You can almost hear the exasperation in the words of the High judges last week. They wrote: “As has been emphasised by this Court repeatedly . . . . the implied freedom of political communication [in the Australian Constitution] is not a personal right of free speech.”
In blunter language they may as well have said:: “Get it through your thick skulls. There is no freedom of speech in Australia. Stop watching American movies.”
Under Australian law there is no individual right to free speech. In general it is for the person making the speech to prove that the law allows it.
In defamation, it means you publish at your peril and if you cannot prove a legal defence to the speech you cop a hefty damages bill.
In employment, if you cannot prove you abided by any requirements in your employment contract and you speak out, you get the sack.
In national security, you have to mount a defence against any prosecution assertion that your speaking out compromised national security or you go to jail.
The High Court’s reasoning in its decision upholding the sacking of a public servant for anonymously Tweeting highly critical things about the department she worked for – Immigration – should be (but probably won’t be) a jolt in the public consciousness that if you want freedom of speech in Australia you are going to have to argue for a Bill of Rights similar to that in Canada, New Zealand, the US (without the guns) and most of Europe.
Australians should understand that to qualify as a liberal democracy a bill of rights is pretty much compulsory. History tells us that liberal democracy is both gained and lost gradually, step by step. In recent years, Australia has been taking some of those steps.
I do not criticise this week’s High Court decision. To the contrary. It is a clear exposition of the law in Australia as it is, not as you might like it to be.
Indeed, Australia is extremely fortunate in its High Court. Of the 54 appointments to the High Court since its founding in 1903, you could count the political appointments on the fingers of one hand, if that. And not one for more than 30 years.
That said, the court’s exposition, yet again, of the very limited application of the implied freedom of political communication in our Constitution shows, yet again, how bereft that Constitution is when it comes to human rights.
It has permitted successive governments to imprison people indefinitely without charge; to invade news outlets and journalists’ homes; to pass laws that allow for people to locked up for weeks without access to a lawyer and prohibit on pain of jail disclosure even of the fact there has been an arrest, detention or charge in some national-security cases.
It has permitted massive defamation damages that send a chill done the spine of publishers who attempt to expose malfeasance.
Liberal democracy means more than just a voting process. As the world becomes ever more authoritarian, Australia is not yet on the edge of losing its qualification to be a liberal democracy but it is moving in that direction.
It is not only the absence of a bill of rights. It is also the corruption of our democracy through large corporate donations; the pervasive handing out of grants, subsidies and favours to those corporations; the absence of a tough federal anti-corruption body; the raft of appointments of political mates to various administrative bodies; selective leaking by government of things that favour it and the chasing down of those who leak things that embarrass it, even to the extent of not only prosecuting them, but also in one case, the prosecution of their lawyer.
It may be that last week’s case involved conduct by a public servant that was over the top on the pub test and that she attacked her own department publicly. It might have been better if the issue of public servants’ political involvement had been tested in another case, such as the sacking of SBS football reporter Scott McIntyre for tweeting about Australian soldiers’ alleged war crimes, which obviously had nothing to do with his job, as pointed out by my colleague Markus Mannheim.
Nonetheless, it is the court’s exposition of the law in general and a reminder that it does not provide for a presumption that individuals have a right to free speech that should be alarming, not the result itself, which even with a bill of rights might have been the same.
The trouble for free speech is that the High Court left so much so uncertain that all two million government employees in Australia will feel safer never to engage in any political speech or action whatever. The court upheld the constitutionality of the Australian Public Service code, but did not give any guidance as to what political speech might be acceptable under it other than that this public servant’s Tweets clearly breached the code.
Yes, a neutral apolitical public service is essential, so there must come a point where political comment by public servants is unacceptable. But how wide is the net? Is a public servant with a menial non-policy job – a base level technician, for example – precluded from criticising climate inaction? Or putting a Vote Green poster on his garage door?
The present code is also open to political abuse. Those openly criticising government policy get sacked. Those openly rallying to the Government’s line get ignored.
Intimidation and fear are the hallmarks of authoritarianism.
Many use the quote about liberty and vigilance to bolster arguments about increasing military spending. But its origins have nothing to do with military spending. There may be earlier versions, but the American Abolitionist and liberal activist Wendell Phillips addressing the Anti-Slavery Society of Massachusetts in 1852 said: “Eternal vigilance is the price of liberty; power is ever stealing from the many to the few. . . . Only by continued oversight can the democrat in office be prevented from hardening into a despot; only by unintermitted agitation can a people be sufficiently awake to principle not to let liberty be smothered in material prosperity.”
The words have as much importance now as then.
This article first appeared in The Canberra Times and other Australian media outlets on 10 August 2019.