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Parliamentary Joint Committee on Human Rights
01/02/2017
Freedom of speech in Australia

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HOLMES, Mr Jonathan, Private capacity

[14:42]

CHAIR: I now welcome Mr Jonathan Holmes. Do you have anything to say about the capacity in which you appear today?

Mr Holmes : I appear for myself alone; I do not represent anyone else. I was invited to make a submission, and I did so. Thank you very much for inviting me here.

CHAIR: I invite you to make an opening statement, after which the committee may ask some questions.

Mr Holmes : Good afternoon. As I say, thanks for inviting me to make a submission and for asking me to testify in person. I do not speak for anyone else. I do not represent anyone else. I do not have any legal qualifications. I am an old white male who has not been subjected to offence or insult on account of my ethnicity, but I did spend more than 40 years as a practising journalist, and my remarks come from the perspective of someone for whom freedom of speech and freedom of the press are inextricably entwined.

My thoughts on sections 18C and 18D of the Racial Discrimination Act are laid out in my submission, and I am happy to elaborate if the committee wishes, but I would like to emphasise briefly here, just in case no-one asks me about it later, the points I make in the last part of my submission: that there are far more serious threats to freedom of speech in Australia. The Australian Law Reform Commission, in its final report on Traditional rights and freedoms—encroachments by Commonwealth laws—which your terms of reference ask you to consider—lists a great many of these threats, most of which arise from recent antiterrorist legislation and from, for example, the draconian secrecy provisions of the Australian Border Force Act.

Some problematic laws are much older than that. The commission pointed out that in 2009 it recommended the repeal of sections 70 and 79 of the Crimes Act, which criminalise the unauthorised disclosure of virtually any official information by a Commonwealth public servant. That recommendation by the ALRC, almost eight years old, has been ignored by successive governments. In fact, as I detail in my submission, just last year the Australian Federal Police used both those sections in its pursuit of the disclosure of business information by someone at nbn co. The AFP alleged in its application for a search warrant that it suspected the unknown leaker of breaching section 70 and, even more alarmingly, that it suspected the recipient of the information, who was a political aide to a sitting federal senator, of breaching section 79, which carries a maximum penalty of two years imprisonment. Section 79 of the Crimes Act is 100 years old, is headed 'official secrets' and is clearly intended to protect Australia's defence and security information. Yet the AFP used it successfully to obtain a search warrant in pursuit of a person who leaked information about how a government enterprise is doing its job—nothing whatever to do with national security, but manifestly a matter of public interest. If the mere receipt of unauthorised Commonwealth information is to be prosecuted as a crime, all investigative journalism is threatened. Yet not a peep was heard from any member of parliament, that I am aware of, about this absurd overreach by the Australian Federal Police.

Mr PERRETT: I think Senator Conroy might have spoken up.

Mr Holmes : These are the sort of issues, it seems to me, that need to be examined by an inquiry into free speech in Australia—which this purports to be—more urgently than the wording of section 18C of the Racial Discrimination Act.

Mr PERRETT: We have heard evidence from many submitters that they consider the meaning of section 18C to be settled, or relatively settled, as per Justice Kiefel's interpretation in Creek v Cairns Post: '… profound and serious effects, not to be likened to mere slights.' Do you consider that to be correct—that it is relatively settled?

Mr Holmes : I am sure that it is settled in law and by the courts. The issue is whether the public understand that. It is a question of whether it is in the public interest—and I think Professor Twomey will make this point later on this afternoon; she certainly does in her submission—for laws to be interpreted by the public in the way that the courts are interpreting them. I think there is a discrepancy there. When I read those words and wrote my first column on this issue some years ago, I took them to mean what they said in normal English, and I said that clearly the bar is too low. In fact, I now learn, over subsequent discussions, that the courts have raised the bar quite high. Therefore, I do not think that, in practice, the law is a serious threat to freedom of speech in the way that I used to. But I think there is certainly an argument that it would discourage vexatious complaints and those sorts of things if the law were changed just to the point of making the words match what the courts already find.

Mr PERRETT: So codified, in effect?

Mr Holmes : That is right.

Mr PERRETT: Do you consider that any changes to the wording to the provisions would then mean it is less certain until there has been sufficient judicial consideration of any amendments?

Mr Holmes : Of course that is true. The process then has to be gone through again, I guess, and lawyers would probably say we have to settle meaning. I really do not think I am qualified to go down that route, to be honest. You need to talk to barristers and other people. I am concerned about those words 'insult and offend'. Just as one example, the» «IPA sponsored a recent poll and people were asked, 'What you think about these words?' When you hear those words you think, 'That is ridiculous; we should be allowed to insult people or offend people without risking being taken to court about it.' It does not actually mean what it says.

Mr PERRETT: Would it not be better—and you can comment on this, because you are very familiar with educating people through the media—to have an education campaign about what the law actually is, rather than this process of changing judicial consideration? Why not cut out the middle men and women and educate the public?

Mr Holmes : That is certainly arguable, just as it is arguable that a lot of the problems that have brought this committee together have been caused not so much by the wording of the act as by the way in which the Human Rights Commission is, arguably, forced to deal with complaints at the moment. I have not commented on that because I do not feel that I have any particular expertise in it, but clearly that is a matter that is very much engaging the committee. I do not disagree that it may very well be that if you simply change the way in which the Human Rights Commission deals with complaints, a lot of the problems that Mr Bill Leak and others have suffered would simply be dealt with that way. I think there are many ways of skinning this particular cat, one of which might be to amend the wording of 18C slightly.

Mr BROADBENT: Mr Holmes, we want to hear from everybody, not just academics.

Mr Holmes : Good.

Mr BROADBENT: We want to hear from everybody. It is extremely important we hear from a range of people. I would like you to flesh out something. In the summary of your piece, you talk about an amendment to allow 'fair comment'. Are you talking about 18D?

Mr Holmes : Yes.

Mr BROADBENT: Could you tell me what you mean by 'fair comment', or can you give me an example?

Mr Holmes : Yes, I will try to. It is a little bit technical. Anyone who is a practising journalist is very familiar with the defamation laws in this country; you have to be. The Defamation Act as interpreted is a major constraint on our free speech. I do not say that it is wrong. We should be constrained to making sure that, when we defame people, we only do so by telling the truth about them—that is our major defence—or by making a comment about a person in the light of facts that are widely known or that we state in that same publication. That is the fair comment defence. But importantly, the courts have found over many years that the fair comment does not have to be fair in the terms that that word might have in its plain meaning. A fair comment is a comment that you honestly believe to be true or a view that you honestly hold based on true facts. But your opinion can be pretty wild, and the courts—

Mr BROADBENT: It can be very unfair.

Mr Holmes : Yes, indeed.

Mr BROADBENT: We know.

Mr Holmes : Certainly, it can be extreme and still regarded as a fair comment. In the Racial Discrimination Act, there is an additional gloss, which came to the fore in the case of Eatock v Bolt. In the case of Andrew Bolt's columns, I do not think that the fair comment defence would have succeeded in a defamation court, if they had sued him for defamation, because he got his facts wrong, and he got them significantly wrong. Therefore, it is not a fair comment; it is based on false facts. I think it would have very likely failed in a defamation court. But what concerned me was that the judge went on to say that, even if Andrew Bolt had got his facts right, he would not have convinced him that he had been acting reasonably and in good faith. That is the other phrase in section 18D; you have to act reasonably and in good faith to get the protection of that part of the act. The judge said he was too sarcastic. I have the exact words in my submission. I really do worry when judges are given the discretion to decide whether they like the tone of what you write, the fact that you are a bit sarcastic or the fact that you are attempting to be funny at somebody else's expense. Of course those articles were highly offensive to people. Frankly, I cannot imagine ever writing such things myself, but free speech is free speech. It worries me when a judge says that it does not get past the taste test, that it was in bad taste or that it was too snarky. That is not a good basis, it seems to me, for finding somebody's action unlawful. Does that answer your question ?

Mr BROADBENT: Are you suggesting that there be some additional words in 18D to allow for the two words you just gave us then?

Mr Holmes : It a little bit complicated. I tried to make the point about amending 18C in such a way as to raise the bar of what is unlawful. For example, the draft bill a couple of years ago suggested using the word 'vilify' instead of 'insult, offend and humiliate'. The draft bill said that 'vilify' meant 'to incite racial hatred'. The Attorney-General himself said that inciting racial hatred is no part of normal discourse; it is no part of civilised discourse. Therefore, we do not have to defend it. We do not have to make excuses for it. He said that it is not part of freedom of speech to vilify. Yet, in that draft bill, 18D was made much, much softer. It said 'any public discussion of any matter—political, artistic', whatever. If you are taking part in any discussion then the previous part of the law does not apply. When you think about it, that actually says that it is perfectly lawful to vilify or intimidate people as long as it is part of a public discussion of just about anything. I think that is completely unacceptable.

So, yes, I think currently if you leave 18C as it is, where 'insult' and 'offend' are the words, it is easy to insult or give offence to people in the part of a robust discussion on matters of public interest. If you can show that you did it as a fair comment on facts truly stated, just as in the defamation law, I personally think that that should be enough to gain you the protection of the freedom of speech part of the act. You should not have to prove that you have also done it reasonably, in good faith. I do not see why you need that extra test when you do not have it in the Defamation Act. I do not see why this particular area of our public discussion should have completely different criteria to just about anything else that we talk about. For all that, I acknowledge how much people do feel that it does protect them. This is for you to decide.

Senator McKIM: Thank you, Mr Holmes, for your submission and for appearing here today. As a preamble, I completely agree with you that there are more important freedom of speech issues in Australia, and I listed about a dozen for the Institute of Public Affairs yesterday, just to put them on the record. You have submitted that we ought to change the words in 18C. I wanted to ask you this. We live in what I guess we would call very interesting times at the moment, and exhibit A is the new President of the United States—and there are plenty of other examples. Do you have any concerns that, if 18C were changed, the risk is that there would be a perception that it has been weakened and you would have—I confidently make this prediction—members of the Commonwealth parliament saying, 'This is a great victory for freedom of speech,' and the dog-whistle tones there, of course, are that racists in Australia—there are plenty of them, unfortunately—would think they have been given the green light to say things that previously they were not able to say? I basically wanted to ask you to respond to that. Is this the right time to make a change, and do you not think that is a significant risk that, in the public interest, we ought to consider before we recommend any changes to 18C?

Mr Holmes : Of course it is a danger. I accept that. I started writing about this issue several years ago, and the climate has changed, and what is happening in the United States is relevant. That is really why we elect people. It is a difficult decision, but it is your decision; it is not my decision. I think it is a danger. I do not think it is a matter of burning importance, in a funny kind of way. The people who do think it is a matter of burning importance, in a sense, have the onus of proof on them, it seems to me. I think that, when I first read it, the act shocked me. I thought, 'Are we really saying that insulting or offending somebody is unlawful?' I now understand we are not actually saying that, and I think there might be some virtue in making that clear. That is really as far as I am going. But, if we do that, we have to be very careful not, at the same time, to make it easier to gain the protection of 18D. I think that has to be reciprocal.

Senator McKIM: The reason I am interested in your views on this is that, almost uniquely in the witnesses we have had, you have a level of expertise on this because you have studied it for so long and in such detail, but you are also professionally a communicator. I do not mean to insult you, but politicians are the same—we have an expertise in legislating but we are also, hopefully, communicators.

Mr PERRETT: Even senators!

Senator McKIM: Even senators—some of us, Mr Perrett. I will not push you any harder than just asking this again. By the way, I agree with you, as a matter of legislative and legal theory, about codification—which is what you basically say—bringing the terms of the legislation more in line with the way the courts have interpreted. There is no argument from me there. Thinking about that risk, don't you think this is not the right time to tamper with 18C and don't you think the risk of that is a greater downside than the upside of bringing the legislation in line with case law.

Mr Holmes : I think it is very unfortunate that this particular issue, like so many others in our polity at the moment, has become a matter of left/right polarisation. I mean, I could say the same about climate change. It is ridiculous that whether we 'believe' in climate change science defines us as left or right. It is ridiculous that we cannot have a sensible discussion about this issue without those who support some kind of change being labelled right or left. I think that it is undoubtedly true, and the way that News Ltd papers have been pushing this issue confirms my belief that there is a political aspect, clearly, to the push to have this legislation changed. Now, I am not, generally speaking, regarded as being on the right of the political spectrum and that might be why I have been invited, rather unusually, to give evidence here. That is for you to decide. If the consequence of changing it were to make people feel that, okay, it is all right to be racist now, especially if that led to vilification being more common, that would, of course, be very unfortunate. I do not really feel that that is likely to happen, because I think there has been enough airing of all of this now that people are conscious that they have to be fairly spoken to get into danger.

Senator PATERSON: Mr Holmes, I was going to ask you about 18D and, particularly, the Bolt case and tone, but I think you have answered that in Mr Broadbent's question. Instead, I want to ask you, as a journalist, to explain to the committee what the chilling effect is and how it affects your work. I will be completely transparent about why I am asking that. There have been some witnesses who have come before the inquiry who said they do not believe there is a chilling effect to worry about and they do not see any evidence that people are not saying things that they might like to say. From your experience as a journalist, how does a chilling effect affect what you say or do?

Mr Holmes : The chilling effect of this is absolutely minor compared with the Defamation Act, for example. On Media Watch, every Monday morning the lawyers would come in and we would go through the script word by word, because we are out there insulting, offending and humiliating people on the grounds of their lack of professional expertise—in my view. Ninety per cent of what I said had to be based on very solid factual evidence that we very carefully researched, and it was then my fair comment on those facts. We never got sued while I was in that chair. But that, you can call it a chilling effect, I do not think was unhealthy. I think it is actually quite a good thing. I do not remember ever being in the least concerned about the Racial Discrimination Act in the work that I was doing.

So, again, I think that, in principle, in a free society which believes in free speech, we should not, ideally, have on the statute books an act that says that to insult or offend somebody on the grounds of their race, their religion or anything else is unlawful. That is the rock sort of prejudice that I have, if you like. But I am a white guy, you know. I do not go through this stuff, and you have had heaps of people telling you that, yes, they do need this act to protect them. So that is for you to decide, but that is where I am coming from. To be honest, Senator, I do not know of any particular instance that I could point to, with the exception of Andrew Bolt and Bill Leak, where people have been constrained in what they say. I suspect the Bill Leak thing might—

Senator PATERSON: Or the students at the Queensland University of Technology.

Mr Holmes : Well, yes. But, you see, they were not professional journalists. I think that was pretty outrageous, but I certainly think that there is an issue—especially with the way that that was dealt with—and I know you are all looking at that and the Human Rights Commission and the processes and so on. Yes, I think that was very disturbing. But Bill Leak's cartoon was bound to cause offence—bound to. I am a little bit impatient, to be frank with you, with the sort of 'injured hurt' of both Mr Leak and Mr Bolt on these matters. They dish it out. They should not be quite so surprised when there is a bit of comeback.

Senator PATERSON: Well, there are different types of comeback. I think they would expect to be subject to equally vociferous criticism in return but perhaps not legal action that takes them through the courts.

Mr Holmes : Perhaps not. They were not dragged through the courts—at least Mr Leak was not—but it did take a long time. Of course, Bolt was dragged through the courts and, as I say, if they had chosen to sue him for defamation I think he would have lost as well.

Senator McKIM: If I can ask a quick follow-up question, Mr Holmes, you said that Mr Bolt was constrained. I am not sure if you are aware, but the relevant article is actually still on the News Corp websites. It is still being published every day by virtue of its existence on the News Corp websites. All we have is a little caveat underneath it saying it has been subject to an adverse finding.

Senator PATERSON: It is also banned from republication.

Senator McKIM: Well, it is being published and republished every day by virtue of the fact—

Senator PATERSON: The court order says it is unlawful to republish—

Senator McKIM: You can go there right now, Senator Paterson. I can do it right now, if you like. I will find it for you on the News Corp website right now.

CHAIR: Thank you, Mr Holmes, for your appearance here today.

Mr Holmes : Thank you very much.