October 23, 2017 Print

Simon Breheny and Chris Berg at the Parliamentary Inquiry into changes to the Racial Discrimination Act. 

A section of the 1975 Australian Racial Discrimination Act prohibits offense, insult, humiliation, or discrimination based on race, nationality, or ethnicity; and in 2017, Australia passed the Additional Safeguards Bill to the Marriage Law Survey to punish anyone who would “vilify, intimidate, or threaten” another that holds an opinion on same-sex marriage while Australia holds a referendum on the issue. But while these laws appear to punish speech that most people would consider extremely inappropriate in modern society, enforcement of these subjective principles has a perverse effect on free speech. The Institute of Public Affairs (IPA), an Atlas Network partner based out of Melbourne, is at the forefront of the debate to end these illiberal policies.

The IPA has released research papers and briefs clearly explaining how these laws are harmful to democracy and are unjustifiable encroachments on freedom of speech. Under these laws, lawful speech is contingent on subjective rulings of “offensive” or “harmful” content. These ambiguous terms can result in the penalization of any opinion that is negatively construed by another person, and discussion of controversial subjects is constrained by this restriction. This law silences many who would voice their opinion, but do not because of a fear of government reprisal.

“By consistently publishing high quality research and disseminating that research to our members and to the broader community, we are shaping the debate on the fundamental human right to freedom of speech,” said Simon Breheny, director of policy at the IPA. “Our work has had very significant consequences. Section 18C of the Racial Discrimination Act 1975 was a dormant issue for years until the IPA’s research demonstrated how dangerous the law is. Now it’s a fixture of national news and current affairs.”

The IPA's Simon Breheny explains how a Facebook post by a QUT student has turned into a three-year legal saga.

The laws have a host of other similar issues that the IPA has combatted. Through the use of vague language such as “offend” and “vilify,” it is unclear how these policies will be enforced. The scope of illegal speech is mysterious to the public as judges are left to interpret what the true intent of the law really is. Additionally, there is a low threshold for the courts to accept complaints. A burden is placed upon the accused, exemplified by the fact that the opus of innocence is placed upon them. Finally, with the existence of such discretionary power placed in the hands of the government officials, these efforts create a dangerous precedent for future governments to restrict individual liberties even further.

“The IPA’s influence on the debate [about freedom of speech] exemplifies what happens when free-market think tanks put forward quality research and present evidence about the effects that freedom, or its absence, can have on people’s lives,” continued Breheny. “The impact that the IPA is having is tangible, both for those that are directly impacted by free speech restrictions and also for the broader Australian community.”

The IPA's Morgan Begg and Chris Berg were live in Brisbane on Nov. 4, 2016, outside the Federal Circuit Court when the case against three former students of QUT was thrown out.