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Freedom of Speech Legislation Amendment (Insult and Offend) Bill 2018

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2016-2017-2018

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

Freedom of Speech Legislation Amendment (Insult and Offend) Bill 2018

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Leyonhjelm)



Freedom of Speech Legislation Amendment (Insult and Offend) Bill 2018

 

OUTLINE

Free speech is fundamental to a free and prosperous society.  All Australians, regardless of their political inclinations, benefit from being able to freely express their views.  The process of arriving at the truth relies on debate, which relies upon free speech. 

The right to free speech is not a creation of government, but it can be thwarted by government.  Legislative restraints on free speech should only be considered to protect other freedoms.

The Freedom of Speech Legislation Amendment (Insult and Offend) Bill 2018 is part of a suite of four bills that amount to a comprehensive defence of free speech in Commonwealth law.  The other bills in the suite are the: Freedom of Speech Legislation Amendment (Censorship) Bill 2018; Freedom of Speech Legislation Amendment (Security) Bill 2018, and Racial Discrimination Law Amendment (Free Speech) Bill 2016.

The Bill removes restrictions in 23 Commonwealth Acts on speech that someone finds insulting or offensive.

The Bill does not amend the Racial Discrimination Act 1975 , which is amended by the Racial Discrimination Law Amendment (Free Speech) Bill 2016.

Speech that someone finds insulting or offensive should not be against the law.

Social forces can prompt people to moderate their speech voluntarily.  Enlisting the coercive powers of the state in an attempt to moderate speech is oppressive.

Outlawing speech that someone finds insulting or offensive:

·          generates uncertainty, because predicting whether someone will find speech to be insulting or offensive varies between individuals and is difficult to anticipate;

·          may be unjust, because there may be no intention to insult or offend, and it may be that someone who finds the speech insulting or offensive is acting unreasonably; and

·          may be harmful, because:

o    such speech may:

§   promote debate that helps arrive at the truth;

§   serve as a prophylactic against more harmful behaviour; or

§   help bring people to the attention of law enforcement bodies;

o    outlawing such speech could drive it out of the mainstream — where speech can be rebutted, minds changed and social forces can temper debate — and drive it into polarised echo-chambers.

Many of the amendments in the Bill remove bans on insulting or offending executive tribunals and their officials.  These bans are not necessary for these tribunals and officials to operate effectively.

The Bill leaves in place bans on disturbing, interfering with, or being contemptuous of these tribunals and officials.

The Bill also has no impact on the judiciary.

More broadly, the Bill leaves in place all existing restrictions in Commonwealth law on speech that is:

·          commercially sensitive,

·          violating intellectual property,

·          defamatory,

·          inaccurate, fictitious, confusing, deceptive, misleading, false,

·          scandalous,

·          frivolous, vexatious,

·          unacceptable, inappropriate,

·          obscene,

·          interrupting, disturbing, disrupting, obstructive, hindering, disorderly, interfering,

·          contemptuous, bringing into disrepute, insubordinate,

·          contrary to the public interest,

·          contrary to law,

·          inciting unlawfulness,

·          representing improper influence,

·          endangering,

·          threatening, intimidating, harassing, provocative, molesting, or

·          detrimental.

Moreover, the Bill does not remove all references in Commonwealth law to ‘insult’ and ‘offend’:

·          No change is made to the prohibition or definition of sexual harassment in the Sex Discrimination Act 1984 , despite sexual harassment being defined with reference to being offended.  Sexual harassment is defined as unwelcome conduct of a sexual nature where it would be reasonable to anticipate that the harassed person could be offended, humiliated or intimidated.  This is a flawed definition, because the legal status of speech should not turn on whether a person could be offended by it.  However, sexual harassment covers more than just speech.  Accordingly, the prohibition and definition of sexual harassment should not be changed without first reviewing and debating options to distinguish harassing speech from other harassing conduct, like unwelcome physical touching, and to craft prohibitions tailored to each.

 

·          No change is made to prohibitions on insulting or offensive questioning of a witness in the Evidence Act 1995 and Family Law Act 1975 .  Appearing as a witness is an unusual circumstance, as the state may require witnesses to appear in court against their will.  It may be reasonable that, while the state imposes a duty on witnesses, it extends a privilege to them too.

 



 

NOTES ON CLAUSES

Clause 1: Short Title

1.           This clause provides for the Bill, when enacted, to be cited as the Freedom of Speech Legislation Amendment (Insult and Offend) Act 2018 .

Clause 2: Commencement

2.           This clause provides that the Bill commences on the day after Royal Assent.

Clause 3: Schedules

3.                   Each Act specified in a Schedule to this Bill is amended or repealed as is set out in the applicable items in the Schedule.  Any other item in a Schedule to this Bill has effect according to its terms.

 

Schedule 1 — Amendments

Australian Charities and Not-for-profits Commission Act 2012

Item 1 - Paragraph 40-10(2)(c)

4.                   Under current law, the Commissioner of the Australian Charities and Not-for-profits Commission may exclude information from the register of charities if the Commissioner considers that the information is likely to offend a reasonable person.

5.                   This item removes this power. 

6.                   The Commissioner will continue to be empowered to exclude information that is inaccurate or commercially sensitive, could endanger public safety, or could be confusing, misleading or detrimental to the charity or an individual.

Australian Passports Act 2005

Item 2 - Subsection 53(4)

7.                   Under current law, the Minister may refuse any name or signature for inclusion in Australian travel documents if the Minister considers the name or signature to be offensive.

8.                   This item removes this power.

9.                   The Minister will continue to be empowered to refuse any name or signature for inclusion in Australian travel documents if the Minister considers the name or signature to be unacceptable or inappropriate.

 

 

 

Bankruptcy Act 1966

Items 3 and 4 - Paragraphs 264E(1)(a) and (d)

10.               Under current law it is an offence, punishable by up to six months’ imprisonment, to insult or use insulting language towards a registrar or magistrate before whom an examination under the Bankruptcy Act 1966 is being held.

11.               Strict liability applies to the question of whether the registrar or magistrate is a registrar or magistrate before whom an examination is being held.  As such, the offence applies even if the defendant did not know that the registrar or magistrate is a registrar or magistrate before whom an examination is being held, and was not reckless as to the risk of this being the case.  A defence of mistake of fact is available, wherein the defendant bears an evidential burden to demonstrate that he or she considered whether this was the case, and was under a mistaken but reasonable belief that it was not.

12.               Items 3 and 4 remove this offence.

13.               It will continue to be an offence, punishable by up to six months’ imprisonment, to:

a.        disturb, use threatening language towards, use words calculated to influence improperly, or bring into disrepute a registrar or magistrate before whom an examination is being held;

b.       interrupt an examination; or

c.        create or take part in a disturbance in or near a place where an examination is being held.

Business Names Registration Act 2011

Items 5 to 10 - Sections 16, 25, 27, 45, 56 and 58

14.               Under current law, the objects of the Business Names Registration Act 2011 include ensuring “that business names that are undesirable (for example, because they are offensive) are not registered”.  A business name is unavailable if the name is undesirable, and the Minister may determine the kinds of names that are undesirable. 

15.               Items 5, 6 and 7 remove these provisions.

16.               There will continue to be other objects, including an object “to avoid confusion by ensuring that business names that are identical or nearly identical are not registered”, and an object of ensuring “that business names that should be restricted for any other reason (for example, because they might mislead consumers) are not registered”. 

17.               There will continue to be other reasons for the unavailability of a business name, such as a name being identical to another entity’s name, and the fact that a name uses a restricted word or expression.

18.               The Minister will continue to be empowered to determine that a word or expression is restricted.

19.               Items 8, 9 and 10 repeal provisions made redundant by item 7.   

 

Commonwealth Electoral Act 1918

Item 11 - Sections 93A and 98A

20.               Under current law, the Electoral Commissioner may refuse to include in, or transfer to, an electoral roll a person’s name if the Commissioner considers that the name is offensive. 

21.               This item removes this power.

22.               The Electoral Commissioner will continue to be empowered to refuse to include a person’s name in an electoral roll if inclusion would be contrary to the public interest or if the Commissioner considers that the name is fictitious, frivolous, obscene, not the name by which the person is usually known, or not written in the alphabet.

Competition and Consumer Act 2010

Item 12 - Paragraph 162(1)(a)

23.               Under current law, it is an offence, punishable by up to 12 months’ imprisonment, to insult a member of the Australian Competition Tribunal, the Australian Competition and Consumer Commission or the Australian Energy Regulator. 

24.               This item removes this offence.

25.               It will continue to be an offence punishable by up to 12 months’ imprisonment to:

a.        interrupt the proceedings of the Australian Competition Tribunal or certain conferences held by the Australian Competition and Consumer Commission;

b.       create or take part in a disturbance in or near such proceedings or conferences; or

c.        do anything that would constitute a contempt of court if the Australian Competition Tribunal were a court of record.

Copyright Act 1968

Items 13 to 15 - Section 173

26.               Under current law, it is an offence, punishable by up to six months’ imprisonment, to insult or use insulting language towards a member of the Copyright Tribunal of Australia.

27.               Items 13 to 15 remove this offence.

28.               It will continue to be an offence, punishable by up to six months’ imprisonment, to:

a.        disturb a member of the Copyright Tribunal of Australia in the exercise of the powers of the office;

b.       interrupt the proceedings of the Tribunal;

c.        create or take part in a disturbance in or near a place where the Tribunal is sitting; or

d.       do anything that would constitute a contempt of court if the Tribunal were a court of record.

Crimes Act 1914

Item 16 - Paragraph 16AB(5)(b)

29.               Under current law, a victim impact statement is not to be read to a court, or otherwise taken into account, to the extent that it is offensive. 

30.               This item removes this provision.

31.               It will continue to be the case that a victim impact statement is not to be read to a court, or otherwise taken into account, to the extent that:

a.        to do so would not be in the interests of justice;

b.       the statement is threatening, intimidating, harassing; or

c.        the statement expresses an opinion about an appropriate sentence.

Criminal Code Act 1995

Items 17 to 22 - Sections 471.12, 473.4 and 474.17 of the Criminal Code

32.               Under current law, it is an offence to use a postal or similar service, or use a carriage service, in a way that reasonable persons would regard as being, in all circumstances, offensive.  The maximum penalty is two years’ imprisonment when using a postal or similar service and three year’s imprisonment when using a carriage service. 

33.               Items 18 and 21 remove this offence.  Items 17, 19, 20 and 22 make changes consequential to these substantive changes.

34.               It will continue to be an offence to use a postal or similar service, or use a carriage service, in a way that reasonable persons would regard as being, in all circumstances, menacing or harassing.

Defence Act 1903

Items 23 and 24 - Section 89

35.               Under current law, it is an offence, punishable by up to six months’ imprisonment, to insult a member of a court martial, a judge advocate, a Defence Force magistrate or a summary authority in the exercise of his or her powers. These are bodies of the executive, rather than the judiciary.

36.               Strict liability applies to this offence.  As such, the offence applies even if the defendant did not intend to insult a person serving in such a position, and was not reckless as to the risk of this.  A defence of mistake of fact is available, wherein the defendant bears an evidential burden to demonstrate that he or she considered whether the conduct would be insulting, and was under a mistaken but reasonable belief that it was not.

37.               Items 23 and 24 remove this offence.

38.               It will continue to be an offence, punishable by up to six months’ imprisonment, to interrupt the proceedings of a service tribunal, create or take part in a disturbance in or near a place where a service tribunal is sitting, or do anything that would constitute a contempt of court if a service tribunal were a court of record.

Defence Force Discipline Act 1982

Item 25 - Section 26

39.               Under current law, it is an offence, punishable by up to six months’ imprisonment, for a defence member to use language that is insulting to a superior officer in the superior officer’s presence or to engage in conduct that is insulting to a superior officer.

40.               Strict liability applies to the question of whether the language or conduct was insulting.  As such, the offence applies even if the defence member did not intend to insult and was not reckless as to the risk of the language or conduct being insulting.  A defence of mistake of fact is available, wherein the defence member bears an evidential burden to demonstrate that he or she considered whether the language or conduct would be insulting, and was under a mistaken but reasonable belief that it was not.

41.               This item removes this offence.

42.               It will continue to be an offence, punishable by up to six months’ imprisonment, for a defence member to use language that is threatening or insubordinate to a superior officer in the superior officer’s presence or to engage in conduct that is threatening or insubordinate to a superior officer.

43.               Where conduct by a defence member is insulting to a superior officer, but is not threatening or insubordinate, invoking criminal law is unwarranted.  Such conduct may be contrary to terms of employment and grounds for disciplinary action, including dismissal.

Items 26 and 27 - Section 33

44.               Under current law, it is an offence, punishable by up to six months’ imprisonment, for a defence member or defence civilian on service land, in a service ship, service aircraft or service vehicle or in a public place to using insulting words to another person.

45.               Item 27 removes this offence.  Item 26 is consequential on item 27.

46.               It will continue to be an offence, punishable by up to six months’ imprisonment, for a defence member or defence civilian on service land, in a service ship, service aircraft or service vehicle or in a public place to create or take part in a disturbance, engage in conduct that is obscene within the view or hearing of another person, or use provocative words to another person.

Item 28 - Paragraph 53(4)(a)

47.               Under current law, it is an offence, punishable by up to six months’ imprisonment, for a defence member or defence civilian to insult a member of a court martial, a judge advocate, a Defence Force magistrate or a summary authority in the exercise of his or her powers.  These are bodies of the executive, rather than the judiciary.

48.               Strict liability applies to this offence.  As such, the offences apply even if the defence member or defence civilian did not intend to insult a person serving in such a position, and was not reckless as to the risk of this.  A defence of mistake of fact is available, wherein the defence member or defence civilian bears an evidential burden to demonstrate that he or she considered whether the conduct would be insulting, and was under a mistaken but reasonable belief that it was not.

49.               This item removes this offence.

50.               It will remain an offence, punishable by up to six months’ imprisonment, for a defence member or defence civilian to interrupt the proceedings of a service tribunal, create or take part in a disturbance in or near a place where a service tribunal is sitting, or do anything that would constitute a contempt of court if a service tribunal were a court of record.

Defence Force Discipline Appeals Act 1955

Items 29 and 30 - Paragraphs 46(a) and (c)

51.               Under current law, it is an offence, punishable by up to six months’ imprisonment, to use insulting language towards the Defence Force Discipline Appeal Tribunal or a member of it, or to intentionally insult the Tribunal.

52.               Items 29 and 30 remove this offence.

53.               It will remain an offence, punishable by up to six months’ imprisonment, to:

a.        intentionally disturb the Tribunal,

b.       interrupt its proceedings, or

c.        use words calculated to influence improperly the Tribunal or a witness before it, or bring the Tribunal or a member of it into disrepute.

Environment Protection and Biodiversity Conservation Act 1999

Item 31 - Paragraph 119(1)(a)

54.               Under current law, it is an offence, punishable by a fine of up to $6 300, to insult or use insulting language towards a Commissioner appointed under the Environment Protection and Biodiversity Conservation Act 1999 to carry out inquiries into the impact of projects, developments, undertakings or activities.

55.               This item removes this offence.

56.               It will remain an offence, punishable by a fine of up to 30 penalty units (currently $6 300), to disturb a Commissioner exercising the powers of the office, to create or take part in a disturbance in or near a place where an inquiry is being held, to interrupt an inquiry, or to do anything that would constitute a contempt of court if the Commission were a court of record.

Fair Work Act 2009

Items 32 to 34 - Section 674

57.               Under current law, it is an offence, punishable by up to 12 months’ imprisonment , to insult or recklessly use insulting language towards a Fair Work Commission member exercising the powers of the office.

58.               These items remove this offence.

59.                    It will remain an offence, punishable by up to 12 months’ imprisonment, to:

a.        disturb a Fair Work Commission member exercising the powers of the office;

b.       interrupt a matter before the Commission;

c.        create or contribute to continuing a disturbance in or near a place where the Commission is dealing with a matter;

d.       use words intended to improperly influence a Commission member or a person attending before the Commission; or

e.        falsely imply or state that a Fair Work Commission member has engaged in misconduct, where this is likely to have a significant adverse effect on public confidence in the proper performance of the Commission.

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012

Items 35 and 36 - Section 61

60.               Under current law, it is an offence, punishable by up to six months’ imprisonment, to insult or use any insulting language towards a Commission established to investigate alleged misbehaviour or incapacity of a Commonwealth judicial officer. 

61.               These items remove this offence.

62.               It will remain an offence, punishable by up to six months’ imprisonment, to:

a.        disturb a Commission;

b.       interrupt its hearings;

c.        use words false and defamatory of a Commission; or

d.       engage in conduct that is intended or likely to amount to an improper influence with the free exercise of a Commission’s functions or the free performance of the duties of a member of a Commission.

Law Enforcement Integrity Commissioner Act 2006

Item 37 - Paragraph 96A(1)(d)

63.               Under current law, a person is in contempt of the Australian Commission for Law Enforcement Integrity if he or she insults or uses insulting language towards the Integrity Commissioner while the Commissioner is holding a hearing and performing the functions of the office.

64.               This item removes this criterion for being in contempt.

65.               A person will continue to be in contempt of the Australian Commission for Law Enforcement Integrity if he or she:

a.        disturbs the Integrity Commissioner while the Commissioner is holding a hearing and performing the functions of the office;

b.       creates or takes part in a disturbance in or near a place where there is a hearing;

c.        obstructs or hinders the Integrity Commissioner;

d.       disrupts a hearing; or

e.        threatens a person at a hearing.

Personal Property Securities Act 2009

Items 38 and 39 - Sections 150 and 184

66.               Under current law, the Registrar of Personal Property Securities must not place data about security interests and personal property on the Personal Property Security Register, and may remove data already in the Register, if the Registrar is satisfied that the application to register those data is or was offensive.

67.               Items 38 and 39 remove these barriers to continuing registration.

68.               Data will continue to be barred from registration where the Registrar is satisfied that the application to register such data is frivolous, vexatious or contrary to the public interest.

69.               The removal of data already on the Register will continue to be allowed where the Registrar is satisfied that the application to register such data was frivolous or vexatious, or the retention of the data in the Register is contrary to the public interest.

Plant Breeder’s Rights Act 1994

Item 40 - Paragraph 27(5)(c)

70.               Under current law, the Secretary must reject an application for a plant breeder’s right with respect to a particular plant variety if the proposed name of the variety contains offensive matter.

71.               This item removes this reason for rejection.

72.               The Secretary must continue to reject applications if the proposed name of the plant variety:

a.        is likely to deceive or cause confusion, including confusion with the name of another plant variety;

b.       is contrary to law;

c.        contains scandalous matter, a registered trade mark, or the name of a natural person or organisation that does not provide consent; or

d.       does not comply with the International Code of Botanical Nomenclature.

Public Order (Protection of Persons and Property) Act 1971

Item 41 - Paragraphs 11(2)(b) and 12(2)(b)

73.               Under current law, it is an offence, punishable by a fine of up to $4,200, to behave in an offensive manner while trespassing on Commonwealth premises or on premises in a Territory (such as the Australian Capital Territory).

74.               Absolute liability applies to the question of whether the premises are Commonwealth premises or in a Territory.  As such, the offence applies even if the defendant did not know the premises are Commonwealth premises or in a Territory, and was not reckless as to the risk of this.

75.               This item removes this offence.

76.               It will remain an offence, punishable by a fine of up to 10 penalty units (currently $2,100), to trespass on Commonwealth premises or premises in a Territory.  It will also remain an offence, punishable by a fine of up to 20 penalty units (currently $4,200), to:

a.        behave in an disorderly manner while trespassing on Commonwealth premises or premises in a Territory;

b.       engage in unreasonable obstruction in relation to the use of Commonwealth premises or premises in a Territory, or the passage of persons or vehicles in and out of such premises;

c.        refuse or neglect to leave Commonwealth premises or premises in a Territory on being directed to do so.

Items 42 and 43 - Sections 18 and 20

77.               Under current law, there are offences, punishable by a fine of up to $4,200, of behaving in an offensive or insulting manner towards a protected person, and behaving in an offensive manner while trespassing on protected premises.

78.               A protected person is a person who is not an Australian citizen or permanent resident, who is: a high officer or representative of an international organisation; or certain members of the staff of a mission , designated overseas mission , or consular post.

79.               Protected premises are: the residence of a protected person; premises occupied by an international organisation; or premises occupied for the purposes of a diplomatic, special or designated overseas mission, or a consular post.

80.               Absolute liability applies to the question of whether the person is a protected person and to the question of whether the premises are protected premises.  As such, the offences apply even if the defendant did not know the person is a protected person or the premises are protected premises, and the defendant was not reckless as to the risk of this.

81.               Items 42 and 43 remove these offences.

82.               It will remain an offence, punishable by a fine of up to 20 penalty units (currently $4,200), to harass, unreasonably interfere with, unreasonably obstruct, or behave in a threatening manner towards, a protected person.  It will remain an offence, punishable by a fine of up to 10 penalty units (currently $2,100), to trespass on protected premises.  And it will remain an offence, punishable by a fine of up to 20 penalty units, to:

a.        behave in an disorderly manner while trespassing on protected premises;

b.       engage in unreasonable obstruction in relation to the use of protected premises, or the passage of persons or vehicles in and out of such premises;

c.        refuse or neglect to leave protected premises on being directed to do so.

83.               The removal of offences by items 42 and 43 is consistent with obligations under international law.

84.               Section 14 of the Public Order (Protection of Persons and Property) Act 1971 states that the provisions of Part III of that Act, including the offences that are being removed by items 42 and 43, are intended to assist in giving effect to a special duty imposed on the Australian Government by the Vienna Convention on Diplomatic Relations. The special duty includes taking appropriate steps to prevent impairment of the dignity of a mission or post, and any attack on the dignity of the associated personnel.

85.               However the offences that are being removed by items 42 and 43 do not actually assist in giving effect to the special duty, because:

a.        prohibiting offensive or insulting behaviour is not an ‘appropriate step’ in a liberal democracy; and

b.       offending or insulting protected persons may not represent an attack on their dignity.

86.               In support of this latter point, Kerr J of the ACT Supreme Court expressed doubt that the shouting of slogans outside the US mission in Canberra could reasonably amount to impairing the dignity of the mission within the meaning of the Vienna Convention ( Wright v McOualter (1970) 17 FLR 321, at 313, 314).

87.               Moreover, the Public Order (Protection of Persons and Property) Act 1971 may not be required to give effect to the special duty imposed by the Vienna Convention, because the Diplomatic Privileges and Immunities Act 1967 already provides that the special duty in the Vienna Convention has the force of law.

Royal Commissions Act 1902

Item 44 - Subsection 6O(1)

88.               Under current law, it is an offence, punishable by up to three months’ imprisonment, to intentionally insult or use any insulting language towards a Royal Commission.

89.               This item removes this offence.

90.               It will continue to be an offence, punishable by up to three months’ imprisonment, to intentionally disturb a Royal Commission, interrupt the proceedings of a Royal Commission, use words false and defamatory of a Royal Commission, or to be guilty of any intentional contempt of a Royal Commission.

Sex Discrimination Act 1984

Item 45 - Subsection 95(1)

91.               Under current law, it is an offence, punishable by a fine of up to $2,100, to insult a person exercising a power or performing a function under the Sex Discrimination Act 1984 .

92.               Strict liability applies to the question of whether a person is exercising a power or performing a function under the Sex Discrimination Act 1984 .  As such, the offence applies even if the defendant did not know the person was exercising a power or performing a function under the Sex Discrimination Act 1984 , and was not reckless as to the risk of this.  A defence of mistake of fact is available, wherein the defendant bears an evidential burden to demonstrate that he or she considered whether the person was exercising a power or performing a function under the Sex Discrimination Act 1984 , and was under a mistaken but reasonable belief that the person was not.

93.               This item removes this offence.

94.               It will continue to be an offence, punishable by a fine of up to 10 penalty units (currently $2,100), to hinder, obstruct, molest or interfere with a person exercising a power or performing a function under the Sex Discrimination Act 1984 .

Trans-Tasman Proceedings Act 2010

Item 46 - Sections 61 and 93

95.               The Trans-Tasman Proceedings Act 2010 of the Australian Government provides for remote appearances from Australia in a proceeding in a New Zealand court or tribunal.  It also provides for the sitting of the High Court of New Zealand in Australia in a ‘New Zealand market proceeding’.  

96.               Under the Trans-Tasman Proceedings Act 2010 , there are offences, punishable by up to two years’ imprisonment, for a person in Australia to insult officials, parties, representatives or witnesses taking part in such proceedings.  (Depending on the interpretation of the provisions, the offences may be limited to intentional insults.)

97.               This item removes these offences.

98.               It will continue to be an offence, punishable by up to two years’ imprisonment (or 120 penalty units, or both), to intentionally threaten or intimidate such people in such proceedings, to intentionally interrupt or obstruct such proceedings, or to intentionally disobey an order or direction given in such proceedings.

99.               The purpose of the Trans-Tasman Proceedings Act 2010 is to implement in Australian law the Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement.  This Agreement imposes no obligation to outlaw insults.

Veterans’ Entitlements Act 1986

Item 47

100.           Under current law, it is an offence, punishable by up to six months’ imprisonment, to insult another person in the exercise of that person’s powers with respect to the Veterans’ Review Board.

101.           This item removes this offence.

102.           It will continue to be an offence, punishable by up to six months’ imprisonment, to interrupt the proceedings of the Veterans’ Review Board, create or take part in a disturbance in or near a place where the Board is sitting, or do anything that would constitute a contempt of court if the Board were a court of record.



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Freedom of Speech Legislation Amendment (Insult and Offend) Bill 2018

 

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

 

Overview of the Bill

The Bill removes restrictions in Commonwealth Acts on speech that someone finds insulting or offensive.

 

Human rights implications

The Bill protects the right to freedom of expression.  The right to freedom of expression is closely related to the rights of freedom of association, assembly, thought, conscience, religion and participation in public affairs.

 

Conclusion

The Bill is compatible with human rights because it enhances the right to freedom of expression.

 

 

Senator Leyonhjelm