TO: Committee Secretary
Senate Legal and Constitutional Affairs Committee
PO Box 6100
Parliament House
Canberra ACT 2600
FROM: Dr Russell Blackford
30 Birchgrove Drive
Wallsend, NSW 2287
E-mail: russell.blackford@newcastle.edu.au
Consultation
regarding Constitution Alteration (Freedom of Expression and Freedom of
the Press) 2019
1. I refer to the above public consultation, and thank you for
the opportunity to make this submission.
2. I am an academic philosopher with a special interest in legal
and political philosophy, including issues relating to traditional civil and
political liberties such as freedom of religion and freedom of speech. I have
published widely on these topics. In particular, my published books
include Freedom of Religion and the Secular State (Wiley-Blackwell,
2012) and The Tyranny of Opinion: Conformity and the Future of Liberalism
(Bloomsbury Academic, 2019). My formal qualifications include an LLB with First
Class Honours from the University of Melbourne and a PhD in philosophy from
Monash University, where my doctoral dissertation applied ideas from liberal
theory and philosophy of law to certain topical issues in bioethics.
3. In short, I am an academic expert on issues to do with
liberal theory and philosophy of law, including issues relating to freedom of
speech. I am currently Conjoint Senior Lecturer in Philosophy at the University
of Newcastle, though I do not, of course, purport to represent the views of the
university.
4. I have studied the proposed Bill to amend the Australian
Constitution, and I can express my response to it quite briefly.
5. I am generally supportive of the idea of giving greater
constitutional protection to freedom of speech and expression.
6. I doubt, however, that it is helpful to make specific
reference to “the press”, since this is an ambiguous expression. Historically,
“the press” referred to a technology, i.e. the printing press, and not to a
social institution such as what is sometimes called the “institutional press”
as it exists today, i.e. large news and media corporations. Thus, “freedom of
the press” historically referred to the freedom not only of newspapers and
professional journalists but also of lone – often scurrilous – pamphleteers.
Today, this original meaning is often forgotten, and it is often assumed that
“freedom of the press” means a special freedom (or set of privileges) for
professional journalists and broadcasters employed by large news and media corporations.
In fact, the freedom that should be protected is a freedom for everyone
to use the media of mass communication to address their ideas and opinions to
the public.
7. It is worth noting that the large news and media corporations
operating in Australia already possess enormous wealth, influence, and power,
and that this can enable them to harm individuals whose reputations are smeared
or whose privacy is invaded. The psychological and financial cost of legal
action to protect individual reputation or privacy against these corporations
is prohibitive for most individuals, and it should not be made even more
difficult.
8. In short, any constitutional amendment should clearly
enhance the power of all citizens to use the media of mass communication
to communicate ideas and opinions to the public, without further increasing the
power of large news and media corporations relative to that of individual
citizens.
9. At the same time, the proviso in the proposed Bill is too
lax in how far it allows legislatures to interfere with the proposed freedom.
The current wording which uses a formula of “reasonable and justifiable” could
allow many legislative provisions that restrict individual freedom of
expression more than is strictly necessary.
10. Accordingly, I propose that the current substantive
provision in the draft Bill be replaced with the following words, based in part
on concepts in the European Convention on Human Rights and the Canadian Charter
of Rights and Freedoms:
The Commonwealth, a State or a
Territory must not limit freedom of expression, which includes the freedom to
hold and express ideas and opinions, and in particular to receive and impart
ideas and opinions by means of present and future communication technologies.
However, a law of the
Commonwealth, a State or a Territory may limit the freedom of expression only
if, and only to the extent that, the limitation is
(a) reasonable and justifiable to
protect individual reputation or privacy; or
(b) for any other reason,
demonstrably necessary for the viability of an open, free and democratic
society.
Yours sincerely,
Russell Blackford
2 August 2021
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