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Speaking up about free speech


The defence of free speech should not be quiet, respectful and conditional, but shouted from rooftops, argues Morry Bailes.

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So is the University of Adelaide committed to free speech, or is its the latest university to dictate its version of how it would like free speech to be tailored?

Have students been told the law, or a convenient version of how it would like students to play nice with one another and staff, with a disregard for what actually constitutes our fundamental common law right of freedom of expression?

That is the question since the university recently welcomed new Vice Chancellor Professor Peter Hoj, a person already seen as controversial from his days as Vice-Chancellor of the University of Queensland.

Perceived as a sinophile, he was criticised by some for his perceived role in the suspension of student Drew Pavlou from Queensland University; albeit the suspension was handed out by the University Disciplinary Board. After a review by that University’s Senate Disciplinary Appeals Committee, Mr Pavlou‘s suspension was reduced from two years to 6 months. Professor Hoj sat on none of those bodies.

The basis for the suspension were breaches in the applicable code of conduct because Mr Pavlou was highly critical of the People’s Republic of China and did not hold back in his online dialogue on the subject, at a time when the rule of law was being systematically dismembered by the PRC in Hong Kong. Mr Pavlou is now taking action in the Supreme Court of Queensland.

Evidently that matter and Professor Hoj’s membership of the Confucius Institute was enough to prompt University of Adelaide student and Uyghur, Adila Yarmuhammad, to publicly lambast the V-C saying (in her words):

“I’m upset to be a student here under someone who is openly affiliated with a government that hates my guts because I’m an Uyghur. A government that commits genocide on a daily basis. A government that puts millions of Uyghurs in so-called re-education camps where they are tortured beyond repair. A government organisation that has literally ruined my life and every week a person in the world‘s life.”

The University’s of Adelaide On Dit magazine published her comments in full on 5 February this year.

In quoting On Dit I should point out that I’m certain the Vice Chancellor may not agree with the assertion that he is “openly affiliated” with the Chinese government, and I pass no opinion on the remainder of the remarks of Ms Yarmuhammad.

I have provided these details however as a backdrop to Vice Chancellor Hoj’s remarks made publicly on 13 February, and reaffirmed in a letter to students in relation to the question of his asserted commitment to free speech.

This is what he said: “I have been and will always be an advocate for students rights to express their views freely in a lawful and respectful manner, including through peaceful and civil protest.”

He went on to say: “I truly believe that as a University, we all have an obligation to actively defend respectful and lawful freedom of speech, even on matters we may not all agree on. This is about respecting the breadth of views among our students, staff and all members of the university community. It is about us being part of a respectful, civil and democratic society.”

I’m sure that most of us like the concept of respectful disagreement, so long as that is not construed as meaning that those at universities must engage in ‘one think’ and the cancel culture. Professor Hoj appears to address that by acknowledging that there are matters “we may not all agree on”.

However, as laudable as those sentiments may appear, and notwithstanding the fact that most of us appreciate debate when it is carried out in a respectful way, that is not an accurate representation of the right to freedom of expression in Australian law.

By way of an explainer, we have no provision in the Australian Constitution enshrining a right to freedom of expression. We also do not have a Bill of Rights or equivalent statutory declaration that sets out our rights. Whether a Bill of Rights is a good idea or a bad idea is a topic too complex to canvass here. The point is we have no such statutory instrument.

However, the right to freedom of opinion and expression is contained in the International Covenant on Civil and Political Rights, to which Australia is a signatory.

The Federal Attorney-General’s Department explains the right like this: “The right… to hold opinions without interference cannot be subject to any exception or restriction…The right protects not only favourable information and ideas, but also unpopular ideas including those that may offend or shock (subject to limitations). Freedom of expression carries with it special responsibilities, and may be restricted on several grounds…”

That means, as has been said many times, that notwithstanding the right to freedom of expression one cannot falsely “shout ‘fire’ in a crowded theatre”. That oft-used explanation is courtesy of the US Supreme Court, albeit the original decision in which the words were uttered was ultimately overturned.

In Australia, restrictions to freedom of expression include, for instance,those set out in the Racial Discrimination Act – but that is an invention of Parliament. In the common law we can say whatever we like, however we like. It is only by Acts of Parliament that there has been any restriction of that right. At common law there is no restriction – none whatsoever.

There is therefore no requirement to be civil or respectful. That is simply not part of the legal test. Whilst it might be pleasant to hear respectful exchanges in a disagreement of views, the law does not require that at all.

Indeed, it may be that a view is held so strongly one does not wish to be express oneself respectfully. That was certainly the style of the likes of Christopher Hitchen, who held strong philosophical, political and social and often controversial views and had no hesitation in expressing them equally strongly.

Like Ms Yarmuhammad, I feel no respect for President Xi nor the Chinese Communist Party.

They have created a totalitarian state, with an utter disregard for human rights, a blatant disregard for the rule of law, and have nothing in common with Western liberal values.

I feel no compunction whatsoever in not putting that view respectfully because I cannot respect the thoroughly evil people involved in the perpetuation of serious human rights abuses.

It is imperative as we discuss the legal test for freedom of speech and freedom of expression to properly characterise what our rights in Australia are. If we misrepresent such a fundamental common law right as freedom of speech, where will we end up as a society? What is to become of a generation of university students if they are misled on the question of what freedom of expression actually entails from the get go?

There may exist codes of conduct that may or may not place limitations on academic and intellectual freedom. That issue is currently before the High Court in the matter of Ridd v James Cook University.

Similarly in our workplaces there may exist codes of conduct seeking to limit what we can say. Whether or not they are enforceable in law will be influenced by the outcome of the matter of Ridd.

I venture a view that in Australia today there is far too much holding back on what we actually think; biting our tongues in case we offend; hesitating in expressing our views. Yet within the confines of law, there is no need to, as there is no need to offer respect to something we may think is evil and wrong.

I hope that the remarks by Professor Hoj are intended to mean that we can return to a world that I knew when I was at the University of Adelaide that encouraged disagreement, that allowed those who wished to offend to speak, so the rest of us could judge them for what they were.

Now we don’t let them speak in the first place because we are so petrified that our “petal“ generation will be offended. Or worse, will be ostracised in the current environment of the ‘cancel culture’. Because my view is different to yours, I must be silenced? Because if we say it didn’t happen it is airbrushed from history? That because we tear down a statue slavery didn’t happen? Huh?

The Australian people have a great deal of common sense. They can see racism, sexism, stupidity and extremism. We don’t need help informing our view as to who we think might be reprehensible and full of it. We can work that out for ourselves, thanks. We don’t need those voices “cancelled” so that we only hear, like in Orwell, what we are supposed to hear. What an utter disaster that would be. Yet we are telling our students that they may speak freely – but only if they are “civil” and speak with “respect”. Let’s all politely disagree, shall we? Give me a break. The Uni bar these days must be dull indeed.

What we need is precisely the opposite. We need to hear from people who are offensive in their views, so that we continue to be able to recognise the bigot, the extremist, those whose values that do not align with ours. It is the art of debate, it is what gives strength and endurance to free societies.

And if ultimately, a person does not conduct themselves respectfully, we can reach our own conclusions about their true character. We do not need to be told by the nanny state how to conduct ourselves so as long as it is within the law.

Let us understand very clearly what our right and freedom to expression means, or risk losing it for good.

Morry Bailes is Senior Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia. He is a member and past office holder of the Liberal Party.

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