Amnesty International, academics and the journalists’ union have warned that laws restricting information about national security and immigration detention are a greater threat to freedom than race speech laws.
The groups have called for reform of the laws and greater substantive protection of freedom of speech in submissions to the Senate inquiry into section 18C of the Racial Discrimination Act.
The inquiry received more than 150 submissions, and many groups representing ethnic communities warned against repeal of the section that prohibits speech that offends, insults, humiliates or intimidates people based on race.
George Williams, a constitutional law academic at the University of New South Wales, made a submission saying the wording of 18C was “overbroad” and proposed “a more demanding standard such as to degrade, intimidate or incite hatred or contempt”.
But he warned that a focus on 18C neglected “a much larger problem” of a multitude of laws that “represent a more serious infringement of freedom of speech”.
Williams cited section 35P of the Australian Security Intelligence Organisation Act, which he said allowed journalists “to be jailed for publishing material revealing misconduct by government agencies” or the fact someone had been detained by Asio.
The criminal code also allows the attorney general to ban and label an organisation a terrorist group merely for “praise” of a terrorist group where that might lead another person to engage in a terrorist act.
Amnesty International submitted that section 18C did not require amendment, and it was one of many submissions to note that defences were provided in section 18D that protected freedom of speech for statements made reasonably, in good faith and in the public interest.
The inquiry should focus on other laws that “create serious freedom of speech concerns”, it said.
Amnesty International said the Asio Act should be amended to introduce a public-interest defence for disclosing information to the public about special intelligence operations.
It called for repeal of the secrecy provision of the Border Force Act, which makes it an offence punishable by two years in prison for immigration and border protection workers to release information without authorisation.
Amnesty said the data retention law should be changed to require a law enforcement agency to obtain a warrant before accessing a person’s metadata.
It called for an independent review of national security laws, including the offence of “advocating terrorism”, and the general secrecy offences in sections 70 and 79 of the Crimes Act, which effectively criminalise public-sector leaks.
The Law Council of Australia said it had not arrived at a “settled position” on 18C but argued that the ban on organisations “advocating terrorism” should be repealed.
It said secrecy provisions in the Crimes Act and the Border Force Act should require that disclosure of commonwealth information did, or was reasonably likely to, or intended to cause harm to an identified essential public interest.
The council said the government should consider expanding the class of people who could blow the whistle on conditions in immigration detention to all immigration workers.
The Media, Entertainment and Arts Alliance, which represents journalists, warned of “significant threats to free speech” and described the terms of reference of the inquiry as “too narrow”.
It highlighted “the use of defamation, contempt of court, and suppression orders to intimidate or muzzle legitimate reporting of matters in the public interest” and the risk of 10 years’ imprisonment for journalists who breached the secrecy provision of the Asio Act.
Many organisations supported retaining 18C on the basis it struck the right balance between freedom of expression and freedom from discrimination.
These included the Victorian government, the Refugee Council, the Executive Council of Australian Jewry, Reconciliation Australia, the Australian Lawyers’ Alliance, the Arab Council of Australia, and the Federation of Ethnic Communities Councils of Australia.
Relatively fewer organisations supported the wholesale repeal of 18C. These included the Institute of Public Affairs and the Australian Young Liberals.
The Australian Human Rights Commission, which administers section 18C including investigating and conciliating complaints, backed calls for a more comprehensive inquiry into other freedom of speech issues.
The AHRC submission was silent on how 18C itself might be reformed. The race discrimination commissioner, Tim Soutphommasane, has said there is “no case” to change 18C, in contrast to its president, Gillian Triggs, who has indicated she is open to reform, including replacing the terms “offend” and “insult” with “vilify”.
Organisations that backed that compromise position included Monash University’s Castan Centre for Human Rights Law, MEAA, and the Australian Industry Group.
The AHRC rejected the suggestion in the inquiry’s terms of reference that it had “called for or solicited complaints” in relation to a Bill Leak cartoon, saying it was fulfilling its statutory function of informing people of their right to complain.
It backed procedural changes, including requiring a complainant to state and detail a fact that, if proved, could constitute unlawful discrimination, and preventing them from pursuing a complaint in court if the president terminated it for lacking substance.
Williams advocated a “more holistic response”, including a general protection of the right of freedom of speech in the law, such as a bill or charter of rights.
Amnesty International called for a human rights act as the best way to achieve freedom of expression and balance it against other rights.
