Nanny Roxon won't let you spit the dummy

Eric Lobbecke

THE end of the year is as good a time as any to do a stocktake. Not on fashion, fridges or bath towels. Nor on cars or campervans or supersize barbecues. This stocktake covers a good less tangible but also more essential to how we live each day. This stocktake is on our right to speak freely, an account of those parts of free expression that have been carelessly misplaced, capriciously given away, or consciously traded in return for some other purported good.

Every time we give away a little free speech here or restrain a little free speech there, we chip away at the cornerstone of our democracy. Before we have raised an eyebrow, let alone a voice, we have lost the ability to robustly test ideas, debate questions big and small and to laugh freely without fear. It hardly needs saying that freedoms are easily lost and not so easily won. Then again, maybe it does need saying - again and again to check our natural tendency to complacency.

The year kicked off with rank hypocrisy about free speech. In January, indigenous activists saw no irony in proudly exercising their right to free speech by using violence and intimidation to shut down the views of Tony Abbott at an Australia Day event where emergency workers were honoured. Greens leader Christine Milne could not muster the moral strength to unreservedly condemn the free speech thugs.

By December, the disregard for free speech had risen beyond fringe groups. The Finkelstein Report, handed to the Gillard government in March, was the culmination of a political opportunism of the highest order. Not wanting to waste a crisis, Julia Gillard joined with the Greens to demand an inquiry into media regulation, using the phone-hacking scandal in Britain as justification. When the Prime Minister was asked what she meant when she intoned that News Limited had "hard questions to answer," the PM was unable to explain. An inquiry was called and that was enough. Relying on flimsy evidence, the Finkelstein Report found that the media had failed the public. Ergo, said the judge and the academic who wrote the report, the media deserved to be regulated by a government-funded super-regulator.

Then the Gillard government picked up a three-year-old report by the Australian Law Reform Commission that advocated a new statutory tort of privacy. And, once again, the precise mischief the law aims to address beyond existing laws has gone unexplained. In the abstract, most people will say they want their privacy protected. Beyond that, it is difficult to glean any outbreak of egregious privacy infringements in this country that justify the ultimate lawyers' picnic, a lucrative and litigious statutory tort of privacy.

There is a reason the High Court of Australia has been deliberately slow to develop such a tort at common law. Chief Justice Murray Gleeson wrote in Lenah Meats v ABC "there is a lack of precision" when we talk about privacy. By contrast, among academics and politicians at the Privacy in the 21st Century legal conference in Sydney earlier this month - attended by Lord Justice Brian Leveson - the rush to regulate privacy was palpable.

Throwing even less caution to the wind, the Gillard government has also drafted a new anti-discrimination bill. We now enter truly uncharted and unfree territory. Attorney-General Nicola Roxon may look demure but she is a social engineer on legal steroids. She appears intent on Australia breaking new illiberal ground.

Roxon's Human Rights and Anti-discrimination Bill 2012 will not only extend the range of conduct deemed unlawful from matters of race to matters of religion, social origin, nationality and political opinions. Her bill also removes any notion of objectivity. It is enough that conduct by one person "offends, insults or intimidates" another person. This completes the legal slide from words that incite violence to those that merely insult. Sensible gradations of offence have been lost.

As James Spigelman, the chairman of the ABC and former chief justice of the NSW Supreme Court, said recently, this "significant redrawing of the line between permissible and unlawful speech" goes beyond "any international human rights instrument or national anti-discrimination statute in another liberal democracy."

Trading freedoms for feelings comes at a cost. The right to speak freely, if it means anything, must include the right to offend.

Yet this fundamental right is being replaced with a new right not to be offended. The marketplace of outrage, best described by author Monica Ali, is about to get one heck of a legislative boost. New categories of insulted people will scurry to court, vying for the title of victim, each claiming their feelings have been hurt more than others.

How many of us realise we are witnessing the Freedom Wars? On the one side are the command-and-controllers, people such as Roxon who sincerely believe in central control more than individual freedom. Ideology has trumped principles. They insist laws are necessary to "to help everyone understand what behaviour is expected."

This is the anodyne yet terrifying language of the freedom-loathers whose new paternalism is slowly chipping away at our right to speak freely.

Are these illiberal social engineers dim to the workings of freedom? If we cannot speak freely, we cannot think freely. If we cannot think freely, surely we are not free. Or are these the very deliberate actions of ideologues who fully understand that free speech sits at the heart of all other rights?

On the other side of the freedom divide sit the freedom lovers, people such as Spigelman, who understand the full horror of what is slowly unfolding in our midst. Those who have lived in totalitarian societies, and those who understand the nature of such repressive societies, will recognise these laws as the beginning of something dreadfully illiberal.

A few years ago, Queen's University in Ontario, Canada, started a pilot program called "Intergroup Dialogue". Students known as "dialogue facilitators" were given the authority to eavesdrop and intervene in private conversations if they found any offensive language, anything disrespectful towards ethnics, gays or religious groups.

We need to turn this idea on its head. Where are the freedom facilitators - people who point out, poke fun at, and otherwise pillory the almost everyday incursions that restrict free, open and vigorous debates? Start with Roxon's Orwellian project where laws will encourage a new breed of permanent dialogue facilitators measuring our words for actionable offence and insults, chilling daily our right to speak freely.

We may need more vigilance on the freedom front if the next annual audit is to be a better one for free speech. Happy New Year and here's to a more, not less, free 2013.