Paul Scarr (Queensland, Liberal Party) Share this | Hansard source

At the outset, I want to say that Senator Babet is right to raise this extraordinarily important issue with respect to freedom of speech. It is appropriate and proper that we reflect deeply on our freedoms. Senator Antic is also correct in raising issues that arose during the COVID pandemic. I personally believe we should have had a royal commission into government responses to the COVID-19 pandemic. In fact, I chaired a Legal and Constitutional Affairs References Committee inquiry which recommended that for a whole range of reasons.

Having said that, it is important that the complication of the issue is recognised. I want to quote to you from what is probably one of my guiding philosophical texts, John Stuart Mill's famous essay On Liberty. This is how he described the principle, which we should consider—frequently referred to as the harm principle—of where one person's liberty should end and another person's liberty should begin:

That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.

The complication, in terms of considering where certain rights begin and other rights end, is balancing freedoms on the one hand and harm on the other. In the context of freedom of speech, what concerns me about Senator Babet's proposal is that there is no recognition of the legitimate limitations that our country—and nearly every Western liberal democracy—has had on freedom of speech.

We have laws against defamation. We have laws which say that you can't go out and untruthfully, maliciously and vilely besmirch the character of anyone in the community, publish defamatory material, and escape without a response under our legal system. Is Senator Babet saying we shouldn't have those laws? Does he recognise those limitations with respect to freedom of speech? There's quite often a debate as to where the line should be—but, in the course of this debate, I think it's important to put on the record that it is something which needs to be considered.

We have laws with respect to national security. An advocate for an absolutist right for freedom of speech should say: 'There should be no limitations. You should be able to say anything.' But what if the national security of the country is jeopardised? What if it's top-secret confidential information that is needed for the defence of the country and the defence of the people whose freedoms you are seeking to protect? Isn't that a legitimate restriction on freedom of speech?

We also have laws with respect to incitement. I've sat on a number of legal and constitutional committee hearings looking at some of the laws which Senator Babet and Senator Antic have looked at. You have to consider the real-world consequences of someone who goes out and incites other people to attack other people in the community simply because of their ethnic origin, simply because of their political views, simply because of where they worship, and on occasion incites violences against those people and violence against their places of worship and even violence against them in their own homes. Those are all elements which have to be considered in terms of the freedom-of-speech debate.

One of the wisest American jurists was a fellow called Oliver Wendell Holmes. He served with great distinction on the US supreme court. He actually changed his views with respect to freedom of speech. It's an interesting parable in many respects, with respect to how his views on freedom of speech changed. While Senator Babet refers to the US constitution—notwithstanding it had the words in it that Senator Babet referred to—it wasn't really until the 1920s that the United States really enjoyed freedom of speech as we understand that today. It used to be the case in the United States—before some seminal cases in 1919 and 1920, which I'll get to—that freedom of speech was substantially curtailed. If you were going out on the streets advocating the reform of labour laws, to protect the health and safety of workers, you could be put in jail. If you went out on the streets and called for civic reform, you could be put into jail in the United States—even though they had that clause in the US constitution.

It wasn't until after World War I—towards the end of World War I—when there were a series of legal cases brought against pacifists, social reformers and others that the Supreme Court of the United States actually carefully considered where the limit should be. Probably the best known articulation of that was by Oliver Wendell Holmes. I want to quote to you from a judgment that he gave, which perhaps gives one of the best articulations of the limits on freedom of speech:

The most stringent protection of free speech would not protect a man … falsely shouting fire in a theatre and causing … panic.

In shorthand, it's called the man-calling-fire-in-a-theatre limitation on free speech—in terms of trying to understand the limits with respect to free speech. I'll read it again:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing … panic.

It has always been recognised—at least since the 1920s, in a US context, and even before then—that there are limits on free speech, but none of those limits was recognised in the contribution that was made by Senator Babet and none of those limits was recognised in the contribution that was made by Senator Antic.

I passionately believe in freedom of speech. I have a photo of John Stuart Mill hanging in my office, and I've got a bust of Voltaire in my office, both of whom were passionate advocates for free speech. Voltaire was imprisoned for exercising his freedom of speech during the 1700s and was one of the foundational figures of the Enlightenment. It is recognised in their books, including in On Liberty, the fundamental essay on the classical liberal tradition, that there are limits.

The question for Senator Babet, in putting forward his motion and in terms of his bill and his referendum—and does Australia really need another referendum? I'll just query that. The question for Senator Babet is: what limits are you going to place? We know we have laws of defamation, laws relating to national security and laws preventing people from inciting people to go out and cause harm, physical harm or property damage, against their fellow Australians, and I think all of those laws are well justified. Prior to agreeing to the step which Senator Babet is proposing, I would want to hear how those legitimate limitations would be considered and would be reflected in any referendum he would put forward, especially given that, on the face of the motion he's brought forward to the Senate, there's not even a recognition that there are valid and legitimate limitations on freedom of speech.

However, I'll conclude and say that these are important matters, and I'm pleased Senator Babet has raised them, and I'm pleased with Senator Antic's contribution. I believe it's something we, in this place, need to watch very, very carefully, but, in doing so, I think it is important that all parts of the equation are weighed.