 Therefore, a lot of unnecessary fuss is made 74 00:03:56.760 --> 00:03:58.460 by those who talk about enforcement, 75 00:03:58.560 --> 00:03:59.300 by those who talk about enforcement of human rights. 76 00:04:00.120 --> 00:04:01.840 To dispel this illusion, 77 00:04:02.060 --> 00:04:05.340 it is necessary to do no more than look at the International Convention 78 00:04:05.340 --> 00:04:08.340 on the Elimination of All Forms of Racial Discrimination 79 00:04:08.340 --> 00:04:12.900 and to consider whether we've yet implemented its provisions. 80 00:04:13.680 --> 00:04:16.140 And in another context, she also said, 81 00:04:17.240 --> 00:04:20.880 legislative and judicial action can only go part of the way 82 00:04:20.880 --> 00:04:24.140 to ensure the observance of human rights. 83 00:04:24.240 --> 00:04:27.920 The rest, she thought, depended on people's attitudes. 84 00:04:28.660 --> 00:04:32.100 I suppose together, these observations could well form 85 00:04:32.100 --> 00:04:35.120 a very good submission to the present National Consultation. 86 00:04:36.160 --> 00:04:38.840 But of course, Dame Roma speaks better for herself 87 00:04:38.840 --> 00:04:41.060 than any of us can speak for her. 88 00:04:41.220 --> 00:04:43.220 So before I introduce our speaker, 89 00:04:43.500 --> 00:04:45.880 I'd just like to show you a short segment 90 00:04:45.880 --> 00:04:49.140 from a state-line program going back some years. 91 00:04:50.060 --> 00:04:52.900 And Maxine McHugh then was interviewing Dame Roma. 92 00:04:53.640 --> 00:04:56.840 So I don't think we see Maxine in this, 93 00:04:56.900 --> 00:04:57.820 but if you'd just like to, 94 00:04:57.820 --> 00:04:59.620 for those of you who haven't seen her, 95 00:04:59.700 --> 00:05:01.120 to have a look at Dame Roma. 96 00:05:03.300 --> 00:05:07.360 These days, Dame Roma is concentrating on the supervision of new laws. 97 00:05:08.800 --> 00:05:14.620 I said I'd talk to you about some of the work of the Human Rights Commission 98 00:05:16.680 --> 00:05:21.380 because we are constantly being accused of having a low profile. 99 00:05:21.760 --> 00:05:23.640 The Commission is still in its infancy. 100 00:05:23.940 --> 00:05:26.160 A lot of Australians don't know it exists, 101 00:05:26.320 --> 00:05:27.700 let alone what it does. 102 00:05:28.620 --> 00:05:31.360 Financial constraints prohibit extensive advertising, 103 00:05:31.780 --> 00:05:36.200 so talks like these by the Commission's most visible spokesperson are vital. 104 00:05:36.440 --> 00:05:38.960 A lot of the complaints we get under that Act 105 00:05:38.960 --> 00:05:42.220 do relate to Aborigines, as you may imagine. 106 00:05:42.300 --> 00:05:46.380 They relate to the failure to accept them as tenants, 107 00:05:47.220 --> 00:05:51.680 the sort of thing that two or three Aborigines go into a hotel 108 00:05:51.680 --> 00:05:55.440 and they're told you can have one drink and no more, 109 00:05:55.620 --> 00:05:57.620 and then when they complain they're told, 110 00:05:57.620 --> 00:06:00.820 well, there were some Aborigines in here yesterday and they created a fuss. 111 00:06:01.480 --> 00:06:03.160 You know, how we'd take it, 112 00:06:03.220 --> 00:06:07.340 there were some non-Aborigines in here yesterday and they created a fuss 113 00:06:07.340 --> 00:06:08.260 and you can have one drink. 114 00:06:08.760 --> 00:06:11.500 You can imagine the fury that it causes. 115 00:06:11.700 --> 00:06:13.360 So there's a lot of that. 116 00:06:13.780 --> 00:06:18.160 I think it's reasonable to say that children... 117 00:06:18.160 --> 00:06:20.280 The Commissioners meet monthly in Canberra. 118 00:06:20.420 --> 00:06:25.320 You're the one who really has been pressing for us to do this study. 119 00:06:25.520 --> 00:06:27.460 It's their task to administer the... 120 00:06:27.620 --> 00:06:28.600 ...race discrimination... 121 00:06:29.560 --> 00:06:31.420 That's enough. This is a half an hour program, 122 00:06:31.600 --> 00:06:34.240 so we would take up all of our oration showing you that. 123 00:06:35.040 --> 00:06:37.800 But if human rights are to be adequately protected, 124 00:06:38.100 --> 00:06:40.720 it's essential that we have freedom of speech. 125 00:06:41.340 --> 00:06:43.840 We need to be free to criticise our governments 126 00:06:43.840 --> 00:06:45.820 and to speak out about rights violations. 127 00:06:46.520 --> 00:06:49.600 We need to be able to propose expansions of the law 128 00:06:49.600 --> 00:06:50.860 to deliver new protections. 129 00:06:51.420 --> 00:06:55.200 But in the context of our national consultation about a Bill of Rights, 130 00:06:55.340 --> 00:06:57.340 we should not make the mistake of thinking 131 00:06:57.340 --> 00:06:59.160 that human rights are a simple matter. 132 00:06:59.700 --> 00:07:02.000 They are simply expressed, of course, 133 00:07:02.100 --> 00:07:05.500 a right to liberty, a right to security of person and so on. 134 00:07:05.620 --> 00:07:08.000 But the simplicity marks the real problem. 135 00:07:08.440 --> 00:07:10.960 How are these principles to be applied in practice? 136 00:07:11.620 --> 00:07:15.280 Freedom of speech is a fundamental, but it is not an absolute. 137 00:07:15.660 --> 00:07:18.460 There are other competing freedoms to be considered. 138 00:07:18.800 --> 00:07:21.980 We want free speech, but we don't want hate speech. 139 00:07:22.440 --> 00:07:24.280 We have a right to know and tell, 140 00:07:24.500 --> 00:07:27.140 but equally we have rights to confidentiality 141 00:07:27.140 --> 00:07:27.760 and privacy. 142 00:07:28.740 --> 00:07:32.420 We want free artistic expression, but we abhor child pornography. 143 00:07:33.140 --> 00:07:36.180 So as soon as we embark on the topic of free speech, 144 00:07:36.460 --> 00:07:38.160 as with any other human right, 145 00:07:38.360 --> 00:07:42.340 questions arise about the values that we are actually seeking to protect. 146 00:07:42.920 --> 00:07:44.540 If we acknowledge a right, 147 00:07:44.740 --> 00:07:47.840 we must also delineate the limits of that right. 148 00:07:48.320 --> 00:07:52.800 Which is why I am delighted to be able to introduce Dr Catherine Gelber, 149 00:07:53.020 --> 00:07:56.680 Associate Professor of Politics in the School of Social Sciences 150 00:07:56.680 --> 00:08:00.040 and International Studies at the University of New South Wales. 151 00:08:00.760 --> 00:08:04.880 Dr Gelber's research interests are Australian politics and human rights, 152 00:08:05.020 --> 00:08:08.980 and especially freedom of speech and its relation to hate speech. 153 00:08:09.380 --> 00:08:12.900 In 2007, Dr Gelber published the book 154 00:08:12.900 --> 00:08:15.220 Hate Speech and Freedom of Speech in Australia, 155 00:08:15.500 --> 00:08:18.800 and she is currently undertaking a major research project 156 00:08:18.800 --> 00:08:22.960 on the topic of securing freedom, political speech in Australia. 157 00:08:23.400 --> 00:08:26.600 This afternoon, in honour of Dame Roman, 158 00:08:26.680 --> 00:08:30.060 Dr Gelber will speak to us, freely we hope, 159 00:08:30.220 --> 00:08:32.600 about freedom of speech and its limits. 160 00:08:32.800 --> 00:08:34.700 Could you welcome Dr Catherine Gelber? 161 00:08:36.420 --> 00:08:37.000 APPLAUSE 162 00:08:44.100 --> 00:08:45.080 Good afternoon. 163 00:08:45.520 --> 00:08:49.100 I acknowledge that we're meeting on the traditional country of the Kaurna people, 164 00:08:49.300 --> 00:08:51.740 and I recognise and respect their cultural heritage, 165 00:08:52.040 --> 00:08:53.880 beliefs and relationship with this land. 166 00:08:54.600 --> 00:08:56.120 Commissioner, ladies and gentlemen, 167 00:08:56.120 --> 00:08:56.720 good afternoon. 168 00:08:56.960 --> 00:08:59.900 It's a great honour to be presenting the Mitchell Oration today, 169 00:09:00.180 --> 00:09:04.680 an oration that recognises Dame Roman's lifelong advocacy for human rights 170 00:09:04.680 --> 00:09:06.140 and preventing discrimination. 171 00:09:06.820 --> 00:09:09.820 I thank the South Australian Commissioner for Equal Opportunity, 172 00:09:09.820 --> 00:09:11.300 Linda Matthews, for her invitation. 173 00:09:12.920 --> 00:09:15.160 Dame Roman Mitchell was a woman of extraordinary talents, 174 00:09:15.560 --> 00:09:16.920 wisdom and humour. 175 00:09:17.440 --> 00:09:20.140 Unfortunately, I never had the opportunity to meet her, 176 00:09:20.280 --> 00:09:24.860 but even a cursory examination of the wealth of biographical information available, 177 00:09:26.120 --> 00:09:29.520 has shown me that as well as being the first woman Queen's Counsel in Australia, 178 00:09:29.800 --> 00:09:33.820 the first woman judge of the Supreme Court of South Australia, 179 00:09:34.080 --> 00:09:36.420 the first chair of the Commonwealth Human Rights Commission, 180 00:09:36.680 --> 00:09:39.380 the first woman Chancellor of an Australian university, 181 00:09:40.120 --> 00:09:42.220 and the first woman Governor in Australia, 182 00:09:42.540 --> 00:09:45.500 she apparently had a warm and discerning sense of humour. 183 00:09:46.060 --> 00:09:47.800 She was a very private person, 184 00:09:47.880 --> 00:09:51.100 which inevitably led to speculation about her personal life. 185 00:09:51.460 --> 00:09:54.400 Sir William Dean, in his eulogy at her funeral mass, 186 00:09:54.400 --> 00:09:56.680 recounted the following story about her. 187 00:09:57.260 --> 00:10:00.160 During an interview in her early years on the Supreme Court, 188 00:10:00.340 --> 00:10:03.560 the following exchange occurred with a somewhat brash journalist. 189 00:10:04.420 --> 00:10:06.720 You're not married? I'm not. 190 00:10:07.100 --> 00:10:09.980 And you do not drive a car? I do not. 191 00:10:10.760 --> 00:10:14.360 Undeterred by the terseness of the replies, the journalist pressed on. 192 00:10:14.660 --> 00:10:17.440 The Chief Justice, Dr Bray, is also unmarried. 193 00:10:17.640 --> 00:10:20.280 Is there any chance that the two of you might get together? 194 00:10:21.000 --> 00:10:21.580 LAUGHTER 195 00:10:23.660 --> 00:10:24.240 No. 196 00:10:24.400 --> 00:10:26.940 No, Dame Roma replied. That would be no good at all. 197 00:10:27.060 --> 00:10:28.500 He doesn't drive a car either. 198 00:10:29.040 --> 00:10:29.560 LAUGHTER 199 00:10:33.120 --> 00:10:36.280 The topic of my presentation today, freedom of speech, 200 00:10:36.500 --> 00:10:39.260 was also a central concern to Dame Roma. 201 00:10:39.460 --> 00:10:43.260 But as I will argue here, she too became convinced that freedom of speech 202 00:10:43.260 --> 00:10:45.280 ought not to be held as an absolute, 203 00:10:45.500 --> 00:10:49.300 as an attribute to be defended and protected above all else. 204 00:10:49.800 --> 00:10:52.600 As is the case across the field of human rights debates, 205 00:10:52.600 --> 00:10:56.360 the reality of human rights advocacy is a complicated one. 206 00:10:57.100 --> 00:10:59.700 In this reality, there are few rights, if any, 207 00:10:59.800 --> 00:11:03.600 that are best seen as absolutely deserving of protection all of the time. 208 00:11:03.920 --> 00:11:06.260 This is because the protection of human rights 209 00:11:06.260 --> 00:11:09.640 and the prevention of discrimination need at times to focus 210 00:11:09.640 --> 00:11:13.840 not on hard line drawing, but instead on the protection of concrete rights 211 00:11:13.840 --> 00:11:17.120 belonging to real people in everyday circumstances. 212 00:11:18.400 --> 00:11:21.580 Before discussing how and why that might be so, 213 00:11:21.580 --> 00:11:24.500 I want first to focus on freedom of speech as a value. 214 00:11:24.740 --> 00:11:27.860 I want to explore a few of the reasons why we should consider 215 00:11:27.860 --> 00:11:31.440 freedom of speech as vitally important in Australia today. 216 00:11:32.640 --> 00:11:35.660 Freedom of speech is a right that many people take for granted. 217 00:11:36.140 --> 00:11:38.860 Australians believe firmly both that they have 218 00:11:38.860 --> 00:11:41.340 and that they should have the right to free speech. 219 00:11:42.200 --> 00:11:47.240 In 2005, a national survey of 437 young people in high schools 220 00:11:47.240 --> 00:11:49.940 and youth centres showed that unprompted, 221 00:11:49.940 --> 00:11:51.560 when asked the right that they may have, 222 00:11:51.560 --> 00:11:53.680 the most frequently believed to exist in Australia, 223 00:11:53.820 --> 00:11:55.260 they replied, freedom of speech. 224 00:11:56.220 --> 00:12:01.300 In a 1991 national survey, 100% of people surveyed agreed 225 00:12:01.300 --> 00:12:05.160 or strongly agreed that freedom of speech should be explicitly included 226 00:12:05.160 --> 00:12:06.360 in the Australian constitution. 227 00:12:07.640 --> 00:12:10.980 The National Citizenship Test, introduced in 2007, 228 00:12:11.320 --> 00:12:14.480 listed freedom of speech second in a list of values 229 00:12:14.480 --> 00:12:16.340 which are important in modern Australia, 230 00:12:16.640 --> 00:12:21.260 coming after respect for the equal worth, dignity and freedom of the individual. 231 00:12:22.560 --> 00:12:25.160 Our politicians have also described free speech 232 00:12:25.160 --> 00:12:27.680 as central to Australian political and legal culture. 233 00:12:27.760 --> 00:12:30.180 During the height of Pauline Hanson's popularity, 234 00:12:30.620 --> 00:12:33.120 when she was attracting widespread media coverage 235 00:12:33.120 --> 00:12:35.500 of her controversial views on race and immigration, 236 00:12:36.060 --> 00:12:39.420 former Prime Minister John Howard described free speech 237 00:12:39.420 --> 00:12:43.440 as a cardinal principle, a given of our free and open society. 238 00:12:44.080 --> 00:12:46.620 The Prime Minister preceding him, Paul Keating, 239 00:12:46.700 --> 00:12:49.800 also described freedom of speech as one of the basic principles 240 00:12:49.800 --> 00:12:50.900 of Australian society. 241 00:12:50.900 --> 00:12:54.220 And our current Prime Minister's homepage describes 242 00:12:54.220 --> 00:12:57.620 Australia's system of government as based on the liberal tradition, 243 00:12:57.840 --> 00:13:01.600 which includes religious tolerance and freedom of speech and association. 244 00:13:03.020 --> 00:13:06.060 Why then ought freedom of speech to be considered important? 245 00:13:06.540 --> 00:13:09.180 One reason is that it's vital to democracy. 246 00:13:09.620 --> 00:13:12.880 It's the engine room of the machinery of democratic practice. 247 00:13:13.540 --> 00:13:15.800 Freedom of speech is essential to democracy 248 00:13:15.800 --> 00:13:19.400 because effective democracy depends on citizens' ability 249 00:13:19.400 --> 00:13:22.400 to criticise government and to participate actively 250 00:13:22.960 --> 00:13:25.800 in deliberation over issues affecting them. 251 00:13:26.580 --> 00:13:30.820 The argument that freedom of speech lies at the core of democratic governance 252 00:13:30.820 --> 00:13:33.460 is one of the most commonly expressed arguments 253 00:13:33.460 --> 00:13:35.520 justifying freedom of expression. 254 00:13:36.420 --> 00:13:39.660 And this idea that free speech is intrinsic to democracy 255 00:13:39.660 --> 00:13:42.640 is also in part the basis for the development 256 00:13:42.640 --> 00:13:46.340 in the High Court of Australia of a jurisprudence recognising 257 00:13:46.340 --> 00:13:48.400 that the Australian constitutional framework implies 258 00:13:48.600 --> 00:13:51.980 a freedom of speech on political matters. 259 00:13:52.800 --> 00:13:56.540 There is no explicit mention of free speech in our constitution. 260 00:13:57.060 --> 00:14:00.500 Nevertheless, since 1992, the High Court has held 261 00:14:00.500 --> 00:14:02.860 that the type of government that is established 262 00:14:02.860 --> 00:14:05.520 that is a representative and responsible government 263 00:14:05.520 --> 00:14:08.000 established by our constitutional framework 264 00:14:08.600 --> 00:14:12.360 implies a freedom from government restraint on political speech. 265 00:14:14.320 --> 00:14:18.200 Specifically, this rests on sections 7 and 24 of the constitution, 266 00:14:18.200 --> 00:14:20.420 which require that the national parliament be, 267 00:14:20.580 --> 00:14:22.680 and I quote, directly chosen by the people. 268 00:14:22.980 --> 00:14:25.780 So there's a democratic foundation for the idea. 269 00:14:26.000 --> 00:14:28.220 But it's not absolute. It's far from it. 270 00:14:28.320 --> 00:14:30.980 Laws that restrict political speech are still permitted 271 00:14:30.980 --> 00:14:33.740 if they're reasonably appropriated to achieving 272 00:14:33.740 --> 00:14:35.760 some other legitimate government end, 273 00:14:35.840 --> 00:14:37.620 like public safety, for example. 274 00:14:38.940 --> 00:14:42.140 So freedom of speech conceived of in democratic terms 275 00:14:42.140 --> 00:14:44.740 performs a social role. It's a collective good. 276 00:14:44.960 --> 00:14:46.660 But that's not all that it is. 277 00:14:47.320 --> 00:14:50.680 Participating in speech opportunities is not only important 278 00:14:50.680 --> 00:14:53.460 for the values it bestows on the democratic polity. 279 00:14:53.960 --> 00:14:57.160 It's also important for its role in individuals' lives 280 00:14:57.160 --> 00:14:58.740 as an individual good. 281 00:14:59.460 --> 00:15:02.080 This is, I think, because the benefits to democracy 282 00:15:02.080 --> 00:15:05.100 and to democratic practice from freedom of speech 283 00:15:05.100 --> 00:15:09.280 only accrue, only occur, where and when individual people 284 00:15:09.280 --> 00:15:12.080 are able to engage and participate in the speech 285 00:15:12.080 --> 00:15:13.440 that is vital to that democracy. 286 00:15:14.240 --> 00:15:16.640 So rather than seeing freedom of speech as an issue 287 00:15:16.660 --> 00:15:19.820 as an abstract value, I prefer to see it in more concrete terms. 288 00:15:20.460 --> 00:15:23.260 It's by ensuring that as many people as possible 289 00:15:23.260 --> 00:15:25.980 are able to engage in speech opportunities 290 00:15:26.660 --> 00:15:28.160 that we get the democratic payoff. 291 00:15:29.420 --> 00:15:31.620 This then has an effect on the individuals 292 00:15:31.620 --> 00:15:34.320 who are able to participate in speech opportunities. 293 00:15:34.940 --> 00:15:38.260 That participation is vital to the development of thought 294 00:15:38.260 --> 00:15:40.700 and interaction that individuals need to develop 295 00:15:40.700 --> 00:15:42.020 their own capacities well. 296 00:15:42.480 --> 00:15:45.960 It's an intrinsically human endeavour to be able to engage 297 00:15:45.960 --> 00:15:48.740 in thought and to express the outcomes of that thought 298 00:15:48.740 --> 00:15:51.360 in ways which are comprehensible to other people 299 00:15:51.360 --> 00:15:54.440 and which allow us to act together as social beings. 300 00:15:55.500 --> 00:15:58.420 It's partly by participating in speech that we develop 301 00:15:58.420 --> 00:15:59.280 as human beings. 302 00:15:59.500 --> 00:16:02.500 We become capable of making choices about our lives, 303 00:16:02.660 --> 00:16:05.460 become able to socialise and commune with others. 304 00:16:06.000 --> 00:16:10.000 And so I think we need to be able to engage in the activity 305 00:16:10.000 --> 00:16:12.620 that is speech, to think about what we want to say, 306 00:16:12.780 --> 00:16:15.760 to conceive of options for what we might say, 307 00:16:15.960 --> 00:16:18.900 and to be capable of saying it in a way that we mean 308 00:16:18.900 --> 00:16:20.400 and others might understand. 309 00:16:20.980 --> 00:16:24.020 We need to be able to be heard and responded to by others 310 00:16:24.020 --> 00:16:25.000 to whom we're speaking. 311 00:16:25.320 --> 00:16:29.240 All of that is also involved in the idea of freedom of speech. 312 00:16:30.000 --> 00:16:32.280 And if we think of freedom of speech in this way, 313 00:16:32.380 --> 00:16:34.900 we end up, I think, with a very robust idea 314 00:16:34.900 --> 00:16:37.280 of the role of speech and its importance. 315 00:16:38.000 --> 00:16:40.800 Freedom of speech is important both to a democratic polity 316 00:16:40.800 --> 00:16:44.200 and to all of the individual citizens who make up that polity. 317 00:16:44.200 --> 00:16:47.460 That's why I, along with many others, was concerned, 318 00:16:47.540 --> 00:16:49.700 for example, at the ways in which security 319 00:16:49.700 --> 00:16:55.340 for the APEC economic leaders' meeting in Sydney in September 2007 320 00:16:55.340 --> 00:16:57.780 was organised with evident disregard 321 00:16:57.780 --> 00:17:00.820 for human rights and free speech principles. 322 00:17:01.920 --> 00:17:03.800 Protests at that event were regulated 323 00:17:03.800 --> 00:17:06.120 by specific point-in-time legislation 324 00:17:06.120 --> 00:17:09.160 which created declared and restricted areas 325 00:17:09.160 --> 00:17:13.640 and gave police special stop-and-search, seizure directions 326 00:17:13.640 --> 00:17:14.180 and 327 00:17:14.200 --> 00:17:15.200 exclusion powers. 328 00:17:16.000 --> 00:17:19.640 There were allegations that police were rounding up organisers 329 00:17:19.640 --> 00:17:22.660 after a march had concluded, even though it had been peaceful, 330 00:17:22.840 --> 00:17:25.440 that police targeted troublemakers for arrest, 331 00:17:25.740 --> 00:17:28.200 that they made errors in understanding the boundaries 332 00:17:28.200 --> 00:17:29.360 of the declared area, 333 00:17:29.600 --> 00:17:33.460 that innocent bystanders were caught up in police-initiated violence 334 00:17:33.460 --> 00:17:36.260 and that police had promised to use extreme force 335 00:17:36.260 --> 00:17:38.280 to control protests, which they did. 336 00:17:39.160 --> 00:17:42.920 A subsequent analysis of the impact of New South Wales police powers 337 00:17:42.920 --> 00:17:44.180 on human rights during the event, 338 00:17:44.180 --> 00:17:47.540 concluded that the legislation significantly impacted 339 00:17:47.540 --> 00:17:50.740 on basic human rights, including the right to freedom of speech. 340 00:17:51.540 --> 00:17:53.920 There were similar problems with a lack of recognition 341 00:17:53.920 --> 00:17:56.320 of the importance of human rights and freedom of speech 342 00:17:56.320 --> 00:17:58.920 with the No World Trade Organisation protests 343 00:17:58.920 --> 00:18:01.420 held in Sydney in November 2002. 344 00:18:02.280 --> 00:18:05.460 Prior to those protests, the New South Wales police minister 345 00:18:05.460 --> 00:18:09.940 unsuccessfully attempted to have websites discussing the protests banned. 346 00:18:10.620 --> 00:18:14.160 However, the Australian Broadcasting Authority declined to refuse them, 347 00:18:14.160 --> 00:18:17.920 and said that they didn't reach the threshold of inciting people 348 00:18:17.920 --> 00:18:19.320 to commit violent offences. 349 00:18:20.440 --> 00:18:23.780 There are, unfortunately, numerous examples of freedom of speech 350 00:18:23.780 --> 00:18:25.540 being overridden in Australian politics. 351 00:18:25.960 --> 00:18:30.080 In 2004, political artworks commissioned by the Blacktown Arts Centre 352 00:18:30.080 --> 00:18:33.680 were removed by a local council officer who didn't like them. 353 00:18:34.060 --> 00:18:38.120 In 2007, reports were made of the government's corruption of public debate 354 00:18:38.120 --> 00:18:42.180 and the silencing of dissent in universities, non-government organisations, 355 00:18:42.540 --> 00:18:44.140 the media, the public service and the media. 356 00:18:44.140 --> 00:18:48.740 In 2005, the federal government passed anti-terrorism legislation 357 00:18:48.740 --> 00:18:52.900 which revived the offence of sedition, despite opposition 358 00:18:52.900 --> 00:18:55.460 from a broad range of community representatives, 359 00:18:55.840 --> 00:19:00.760 including the media, artists, lawyers and Muslim community members. 360 00:19:02.060 --> 00:19:06.620 Freedom of speech is vital to the effective functioning of democracy in Australia, 361 00:19:06.800 --> 00:19:11.020 and there are shameful examples of its suppression in the interests of convenience. 362 00:19:11.880 --> 00:19:14.120 Nevertheless, I suggested earlier that freedom of speech 363 00:19:14.140 --> 00:19:16.900 ought not to be considered in absolutist terms, 364 00:19:17.000 --> 00:19:20.580 and if there are some appropriate limits to freedom of expression, 365 00:19:20.920 --> 00:19:24.860 the big question, of course, is where are those limits and how do we discover them? 366 00:19:25.920 --> 00:19:30.040 I think if we think of freedom of speech in the terms in which I discussed it earlier, 367 00:19:30.140 --> 00:19:32.600 we begin to get some answers to those questions. 368 00:19:33.340 --> 00:19:38.020 If we think of speech as important because, and to the extent to which, 369 00:19:38.100 --> 00:19:42.000 it's able to help individuals to develop their own capacities to function 370 00:19:42.000 --> 00:19:44.120 as fully-fledged citizens of the world, 371 00:19:44.140 --> 00:19:45.120 and if we think of the importance of a democratic society, 372 00:19:45.660 --> 00:19:49.940 then this gives us a guide for where and when speech might be able to be regulated. 373 00:19:51.240 --> 00:19:53.980 For example, what would happen when the speech we're considering 374 00:19:53.980 --> 00:19:59.740 is not constitutive but instead destructive of individual and collective processes? 375 00:20:00.380 --> 00:20:04.680 Is it possible that if individuals' ability to participate in democratic processes 376 00:20:04.680 --> 00:20:09.220 and to develop their own capacities is injured by the speech of others, 377 00:20:09.380 --> 00:20:13.820 we might have a place to draw a line and a reason for drawing it? 378 00:20:14.140 --> 00:20:15.460 I think we do. 379 00:20:15.940 --> 00:20:18.760 I think some speech arguably crosses that line. 380 00:20:19.040 --> 00:20:21.760 One of the most obvious is vilification or hate speech. 381 00:20:22.060 --> 00:20:25.940 If it can be established that vilification is able to prevent individuals 382 00:20:25.940 --> 00:20:30.700 from developing their capacities to participate as full members of our community, 383 00:20:30.820 --> 00:20:36.000 and by doing so prevent their equal participation as citizens and community members, 384 00:20:36.300 --> 00:20:40.100 then there is an argument for its regulation in some form. 385 00:20:41.320 --> 00:20:43.460 Vilification is speech or expression 386 00:20:43.460 --> 00:20:47.580 which is capable of instilling or inciting hatred of or prejudice 387 00:20:47.580 --> 00:20:50.820 towards a person or group of people on a specified ground. 388 00:20:51.680 --> 00:20:56.200 Its core meaning is that it's speech which harms identified targets 389 00:20:56.200 --> 00:20:59.840 and the community to which those targets are perceived to belong, 390 00:21:00.020 --> 00:21:01.280 as well as the broader community, 391 00:21:01.640 --> 00:21:05.940 by ascribing negative stereotypes to all perceived members of that community. 392 00:21:06.940 --> 00:21:10.140 This does more than offend people or hurt their feelings. 393 00:21:10.240 --> 00:21:12.280 It harms them in tangible ways 394 00:21:12.280 --> 00:21:15.340 and is a discursive manifestation of prejudice. 395 00:21:15.780 --> 00:21:20.440 In other words, vilification enacts discrimination through its expression. 396 00:21:21.040 --> 00:21:23.900 One person's freedom to express messages of hate 397 00:21:23.900 --> 00:21:28.040 can subvert the freedom of others to participate meaningfully in society. 398 00:21:29.280 --> 00:21:31.700 One person's freedom to express messages of hate 399 00:21:32.280 --> 00:21:37.400 can constitute a fundamental injustice being perpetrated against the targets of that hate. 400 00:21:37.840 --> 00:21:39.940 There are numerous examples of this, 401 00:21:39.980 --> 00:21:42.180