Labor wrong on freedom wars

TONY Abbott calls this struggle the "freedom wars" - proof that the Opposition Leader believes his pledge to repeal Labor's laws that repress public debate and media freedoms will see both public sentiment and policy principle on his side.

Abbott's address this week heralds the start of a political battle on core issues of free speech. It involves both a clash of values and a power struggle between the media and Labor.

The intensity of any Labor-Coalition showdown will depend on the Labor Party, notably how far the Gillard government goes in embracing the new media laws recommended by its Convergence Review and by its Finkelstein media inquiry.

These decisions are imminent and the government has flagged a possible compromise. There is one certainty - while vital for media policy, their real significance is whether Labor has become a party that favours restrictions on public debate in the cause of censorship and constraining its opponents. That would be a misguided step in Labor history.

In his speech to the Institute of Public Affairs on Monday, Abbott drew two lines in the sand. First, he pledged as PM to repeal section 18C of the Racial Discrimination Act which prohibits remarks that offend others on grounds of race or ethnicity following the 2011 court decision against columnist Andrew Bolt.

Second, Abbott rejected the central elements recommended by Labor's inquiries, notably a new statutory entity to impose media standards in the form of a News Media Council whose remedies would be enforceable in court, the abandonment of self-regulation as a declared failure and a public interest test to be applied by a new regulator in relation to media ownership changes (in addition to the Australian Competition & Consumer Commission's competition policy obligations).

At a time of global fragmentation in the media industry and a crisis in the "old media" business model, Labor is flirting with unprecedented statutory restrictions applying to owners, editors and journalists.

To the extent that Labor, with the enthusiastic support of the Greens, legislates this policy then Abbott, as PM, would have a hefty media law repeal agenda and the prospect of yet another conflict with a likely Labor-Green-controlled Senate in the next parliament.

In his speech this week Abbott not only defined his stand but rolled out the rhetorical and ethical arguments he will mount. Given that a conflict over the RDA is assured, the smartest move Julia Gillard could make on media policy would be an adroit retreat. Yet this is hardly the style of Communications Minister Stephen Conroy.

The trigger for Abbott's section 18C repeal lies in the judgment by judge Mordecai Bromberg against Bolt after action taken by a number of indigenous people whom he offended. Bromberg, in effect, exposed the weakness of the "free speech" exemptions in relation to the RDA.

You might think this law is designed to prevent race hate and is restricted to this goal. But that's wrong. It makes behaviour unlawful in a racial context where it is likely to "offend, insult, humiliate or intimidate". This is an extraordinarily low threshold and subjective test.

Abbott rejects such "hurt feelings" law. Opposition legal spokesman George Brandis has called it a "grotesque limitation on ordinary political discourse".

The purpose is to promote tolerance in a multicultural society by imposing restrictions on individual discretion. This is a Labor law dating back to 1995. It is a Labor value and Labor defends the provision that gave rise to the Bromberg decision.

Yet such restrictions run far beyond what is required, for example, to protect Jewish, Aboriginal or Muslim communities from racial hatred. As Abbott made clear, the issue is not Bolt. Indeed, on grounds of journalistic professionalism his article should never have been published. The judgment, however, went against Bolt because his articles were written in an inflammatory language that "failed to honour the values asserted by the RDA".

In his rebuttal Abbott said: "Expression or advocacy should never be unlawful merely because it is offensive. If it's all right for David Marr, for instance, to upset conservative Christians in his attempt to have them see the error of their ways, why is it not all right for Andrew Bolt to upset activist Aboriginals to the same end?" Abbott quoted the missive by Robert Menzies that free speech is hard - it is a conception "which is not born with us but which we must painfully acquire".

The truth is that progressive political values are being transformed. Once progressives would have endorsed Voltaire (defending to the death your right to say it) but no longer. This value is subjugated to the new gospel that your speech must reflect progressive values and beliefs as part of legislating desired social behaviour and respect for human rights. Abbott's argument that Australians want freedom to be "obnoxious and objectionable" violates this tenet yet is closer to popular sentiment.

Nobody, certainly not Abbott, thinks free speech is an absolute. Its price in political debate is that offence will be given and lies will be told. But Abbott's charge is that Labor's foreshadowed media laws are a "thinly veiled intimidation of critics masquerading as proposals for better regulation". That seems a pretty accurate description.

It is true that Gillard Labor has been subject to many unjustified media attacks. Exactly the same can be said about John Howard in office. The difference lies in the response: Labor seems prepared to retaliate with new laws.

The Finkelstein report proposes to move issues of media bias, fairness and right of reply on to a statutory basis without appeal and subject to contempt of court provisions. It is permeated by an ideology that governments and parliaments must hold the media accountable because, in effect, its sins are no longer to be tolerated.

This is the same progressive mindset at work - erring media outlets and individuals must be brought into line. Finkelstein actually asserts he "will right wrongs perpetrated by the media". The justification is uplifting: new laws are needed to protect our democracy from gutter rats and from News Limited. The report argues the public cannot protect itself by choice and non-choice of media products. Amid such utopian folly and intellectual arrogance the obvious is missed: the cure is worse than the disease.

If Labor is deluded enough to adopt such restrictions it will betray many of its values and validate Abbott's claims. He said that when Menzies wanted to ban the Communist Party his justification was to protect the nation - the Gillard government, by contrast, seeks to limit freedoms only to defend itself.