Let’s Take A Look Back At How Badly Freedom Of Speech Got Screwed Over In 2014

There’s a bit of confusion about free speech in Australia, particularly when it comes to the current government. Most people assume that a democratic society brings with it a legal right to free speech, which is fair enough — one can’t exist without the other.

Earlier this year it seemed the government believed this principle wholeheartedly, even to a fault. Federal Attorney-General George Brandis was all about protecting our “right” to be bigots when the government wanted to water down offences for hate speech in the Racial Discrimination Act in March.

When the days of Extreme Terror rolled around, though, Tony Abbott began telling us that the “delicate balance between freedom and security may have to shift”. As it turns out, that was kind of an understatement. In recent months there has been a systematic erosion of free speech and press freedom in this country, all in the name of national security.

Turns out free speech in Australia is a myth, both legally and politically: it lives in a magical faraway land with the tooth fairy and Tupac. The government talks about free speech like it’s a legal right when it suits the current agenda, and then shuts it down when it doesn’t, seemingly not seeing how by doing this, it is dismantling the very democracy that it is so concerned to protect.

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Starting From The Bottom: The Parlous State Of Free Speech Protection In Australia

The process of screwing our freedom of speech is actually pretty easy.  We start with no personal, legally protected right to free speech, because we have no bill of rights. We are not the USA; free speech in Australia is nothing more than an ideal, a flag that politicians raise in defence of their right to offend people.

Technically speaking, there is a legal rule implied in our constitution that should invalidate any law that unreasonably interferes with our freedom of communication about political issues.  But it’s up to the courts to police it and in practice they uphold pretty much every law. The test for validity balances the importance of the law’s purpose and the importance of freedom of political communication.  National security is always going to win that particular thumb war, meaning there’s not much to stop the government legislating away our imagined freedom.

It all started with the terror raids and alleged planned beheadings in Martin Place back in September. There was all that great TV footage of ASIO and the feds charging into ‘terror dens’ (aka suburban houses) and saving us all from unspeakable horrors. It was just like a Denzel Washington movie.

Just before the raids, the government obtained controversial “preventative detention orders” allowing it to detain suspects taken in the raids without charging them. It also got indefinite suppression orders preventing anyone publishing the details of those detention orders or the reasons for them to make sure nobody would know who was held or why.

That meant that the story that filtered through the media was ‘go Team Australia’.  Tony Abbott said that attacks were imminent but for the raids, and George Brandis warned of “terrorist outrage on the streets of Sydney” before segueing into the need for additional powers for police and security agencies. In the furore, little things like whether we recognise fundamental human rights such as not being locked up without charge or hearing got lost. The media got played, and so did we.

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Hide And Seek: Data Retention And Going After Whistleblowers

Just a couple of days later Abbott announced the first round of new anti-terrorism laws. Among other things, the laws created an offence with up to ten years’ jail for disclosing any information about a “special intelligence operation”. ASIO decides which operations are “special”, but obviously it won’t tell us. Potentially any security operation could be an SIO, meaning that any leak or press coverage of a security operation could come with a bonus ten years in jail.

The result? Prison-fearing journalists sidestep reporting on security issues. Next time someone blows the cover on the government phone tapping the Indonesian President, we probably won’t hear about it. The government does more of what it wants without fear of reprisal from those pesky reporters. And we potatoes on the couch are none the wiser.

Then comes round two of the anti-terrorism legislation, the stuff about mandatory metadata retention. According to the bill currently before parliament, ISPs and telcos will have to store specified metadata for two years, including the source, destination, date, time, location and duration of a communication — but not its content. Law enforcement and security agencies will have access to that information without a warrant.

Aside from getting people in a tizz about privacy, mandatory metadata retention is likely to have a further impact on press freedom. Sources risk identification if a communication with a journalist via phone, email or Internet is picked up by the government. The absence of content might slow the government down, but it won’t stop it. The source could be compromised without the journalist uttering a word or a warrant being issued. As if that won’t make a source think twice about talking to a journalist in the first place.

The result? Fewer leaks and less accountability or embarrassment for the government. Sources already have a tough gig — just look at Freya Newman, prosecuted for blowing the whistle on a dodgy scholarship awarded to Tony Abbott’s daughter. Newman narrowly escaped conviction, but only after a very public trial and on the condition of two years’ good behaviour.

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Where Does That Leave Us?

Individually, any of these developments might be justifiable. But viewed together they paint a terrifying picture of the government’s approach to national security and freedom of speech. It’s one thing to gag the press, and even to target media informants. But it’s another matter altogether to couple those things with an outright manipulation of what we know of security operations like the NSW terror raids. The inference is a deliberate deceit by the government; spoonfeeding us the news it wants us to hear, and suppressing the details that detract from it.

Maybe it’s genius — terrorists won’t need to destroy our democracy if the government does it for them. Either way, we’re getting screwed. We receive incomplete, distorted information about our government, our ability to communicate and hold the government accountable is diminished, and the government can act with impunity safe in the knowledge that its watchdogs have been effectively silenced. We are being manipulated in the name of our own protection.

That’s not cool.

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Hannah Marshall is a Senior Associate at Marque Lawyers, a boutique Sydney law firm which was established in 2008 to disprove the theory that all lawyers are over-priced and boring.  Hannah specialises in media law and competition and consumer law, is way the firm’s best surfer and a massive law nerd.