Freedom of Expression Report

By Samantha Cooke

Introduction

Freedom of Expression Sami Cooke

In this report, arguments surrounding Australia’s current legislation on freedoms; focusing entirely on Freedom of Expression, are examined. Supported with authoritative resources, Australian laws are contrasted against Freedom of Expression laws in America. These are then analysed deeply with the case study on the Hong Kong Crisis and China’s freedom laws. Both sides of the argument will be presented aiming to answer the question, if indeed there is a satisfactory answer; ‘Should we be like America?’. 

What is Freedom of Expression?

Human rights are described as “moral entitlements that accrue to all persons” (Buchanan, A. & Golove, D). Being one of these human rights, freedom of expression allows the public to act how they want to - within legal limitations. Article 19 of the International Covenant on Civil and Political Rights (1996) succinctly explains that “Everyone shall have the right to freedom of expression” (ICCPR 1996). Overall, this right allows the public to express themselves creatively and explore their rights such as participating in protests and demonstrations.

Where are we now and what covers our Freedom?

The Department of Immigration and Citizenship states that we have five freedoms. These include; “Freedom of Speech… Association, Assembly, Religion and Movement”. 

Living in a democratic society, it is imperative that the freedom laws are safe and accessible. However, the argument is whether or not we need these laws to be concrete. Coinciding with current Australian legislation such as the Freedom of Information Act 1982 and the Australian Human Rights Commission Act 1986, along with each states own legislation such as NSW’s Defamation Act 2005, these ‘implied’ freedoms are governed. 

‘Implied’ freedoms mean “the Australian Constitution does not explicitly protect freedom of expression” (AHRC, 1986), or any of the other freedoms. The exercise of these rights “has given rise to troublesome problems” (Emerson, T. 1964) as they are up for interpretation to whatever precedent is held. These rights are to be used in accordance to the law and in a way that doesn’t harm others. If they are misused, this is when the law is enforced however, there are situations where the law has been too weak or too harsh.

The criticism Australia receives about the freedoms is that they are not written down in a document alike America’s Bill of Rights. “A Bill of Rights is a list of the fundamental rights of citizens of a country” (Dahlstrom, F n.d).

The question is, should this be the case? Australia is the only liberal democracy not to have one. Due to the “enormous complexity of those debates and the inherent long-standing challenges” (Bader, V, 2013) these discussions have been at large since the late 70’s. To explore this, both arguments for and the arguments against a bill of rights for Australia are crucial to understand.

Arguments for a Bill of Rights in Australia

  1. Supporters in Australia claim that one would strengthen human rights protections. 

  2. It would mean all legislation passed need to adhere to human rights principles.

  3. It would address current and past human rights violations.

  4. A bill of rights could protect individuals against future human rights abuses. An example of this is the known and unknown treatment of asylum seekers in detention. An inquest into the death of Iranian asylum seeker Hamid Khazaei in 2014 proved that his death was preventable if he had received proper medical care. After obtaining flu-like symptoms and a lesion on his leg, there were large delays and communication issues that led to him not receiving treatment in time. Queensland Coroner concluded that if he was moved from Manus Island to an Australian hospital as soon as the antibiotics stopped working, he would have survived (Doherty, B 2018).

Arguments Against a Bill of Rights in Australia

  1. Critics argue against human rights being an issue in Australia. 

  2. Critics say past deficiencies addressed by supporters of the bill have been resolved through common law. An example is the case of Mohamed Haneef, an Indian born Doctor that was detained under anti-terrorism laws in 2007. He was falsely accused. Inquiries, revisions and amendments have been made to prevent this from happening in the future (Law Council of Australia n.d).

  3. “A Bill of Rights that is constitutionally entrenched is very hard to change” (Dahlstrom, F, n.d). This means that rules written in the constitution are firmly established therefore, very unlikely to change such as the US constitution. Unlike Australia, freedom of speech rule is very relaxed even allowing hate speech without consequence. The Westboro Baptist Church is a prime case. It is known for its views being expressed and their hate preaching, targeted especially against the LGBTQ+ community and even the U.S soldiers. Protesting using hate speech vocally and on signage may cause controversy but are legally permitted in America. In Australia, even though we have freedom of speech, it is governed closely by legislation. Therefore, signs like those along with hate speech is illegal.

Complete freedom without any repercussions would be a whole new world. Donald Trump states regularly in interviews that he has “the right to do whatever [he] wants as president” (Trump, D. 2019) thanks to article two of the constitution. “He keeps up a steady stream of boasts, insults, and policy assertions” (Justice, B. & Stanley, J. 2016) and gets away with it due to America’s laws.

Trump, being compared to “street performers, clowns, criminals and jokers” (Hall, Goldstein & Ingram 2016), uses a “comical political style” (Hall, Goldstein & Ingram 2016) to entice his followers. This obviously works quite well; however, he has created quite a reputation for acting out on Twitter. With one tweet from March 2018 saying that trade wars are "good, and easy to win" (Donald Trump, 2018). America’s and Australia’s freedoms are very antithetical to the ‘freedoms’ allowed in China.

China Laws and the Hong Kong Crisis

On the 4th June in 1989, there were a number of student led demonstrations happening in Tienanmen Square - a place now famously known for the 1989 Tiananmen Square Massacre.  

These peaceful demonstrations were organised by students, labour activists and labour activists, protesting the way the Communist party of China ran the economy. Armed with machine guns and tanks, the Chinese army plowed through the hundreds of thousands of people, “remains incinerated and then hosed down drains” (Margaritoff, M 2015). The number of deaths is still a mystery. 

After the news of the massacre got out, the Australian president at the time, Bob Hawke, offered asylum to Chinese students in the Australian embassy in China. 12 days after the massacre, Hawke extended all temporary entry permits for Chinese nationals legally in Australia for 12 months, with work rights and financial assistance. 

Don’t think it is over as this is still happening today- just a little more hidden. Human rights in China is quite a contested subject, with censorship being a main issue. The Chinese government’s extradition bill was the catalyst to the millions of people protesting in the streets of Hong Kong, now expanding to include the main cities in Australia. However, even though these protests are allowed in Australia with our freedom of expression rights, Chinese students in Australia protesting are still being watched, threatened and even tormented by the pro-Chinese activists and the Chinese government. People with family connections still in China are fearing for their families’ safety after cases of people ‘disappearing’ and being arrested due to the actions of the person in Australia or Hong Kong. 

Back in China, the protests are becoming more “fearful” and “dangerous” (Wong, M & Jeffie, L 2019) with both the Chinese police force and the protesters becoming more angry and destructive. 

Conclusion

The consequentialist argument of whether Australia needs a Bill of Rights like America is still being discussed by authoritative sources. The facts show that there are advantages and disadvantages to either argument. As Trump said, he “can do whatever [he] wants” (Trump, D. 2019) however, the laws are also quite restricted in other ways and since, unlike China, America is not a dictatorship, Trump still must abide by those set rules. In Australia, the freedoms are open to interpretation and precedents set but they also are quite strict when breached legally. The research shows that the ruling for Australia to introduce a Bill of Rights may occur in the future, however, the decision personally is ambivalent.


References:

  1. Australian Human Rights Commission Act, 1986, No. 125, accessed 30/8/19, https://www.legislation.gov.au/Details/C2017C00143, https://www.humanrights.gov.au/our-work/rights-and-freedoms/freedom-information-opinion-and-expression 

  2. Bader, Veit, 2013, Free Speech or Non-discrimination as Trump? Reflections on Contextualised Reasonable Balancing and Its Limits, p. 1, accessed 9/9/19, https://www.tandfonline.com/doi/full/10.1080/1369183X.2013.851478  

  3. Buchanan, Allen & Golove, David, 2004, The Philosophy of International Law, The Oxford Handbook of Jurisprudence and Philosophy of Law, p. 868, accessed 1/9/19, https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199270972.001.0001/oxfordhb-9780199270972-e-21?rskey=8CDAx1&result=1 

  4. Cillizza, Chris, 2019, Donald Trump Can’t Just ‘Hereby Order’ Whatever he Wants, CNN, viewed 28th August 2019, https://edition.cnn.com/2019/08/23/politics/hereby-order-donald-trump/index.html

  5. Dahlstrom, Fernanda, Go To Court, Should Australia Have a Bill of Rights? https://www.gotocourt.com.au/legal-news/australia-bill-of-rights/

  6. Doherty, Ben., 2018, The Guardian, Hamid Kehazaei: Australia responsible for 'preventable' death of asylum seeker, accessed 25/8/19, https://www.theguardian.com/australia-news/2018/jul/30/death-asylum-seeker-hamid-kehazaei-preventable-coroner-says

  7. Emerson, I. Thomas, 1964, Freedom of Association and Freedom of Expression, The Yale Law Journal, Vol. 74, The Yale Law Journal Company, Inc., accessed 8/9/19, p 2. https://www.jstor.org/stable/794804 

  8. Hall, K., Goldstein, D. & Ingram, M., 2016, The hands of Donald Trump, Entertainment, gesture, spectacle, Hau: Journal of Ethnographic Theory, https://www.journals.uchicago.edu/doi/pdfplus/10.14318/hau6.2.009 

  9. International Covenant on Civil and Political Rights, Article 19, Freedom of Expression, accessed 25/8/19,  https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx 

  10. Justice, Benjamin, Stanley, Jason, 2016, Teaching in the Time of Trump, Social Education, ©2016 National Council for the Social Studies p. 37, accessed 7/9/19, https://s3.amazonaws.com/academia.edu.documents/42702011/80011636.pdf?response-content-disposition=inline%3B%20filename%3DTeaching_in_the_Time_of_Trump.pdf&X-Amz-Algorithm=AWS4-HMAC-SHA256&X-Amz-Credential=AKIAIWOWYYGZ2Y53UL3A%2F20190910%2Fus-east-1%2Fs3%2Faws4_request&X-Amz-Date=20190910T010132Z&X-Amz-Expires=3600&X-Amz-SignedHeaders=host&X-Amz-Signature=e57781e667850722d5fb35b56348704851d61930eae5ee27c04361beed3e1850 

  11. Law Council of Australia, n.d, Mohamed Haneef Case, accessed 8/9/19,  https://www.lawcouncil.asn.au/policy-agenda/criminal-law-and-national-security/anti-terror-laws/mohamed-haneef-case 

  12. Margaritoff, Marco, 2015, The Hidden History Of The Tiananmen Square Massacre, accessed 24/8/19, https://allthatsinteresting.com/tiananmen-square-massacre

  13. McDonell, Stephen, 12th June 2014, Tiananmen Square Crisis Station: The Australian Embassy in 1989, viewed 28/08/2019, https://www.abc.net.au/news/2014-06-03/tiananmen-square-crisis-station-the-australian-embassy-in-1989/5498406

  14. The Department of Immigration and Citizenship, Five Freedoms, accessed 28/8/19, https://immi.homeaffairs.gov.au/settlement-services-subsite/files/english-ausco-pamphlet-17-australian-law-updates-april-2018.pdf 

  15. Trump, Donald, Trade Wars Are Good and Easy to Win, Twitter Account, accessed, 27/8/19, https://twitter.com/realDonaldTrump/status/969525362580484098 

  16. Trump, Donald, 2019, video of speech from Washington Post, accessed 25/8/19,  https://www.youtube.com/watch?v=sl_gO3uOds8 

  17. Wellington, H. Harry., 1979, On Freedom of Expression, The Yale Law Journal, Vol. 88, No. 6, The Yale Law Journal Company, Inc., accessed 8/9/19, pp. 1115 - 1117, 1141, https://www.jstor.org/stable/795625 

  18. Wong, Michelle & Jeffie, Lam, 27th August 2019, South China Morning Post, accessed 28th August 2019, https://www.scmp.com/news/hong-kong/politics/article/3024440/hong-kong-protests-video-footage-reveals-why-police-officer