Australians Are Quietly Losing Their Right to Free Speech

In September, more than half of Australia’s environmental scientists working for the federal and state governments reported that they had been “prohibited from communicating scientific information” to the general public.

Research on climate change, the extinction of animal species and pollution was all being suppressed.

Despite the potential for scientific research to shape national elections, the federal government did not intervene to protect any of their scientists’ right to free speech.

There was not a single member of the Liberal party who came to their defence. Where was Tim Wilson? Where was Dan Tehan and his free speech crusade? Where were the Liberal party’s liberal members?

The idea of liberty seemed to have suddenly vanished from their hearts.

Eight score years ago, Robert Menzies spoke about the four freedoms at risk during World War 2. He listed freedom from want, freedom from fear, freedom of worship and freedom of expression. He warned us that freedom of expression could vanish in Australia at any time, unless we stayed constantly vigilant.

There are fascist tendencies in all countries – a sort of latent tyranny. And they exist, be it remembered, in radical as well as in conservative quarters. Suppression of attack, which is based upon suppression of really free thought, is the instinctive weapon of the vested interest.

I wonder what Menzies would think if he were alive today?

What would Menzies think about public servants living in fear of what they say online? What would Menzies think about charities being unable to talk about politics? What would Menzies think about government scientists living in fear of releasing their research online? Or the vested interest, made clear, when the government rolls out a “Gas Lit Recovery,” likely going against everything those scientists are working on.

The truth is that the current government is not a conservative government. A conservative government would not consistently undermine the Western legal tradition.

From the raids on ABC offices, to the ban on charities talking about politics, to the ban on public servants talking about politics, to the ban on public servants talking about private ‘stakeholders,’ to the ban on public servants talking about immigration detention and now to the suppression of government scientists talking about their own research. This government has shown again and again that it cannot be trusted to conserve the basic tenets of the Western legal system.

Freedom of speech. Freedom of the press. Without these, we do not have a democracy. When the government passes laws limiting our right to free speech on political matters, we cannot make an informed choice of who to vote for on election day.

It is that simple. There are no exceptions.

Freedom of speech is not something that you defend when it is convenient for your side or expedient for your political agenda. It is not something that you defend when it suits you or when it only affects your religious group. It is not something that you defend in opposition and undermine in government.

It is something that you defend at all times, no matter who benefits. In the words of Evelyn Beatrice-Hall (paraphrasing Voltaire): “I disapprove of what you say, but I will defend to the death your right to say it.”

I used to think that we had such freedoms in this country. When an old man murmured ‘dickhead’ to Tony Abbott in a department store, and got away with it. When protestors yelled shame at Paul Keating, to which he replied “get a job,” and got away with it. When a dying man threw a shoe at John Howard, then sold that shoe at an auction, and got away with it. It felt like a uniquely Australian vision of democracy, a larrikinism that allowed us to say whatever we felt like without living in fear.

There are countries where you get imprisoned for talking truth to power. There are countries where nothing happens to you at all. And then there are countries like Australia, where increasingly, you get fired.

In 1992, the High Court read an implied freedom of political communication into our constitution. To have the right to vote, they reasoned, you needed the right to speak freely about political matters. The very idea of representative democracy meant that people had the right to hold their representatives responsible for their actions.

Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion.

Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives.

The case of Michaela Banerji last year made it clear to me however, that our implied freedom of political communication is not very strong at all.

In 2012, Banerji, a public servant, posted thousands of tweets criticizing the government’s approach to immigration detention on her anonymous Twitter account. When her Twitter pseudonym, Lalegale, was revealed to her employers in the immigration department, she was fired from her job. Banerji took the government to court, arguing that, by firing her, they had violated her implied freedom of political communication.

Last year, Banerji lost her case in the High Court. In a radical decision, the court said that our constitutional implied freedom of political communication -the main right to free speech in Australia- does not apply to individuals at all.

Even if a law significantly restricts the ability of an individual or a group of persons to engage in political communication, the law will not infringe the implied freedom of political communication unless it has a material unjustified effect on political communication as a whole.

This was a badly decided case. Nevertheless, it proves that we have one of the weakest constitutional protections of free speech in the world. The government can undermine it at any time with new laws targeting individuals and groups. The common law will not protect us. The constitution will not protect us. To steal a phrase from Paul Keating, it is a warm wet lettuce.

We can fix it though.

We can pass a constitutional amendment. We can pass a bill of rights. Heck, we can pass an ordinary law enshrining freedom of speech into our legal system.

Every four years we send politicians to Canberra to pass laws on our behalf. If they stop us from speaking however, then whose laws are they passing exactly? In my experience, the silencing of public servants has led to the growth of corporate power over our government. Far from being a government of the people, by the people, our current government is transitioning to a government of the corporation, by the corporation. In public document after public document, you can read their allegiance between the lines – when the only thing mentioned is efficiency, productivity and economic growth.

The end result is not a democracy but a technocracy; where the powerful owe fealty not to the people but to an expert class of technocratic elite, a powerful body of corporate interests, lobby groups and stakeholders from a broad cross-section of dubious origin. Origins like big oil, big tech, big pharma and the big banks.

In some cases, the corporations our government is listening to are foreign-owned, non-taxing paying entities. As a result, they do not deserve the disproportionate influence they wield over our laws. An influence which is becoming stronger than that of the average citizen, the ‘people’ the government is meant to be representing.

This bias is most obvious in Canberra itself.

When the average person goes to Canberra to protest for their personal rights, politicians get informed what streets the protesters will be on so that they can drive on different streets. When the average businessman goes to Canberra to protest for their corporate rights, politicians will meet with the businessman in person, roll out refreshments and canapes and provide a full red-carpet treatment.

When the government silences charities, public servants and tries to silence journalists, it moves away from being a representative democracy altogether. In fact, it starts to sound a bit more like that other, not so nice, form of government.

In 1980, Bertram Gross wrote a book called Friendly Fascism. In it, he warned us that the new fascists will not be so easy to spot. They will not appear on a podium, yelling at us like Hitler. Instead, they will appear on television in well pressed suits. They will appear as family men. They will appear engaging in everyday relatable activities, such as, we might say, drinking a cold beer in a pub. They will smile at us and say all of the right things that we want to hear. By the time we see the knife in their hands it will already be halfway buried into our chests.

There is an authoritarian bent to the new conservative movement; diverging from liberal ideals and towards the suppression of dissent, contrary viewpoints and individual freedoms. The new conservatives, the alt right, are not liberal by any definition of the word. They are the friendly fascists Gross warned us of. They are people who at first appear on our side; people who beam into our loungerooms on television with a grin on their faces; people who say all of the right things, while slowly sharpening their knives to cut away at our individual rights and liberties.

You may think that I am exaggerating here.

The truth is, none of this is hypothetical.

In passing numerous laws, rules and standards on public servants, the current government has already silenced over two million Australian citizens. Breaching these standards, even with a stray emoji online, can result in termination. In practical terms, this means that there are over two million Australians living in fear of losing their jobs for what they say in their private lives, outside of working hours.

If we add the new laws on charities, the new laws on the Border Force, the recent raids on ABC offices, the suppression of government scientists and workers more generally, we start to build a picture of an Australian government that is poking holes in our democracy. Far from abiding by the High Court’s 1992 mandate of free expression, the current government seems intent on crushing our right to free speech at every opportunity it gets.

We have watched the wave of tyranny Menzies warned us about, a tsunami that has crash landed on Western shores. From Hungary to the UK to the United States, we have watched in horror as journalists get arrested, government workers get silenced and citizens get harassed on the streets. We have watched our own journalists get beaten up overseas and increasingly, governments acting with impunity against their own people.

I am done watching.

If we believe in democracy, if we believe in free and open expression, then we must fight for the right of everyone, no matter their occupation, to speak freely.

This is not about me or the current government. This is not about left or right. This is about the future of our country. This is about defending the right to free speech for each of us, so we can defend the right for all of us.

If we do not defend each incursion on our rights, we will one day wake up to an Australia we no longer recognize. An Australia that has failed to conserve our basic legal freedoms.

This article was originally published on the Oxford Political Review.

Joshua Krook is a law academic researching the future of legal education. His writing on law and technology can be found in The Conversation, Australian Book Review, Business Insider and others. He can be found on Twitter @JoshKrook.