There are serious threats to freedom of expression in Australia, but they don’t come from the much debated section 18C of the Racial Discrimination Act.
They come from our own Australian government, which in the last three years has been chipping away at our rights to freedom of expression and access to information.
First it was our national security laws. The ASIO Act was amended in 2014 to make journalists and others face significant prison terms for reporting on special intelligence operations. The laws have limited journalists’ ability to report freely.
Then in 2015, changes to the Border Force Act gave the government the power to prosecute doctors, nurses and child welfare professionals who speak out about rights abuses in immigration detention. This law had a chilling effect on disclosure of information about Australia’s offshore processing regime.
The law was last year amended to exclude medical professionals, however other detention centre staff and service providers are still being silenced.
Speaking at an Amnesty press conference last year, Sandra Bartlett, a former case manager with Connect Settlement Services on Nauru, broke down in tears and said she was "terrified" of speaking out. But, she said, she was doing so because she feared that more asylum seekers would die if action wasn't taken. By telling of the horrors she had witnessed, Ms Bartlett risks facing two years in prison for breaching the Border Force Act.
Also in 2015, the Government made all Australians vulnerable by passing mass metadata surveillance laws. Telecommunications companies must now store customers’ metadata for two years and provide it to a wide range of government agencies without a warrant.
This has made whistleblowers and other sources more reluctant to pass journalists information, because they know government agencies can track their phone and email records to see which journalists they contacted, at what time and date, and from which location.
Government agencies can also access journalists’ metadata by applying for Journalist Information Warrants, which are granted in secret and without journalists’ knowledge. The combined effect has limited the media’s ability to uncover stories in the public interest.
Governments around the country are also cracking down on Australians’ right to have their say through peacefully protesting.
NSW passed laws last year limiting protest actions at mining and coal seam gas sites.
Tasmania passed a law in 2014 against acts that inhibit access to business premises if people are protesting a political, environmental, social, cultural or economic issue. The law was criticised by three UN special rapporteurs, saying it would have “the chilling effect of silencing dissenters and outlawing speech protected by international human rights law.”
A bill before the Western Australian Parliament would establish excessive penalties and require people to disprove in court that their protest was intended to prevent a lawful activity.
These attacks on Australians’ freedom of expression highlight a disturbing trend in this country.
It is more important than ever that the Australian people and press are able to hold our Government accountable, as countries around the world increasingly use draconian laws to oppress their citizens.
Malaysia has passed or amended laws to restrict media outlets and publishers, ban materials critical of the government, restrict peaceful protests, and arrest people who speak out against the government. Poland’s new counter-terrorism bill increases surveillance and risks violating rights to expression, association and peaceful assembly. And Belarus is using the phone networks of the world’s biggest telecommunications companies to stifle free speech and dissent.
In the light of these worrying trends the Attorney General’s announcement of a Parliamentary Inquiry into Freedom of Speech in Australia had the potential to be a positive move for greater governmental transparency and accountability.
But the Inquiry does not plan to take a long hard look at our counter-terrorism and national security legislation, or secrecy laws that prevent and punish whistleblowers.
Instead the terms of reference for this inquiry are focused on the Racial Discrimination Act.
The Racial Discrimination Act was reformed in 1995 following three national inquiries, which recommended laws be enacted to curb racially motivated violence.
The laws offer a mechanism for people to be heard, after they have suffered a public act that is reasonably likely to offend, insult, humiliate or intimidate them, based on their race.
Since 1995 the Australian courts have interpreted sections 18C and 18D of the Act in a way that has finely balanced freedom of expression and the right to live free from racial hatred. In fact, successful section 18C cases are rare as the courts have interpreted a high threshold of proof.
To achieve the right balance between the two freedoms, the laws provide only civil remedies (so no one will go to jail for breaching the laws) and most complaints are resolved through conciliation.
Changing the Racial Discrimination Act now would impact on Aboriginal and Torres Strait Islander communities and the many other communities that are vulnerable to racism.
Racism has real and devastating consequences. Racism impacts upon health, particularly mental health and suicide rates, as well as school attendance, workplace productivity, and social and economic participation. We need political leaders to condemn racism in all its forms. Sadly that leadership is inconsistent today.
Based on our research from across the world Amnesty’s key recommendation to the inquiry is that Australia legislate a Human Rights Act. Australia is the only Western democracy without a national Human Rights Act or bill of rights. Such an instrument would clearly outline how competing human rights and freedoms, such freedom of expression and the right to live free from racial hatred, are balanced.
We have come a long way as a strong, multicultural and tolerant society since 1995. Let’s not undo years of progress. We must protect the Racial Discrimination Act, as well as freedoms for whistleblowers, the press, and Australians’ right to speak out against Government, for an open and diverse Australia.
Amnesty International staff have been invited to appear at the Inquiry Committee Hearing on 1 February. Amnesty’s submission can be found here.