Newsletter No 321

                                                                               ISSN 1440-9828
                                                   March 2007
                                                                                   No 321

Introduction

1. This article is a response to the essay by David Fraser, "Memory, Murder and Justice: Holocaust Denial and the 'scholarship' of Hate" which is chapter 8 of Faces of Hate: Hate Crime in Australia (1997).

The Contemporary Free Speech Debate In Australia

2. The role of those three fundamental and inter-related personal freedoms - freedom of thought and conscience, freedom of expression, and freedom of association and assembly - continues to excite vigorous public debate in Australia. This should bode well for Australia as a robust, free and open society. Yet there is a new mood of censorship abroad and the right to dissent - in essence, the right of the individual to be different - is under sustained and, to some extent, successful attack. Among recent events illustrating the wide-ranging nature and intensity of the contemporary free speech debate and the imposition of censorship are the following:

I the passage of the Racial Hatred Act 1995 (Cth); [1]

II the campaign in the 1996 federal election by the veteran political dissident, Albert Langer, [2] to persuade electors to vote in a way that was contrary to the preferential voting system prescribed by the Commonwealth Electoral Act 1918 (Cth), the steps taken by the Australian Electoral Commission to suppress Langer's campaign, and the imprisonment of Langer for disobedience to an order of the Supreme Court of Victoria forbidding him from advocating conduct contrary to that Act; [3]

III Prime Minister Howard's claim, following the change of government in March 1996, that the value of freedom of speech was being reasserted in Australia after the lifting of what he claimed was the "pall of censorship" surrounding the previous (Labor) government; [4]

IV the unsuccessful Trade Practices Act action brought by a Professor of Geology against an ordained Christian minister in respect of the archaeological investigation on a boat-shaped formation near Mt Ararat in Turkey which the minister publicly claimed could be the remnants of Noah's ark; [5]

V suggestions that there was a case for curbing the parliamentary privilege of freedom of expression when allegations were made in the New South Wales Parliament of misconduct concerning the former New South Wales Supreme Court judge, David Yeldham. Yeldham later committed suicide; [6]

VI the controversy prompted by the first Parliamentary speech by Mrs Pauline Hanson in September 1996, the violence which occurred at some public meetings later addressed by her, and the influence of her One Nation Party illustrated by its successes in the 1998 Queensland election; [7]

VII Mrs Hanson's successful application for an injunction prohibiting the broadcasting of a song subjecting her to satirical attack during the 1998 federal election campaign; [8]

VIII the prosecution of the editors of the La Trobe University student newspaper, Rabelais, for the publication and distribution of an article entitled "The Art of Shoplifting";[9]

IX the unsuccessful second Federal Court challenge by the British historian, David Irving, to the continuing refusal of the Australian Government to grant him an entry permit; [10]

X the denial of an entry permit to the Sinn Fein leader, Gerry Adams in 1996, and the reversal of that decision in late 1998;

XI the seizure by police in Darwin of photographs depicting the alleged rape and torture of an East Timorese woman on the basis that the photographs were obscene; [11]

XII the controversy surrounding the visit to Australia in 1997 of the American political activist, Lorenzo Ervin and the federal government's attempt to deport him; [12]

XIII the unsuccessful calls in early 1998 for the denial of an entry permit to the US religious leader and political activist, Louis Farrakhan;

XIV the denial by the Australian Government of an entry permit to a former member of MI6, the United Kingdom foreign security intelligence gathering agency, who had been accused of breaching and threatening to breach his obligation to keep confidential information acquired by him as a member of MI6; [13]

XV the failed attempt by the Catholic Archbishop of Melbourne in 1997 to breathe life into the common law offence of blasphemous libel in order to obtain injunctive relief to prevent the exhibition by the National Gallery of Victoria of the photographic image,Piss Christ, by the American artist, Andres Serrano; [14]

XVI the institution of criminal defamation prosecutions in New South Wales and Victoria; [15] the High Court's recognition that freedom of expression regarding political and governmental matters enjoys some constitutional protection and the ensuing adjustment of the common law defence of qualified privilege in the law of defamation; [16]

XVII the introduction of a co-operative national scheme of comprehensive administrative censorship embodied in the Classification (Publications, Films and Computer Games) Act 1995 (Cth) and complementary State and Territory legislation; [17]

XVIII proposals for the extension of existing censorship laws to take account of new communications technologies including the Internet and on-line services generally resulting in the passage of the Broadcasting Services (On-Line Services) Amendment Act 1999 (Cth);

XIX calls for the removal of "offensive" books from public and school libraries, [18] for the banning of the second film adaptation of Vladimir Nabokov's novel, Lolita, and for the imposition of sanctions in respect of Louis Nowra's play, Miss Bosnia; [19]

XX disputes about Christmas nativity displays, public school Christmas activities, and Easter crucifixion displays; [20]

XXI judicial recognition of changing community standards resulting in a lessening the reach of the law of obscenity; [21]

XXII restrictions on the availability of informational material in day care centres imposed by the National Childcare Accreditation Council Guidelines; [22]

XXIII the attempt by the Commonwealth Government in late 1999 to impose speech restrictions on the US abortionist, Dr Warren Hern, as a condition of his entry to Australia on a speaking tour. [23]

3. Debates and campaigns about freedom of expression and censorship have been a central feature in the continuing evolution of Australian democracy and individual freedom. [24] By the mid-1970s, a liberalising highpoint had been reached after decades of debate about literary and artistic censorship in Australia. The guiding principle which had by then been embraced by an increasing segment of the Australian community was that adults should be entitled to see, hear and read what they wished subject only to such restrictions as were necessary, first, to prevent persons being exposed to unsolicited material offensive to them (especially unsolicited pornography) and, secondly, to protect children from material likely to be harmful to them. [25] No less importantly, restrictions on dissenting political expression and protest had been gradually reduced particularly in the wake of the widespread vigorous public opposition to military conscription which was reintroduced in the context of Australian participation in the Vietnam War. [26]

4. Paradoxically, as Australia continued to evolve as an open and tolerant society over the last 30 years, some of the liberating forces behind that evolutionary process simultaneously stimulated a renewed movement to impose legal restraints on individual freedom of thought, expression, and association. Australia has now entered an uncertain era of renewed enthusiasm for and imposition of State censorship. This development has been, in large part, a backlash against perceived liberal or libertarian excesses of the mid-1970s combined with the emergence of new communications technologies and of entirely new social forces and pro-censorship arguments. Varying greatly according to both the specific form and subject matter of the challenged category or content of expression and the ideological preferences of the would-be censors, the contemporary free speech debate nevertheless remains essentially a compound of competing claims about what is said to be harmful to Australians and Australian society as a whole and what, as a matter of balancing the relevant competing claims, that society can safely tolerate.

5. The emergence of new substantive justifications for censorship has led some proponents of renewed punitive legal restrictions on unacceptable speech to repudiate many, if not all, of what might be called the traditional liberal democratic or libertarian justifications for minimal restrictions on individual freedom of thought, expression and association. The new justifications frequently emphasise the protection of minority group interests and new conceptions of civic equality involving a sharp movement away from the centrality of individual liberty and individual rights and towards a preference for the recognition and protection of collective rights. The new censorship has been given effect in legislative prohibitions intended to deter and punish speech which, in substance, is said by the censorship proponents to be unjustifiably "offensive", "scurrilous", "insulting", "humiliating", "hateful", "degrading", "shocking", "intimidating", "threatening", "objectionable", or which vilifies or promotes contempt for or ridicule of persons or groups of persons on the grounds of race, ethnicity, sex, sexual preference, and disability. [27]

6. One prominent manifestation of the scope and complexity of the new pro-censorship movements is the sharply contrasting nature of the arguments offered in support of more vigorous censorship of pornography - putting to one side (so far as that may be possible) the vexed question of the definition of pornography. Concern for the effective protection of children against depictions of pornography (and violence) and their exploitation in the production of pornography continues to command widespread community acceptance. However, so far as adult access to adult pornography is concerned, the mid-1970s libertarian high point is now under sustained attack on more than one front. To the traditional claims that pornography tends to deprave and corrupt those exposed to it (children and adults alike) and should be suppressed as being contrary or offensive to Judaeo-Christian standards of decency and morality, there has been added the fundamentally different (and perhaps incompatible) secular feminist claim that pornography reflects and promotes the subordinated social position of women generally and is thus inimical to the achievement of equality. [28] The proponents of these two contrasting pro-censorship views are strikingly unlikely bedfellows in the continuing struggle against smut and depravity. [29]

7. The "right" (admittedly, a broad category) of the political spectrum has been the main traditional source and beneficiary of censorship. As some of the examples given above clearly indicate, the "right" remains an active and resolute source of support for censorship. It is notable, however, that much of the recent impetus for the reimposition of State censorship controls has come from the "left" (also a broad category) which traditionally has been the main target of censorship. Some sections of the "left" have exhibited a new found zeal in equipping the organs of the State with power to make judgments about the worth or truth of controversial ideas and speech and to deploy the policing apparatus of the State to suppress and punish speech deemed to be objectionable. The strong recent support for censorship from sections of the left should be a salutary reminder that the hard-fought battles for freedom of yesteryear were, in particular, characterised by (and, indeed, often successful because of) the quite deliberate and systematic use of what was usually regarded by the traditional proponents of censorship as vilification, and offensive, insulting, humiliating, degrading and hateful speech. It is, simultaneously, a clear signal that against the common sense proposition that sharp conflict of ideas and opinions is, by definition, a natural and healthy feature of all open societies, it is now often said that statements which allegedly have a mere tendency to promote conflict or divisiveness or disharmony along, for example, ethnic and racial lines, can no longer be tolerated.

8. Within some sections of the Australian academic and public intellectual community, the traditional liberal democratic commitment to the broad protection of freedom of thought, inquiry, expression, and association as a central element of a free society based on the rights of autonomous individuals is now characterised as being at odds with, and destructive of, the collective rights and claims for equality of certain officially recognised minorities. [30]

9. In much of the contemporary theoretical literature prevalent in the study of the humanities (or what is now more commonly referred to in academia as "cultural studies"), society is sweepingly depicted in terms of abstract concepts such as "dominated" or "subordinated" groups, "oppressed" or "victimised" minorities, "identities", "hegemony", "patriarchy", and so on. This has produced a sharp clash of values: a struggle often depicted as being one for (and between) liberty and equality. Since the mid-1970s, it has been increasingly argued by the pro-censorship left that a truly democratic society is one which actively discourages and, if necessary, through the apparatus of the State, punishes individual behaviour (including speech and speech-related conduct) [31] which is said to be inimical to the struggle to overcome so-called majoritarian or dominant group oppression of selected minorities. [32]

10. The sentiments supporting the new equality-based pro-censorship arguments are not without some force. Invidious discriminatory action or conduct (referable to religious belief, ethnic origin, sex, personal disability, and so on) in employment, accommodation, the provision of public services, and otherwise in the provision of goods and services in everyday life has been a feature of Australian society (as in all other societies) and has properly prompted the enactment of anti-discrimination legislation throughout the Commonwealth. However, the new wide-ranging emphasis on redressing the harm done to minority groups by discriminatory conduct has helped foster and entrench the claim that the traditional attachment to individual rights is deeply flawed in that individual free speech in and of itself may promote inequality and injustice. [33] In this overall context, it is argued that individual free speech has occasionally to be curbed where, because of its context, it has the tendency to permit or encourage the expression of dissenting ideas or opinions about the proper role or entitlements of selected minority groups in society, it can do more harm than good. For this purpose, the targeted "discriminatory" behaviour may, it is argued, legitimately include mere speech and speech-related conduct.

11. The new social, political and cultural theories which have underpinned much of the "left's" recent attack on liberal democratic claims for the primacy of the right of individual free speech can conveniently be gathered under the descriptive term "postmodernism". The broad postmodern church has many sects - poststructuralism, postcolonialism, and so on. Probably the clearest feature of postmodernism is that the prefix "post" is, to varying degrees, indicative of a strong negative or disapproving reaction to "modernism". For this critical purpose, "modernism" is taken to be a collection of ideas, attitudes and movements anchored in what proponents of "modernism" applaud as the liberating individualism, rationalism, and creativity of the (European) Enlightenment. The "modernism" which is now so strenuously attacked from some sections of the political and intellectual left is basically optimistic. It rests on ideas of continuing progress in universal human well-being. In particular, it is associated with the rise of rationality in the ascertainment of objective truth, and a corresponding decline in religious dogma, sectarian prejudice, and superstition generally. It pursues an ever-expanding field of human knowledge. More particularly, it is manifested in scientific discovery, technological advance and the relief of suffering. It promotes the expansion of personal liberty, the universal rights of mankind and other manifestations of universal human "progress". For its supporters, the Enlightenment is thus portrayed as a major step forward in the history of mankind.

12. This representation of the universal progressive movement of secular humanist society has never been immune to criticism. It has always discomfited the religious world simply because it is essentially secular and questioning. It is also said that its materialist excesses led to the rise of unchecked capitalism, socialism, Marxism, nationalism, imperialism, and related movements. It began to be questioned in quite different ways by sections of the secular left intelligentsia especially with the steady decline and disintegration of European Marxism from the early-1960s. The ensuing fragmentation of left-wing political movements and ideologies, the end of European colonisation, the emergence and sustained evolution of a new feminist movement, the rise of a new environmentalism, have, in part, both reflected and stimulated the rise of postmodernism and its ideological opposition to the supposedly oppressive "Western", materialist, and male-oriented values which are said, in turn, to be, in part at least, a product of the Age of Reason. The very influential rise of these new intellectual movements in the past three decades has been closely associated with the ideas of European (often French) theorists, including Michel Foucault, Jacques Derrida, Jacques Lacan, Jean François Lyotard, Jean Baudrillard, Julia Kristeva, Luce Irigary, and their bands of disciples in academia (and sections of the mass media) in Europe, the United States of America, Australia, and elsewhere. [34]

13. At the dominant abstract or theoretical level, postmodernism's rejection of so-called meta-narratives such as liberalism, socialism and (perhaps especially, Marxism) and the supposed collapse of the "old universal certainties" is traceable, in part, to the thoughts of Friedrich Nietzsche, and the linguistic theory of Ferdinand de Saussure and supports miscellaneous attacks on so-called absolute or foundational or universal truth. In its social setting, the new analytical focus is frequently directed to the specific or particular experience of "marginalised" groups and on "difference" between groups. If any one word in its (often impenetrable) vocabulary is the fulcrum of the postmodern "project", it is the word "culture". The focus of much analytical activity is the pre-eminent desirability of a social condition gathered under the rubric of "cultural diversity" and the need to struggle against the cultural imperialism of Western conceptions of rationality and freedom. This is not, however, merely a (post)modern reworking of the liberal democratic idea of tolerance which necessarily embodies the proposition that the individual is free (rightly or wrongly) to denounce one set of ideas over another or to assert cultural and moral superiority. Since the attainment of cultural diversity is a paramount objective, any perceived disparagement of so-called minority culture[s] is especially deprecated in the postmodern dispensation. In this context, truth and reality are viewed as no more than functions of perception according to the social or political or, more precisely, the cultural vantage point or bias of the various groups which make up any given society or "community". Rationality, objectivity and truth are thus seen as "social constructions", relative to a particular group perspective rather than as value-neutral transcendent realities. The Western interpretative perspective arising out of the Enlightenment is but one, albeit the allegedly "dominant" (i.e. oppressive), cultural perspective. The new postmodern modes of analysis have necessarily involved, to varying degrees, an attack on the notion of a unique individual self and of a private identity that transcends group identity. For many postmodernists, the individual "self" is also labelled as a social construction. Individual freedom of expression is therefore chimerical. Rather, the expression of ideas and opinions primarily reflects some underlying group identity and is no more than an exercise in power between groups with unequal power.

"Deconstruction" is therefore necessary to reveal the underlying struggle for power inherent in all claims for the truth. All this theorising has been underpinned by a very strong linguistic stimulus with the malleability or indeterminacy of language being the constituent reality. The dominant analytical preoccupation is with representation and text so that, in Derrida's famous aphorism - Il n'y a pas de hors texte. [35]

14. At the forefront of the new collective identity-based calls for renewed State censorship and punishment of disapproved of speech, is the claim that something generically (but very unhelpfully) labelled "hate speech" should enjoy no legal protection and should be stamped out at least insofar as it is targetted at selected (i.e the "disempowered", "oppressed" or "subordinated") minority groups. [36]

The new postmodern social and political theories and associated explanations of social and cultural organization are, to some extent, manifested directly in the enactment of racial vilification legislation, homosexual, transgender and disability vilification legislation, [37] and related controls on programme content contained in the Broadcasting Services Act 1992. They are also capable of influencing the administration of the "bad character" amendments to the Migration Act 1958, which were largely prompted by the rejection of the visa applications by the controversial British historian, David Irving. As with more traditional forms of censorship aimed at literary or artistic non-conformity or political radicalism, the primary focus of the new censorship orthodoxy is the supposed bad tendency of certain speech or speech-related conduct; these days the target is speech the content of which is said to be expressive of or productive of bigotry or enmity or other "harm" based on race, ethnicity, sex, sexual orientation, or disability. The enactment of the Commonwealth Racial Hatred Act 1995 is perhaps the clearest example of the harnessing of these new cultural and social theories to the cause of the legal recognition and protection of "difference", "diversity", and new conceptions of equality. Insofar as these new proscriptions ostensibly seek to protect the diversity as distinct from the unity of the Australian polity, they amount, in substance, to a kind of modified law of sedition or heresy. Proclaiming the transcendent value of individual free speech as an element of national cultural unity is seen in some pro-censorship quarters as a form of heresy because it allegedly tends to de-stabilise (if not actually harm) vulnerable minority cultures which are central to cultural diversity. [38]

15. Postmodern proponents of the new censorship laws appear to take as a given that, without exception, entire minority groups within the citizenry possess, or are prone to exhibiting, a separate collective vulnerability to offensive or insulting or humiliating or intimidating speech. Some of the proponents of censorship purport to speak authoritatively on behalf of the affected groups to the extent that they regard the members of these groups as inherently lacking in the self-perception, self-respect and dignity which apparently equips the so-called dominant groups to withstand hateful criticism or vilification. There is in these new approaches to censorship a disturbing sense in which the latter day censors may be regarded as embracing the same kind of stigmatising discriminatory disdain - whether it is witting or unwitting is, of course, open to debate in any given case - about groups which motivates the bigots who in their various ways openly preach or otherwise foster hatred of or practice discrimination against homosexuals, Jews, Arabs, Muslims, Catholics, Asians, and so on. Against these pessimistic generalisations about vulnerable minorities, it is argued by supporters of minimal restrictions on individual free speech that, far from promoting equality, the new censors' claim that certain minorities are peculiarly fragile and unable to withstand "offensive" speech (even if, for example, it is demonstrably false or absurd) is calculated to promote and reinforce stereotypes of minority group vulnerability and thus to detract from the struggle for equality.

16. At a broader social level, the new postmodern censorship justifications are also manifested in an official rejection (more apparent, however, than real) of the view that there is an all-encompassing Australian culture or way of life to which all who reside in Australia are expected to conform enthusiastically. The active encouragement of cultural diversity (howsoever defined) is now embodied in the bipartisan policy of multiculturalism. The term "multiculturalism" (like so many related terms) can be (and, in everyday usage, is) defined and applied in a range of ways. For example, it is customarily used in a general way simply to effect an unfavourable contrast with the discarded White Australia policy and/or to point to residual prejudice said to be deeply embedded in the Australian character especially in what is commonly (if imprecisely) called the Anglo-Celtic heritage. At a more sophisticated level, multiculturalism, seen as a positive manifestation of tolerance in the true liberal democratic way, has unquestionably promoted societal diversity much to the enduring advantage of Australia. Not surprisingly, there are varying intermediate approaches to and interpretations of the concept. [39]

17. The theoretical stimuli for the existing bipartisan policy of multiculturalism owes something to European social and cultural theories about "difference" and minorities and "marginalised" communities which are central to postmodernism. What was, a generation or more ago, seen (rightly or wrongly) as a national virtue, namely, a preference for "assimilation", "integration" or civic heterogeneity based on an adapted, adaptive and evolving European civilization is now widely regarded as thoroughly discredited, if not downright dangerous. [40] This is certainly the case insofar as Australian Aborigines are concerned. It also the case insofar as past Australian migration policies may be conceived of as being inconsistent with the right of recognised minority groups to continue to embrace their group culture without in any way forfeiting their entitlement to full and equal participation in Australian society. By reason largely of the historical context of the White Australia policy, this has produced an environment in which vigorous questioning of the underlying utility of multiculturalism is susceptible to being stigmatised as inherently illiberal (if not racist). Unfortunately, much of the heat surrounding debates about Australian multiculturalism is attributable to a preference for vague theory and abstraction and a resulting failure to explore issues by reference to the realities of everyday life. [41]

18. The fundamental question here, however, is not whether multiculturalism (howsoever it is defined) is desirable, but rather whether Australians are prepared to tolerate those who dissent from the proposition that it is necessarily desirable or who take a different if not decidedly unpopular view of multiculturalism than that which is officially promoted.

19. The pursuit of multiculturalism in the broad sense of the primacy of (minority) group sensitivity over individual identity and autonomy has, perhaps inevitably, led to the re-emergence of an idea which seemed to have been mostly abandoned by the 1970s. This is the idea that the State should, by law, compel individuals to observe a minimum standard of decency, civility and respect in the expression of ideas and opinions in order both to deter individuals giving offence and to ensure social harmony. Now, however, the focus of the new State compulsion to deter the expression of confronting, divisive, provocative or extremist ideas and opinions is not, as it was in the past, the prevailing or supposedly "unifying" political, religious and social orthodoxies of the Australian society and culture. Instead, the new legislative restrictions on free speech are intended to protect the diversity of the polity by penalising affronts to the supposed sensitivities of "oppressed" minorities or "marginalised" communities. At one extreme the new restrictions may be characterised as seeking equal treatment in the sense of respect for (if not substantive acceptance of) views some of which, arguably at least, may run counter to the so-called majoritarian mainstream. It is in this setting that the broad terms "culture" and "cultural practice" are often invoked to erect barriers to open discussion and criticism of cross-cultural issues. The emerging deployment of the law and so-called speech codes or guidelines to stamp out selected forms of bigotry and hatred has also produced a new terminology. Thus, a major component of the debate about free speech and censorship in Australia is focussed on the merits and demerits of so-called "political correctness". [42]

20. The new concern for stamping out offensiveness and compelling respect for supposedly sensitive marginalised minorities is being taken a step further. In both the public and private sector, the new quest for equality is sometimes accompanied by proposals for "cultural awareness" or "cultural sensitivity" training for the members of the so-called dominant majority groups. This activity may be carried out legitimately under the guise of promoting equal opportunity in the workforce. Education is, of course, essential in combating bigotry, but to the extent that such programmes involve compulsion or prescriptive approaches to the ways in which issues of "multicultural diversity" may be discussed, they have the potential for manipulating or shaming individuals into embracing a new orthodoxy and for denying the role of individual dissent in our society.

21. Whereas the traditional liberal democratic ideal at its highest is that dissident speech - however disgusting, false, unpopular, offensive or upsetting - is to be tolerated unless there is a clear and present danger of tangible social harm such as violence, property damage, the moral corruption or exploitation of children, or some other compelling exigency, the new largely identity-based censorship models regard speech which is offensive or inimical to the interests of recognized minority groups as harmful per se to the struggle for equality. Moreover, not only are there certain broad categories of ideas which are not to be expressed in civilised and sensitive company, but it is asserted that, as a result, there are and must necessarily be approved and disapproved forms or habits of speech. It is argued that there are words or expressions the mere use of which is inherently indicative or expressive of "sexism", "ageism", "racism", "homophobia" and other unacceptable "isms" which is, thereby, harmful to the society. [43] By way of example, in the context of migration and multiculturalism, the positive or favourable use of the terms "assimilation" and "integration" is now frowned upon. In academia, this new Bowdlerism has been given effect in various codes or modes of approved (or disapproved) forms of speech. As suggested above, calls for suppression of speech embodying these vices are themselves frequently based on crude stereotypical claims about the characteristics of entire groups of individuals.

22. These new theoretical justifications for the imposition of censorship are, not surprisingly, hotly contested. The commitment to universal rights for autonomous individuals so long and so arduously fought for is strenuously defended. (This article is offered as a modest contribution to that old-fashioned if not unfashionable cause.) The vigour of the ongoing debate is illustrated by the fact that some proponents of the new State censorship apparatus seek to impose threshold limits on debate in part by denying altogether that prohibitions on speech which vilifies certain minority groups raise any free speech issue at all. [44]

23. At a more palpable level, contemporary proponents of increased state (and private) censorship also point to what might be called the conventional "residue" justification. This is the claim that protected free speech in Australia is, and always has been, what the State is prepared to allow. On this view, it is nothing more than what remains after the criminal law of threats, incitement to violence, sedition, official secrets, contempt of court, and obscenity etc, and the civil law of defamation, breach of confidence, intentional infliction of emotional distress, copyright, privacy protection, consumer protection and advertising regulation, etc are applied. On this basis, so-called hate speech laws are advocated as a necessary and appropriate response to a new social problem and they are justified simply as a further acceptable and proportionate limitation on the residue-based right of free speech. This is to be contrasted with an approach to free individual speech where the starting point is minimal restriction and any retreat from that requires compelling justification.

24. In opposition to the new censorship it is said that there are major conceptual and definitional problems with the preferred concepts of group rights and "identity" which underpin much of the new censorship movement. Like the abstract terms "culture" and "multiculturalism", the abstract term "identity" can be defined and understood in many and sometimes conflicting ways. One of the difficulties besetting contemporary free speech/censorship debates in Australia is that there is no generally accepted approach to the idea of group "identity" or, for that matter, individual identity. Given the diversity of human nature and individual human experience, this is scarcely surprising.

25. For some individuals, identity may be a single - arguably, all-defining - personal characteristic which may or may not be drawn from a currently preferred list of categories. Or, it may, for example, rest on nationality, a category that nowadays does not enjoy much approval by the intelligentsia because it tends, almost automatically, to be equated with chauvinism, xenophobia or over-active patriotism or nationalism rather than with responsible citizenship. For many (perhaps most) individuals, "identity" will be an amalgam of various personal characteristics and group loyalties, will vary according to context, and will transcend the legally recognised group boundaries. For others, identity will not necessarily be anchored in any group affiliation. Moreover, there will, inevitably, be logically prior disputes about which personal characteristics can properly be said to define collective identity, whether categories of identity can be ranked in any meaningful way, whether other categories of identity should be legally protected from "offensive" speech, and how intra-identity and inter-identity clashes involving "offensive" speech are to be accommodated or resolved. [45]

26. Interestingly, the legal protection of individual and group religious sensitivities is frequently mentioned in the context of support for contemporary claims that free speech is a limited (or residual) and not a fundamental right or constitutive value and, as such, one which ought not to be abused. But the protection of religious identity and sensitivity is nowadays much less pronounced than the protection of other forms of group sensitivity in Australia. [46] This is not surprising given the increase in the number of individuals adhering to religions other than Christianity, the simultaneous secularisation of Australian society, and the policy of multiculturalism. The steady evolution of individual freedom of expression over the past 150 years in Australia has been marked by a decline in punitive responses to attacks - whether real or imagined, scurrilous or otherwise - on religion and religious sensitivities. The Piss Christ episode in Melbourne in 1997 amply demonstrates the inherent contradictions and perils of seeking, selectively, to protect the sensitivities of entire groups of supposedly vulnerable citizens in a pluralist society. In a world of many competing one true faiths, sharp doctrinal conflict, divisiveness, and mutual "offensiveness" are, whether we like it or not, facts of life. The inevitability of such conflicts and the need to have an open debate about the risks of the repressive use of law in protecting group sensitivities were again demonstrated when the Catholic Archdiocese of Melbourne had a measure of success in objecting to the use of the business name, Virgin Mary's Bar, for a homosexual bar in suburban Melbourne. [47]

27. The new selective focus on group identity, group sensitivity and offensive speech has raised the quite distinct prospect that some topics may pass beyond spirited public debate altogether, that is to say, beyond debate which is robust, confronting, and, inevitably in some (subjective) sense, "offensive" or "insulting" or "intimidating" to some (or perhaps many) individuals. For example, at what point, if at all, does a vehement attempt to arouse public opinion against allegedly wasteful public expenditure on aboriginal welfare become, if at all, an attempt to incite hatred against aboriginals? [48]

28. In this new context, the rhetorical emphasis on "identity", "difference", and "oppressed minorities", and the need for cultural sensitivity, has, to some extent, become a kind of Utopian quest, if not a fetish. For some commentators, the "difference" of the so-called oppressed minorities is to be encouraged above all else and simply for its own sake. As a result, it appears to have become a preferred trait or superior (collective) virtue so much so that individual free speech has suffered. Accordingly, appeals to "Australian", "national", "shared", "community", "democratic", "fundamental", or "universal" values risk being demonised since this form of debate may be thought, as if by definition, to be productive of oppression of minorities or of "divisiveness". (Curiously, the proponents of "difference" inexplicably stumble when it comes to difference of opinion.) Thus, for example, the expression of any "unorthodox", "dissenting" or "radical" view about, say, multiculturalism, migration, aboriginal welfare, or the desirability of an official apology for past injustices to Aborigines can attract an epithet or be treated as prima facie suspicious or dangerous as carrying a tendency to incite vilification or hatred of minorities. The irony remains that so much of the effort now being put into suppressing offensive or confronting speech inevitably rests on demeaning stereotypical portrayals of the inherent human weaknesses of the selected minorities.

29. It has been argued that the promotion of "difference" far from being an anti-racist principle has been from the start at the heart of racial prejudice, discrimination and segregation. Whereas in the past group differences were seen largely as biological in nature, such differences are now more often than not seen as cultural. This has led to a situation where the celebration of difference which is at the heart of a broadly accepted view of multiculturalism has reinforced rather than reduced inequality and perhaps has fostered a pessimistic acceptance of the inevitability of social inequality and a preference for diversity as an end in itself. [49] The liberal democratic case for resisting restrictions on free speech is, in part, that there is nothing to fear and much social good to be derived from openly debating claims that diversity is not an end in itself or that diversity is only acceptable if it is productive of conformity. Fundamentally, Australian multicultural diversity is itself founded on, and is an expression of, national cultural unity. It has evolved as part of the Western liberal democratic tradition. Individual free speech is a core national democratic value that both transcends and promotes diversity of all kinds. It is the hallmark of a truly free, open, mature, and diverse society. Individual freedom of expression is thus central - not inimical - to the attainment of true equality. [50]

30. The everyday difficulty is that any suggestion that there can be a genuine and useful debate about whether some claimed forms of group sensitivity are exaggerated or, for example, that all of us as individuals have to put up with speech which outrages or offends us or confronts our most deeply held convictions can be easily and almost inevitably twisted or misinterpreted as callous insensitivity, if not outright prejudice or bigotry or hatred. In part at least, this is the inevitable outcome of the fact that it is inherent in the emphasis on stereotypical representations of oppressed minorities and group identity that an attack (especially a misinformed one) on an idea or a proposal affecting the welfare or interests of a particular identity interest can easily and, wittingly or unwittingly, be misinterpreted and labelled as a personalised or bigoted attack on all members of the group. [51]

31. This new focus on the paramount need to avoid giving "offence" or being "insensitive" or "divisive" thus, inevitably, raises the prospect that there will be a chilling self-censorship effect, as far as robust public expression is concerned, on people who fear, quite understandably, being labelled as bigoted or as hate mongers or as "racists". In this regard, history appears to be repeating itself. A generation and more ago an individual expressing "dissenting", "unorthodox" or "radical" views risked being labelled as, for example, an "anarchist", a "communist", a "communist sympathiser", a "pinko", a "red", a "fellow traveller", a "subversive", a "fifth columnist", a "fascist", as "disloyal", as a "pacifist", or a "degenerate", and so on. Nowadays, there is a new collection of disparaging labels, epithets, and stereotypes. The labels can be easily (if not promiscuously) applied in preference to contending with the substance of the disagreeable or offending claim, opinion or idea. The unifying historical thread is that calls for censorship and punishment of the expression of allegedly harmful offensive ideas are invariably supported not only by fanatics, but also by well-intentioned folk.

32. The essence of the free speech debate remains much the same. The burning question is: To what extent, if at all, are Australians to tolerate the expression of views which are rejected by most fair-minded citizens as offensive or bigoted or prejudiced or hateful or extremist, or which are perceived as being harmful in some tangible (or intangible) way? Has Australia progressed by disinterring the idea that there should be State-enforced conformity in preference to permitting adult individuals to think for themselves and to make their own decisions about truth and the value of ideas regardless of whether they are popular or unpopular? Is there to be legally protected free speech only for views which are anodyne or respectable or uplifting, or which command overwhelming majority acceptance, or only for views that have been approved by some apparatus of the State charged with protecting supposedly vulnerable group sensitivities? How, in the gritty reality of everyday life in a free and open society, is the harm of "harmful speech" to be defined and measured? Is dissent to be tolerated only where the views expressed are thought to be progressive, sensitive or inoffensive?

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Free Speech and its Postmodern Adversaries - I