UTAS Risk To Freedom Of Expression And Human Rights

The University of Tasmania's draft behaviour policy is a serious threat to freedom of expression and basic legal rights.

The bedrock of university life is the ability to freely explore ideas.

It is only through the process of claim and counter-claim that it is possible to separate good ideas from bad and discover the truth.

Across the Anglosphere, from American liberal arts colleges to British universities and Australian campuses, a culture of censorship is forming.

Speakers are violently protested if not banned altogether, students are demanding protection from ideas they dislike, and academics are concerned that there is a lack of diversity of viewpoints.

In this context, university administrators should be doing all they can to protect free expression.

The University of Tasmania, however, appears to be heading in precisely the wrong direction.

The University's draft policy states that community members are expected to "behave and communicate in a manner that does not offend".

Avoiding causing offence may be an admirable goal.

Nevertheless, often when exploring ideas offence is taken rather than intended.  The hearing of an idea with which one disagrees can be offensive.

The feeling of offence is often unavoidable but necessary in the process of understanding, learning and developing ideas.

Australian National University chancellor and former foreign minister Gareth Evans declared earlier this month that "Lines have to be drawn, and administrators' spines stiffened, against manifestly un­conscionable demands for protection against ideas and arguments claimed to be offensive".

The proposed policy also lists 18 "protected attributes", ranging from gender, race, family and sexual matters to religion and political belief.

It then states that community members are forbidden from engaging in conduct which "offends, humiliates, intimidates, insults or ridicules" on the basis of these attributes in the eyes of a "reasonable person".

The inclusion of religion and political belief in the grounds that individuals cannot offend goes well beyond existing speech limitations in state and federal law.

The Anti-Discrimination Act 1998 (Tas.) includes an extended list of protected attributes.

However, it is notable that Section 17(1) only forbids offensive conduct associated with gender, relationship status and family responsibilities.

It does not prevent the causing of offence based on political belief or religion.

The inclusion of religion and political belief is an extraordinary overstep.

The causing of offence is not uncommon when discussing religion or politics.  Criticism of an individual's religion and political beliefs can be offensive — such as stating that a political opinion is invalid, immoral or inhumane or making a joke about religious belief.

This speech, however, can also be genuine part of intellectual debate and social commentary.

The policy states that an example of discriminatory harassment is "Making derogatory comments or taunts about a person's religion".

It may be derogatory, for example, to criticise the lack of acceptance of homosexuality in Leviticus, a Christian text, or to raise concerns about Mohammed's multiple wives in the Koran, the Islamic text.

The prevention of negative remarks about religion, akin to the blasphemy laws of the past, is a historical anachronism in Western liberal democracies such as Australia which value free expression.

My Free Speech on Campus Audit 2017 ranked the University of Tasmania one of the highest in Australia for freedom of expression.

The University is one of few with a commendable stand-alone policy that explicitly protects intellectual freedom.

If the university adopts the draft policy, however, the institution would be downgraded from an Amber ranking to a Red ranking in the Audit.

A further issue of concern with the policy is the removal of basic legal rights.

In Australia, an individual accused of sexual assault is innocent till proven guilty beyond reasonable doubt by a jury of their peers.

The draft policy, however, adopts a much lower threshold of the "balance of probabilities" for sexual assault misconduct allegations — meaning that the event is more likely than not to have taken place.

It is inappropriate for a university — which lacks the evidence gathering and judicial skills of the criminal justice system — to be making determinations of a student's guilt on sexual assault.

This raises the possibility that a member of the community is found not guilty by the courts in normal legal process and yet be punished secondarily by the university.

The University of Tasmania is a public institution, established by Tasmanian law and largely funded by the taxpayer and state-subsidised loans.

The University has a moral and legal responsibility to safeguard free expression and basic legal rights.

Talking Point: Public Policy Questions A Matter For Us All

While seemingly a win for freedom of speech, the High Court's decision highlights why we shouldn't rely on the judiciary to resolve contentious public policy questions.

Two weeks ago the court partially invalidated Tasmania's Workplace (Protection from Protestors) Act 2014 following a challenge by former Greens leader Bob Brown.

Dr Brown was briefly arrested in January last year for failing to comply with a police order to move on from an area in Tasmania's Lapoinya Forest where forestry operations were taking place in a declared "permanent timber production zone land".

This was land that was vested by the government to Forestry Tasmania, and was at the time restricted to the public.  The Tasmanian law prohibited protest behaviour on business areas or "business access areas" that obstructed or impeded business activities.

Charges against Dr Brown under the 2014 law were later dropped, but his challenge to the constitutionality of the law proceeded to the High Court.  Dr Brown's argument that the 2014 law breached the implied right to freedom of political communication was accepted by the court, who found that it was invalid in respect to protest activity on forestry land.  Arguably, this decision is inconsistent with the court's past decisions.  In 2015, for example, the court had no problems with New South Wales laws that prohibited property developers from making political donations, clearly restricting their ability to participate in public debate.

Then, the court decided the interests of the NSW government in banning donations outweighed the rights of certain groups from participating fully in the political process.

And yet now, by a majority of 6 to 1, the court has decided that the right for people to protest in forests outweighs the interests of possessors of land — in this case a state forestry enterprise — to enjoy the use of that land without nuisance or trespass.

It is hard not to see the decision as carving out a special exemption for environmentalists to protest in forestry areas.

The court's position on this issue risks being perceived as arbitrary, protecting only those interests to which members of the court are sympathetic.

Justice James Edelman noted in his dissenting opinion the anti-protest laws threatened to apply penalties to conduct that in this case was unlawful under a separate piece of legislation anyway.

Justice Edelman observed that the implied freedom of political communication cannot "extend to persons whose conduct is independently unlawful".  The court's willingness to overlook this point is difficult to explain.

That's the problem when judges read between the lines of the Constitution to create rights.  You don't get consistent results.  Ever since the court conceived of the implied right to freedom of communication in the 1990s, its scope has been constantly redefined.  Now the scope has apparently been expanded again.

The court decided that laws that are not "proportionate" to the "legitimate purpose" of that law are not compatible with "the system of representative and responsible government that the Constitution requires".

This throws into doubt the validity of a litany of state and federal laws currently on the books.

Section 18C of the Racial Discrimination Act would fit into this category.

The prohibition in that Act of conduct that offends or insults a person because of their race is on its terms disproportionate to the law's purpose of outlawing racial hatred.

But those who support freedom of speech cannot take too much comfort in this.  Maybe this time it is a win for free speech.  Next time though it is anyone's guess how the court will come to its decision.

This is because the implied freedom the court has created is inherently subjective.

Decisions about laws passed by Parliament involve a consideration of competing interests.

Sometimes this is easy:  laws like section 18C are wrong because it gives too much weight to the protection from offensive speech, and too little weight to the fundamental individual liberty of free speech.

Parliament frequently gets it wrong, the inconsistent decisions of the courts have shown they are not necessarily better placed to make these decisions either.

Given the inherent trade-offs involved in making these decisions, they are decisions that should be made by Parliament, which is accountable to voters at election, rather than an unaccountable panel of seven men and women on the High Court.

Ultimately, it is the Australian people who must take responsibility for protecting our own fundamental rights.  We cannot rely on anyone else.