Dumbest curbs on free speech are found off-campus

Universities must be open to all points of view and willing to engage with uncomfortable arguments. They must do so because they are public institutions with government funding, and because this is essential to their mission. The search for truth and new ideas is incompatible with closed minds and closed campuses.

The good news is that freedom of speech is generally well respected in higher education. There are certainly examples where universities have got it wrong, but these are exceptional. The 43 universities in Australia continue to be places where ideas can be ­debated and contested, and sites of protest and dissent.

This was the finding of the thorough review conducted by former High Court chief justice Robert French. He found “no evidence” of a “free speech crisis” on Australian campuses. French nonetheless recommended modest change to head off unnecessary risks to freedom of speech. He proposed minor alterations to existing laws, and that universities adopt a model code of conduct.

Australia’s universities are taking their time to work through the 300-page French report. They are considering the merits of his recommendations and the possibility of unintended consequences. It is likely that, after due consideration, universities will follow his lead by adopting the code with amendments that reflect the different forms of governance and rules across the sector.

The French report and university response has been calm and measured. This is at odds with what otherwise has been a heated public debate. The government and parts of the community have become frustrated at the lack of immediate action. It is likely that they perceive a free speech ­problem in these institutions at odds with the findings of the French report.

The focus on universities is distracting attention from our much larger problems of freedom of speech. In these other areas, the problem is much closer to a crisis point. Defamation laws remain unreformed, and national security legislation imposes undue government secrecy. Whistleblowers and journalists face imprisonment. Australia has also recently enacted laws that make speech a criminal offence. A person can be jailed up to five years for advocating terrorism, including speech in support of rebel groups in other countries.

For example, you can be imprisoned if you encourage those who want to topple the regimes in Syria or North Korea. The law applies regardless of whether a person is speaking in support of a freedom fighter or Islamic State.

Organisations can also be banned because of the speech of their members. If an office holder praises a person such as Nelson Mandela for his fight against apartheid (which Australian law regards as terrorism), the organisation can be proscribed. Its members would face jail terms of up to 10 years, including members who said nothing, and perhaps even disagreed with what was said on their behalf.

Laws such as this give rise to nonsensical outcomes at odds with Australian values. To date, our enforcement agencies have exercised appropriate caution in not using them to restrict speech. However, the laws should not be on the books. They are an affront to freedom of speech and the risk remains that they will be invoked. The recent raids on journalists show how laws seemingly directed elsewhere can be applied in unexpected ways.

The most well-known anti-speech measures are in national security laws enacted since September 11, 2001. The problem, though, goes much deeper. The intolerance for freedom of speech has become so routine as to be normal. As a result, such measures can be found throughout the law, including in lower order offences.

For example, in 2014 it became an offence to use indecent, obscene or insulting language at the Sydney Cricket Ground; the year before it became an offence to use offensive or insulting language at the Royal Botanic Gardens. NSW law even prevents such speech at the historic Speakers’ Corner in the Domain in central Sydney, which has been a hotbed of soapbox oratory since 1878.

The list of speech offences in Australia is long and growing. A person cannot sing an obscene song or ballad in public in Victoria, use foul language on public transport in Tasmania, or utter indecent or blasphemous words on a jetty in Western Australia.

The law also sets out offences for insulting sex workers, teachers, TAFE employees, court staff, members of a planning panel, an administrative tribunal, the Copyright Tribunal and the Fair Work Commission.

No doubt some regulation of speech is appropriate, but it is out of hand.

Universities can always improve how they safeguard their campuses as places of open and robust debate. However, they are not the main problem when it comes to freedom of speech. We need to look elsewhere to find our budding free-speech crisis.

We ought to focus on the laws and policies brought about by our politicians. They have stopped being the defenders of our speech, and instead continue to pass measures that undermine this freedom.

George Williams is dean of law at the University of NSW.