Free speech is at risk in Australia – and it's not from Section 18C

Who can say what to whom in Australia? In this six-part series, we look at the complex idea of freedom of speech, who gets to exercise it and whether it is being curtailed in public debate.

Section 18C of the Racial Discrimination Act – Australia’s federal hate speech law – has tended to dominate public debate about free speech for the last few years. This has meant other important laws that restrict free speech in broad ways are being overlooked.

While the 18C debate has raged, important new restrictions on freedom of speech have been introduced in Australia. These have flown much further under the radar.

These restrictions should concern us, because they have a wide-ranging impact on the freedom of speech that is essential to democratic deliberation.

Free speech does the work of democratic governance by providing the people with the information they need to govern themselves, to hold their representatives accountable, and to decide which policies to accept or reject.

Citizens need to be able to convey their opinions to government and engage in criticism of policy. Government needs to accept this criticism, even vehement criticism, as part and parcel of governing in a democracy.

The first law that impinges of freedom of speech is the introduction in 2014 of a new power for the attorney-general to declare an operation a “special intelligence operation”, including retrospectively. Once such a declaration has been made, it becomes a crime for journalists to report on these operations.

There is no public interest disclosure exemption under this law. So, even journalists reporting on activities that a government might be undertaking illegally or corruptly can still be prohibited.

In 2015 the Independent National Security Legislation Monitor conducted a review of the impact of this law on journalists. It concluded the law created uncertainty about what journalists could publish. Although the government agreed to its recommendations in 2016, those changes have not yet been implemented.

Second, a new prohibition introduced in the same legislation on the copying or disclosing of information gathered by employees of a range of intelligence organisations also contained no protection for the disclosure of illegal activities.

In both the US and Europe, mass data collection and retention procedures that were defended by governments as compliant with the law, including stronger human rights laws than Australia has, have subsequently been found to have been undertaken illegally.

In 2015, the federal government introduced a new law prohibiting “entrusted persons” employed in asylum seeker detention centres from disclosing protected information.

The exact meaning of who the law applies to is unclear, but the passage of this legislation led the United Nations Special Rapporteur on the Human Rights of Migrants to cancel a planned visit here in September 2015. This decision was made on the ground that the law would discourage people he wanted to speak with from being able to freely disclose information to him.

This law has recently been challenged by former employees of the detention centre on Nauru. They have spoken out about their experiences of detention centres after the release of the Nauru files.

The move to curb freedom of speech in some areas is not restricted to the federal government. State governments, for example, are moving to pass new legislation to shut down the peaceful right to protest.

In 2014 the Tasmanian government enacted new anti-protest legislation. The law was used against anti-logging protesters who were objecting to the clear-felling of native forests in January 2016. Veteran environmentalist and former Greens leader Bob Brown has launched a legal challenge to that legislation in the High Court.

In 2015, Western Australia attempted to follow suit and is currently pursuing the enactment of a new anti-protest law. In New South Wales, the government gave an undertaking in 2014 to do the same thing – and in 2016 it passed a new law to increase police powers in relation to protests.

Governments at both federal and state levels are implementing new speech-restricting laws with unnerving frequency. In 2015, Human Rights Commission president Gillian Triggs warned of laws being passed by successive governments that “violate fundamental freedoms”.

These kinds of overreaching laws restrict the kinds of speech that are vital to democratic accountability. Any threat to the exposure of government activities that are corrupt or illegal, and the protection of the right to protest, should be a cause for concern for those with a genuine interest in protecting the vital freedom of speech that is essential to a functioning democracy.