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From: Brendan Jones

Brisbane QLD Australia



Cc: His Excellency General the Honourable Sir Peter Cosgrove AK MC (Retd).

The Governor General of Australia

To: Tim Wilson

Human Rights Commissioner

Australian Human Rights Commission

Cc: Professor Gillian Triggs

President of the Human Rights Commission
Australian Human Rights Commission


April 14, 2014


Dear Tim,


Cc: Dr Tim Soutphommasane
Race Discrimination Commissioner

Australian Human Rights Commission


I am very disappointed at your lack of support for the free speech rights of public servants.


Firstly though, I was impressed to see both you and your former employer, the IPA, take on the thankless task of defending absolutist free speech in the debate over 18C.[1] If the American Civil Liberties Union were able to defend the free speech rights of Nazis at Skokie, I thought you able to defend the rights of those expressing less controversial opinions.[2]


But the ACLU didn’t defend the Nazis because they agreed with them, or because they endorsed their rights to be racists and bigots.[3] [4] They defended them because they recognised that to preserve free speech they had to defend the right of others to express opposing view points, even views they believed to be personally vile.[5]


At Skokie the Nazis aired their views, and the public rejected them.[6] Journalist Jonathan Rauch, himself a gay Jew writes: “Above all, the idea that hate speech always harms minorities is false. To the contrary: painful though hate speech may be for individual members of minorities or other targeted groups, its toleration is to their great collective benefit, because in a climate of free intellectual exchange hateful and bigoted ideas are refuted and discredited, not merely suppressed. The genius of the open society is that it harnesses the whole range of public criticism, including offensive and hurtful speech, in a decentralized knowledge-making process that has no rival at the job minorities most care about: finding truth and debunking bigotry. That is how we gay folks achieved the stunning gains we’ve made in America: by arguing toward truth.”[2]


The Skokie march was controversial because the Nazis had set out to antagonise Jewish residents,[7] but the ACLU defended it because it relied on the same laws that allowed the African American Civil Rights marches that southern cities had tried to ban.[8] The ACLU’s Aryeh Neier argues that intolerance develops only when a minority is not able to respond to hate speech.[9] Had then-Prime Minister John Howard allowed TV cameras onto the decks of the Tampa and lead by example, perhaps more Australians would show compassion towards refugees today.[10] [11] [12]


I accept that balancing free speech against other rights is difficult. And even though America strongly protects even offensive political speech, [150] they also recognise limits are necessary in certain circumstances. Otherwise a man [13] could not walk his family down their street without having to endure the cruel taunts of their neighbours; People also have the right to be left alone.[14]


My own interest in free speech developed when I learned of endemic corruption and abuse by public officials within our government,[15] [16] [17] and of the inability of journalists, public servants and victims to speak out about it.[18] Ultimately I accept the wisdom of the American courts that democracy needs the free flow of information on matters of public interest to function effectively,[19] and that although free speech has its problems, not having it has more.[20]


So I applauded your appointment as Human Rights Commissioner because you declared yourself to be a strong advocate for the primacy of free speech (“almost total free speech”) [21] and a libertarian who believed that human rights can stop government abuse of the individual;[22] a cause in which the Humans Rights Commission and Australia’s Human Rights lawyers have shown no interest.[23] [24]


Unfortunately having attempted to defend free speech under the most extreme circumstances; racist speech, you have failed to defend the far more meritorious free speech rights of public servants say they may comment on matters of public interest and concern.[25] [26]

Restricting Free Speech

Article:[27] But newly appointed Human Rights Commissioner Tim Wilson dubbed the “Freedom Commissioner’’, has backed the reforms, arguing that public servants knew what they were signed up for. “There is nothing inconsistent with free speech and having codes of conduct or policies as a condition of employment that require professional, respectful behaviour in their role and the public domain,’’ he said.


The American position on the primacy of free speech is that it should only be limited as a last resort, and only then when there is imminent danger of an unlawful action, and only when that danger is a serious one.[28]


But your own position allows the government to restrict free speech whenever it suits them. It buys into the weak argument expressed in e.g. the Victorian Charter of Human Rights which proclaims people have the right to free speech… except when they don’t.[29] [30] [31] [32] [33]


The Abbot government’s new restrictions go far beyond a code “requiring respectful behaviour.” It restricts the ability of public servants to express their personal opinions, even anonymously, critical of the government or the Prime Minister.


The APS “Code of Conduct” is being used to enforce a Code of Silence: “a condition in effect when a person opts to withhold what is believed to be vital or important information voluntarily or involuntarily.”


Public servants speaking on matters of Public interest and concern

Tim Wilson: “It is not unreasonable for such policies to apply to conduct directly related to the primary and specific area of work of a public servant, but are unjustified when they are very broad and limit democratic participation.


Yet In the US the free speech rights of public servants are protected because : “The general legal theory is that the public's interest in how public dollars are spent and public safety decisions are made is very strong, and public employees are in a very good position to address those public interests.” [34]


Aside from a right of all people to express political opinions and participate in the democratic process,  public servants are well placed to express informed opinions about their own specific area of work.


Hospital workers are best placed to report medical malpractice in hospitals.[35] Allan Kessing[36] was best placed to report corruption which Customs and the AFP hadn’t acted on in 10 years. National Art Gallery employees were best placed to report mismanagement which the (publicly funded) gallery’s management tried to conceal from the public.[37] Michaela Banerji was well placed to speak out on the government’s breaches of the Refugee Convention, and also has the right to criticise them as a citizen.[38] Public servants are best positioned to speak out about the crime,[39] corruption,[40] misconduct, bullying, waste and maladministration[41] within the public service which both the APS and successive elected governments have refused to address.[42]


Public Service Commissioner Stephen Sedgwick claimed that public service silence is necessary to preserve the “relationship of trust that must exist between ministers and the APS.[43] But he used an example a case which had nothing to do with minesterial confidentiality, but rather concealing the crime, corruption and ineptitude of public officials.[44] [45]


Public Servants must be able to speak out on matters of public interest and concern.[46]  Their right to do this on social media must be protected, because Australia’s mainstream media is complicit[47] or held back by the threat of defamation,[48] because formal complaint channels do not work,[49] and politicians refuse to hold public servants accountable.[50]


US Supreme Court Justice Thurgood Marshall said:“ Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.”[51]


Anonymous Speech

Tim Wilson: “Anonymity should not justify exemptions because it can be connected back to the individual and their work”.


You argue that because anonymity can be violated, people must not speak anonymously.[52]


Yet the US Supreme Court gives convincing reasons why Anonymous Speech must be protected: “Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society.”[53]


The US Supreme Court found anonymous speech is necessary to encourage open discourse, to let people be judged on the merits of their argument rather than who they are, and to protect the speaker from retaliation by powerful people or interests.[54]


You are Australia’s Human Rights Commissioner. Instead of refusing to support anonymous speech, you should take a position that protects Australians from intrusive government surveillance.


You have previously said: “… Human rights are designed to stop the abuse of government power over the individual. It’s out of this tradition that Australia’s common law rights evolved.”[55]


Yet the American 4th Amendment, the right against unreasonable search and seizure was itself derived from the common law castle doctrine.[56]  Indeed it was the failure of the British to respect this right which was a trigger for the US revolutionary war. [57]


The US domestic spying program conducted by the Obama administration is illegal.[58] Yet in Australia our rights have been eroded to the point the Australian courts allow illegally obtained evidence,[59] and the intrusive government surveillance of the public[60] is entirely legal within Australia despite its abuse.[61]


Instead of promoting a society where people have no right to anonymous speech because the government can invade their privacy at will, you should use your role as Human Rights Commissioner to protect the public from that abuse of government power.

Public Servants agreeing to silence by accepting a Government job

Tim Wilson: “Ultimately public servants voluntarily and knowingly choose to accept these limits on their conduct when they accept employment”.


Are only people who agree with government policies entitled to government jobs?


Must public servants quit their jobs if they wish to express a political opinion?[62]

Restricting speech critical or highly critical of the Department, Minister or Prime Minister

Article: The new rules include a specific case study illustrating why public servants are not to criticise Prime Minister Tony Abbott stating being “critical or highly critical of the Department, the Minister or the Prime Minister’’ on social media could prompt sanctions.


Tony Abbott has a 45% approval rating, a 47% disapproval rating, and 8% undecided.[63] Public servant or not, are the 47% of voters who disapprove of him not allowed to be “critical or highly critical” of him?


Why not? There is no ‘imminent serious threat of an unlawful danger,’ and as restrictive as free speech is in Australia[64] one freedom we do have is ‘an implied Constitutional right to free speech in regards to governmental and political affairs.’[65]


Are the 8% undecided only entitled to hear enthusiastic praise of Mr. Abbott’s supporters while his critics can only offer only at best tepid criticism?


There is no convincing reason to limit any Australian’s right to criticise their Prime Minister. Nor is there any convincing reason for you as Human Rights Commissioner to support that abrogation of free speech.


This smacks of a Prime Minister who is afraid of criticism.

Restrictions on harsh or extreme criticism

Article: Breaches include “harsh or extreme in their criticism of the Government, Government policies, a member of parliament from another political party, or their respective policies, that they could raise questions about the employee’s capacity to work professionally, efficiently or impartially.”


As Prime Minister Tony Abbott has enacted controversial policies such towing back refugee boats in breach of international law,[66] the Manus refugee camp, [67] dumping three million cubic metres of sludge into the waters of the Great Barrier Reef, [68] revoking World Heritage Protection for Tasmanian forests, [69] allowing culling of sharks[70] and dismissing Climate Change[71] despite IPCC warnings it is real and must be dealt with. [72] To public ridicule of returning to the bunyip aristocracy, he reintroduced Knighthoods. [73] Claiming the government is running out of money[74] he is now selling Medicare Private, [75] but has failed to act[76] on endemic crime and corruption within the public service[77] and fraud costing $19B per year. [78] He has antagonised Indonesia, [79] bullied Timor, [80] and failed to act against officials who allegedly criminally supplied ASIO intelligence[81] to Liberal Party donor Woodside. [82] [83] Despite promising a “freedom agenda,”[84] he has pushed for increased public surveillance[85] and is now trying to further restrict free speech.[86]


Democracy demands public debate; Although there are many Australians who support Mr. Abbott, there are many others who disagree with him.[87] Those people, including public servants, should be free to voice their criticism of him and his policies.


Some of Mr. Abbot’s controversial policies were never even put to the popular vote; only revealed by him after his election.[88] The Liberal Party’s losses at the WA Senate election[89] [90] indicates had people known about these, a significant number of people would not have voted for him, enough for him to never have been elected Prime Minister.[91]  Mr. Abbott is not ruling democratically; He is ruling by fiat,[92] which is consistent with these attempts to quash free speech by public servants. I also note these attempts by senior public servants to suppress free speech by the public,[93][94][95][96][97][98][99] and Mr. Abbot’s proposal to limit speech of consumers who wish to boycott unethical companies.[100]


The restriction on “harsh and extreme criticism” is absurd. It is not easy to write with “feigned calm and dispassion about events,” [101] particularly when the events are themselves harsh or extreme, or enacted by fiat. Either you agree with dumping three million cubic metres of sludge into the Great Barrier Reef’s waters, or you don’t.


People have likened our government to the STASI[102] for political censorship and encouraging people to inform on each other, under an Orwellian-named Federal Freedom Commissioner;[103] This is deserved “harsh and extreme criticism,” so why must the public and public servants keep strong opinions to themselves as a government that already tolerates criminality turns to despotism?[104]


Applying subjective tests such as “harsh and extreme” to free speech is dangerous, as it lets one group of people determine what another group is permitted to say.[105] For example, News Limited’s Judith Sloan called reef protestors “eco-terrorists,” Des Houghton called them “anarchists” and “law breakers.” [106] By their standard, they find that speech to be harsh.[107] If the government agrees (and no doubt they would since it’s their policy), expression of opinion to the contrary is forbidden.


These subjective tests have a chilling effect on free speech, with public servants remaining silent to keep their jobs and stay out of jail.[108] Unlike America where freedom of speech is cherished, Chris Masters warns that Australia is a secret society where self-censorship is all about self-preservation and it is everywhere.[109]


It’s extremely dangerous to give the government, a group of people with absolute power over the individual and a history of abusing that power, the power to decide what is and isn’t acceptable speech by that individual.

Claim speech must be restricted to prevent a “gratuitous personal attack”

Article: There are also sanctions for “gratuitous personal attack that might reasonably be perceived to be connected with their employment.”


So long as those statements are factual, so what?


Even Australia’s harsh defamation laws[110] permit an opinion may to be expressed so long as it is an honest opinion which does not misrepresent the premises on which it is based.

Hypocrisy I


Article: The sweeping new rules will even cover ­public servants posting political comments anonymously, including mummy bloggers on parenting websites, if a colleague knew their online identity. The new policy clearly states it covers the use of social media in an official and unofficial ­capacity, whether for professional or personal use.

If public servants are found to have ­breached the ­Australian Public Service Code of Conduct they could be sacked. Colleagues will also be encouraged to dob in each other.



In my opinion, this is breath-taking hypocrisy because:


The Public Service Commissioner failed to uphold the APS Code of Conduct,[111] [112] yet the Liberal Public Service Minister Senator Eric Abetz failed to hold him accountable for this.[113]


The Head of the PM & C, Dr. Ian Watt in his prior role as Secretary of Defence failed to act[114] on crime[115] and APS Code of Conduct violations[116] by senior public servants within his own department.[117]


If senior public servants don’t enforce the APS Code of Conduct, why should the rank-and-file?

Hypocrisy II

Article: “If an employee becomes aware of another employee who is engaging in conduct that may breach this policy, there is an expectation that the employee will report the conduct to the ­department,’’ the policy states.“


“This means that if you receive or become aware of a social media communication by another PM & C employee that is not consistent with this policy, you should advise that person accordingly and inform your supervisor.”


This is hypocritical because while encouraging public servants to ‘dob in’ each other (at that, for expressing an opinion), politicians gave themselves immunity[118] from the whistleblower ‘dob in’ laws.[119]


Politicians claimed it wasn’t necessary for them to be subject to the law because they were already held accountable by Parliament.[120]


Yet when Liberal Party politicians Senator David Johnston, Stuart Robert and Julie Bishop were told a Labor Party minister was not being held accountable by Parliament, they all failed to act.[121]

Public perception is that the Labor and Liberal Party are at each other throats, but American politician Jessie Ventura explains party politics is like pro-wrestling; you go on TV and pretend to hate a man, and then you go out and have dinner together.


My experience is that politicians on both sides are not interested in holding each other accountable because “They all think they have something to hide or could be potentially caught up in the wash.”


Australia: My Corrupt Country


To learn about rights I studied US history and law because they are a country founded on rights, and for over 250 years their courts have extensively debated and defended those rights usually with a wisdom and reasoned logic I do not see from the Australian courts. Instead the Australian parliament and courts have embraced secrecy, [122] opposed transparency [123] and generally restricted individual rights.[124]


The American founding fathers[125] recognised that the federal government they were about to form would inevitably abuse its absolute power over the states and the people.[126] Their Bill of Rights was thus a precondition to federation.[127] It recognised Americans’ right to freedom of speech, association, protection from intrusive government surveillance, and the right to bear arms so they might overthrow a government that attempted to deprive the people of their rights.[128] [129]


Famously, it recognised the unalienable rights to Life, Liberty and the Pursuit of Happiness. But with the ironic exception of Tony Abbott’s “freedom agenda” I have never heard an Australian politician talk about “freedom” or “liberty.” But in my own readings of US history and law, I came to realise “Liberty” to Americans is not an empty phrase, but actually means something:


“Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American Government.”

– US Supreme Court Justice Louis Brandeis


Australia has nothing like this.[130] [131]


America certainly has its problems, but the American Constitution has held up remarkably well. Nonetheless it did not foresee the growth of big business and its ability to buy influence over government.[132] [133] Neither did it recognise that the emergence of a militarised police force and permanent standing armies would render the 2nd Amendment ineffective.[134] [135] It failed to foresee an executive which would shamelessly pervert the constitution[136] and hold themselves above the rule of law.[137] But the founding fathers warned that any government over time tends towards tyranny, and that the price of liberty is eternal vigilance and the occasional revolution.[128]


They also warned of the dangers of a corrupting two party duopoly on power.[138]


But Jefferson said the Earth belongs to the living[139] and gave Americans tools to amend their laws and constitution. Today Americans are paying the price for failing to update those to reflect their changes of circumstances. Recently Lawrence Lessig wrote: “There is a feeling today among too many Americans that we might not make it. … That we have become Britain.” [140]


By comparison Australia has a weak constitution which does not protect the rights of its people,[141] and has inherited the worst of English law; A costs system in the courts which favours the wealthy,[142] English libel laws which for 700 years have protected criminals in high places,[143] and a long history of censorship and suppression of free speech.[144]


The unpopular Governor Darling[145] sought to limit criticism by subjecting Australia’s first newspaper to licensing restrictions, a prohibitive stamp duty and then by charging its editor with seditious libel. Inheriting Britain’s corrupt libel laws, within five years of that paper’s establishment Sydney had become the world centre of defamation litigation[146] and has remained so second only to London.[147]


This has bred a servile press. Today there are perhaps only a dozen investigative journalists in the Australia capable of reporting the corruption. [148] No one else dares.[149]


Instead Beat reporters produce news cheaply by peddling spin and PR, some on behalf of powerful interests[150] without balance or challenging their statements.[151] They turn whistleblowers away and print one-sided stories, promoting those powerful interests’ agenda while self-censoring allegations of their corruption.[152]


The American press has a constitutionally protected role to report matters of public interest.[153] When the US Supreme Court upheld that in 1964 Justice Hugo Black declared: “The Federal Constitution has dealt with this deadly danger to the press in the only way possible without leaving the free press open to destruction–by granting the press an absolute immunity for criticism of the way public officials do their public duty.”[154]


Australia went the other way, leaving its free press open to destruction; Without public interest protection, a single defamation law suit for a single article can tie up a journalist for years and cost a newspaper millions of dollars to defend in the courts.[155] Challenging powerful interests  makes powerful enemies, threatening the economic security of business[156] and staff.[157] Thus the Australian media has long since learned to look the other way when confronted with serious corruption.[158] For example, they didn’t tell the people of NSW that their Premier Robert Askin was corrupt until he was dead.[159] [160] [161] Defamation has an even more chilling effect on the public including victims of government abuse.[162]


Our federal government has no independent corruption body like ICAC.[163] Instead whistleblowers are forced to report corruption to the very agencies in which the corruption is taking place with predictable results.[164] University of Wollongong academic Dr Brian Martin who has conducted extensive studies of suppression concluded that formal complaint channels (including the courts) do not work when challenging a more powerful person or organisation.[165]


Australia lacks an independent federal police force free from political influence. The AFP owes its existence to Billy Hughes because a couple of men threw eggs at him, and Hughes wanted to take personal control of their prosecution. [166] Once they were formed their main task was to report on subversive activities of those he believed opposed the Commonwealth government.[167] Today the AFP today are a corrupt, politicised police force who ignore government corruption, intimidate whistleblowers and cover up for corrupt public officials. [168]


The lack of oversight by the media, the elected government, senior public servants, so-called oversight agencies, the police and lack of access to the courts[169] has created an environment rife for crime and corruption by those government officials who choose to take advantage of their positions.


Mates cover for mates. Dr. Kim Sawyer wrote: “All countries value mateship, but few countries value it more than Australia. Certainly, few national leaders would want to insert it into the preamble of the Constitution. What is mateship? In its most benign form, it is simply friendship. But mateship is often more than benign. Mateship often implies a joint monetary interest. Mates form companies, award contracts to each other, appoint each other, protect each other and honour each other. The corporatisation of mateship is one of the most profound principles of Australia. Australia is neither a democracy, nor a meritocracy. It is a mateocracy. // One of the principal returns to mateship is a job.  Mates appoint each other for three main reasons. First, a mate can be relied upon to act with fear and with favour; fear of offending their mates and favour towards their mates. Secondly, when a mate is appointed, an obligation is created, an obligation that must be repaid. An appointment of a mate is a contingent future claim on that mate. Thirdly, mates appoint each other because it minimises their risks. Mates are mates because they often think the same. With a mate, there are fewer risks.”


Albert Jay Nock wrote: The state's criminality is nothing new and nothing to be wondered at. It began when the first predatory group of men clustered together and formed the State, and it will continue as long as the State exists in the world, because the State is fundamentally an anti-social institution, fundamentally criminal. The idea that the State originated to serve any kind of social purpose is completely unhistorical. It originated in conquest and confiscation—that is to say, in crime. // Like all predatory or parasitic institutions, its first instinct is that of self-preservation. All its enterprises are directed first towards preserving its own life, and, second, towards increasing its own power and enlarging the scope of its own activity. For the sake of this it will, and regularly does, commit any crime which circumstances make expedient.”


Ralph Borsodi wrote: What we call a government is after all nothing but a group of individuals, who, by a variety of sanctions, have acquired the power to govern their fellows. The sanctions range from the fraud of divine right to that of sheer conquest; from the imbecility of hereditary privilege to the irrationality of counting voters. In most cases the extent to which these sanctions produce capable legislators, judges, and administrators will not bear critical examination. // Nominally, government exists and functions for the public. Actually it exists and functions for the benefit of those who have in one of these absurd ways acquired power to govern. It is accepted mainly because of the sheer inertia of great masses of people. Ostensibly, of course, it is accepted because it confers a sufficiency of visible benefits upon society to make the officials who operate it tolerated in spite of the selfish and idiotic exercise of the powers conferred upon them.” Those sanctions include an appointment to the Australian Public Service.




I do not believe the restrictions on free speech by public servants are due to legitimate reasons, but rather to conceal crime, corruption, waste, abuse and maladministration by the public service, and suppress criticism of the Prime Minister.


As the Human Rights Commissioner you have a remarkable degree of autonomy, but that is wasted if you merely follow an anti-rights agenda advancing the interests of the government and their donors. Although you were appointed by this government, you are not part of it. You are answerable only to the Sovereign,[170] and the role of a sovereign in our constitutional monarchy is to act as a check on the absolute power of the government.[171]


I urge you to embrace to your stated beliefs and the libertarian principles of the IPA that human rights exist to stop the abuse of government power over the individual.[172]


I urge you to fight for the free speech rights of all people, including public servants and journalists.


I urge you to fight this government’s abuse of power. [173] [174]


I urge you to fight the criminality within this government: “Protecting citizens against crime is one of the fundamental obligations of any government.” [175]


I urge you to be true to your words and to fight for our liberty and freedom.


Yours Sincerely,



Brendan Jones.


Table of Contents

18C.. 1

Restricting Free Speech. 2

Public servants speaking on matters of Public interest and concern. 2

Anonymous Speech. 4

Public Servants agreeing to silence by accepting a Government job. 4

Restricting speech critical or highly critical of the Department, Minister or Prime Minister 5

Restrictions on harsh or extreme criticism.. 5

Claim speech must be restricted to prevent a “gratuitous personal attack”. 6

Hypocrisy I 7

Hypocrisy II 7

Australia: My Corrupt Country. 9

Conclusion. 12



Offensive behaviour because of race, colour or national or ethnic origin

             (1)  It is unlawful for a person to do an act, otherwise than in private, if:

                     (a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

                     (b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Note:          Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

             (2)  For the purposes of subsection (1), an act is taken not to be done in private if it:

                     (a)  causes words, sounds, images or writing to be communicated to the public; or

                     (b)  is done in a public place; or

                     (c)  is done in the sight or hearing of people who are in a public place.

             (3)  In this section:

"public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.




                   Section 18C does not render unlawful anything said or done reasonably and in good faith:

                     (a)  in the performance, exhibition or distribution of an artistic work; or

                     (b)  in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

                     (c)  in making or publishing:

                              (i)  a fair and accurate report of any event or matter of public interest; or

                             (ii)  a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.


[2] Andrew Bolt expressed his view that Fair-skinned Aborigines raised as ‘White’ were unfairly passing themselves off as ‘Black’ to order to receive Indigenous entitlements.


“In black and white, Andrew Bolt trifled with the facts,” David Marr, SMH, 2011-09-28. “In two famous columns in 2009 he took a swipe at "political" or "professional" or "official" Aborigines who could pass for white but chose to identify as black for personal or political gain, to win prizes and places reserved for real, black Aborigines and to borrow "other people's glories".”


Nine of the fair-skinned Aborigines he named in the article sued him under 18C. They didn’t seek damages, but they did seek an apology, legal costs, and an order that the articles not be republished.


The court found Bolt had made factual errors, had not done proper checking, that nine fair-skinned Aborigines he named had in fact been raised as black, and that Bolt had described them in an inflammatory and provocative manner.


Once a judge makes a finding it becomes an absolute truth in the eyes of the law.


It’s difficult to know what Bolt now thinks. Has he privately recanted? Does he still hold his general opinion, but recognise he chose nine bad examples? Or does he earnestly believe the court got it all wrong?


Whatever the case, it is evident his view is shared by some in the community:


“Columnist sued for offensive blog,” James Hill, Intentious, 2011-04-06 “Comment by Andrew Bitto: 2011-04-06 "Sometimes I hate what Andrew Bolt says, but I gotta say, the man has balls. Here he is merely voicing what thousands, perhaps millions, of Australians are thinking every year. Even I will admit that when I have been filling out my tax file / employer information and am presented with the “Are you an Aboriginal or Torres Strait Islander” I have thought in the past “If only!”"


Over the years I've heard similar opinions expressed by others. Sometimes mean-spiritedly. Sometimes good-naturedly (For example, by a former boss who made a joke on learning of her own Aboriginal heritage.)


Q: Does suppressing Bolt’s speech make that stereotype go away? A: Obviously not. If anything, giving Bolt a public platform to speak and then debating what he said has weakened this stereotype. Given that the nine Aborigines turned out to be counter-examples, seriously so. At that, 18C only applies to public statements. When I have heard the stereotype before it had always been in private situations, in social settings where it is even less likely to be challenged.


Q: Does Bolt have the right to present a False Idea? A:  Bolt does not have the right to present certain false statements of fact, but he is entitled to an idea, which may be false. The reason we allow people to express ideas is only through debate that we (and they) find out whether they are false or not, and whether or not their ideas have popular support.


US Supreme Court Justice Powell: Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust? and wide-open" debate on public issues. New York Times Co. v. Sullivan, 376 U.S. at 270. They belong to that category of utterances which are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”


US Supreme Court Chief Justice Rehnquist: “False statements of fact are particularly valueless; they interfere with the truth-seeking function of the marketplace of ideas, and they cause damage to an individual's reputation that cannot easily be repaired by counterspeech, however persuasive or effective.”


I recall that University of Wollongong’s Brian Martin has written that the proper way for two parties to arrive at the truth is to have a proper dialogue; Not for one to shut down the debate by threatening to sue the other for defamation, nor by conducting the debate in a chilling environment where uttering a single factual error could bankrupt one of the parties.


Our opinions should be based on the presumption of facts on which they are built, but without extensive research you cannot be absolutely sure if every premise you have stated is indeed true. Fact checking is extremely time consuming, and even so it’s impossible to prove the absolute truth of every statement you publish, because there might be facts unknown or inaccessible to you. Brian Martin writes “Attaining truly in-depth knowledge of just a single case is a major task.” I have found this myself; It has taken me a week to write this letter, but if I were to check every fact in this letter to the degree I wish I could it would take perhaps 12 months before I could publish it; at that on 18C and the free speech rights of public servants; two subjects likely to be decided in weeks, and with one opinion and two clarifications issued by Tim Wilson in five days.


I suspect there are people in the community who hold false opinions which have no factual basis, formed by their own stereotypes and prejudices. People usually don’t seek to challenge their own opinions, and for example choose media sources which will reinforce their existing beliefs rather than challenge them. I recall reading one way to change someone’s (false) opinion is to encourage the person to justify it factually; to encourage them to express their (false) opinion so you may factually debate it with them, and (in an ideal world) convince them to change their mind (though some people will never change their mind). [no ref] (I had a friend who told me he appeared on the ABC’s Insiders where he was asked to justify his (which he believed to be firmly-held) views on a number of subjects. He told me he was surprised when he realised he couldn’t.) [no ref]


“Freedom of Speech Threatened,” Derryn Hinch, 3AW Radio, 2011-03-28. “When these sorts of issues come up I remember the case of that ghastly but clever Holocaust Denier, David Irving. He was banned from Australia. I was doing the HINCH program on TV at the time so did a satellite interview with him from London. And scoffed at him, and argued with him and tried to burst his far-fetched, hate-filled bubble. Surely, that’s better than bringing in repressive laws that hamper and curtail freedom of speech.’


Q: Is Bolt's inflammatory and provocative language likely to cause a serious danger of an imminent, serious lawless action?  A: Obviously it didn’t. But Allan Jones’ language on the morning of the Cronulla Race Riots may have:


“Jones guilty of breach over Cronulla riots comments,” Michael Bodey, The Australian, April 11, 2007. “Australian Communications and Media Authority has found, 16 months after the event, that Jones broadcast material "that was likely to encourage violence or brutality and to vilify people of Lebanese and Middle-Eastern backgrounds on the basis of ethnicity". ... Among listener comments read by Jones and cited as inflammatory was a suggestion on December 7, 2005, for "biker gangs to be present at Cronulla railway station when these Lebanese thugs arrive"; that "Australians old and new should not have to put up with this scum"; and the notion that "we don’t have Anglo-Saxon kids out there raping women in western Sydney".”


Even the US does not protect speech likely to incite imminent violence:

Brandenburg v. Ohio


“Advocacy of Unlawful Action and the "Incitement Test"”, University of Missouri-Kansas School of Law, @2014-04-10 “When does the First Amendment allow the government to punish individuals for expression that may lead to unlawful conduct?”


Speech which is going to offend, insult, humiliate and intimidate regardless


When Israel was founded in 1948 there were 400 ultra-Orthodox seminary students who were granted state pensions and exemption from military service. Due to their high birth rate, they now account for about 10% of Israel’s population. Israel’s ultra-Orthodox Jews believe they are preserving Israel’s cultural identity. Secular Jews believe they are free-loading.


It’s really impossible for Israel to have had a debate on this without making statements – which a speakers on each side believe to be factual statements – which those on the other side are likely to find offensive, insulting, humiliating or intimidating. And this debate did indeed result in large protests (over 100,000 people) and some violence.


God help any judge who (under an equivalent of Australia’s Racial Discrimination Act) had to make a finding of fact for or against either side of that debate. The US Supreme Court on the other hand takes the position: “It is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.”


The debate was (perhaps) resolved when the Knesset (the Israel Parliament) voted to remove the exemptions, but ultra-Orthodox Jews would obviously be dissatisfied. But as disruptive and divisive as this debate has been to Israel, far better that they had it (even though it resulted in some violence) than if it had been suppressed, with resentment allowed to grow (perhaps resulting in far more violence, and the underlying dispute – which both sides felt threatened Israel –  either culturally, or militarily and economically – going unaddressed).


“Israel ends ultra-Orthodox military service exemptions,” BBC, 2014-03-02, “Ultra-Orthodox Jews studying in seminaries have been exempt from national service since Israel's foundation. Israel's parliament has approved legislation that will end exemptions from military service for ultra-Orthodox Jewish seminary students. Exemptions from military conscription were given to the ultra-Orthodox, or Haredim, when Israel was created in 1948. At that time there were only 400 seminary students. Now, owing to their high birth rate, the ultra-Orthodox account for about 10% of the country's population of about 8 million. Most ultra-Orthodox men are unemployed because of their religious studies and rely on donations, state benefits and their wives' wages. This has long caused resentment among Israel's secular majority, leading to a demand for the ultra-Orthodox to share the so-called social burden. The ultra-Orthodox say that military service would stop them devoting themselves to the study of religious scriptures, which is seen as a foundation of Jewish life.”


“Israel parliament passes law to conscript ultra-Orthodox Jews,” 2014-03-12, DW, “Israel's parliament has passed a controversial bill that would draft ultra-Orthodox men into compulsory army or social service. The men have been largely exempt for decades to pursue their religious studies. Since Israel's founding in 1948, the ultra-Orthodox have largely been allowed to avoid military service to pursue their religious studies. Military service is compulsory in Israel, with men serving three years and women serving two. The bill had been met with strong opposition. Earlier this month, hundreds of thousands of ultra-Orthodox Jews protested the bill in Jerusalem (pictured above). The ultra-Orthodox, who make up about 8 percent of Israel's eight million citizens, insist their young men contribute to the preservation of the Jewish state and culture through prayer and study. The exemption has also enraged secular Israelis who say the ultra-Orthodox are not doing their fair share especially as their community has increased in size. Older ultra-Orthodox men often don’t work and collect welfare stipends while continuing to study full time.”


“Ultra-Orthodox and Secular Israelis Clash in Jerusalem,” Lisa Katz, @2014-04-10. “Behind the violence boiling in Israel for over 2.5 years as a result of the conflict with the Palestinians, internal tensions between ultra-orthodox and secular Jews have continued to simmer. In the past few weeks, those internal tensions have heated up. For the third Sabbath in a row, thousands of ultra-orthodox Jews gathered on Bar-Ilan Street, a main Jerusalem thoroughfare, to protest driving on the Sabbath and even to throw stones at passing cars. One policeman was injured in the head and seven ultra-orthodox residents were arrested. In addition to throwing stones at cars being driven on the Sabbath, past violent acts committed by ultra-orthodox Jews in an effort to influence how secular Jews dress, eat and observe the Sabbath include slashing tires on the cars of women not dressed modestly, physically attacking women not dressed modestly, causing damage to restaurants and stores with non-kosher food and burning Israeli flags.”


For that matter I find it hard to imagine anyone making statements on the Israeli Palestinian conflict without being accused of offending, insulting, humiliating or intimidating either side.


A picture of dead children from either side of the conflict inflames passions, without a single word even being written. Who is to judge the subjective intent of the person taking or distributing the photograph (perhaps even they don't know), and what relevance does it have to the contents of the photograph in any case?


An example of speech likely to offend, insult, humiliate and intimidate a racial group are rapes (and gang rapes) by migrants, such as the Sydney rapes by a Lebanese gang, and the more recent rapes by African migrant gangs:


“Girl, 14, severely traumatised after gang rape attack, say police,” 2014-02-10, “A 14-year-old girl who was gang raped in a western Sydney park was so traumatised that police had to wait a day before they could speak to her. The girl was walking a short distance home from a friend's house through Bill Colbourne Reserve, Doonside, when she was approached by a man of African appearance at 11pm on Saturday, police said. He touched her inappropriately before he forced her to the ground and sexually assaulted her on one of the paths in the park, police said. The man's five friends then took turns sexually assaulting her in an attack that lasted about 30 minutes, police said. …  The men are all described as being of African appearance and aged in their late teens to early 20s and police say people in the community must know the men responsible. ... Superintendent Merryweather said ... "Her family are nice people, they're good people ... they're just completely devastated." ... "If people do not ring and contact the police they are condoning this horrendous behaviour."”


A person living in that community or let alone a parent of that girl would likely fear further attacks. Perhaps they believe the perpetrators come from a culture where such acts are tolerated (Manus investigator Robert Cornall has repeated such a belief:


If those fears are based on false premises, convincing public debate might assuage the worried families of their fears. On the other hand if they were not permitted to express their views because they might offend, insult, humiliate or intimidate, and if they were not convinced the police could protect their family (they can’t be everywhere), then they might believe themselves as having no other practical choice but to resort to violence. And hypothetically, if the debate reveals their fears are rational, better it is called out so the community can constructively address the problem


Once again, public debate rather than being suppressed should be encouraged even if, and especially if, it is unpalatable. US Supreme Court Justice Louis Brandeis said: “It is the function of speech to free men from the bondage of irrational fears.” “To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”




Free speech promotes rational discussion, and we hope that leads to a rational conclusion that it is in everyone’s best interests to live alongside each other in peace and harmony.


But it’s human nature that people abuse power. No just some people. All people. Consider the domestic pig. An intelligent animal with a love for life and a sweet disposition. But people kill it because they have power to kill it, and it tastes good.


(And as I write that I realise I’ve just offended several religions. Substitute the animal or plant of your choice.)


Thus there is a risk free speech might arrive at the rational conclusion that it’s in the best interest of a majority to exploit a minority which is unable to fight back. I am sure Tim Soutphommasane is well versed in the psychological and sociological research as to why humans do terrible things to each other, so might explore other solutions at promoting harmony besides restricting free speech. (I believe my own open-mindedness began by having Aboriginal, Chinese and Korean classmates. Later as I backpacked I met people from many cultures and found everyone mixed very well. I was surprised to discover the young South Africans I met were not the racist scumbags I’d been lead to believe; Imagine my surprise to see white and black South Africans backpacking together. There is no faster way to discredit a stereotype than to have it disproven right in front of you. Conversely it is true that those in lower socio-economic groups are more vulnerable to blue collar crime, which can perpetuate negative stereotypes. (Interesting that white collar crime is more prevalent in higher socio-economic groups, but that is safely committed behind closed doors. [“Arrest-Proof Yourself”, Dale Carson, 2007]))


Denis Leary: “Racism isn't born, folks. It's taught. I have a 2 yr old son. Know what he hates? Naps. End of list.”


And for that matter, it’s also possible for a powerful minority to exploit the majority; South Africa’s Apartheid Regime which ended 1994, and Australia’s own Bunyip Aristocracy; second-rate, but still going after 226 years.


But even powerful minorities can be persuaded to give up power. The (white) South Africans I met in 1992 explained to me they realised there was no other way forwards.


Hate Speech


My experience is that, all things being equal, people from different cultures mix well. But that isn’t the case where racial animosity has been whipped up by hate speech (by extremists, but mostly by politicians.)


The American position is that while rational discussion is the best way of solving society’s problems, it isn’t perfect. US Supreme Court Justice Stevens: “[P]olitical speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.”


Many other countries have adopted a different approach and "simply" outlawed Hate Speech.


Their arguments are:


·        The bar can be set very high, so the law is invoked sparingly.

·        Free speech is already restricted, so why not more restrictions?

·        Courts and tribunals are capable of objectively weighing evidence to ensure that legitimate free speech or merely offensive speech are not captured.

·        The justice system is a human institution and abuses can happen, but the answer is to refine and reform laws, not to scrap them.

·        Hate speech is dangerous because words have power and can influence others to act violently.

·        Free speech is exercised largely by the privileged at the expense of the unprivileged who do not have a level ground on which to respond.

·        People’s dignity and human rights should be up for debate in the public square and ‘may the best argument win’.

·        Hate speech is a public expression of discrimination against a vulnerable group

·        Hate speech is destructive to society and to its victims. Enduring hatred over years can limit people’s opportunities, isolate them socially, push them into poverty, lead to loss of self-esteem and depression, and endanger their health and safety.

·        Hate speech has no redeeming value, so we should not protect it.


Some of these arguments I’ve already debunked, but others have merit. But Jonathan Rauch points out it is important to distinguish between the harm and how you choose to deal with it.


Hate speakers don’t directly incite violence, because that would be illegal. Instead they denigrate and dehumanise their targets as a group, encouraging discrimination or planting seeds for others to perform violent acts against them. Stanford Associate Professor of Communications Laura Leets says experiments indicate exposure to hate speech does have a slow-acting effect: “Current legal remedies may be missing the real harm of racist indoctrination, which may not be immediately apparent or verifiable. For in-stance, hate expressions tend to encourage a set of beliefs that develop gradually and that often can lie dormant until conditions are ripe for a climate of moral exclusion and subsequent crimes against humanity” [“Should All Speech Be Free?” Laura Leets, 2001].


Fordham Law School’s Thane Rosenbaum argues that the emotional pain caused by hate speech and discrimination is too much to expect minorities to bear: “All of us know, however, and despite what we tell our children, names do, indeed, hurt. And recent studies in universities such as Purdue, UCLA, Michigan, Toronto, Arizona, Maryland, and Macquarie University in New South Wales, show, among other things, through brain scans and controlled studies with participants who were subjected to both physical and emotional pain, that emotional harm is equal in intensity to that experienced by the body, and is even more long-lasting and traumatic. Physical pain subsides; emotional pain, when recalled, is relived. … In the marketplace of ideas, there is a difference between trying to persuade and trying to injure. One can object to gays in the military without ruining the one moment a father has to bury his son; neo-Nazis can long for the Third Reich without re-traumatizing Hitler’s victims; one can oppose Affirmative Action without burning a cross on an African-American’s lawn. … Free speech should not stand in the way of common decency. No right should be so freely and recklessly exercised that it becomes an impediment to civil society, making it so that others are made to feel less free, their private space and peace invaded, their sensitivities cruelly trampled upon.”


Jonathan Rauch argues there are other ways of tackling Hate Speech, besides restricting free speech;  He argues that minorities can fight back against hate speech with speech of their own, and the ACLU’s Aryeh Neier argues that that intolerance develops only when a minority is denied the ability to respond. [5]

Jonathan Rauch: “How do you enforce a hate-speech policy apolitically? How do you prevent it from being coopted by bigoted majorities or opportunistic politicians? How do you prevent overdeterrence and the chilling of important but controversial conversations? Who determines trigger thresholds for actionable speech, and on what basis? What’s the cost of stereotyping minorities as vulnerable and defenseless? What’s the cost of denying the agency of the listener, who, to some considerable extent, can choose how to react to offensive or hateful speech? And why stop with speech deemed harmful to minority participation, when there is so much other socially harmful speech out there? Doesn’t it harm society to let climate-change deniers yammer on?”


Thus the concern “Free speech is exercised largely by the privileged at the expense of the unprivileged who do not have a level ground on which to respond”  has some validity. Tim Wilson famously tweeted “Walked past Occupy Melbourne protest, all people who think freedom of speech = freedom 2 b heard, time wasters ... send in the water cannons.” Unless you own a TV station or newspaper, or are wealthy enough to buy ads, it’s very hard to be heard. Social media helps, but it’s reach is very limited compared to prime time TV.


CLA’s Bill Rowlings: “The answer to speech or words permeated wholly or partly by hate or stupidity is more free speech, not less. People who are maligned should be able to speak out or to write, in the same forum and in others forums to a similar length, to highlight the wrong-thinking that lies behind the typical Bolt-like misinformation, misogyny or ignorance about miscegenation.”


As for “Free speech is already restricted, so why not more restrictions:” Tim Soutphommasane said: And, if as a society, we were to identify areas of the law that may seriously impinge on our freedom of speech, why do the champions of absolutist free speech appear not to be troubled by the impact of the law of defamation? One recent defamation case resulted in $280 000 damages to a woman who was described as a ‘grub’, ‘you silly silly woman’ on the 2GB radio station.  Another recent case involved $160 000 damages for each of the three plaintiffs – a total of $480 000 – in relation to a restaurant review in a newspaper, where the reviewer described a number of dishes as ‘simply unpalatable’ and restaurant as ‘a bleak spot on the culinary landscape’. … I think we are entitled to ask why it is, exactly, that laws concerning racial vilification have been singled out for such disproportionate attention.


The answer to that is the true free speech absolutists (primacists), those who defend your freedom of speech regardless of what side of politics you come from, care a great deal about defamation. The purpose of free speech is, after all, to foster rational debate to uncover the truth. The corrupt fear the public learning the truth. Defamation law has worked very well for those in power, so you’ll hear no one from the government challenging it. Evan Whitton: “Libel law has thus protected rogues, including organised criminals, some powerful and respectable, for seven centuries.” Instead of further restricting free speech in Australia, Tim Soutphommasane might have a chat to Tim Wilson about adding a public interest test to defamation law, so he may set the media free to report on government corruption.


Back to Hate Speech:


As for “The bar can be set very high, so the law is invoked sparingly.” This was attempted in Canada’s ‘Taylor Test,’ though subjectivity remains an issue. + Although directed at individuals rather than a race, the “Ditch the Witch” and “F--- Abbott, F--- Democracy” is an example of how one man’s “vile conduct” is another man’s “meh.”


As for “Courts and tribunals” and the “justice system,” public perception is that judges are very wise, but a whistleblower explained to me: “What do you think of lawyers? What do you think of politicians? Do you realise judges are lawyers appointed by politicians?” I discuss the legal system below.


As for “Hate speech is a public expression of discrimination against a vulnerable group” and “Hate speech is destructive to society and to its victims. Enduring hatred over years can limit people’s opportunities, isolate them socially, push them into poverty, lead to loss of self-esteem and depression, and endanger their health and safety”:


I believe those statements are true, and the damage should be recognised. But that damage is already being done, also expressed in lessor forms such as unexplained rudeness which the law itself cannot feasibly prevent. I believe exposing and publicly debunking hate speech is the best way to reverse stereotypes, but I accept that could be a very unpleasant ride. No one should have to tolerate abusive speech of any nature (not just racial epithets, but for example “c---”), nor be forced to take part in a debate they do not want. But some public discussion will inevitably offend; For example, even if dispassionate, a public debate on migration will inevitably (and understandably) offend and humiliate some migrants. I accept that is painful, but I see no way around it besides refusing to have the debate at all.


Himself a gay Jew, Jonathan Rauch writes: “Above all, the idea that hate speech always harms minorities is false. To the contrary: painful though hate speech may be for individual members of minorities or other targeted groups, its toleration is to their great collective benefit, because in a climate of free intellectual exchange hateful and bigoted ideas are refuted and discredited, not merely suppressed. The genius of the open society is that it harnesses the whole range of public criticism, including offensive and hurtful speech, in a decentralized knowledge-making process that has no rival at the job minorities most care about: finding truth and debunking bigotry. That is how we gay folks achieved the stunning gains we’ve made in America: by arguing toward truth.”


Exemptions under 18D


Tim Soutphommasane: “It is also strange that section 18D now appears to be targeted for amendment. This is one of the few provisions in Australian law that explicitly protects freedom of expression.”


18D doesn’t protect free speech, because it is paired with 18C which restricts it.


Tim Soutphommasane: “The section protects anything that is done reasonably and in good faith when it involves artistic expression, scientific inquiry, or fair comment and reporting. With its current requirements of reasonabless and good faith, section 18D ensures that we can draw a clear line between legitimate public debate and hate speech.”


The problem is that depends on the subjective opinion of a judge or a jury.


During the passage of the Public Interest Disclosure Bill the vast gulf between the law as written and as practised became apparent to me, as did the (in my opinion) naïvety of legal academics the government consulted on the bill when compared to the practical experiences of litigators and whistleblowers (whom the government refused to engage). ATO Whistleblower Serene Teffaha wrote: “The only experts here are actual whistleblowers. Academics funded through Government, hiding behind aging desks, are not authority on qualitative experience.” +


The courts are not a fair place. Tim Soutphommasane might familiarise himself with the plight of victims of government abuse, who find out the hard way the courts are not as they are as portrayed on Law & Order.


For example, I don’t remember Jack McCoy ever doing this: + + +


The courts are also extremely expensive. Brian Martin: “Many people think of the law as a great protector, as a place where justice is dispensed. If only it were true! Actually, the legal system serves best those who have the most power and money.” A pro bono lawyer said to me, ‘The only people who win out of these things are the lawyers.’


“Making the law faster, simpler, fairer — and cheaper,” Evan Whitton, Independent Australia, 2013-12-19,  “The [Australian] adversary system does not try to find the truth. The [European] inquisitorial system does.”,6009


“Geoffrey Robertson QC wrote: “[T]here have been celebrated cases where newspapers have published the truth, yet lost.” “Our Corrupt Legal System”,” Evan Whitton,


On subjectivity, a passage in David Marr’s article is interesting: “The act left Bolt with the task of making a list of convincing denials to explain his mistakes, language and motives. Denials are one of Bolt's great talents: with a smile on his face and his hand on his heart he is happy to claim the purest motives even in the unhappiest circumstances. Usually it works like a charm. Not with Judge Bromberg.”


Does that mean another Judge might have had a different opinion of Bolt and his arguments? I’ve always been uncomfortable when litigants and solicitors say “We’ve got Judge X” or “X QC never loses!” because it implies the outcome of a case is more dependant on the lawyers than the merits of the case.


( I can’t comment on the judiciary in Australia, as there is no written material and criticism risks defamation and jail for contempt of court. However this book by Max Boot about the American judiciary is interesting: Here is a case where lawyers rallied to support a magistrate paedophile:


Tim Soutphommasane: “With its current requirements of reasonabless and good faith, section 18D ensures that we can draw a clear line between legitimate public debate and hate speech. It ensures that the noble value of freedom doesn’t excuse malice. That people can’t claim the protection of free speech when they combine factual error, distortion of the truth and inflammatory language.”


Factual error: False opinions are based on false facts. False facts should be forgiven if they are genuine factual errors. To insist that all the premises of an opinion are absolutely true with severe penalties for them being false is to put an unreasonable burden on the speaker, and so have a chilling effect on their speech.


Distortion of the truth is different from factual error. It requires a subjective opinion by the court.


If Inflammatory language is defined as “intended to stir up emotions or elicit anger, that is also subjective because it assumes the court can read the speakers intent and how the language will be received in the mind of the listener.  This is why “fighting words” doesn’t apply to political speech except in special circumstances (e.g. a captive audience). Volokh gives many examples of subjectiveness.[105]


“Remembering the Nazis in Skokie,” Geoffrey R. Stone, Professor of Law at the University of Chicago, “Making First Amendment rights turn on judgments about a speaker's subjective intent is a dangerous business, because intent is very elusive and police, prosecutors and jurors are very prone to attribute evil intentions to those whose views they despise.”


Gay Activist Peter Tatchell gives an example: “Several Christian and Muslim street preachers have been arrested in Britain for hate speech. Their crime? They said that homosexuality is immoral and that gay people will go to hell. I disagree with them but opposed their prosecution. What they were saying was hurtful but not hateful. They did not express their views in a bullying or menacing tone.”


There is not only the risk that the courts would assume evil intentions on behalf of the speakers, or conversely that the speakers were malicious but disguised it by using a dispassionate tone.


18C required Judge Bromberg to climb inside the mind of Andrew Bolt and absolutely declare what he had been thinking at the time. Andrew Bolt is a controversial figure, and perhaps many of his critics would assume he operates with evil intent. But I recall from readings of psychology and neuroscience that people often don’t know what they think, acting on the spur of the moment and then attempting to rationalise it later, if at all. That the courts already call declarations of intent in other cases doesn’t mean they’re doing it right. Perhaps if neuroscience advances to the point where it can tell us what someone really was thinking, it might show the courts have made more errors in ascribing intent than it has in judging DNA evidence.


Likewise Tim Wilson’s famous tweet: “Walked past Occupy Melbourne protest, all people who think freedom of speech = freedom 2 b heard, time wasters ... send in the water cannons.” Water canons may not be lethal, but they are brutal: +,6008 )  Thus some might argue Tim Wilson’s views on suppression of free speech are “harsh, extreme” and “vile.” He is a controversial figure, so his critics might also assume he also operates with evil intent. Was it a bad joke he is too proud to apologise for, or does he honestly believe it? It’s hard to tell.)


If Inflammatory language is defined as “intended to invoke a physical reaction, either as “fighting words” or as an incitement to violence, then that is unacceptable and unlawful. Solicitation and conspiracy to commit crime are not protected speech.


“We can draw a clear line between legitimate public debate”: I think I’ve shown it isn’t a clear line. If it was a clear line the US courts would not need to be neutral in the marketplace of ideas, and instead of ruling of the right to air an opinion would instead would be ruling which idea is correct and which isn’t.


Jonathan Rauch: The big problem for proponents of hate-speech laws and codes is that they can never explain where to draw a stable and consistent line between hate speech and vigorous criticism, or who exactly can be trusted to draw it. The reason is that there is no such line.”


Tim Soutphommasane: “Unfortunately, the debate reflects significant misunderstanding of how this law works. For example, it is frequently asserted that people can be “prosecuted” or “convicted” under the Racial Discrimination Act. ... Neither assertions are true. Just as you can’t be prosecuted or convicted for civil negligence or defamation, you can’t be subject to criminal penalty for racial vilification under section 18C.”


That’s irrelevant. Whether punished criminally, or civilly via damages or simply incurring legal costs and litigation, the possibility it might happen has a chilling effect on speech.


‘Judge Learned Hand said: ‘I must say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death.’ “Our Corrupt Legal System”,” Evan Whitton, pp. 116,


ABC’s Chris Masters said “The hardest things that I ever did in my career were not to do with gathering the story in the first place but in defending it … The worst thing is the emotional burden waking up every day knowing you’ve got court matters to deal with … it gets to a point where it can be extremely demoralising. You begin to say to yourself, I didn’t get into this to be a professional witness or professional defendant.”  “I call it my death by a 1000 courts. The emotional drain tends to be understood only by those who experience it. You watch your morale and assets erode all the while surrounded by lawyers who are having the time of their lives. Horrible.”


I’ve shared Chris Master’s comments with others who have been through the courts, and his phrase The emotional drain tends to be understood only by those who experience it always strikes a response such as ‘Exactly! Exactly!’


James Hill asks of the Bolt case, “Why are we having this discussion in a court room? If the academics named in this piece feel that Andrew [Bolt] is wrong, why not write a rebuttal? “Columnist sued for offensive blog,” James Hill, Intentious, 2011-04-06


Tim Soutphommasane: “One other thing is troubling at the moment. Much of the debate has centred not on how the vilification laws have actually worked during the past two decades, but on the Federal Court's ruling in the case involving Andrew Bolt in 2011. This was a judgment that was never challenged by appeal. Does this single case provide sufficient cause for dismantling part of our legislative architecture of racial tolerance and multicultural harmony?”


You’d have to ask Andrew Bolt that. Perhaps he has no issue with the way the law was applied, but the law itself.


As to why people don’t appeal, there are many good reasons. The courts are extremely expensive, and there is no guarantee you will receive justice at the end. Investigative journalist Gerry Georgatos: “A Judge said to me, if you are in this building for justice, you are in the wrong building, you'll only get the law in here. Not the same.”


Karen Kline spent six years taking a “sure thing” case all the way to the High Court, and lost.


That decision has was viewed cynically, and I have been told it was privately criticised by powerful people. One victim of government abuse responded: “The decision was unexpected ... although it is consistent with the conservative nature of this High Court” telling another victim of government abuseI wouldn’t recommend going up to the HCA either. It’s hard work, expensive and risky. Even just having special leave granted seems to be based on unfathomable criteria.”


In my case, I was told it would cost $2M to litigate the Commonwealth who would escalate it all the way to the High Court, quoted $50K just for the first hearing. Most people don’t have that kind of money.


I am absolutely sympathetic with Tim Soutphommasane’s goals, but I believe the best way to discredit a false idea is by public discussion. Suppressing public speech does not quash intolerance, but allows it to fester privately. Also instead of waiting for false ideas to be presented, the HRC could pro-actively challenge them.


Suppressing a (false) opinion from being expressed by a person who believes it to be true only breeds resentment in that person against the government and against those persons they believe are being unfairly protected. Justice Louis Brandeis: “Fear breeds repression; that repression breeds hate; that hate menaces stable government” And if, as unpalatable as it is, it turns out their idea is true, better it is out in the open so the community can constructively address it instead of vigilantes (the kind with a sound rationale, and so a just cause which might appeal to an angry populace) taking matters in their own hands.


The abusive bigot on a bus scenario: Calling someone “a f------ c---,” “----- sh-t” is non-political speech. I’ve written a lot about subjectivity, but I can’t see any subjectivity here. Racial epithets are harder because groups are known to use them good-naturedly amongst each other, but surely a racial epithet is no way to begin a conversation with a stranger on a bus? Abuse speech does not need to be protected. This also applies to fat, ugly, etc.


The non-abusive bigot on a bus: “Why don’t you go back to where you came from?” This is harder, because what if the speaker asks the same question in a more refined manner; “Do you think migration levels are too high?” Deeming this as intended to offend, insult, humiliate or intimidate is too subjective. Perhaps they just want to have a debate with a stranger they presumed a migrant on a long bus ride? But everyone has the right to be left alone. The recipient can decline to talk, and if the speaker persists it is harassment (although curiously under the Queensland Criminal Code 359D (c) if the speaker persists they might attempt to claim an exemption because it was “done for the purposes of a genuine political or other genuine public dispute or issue carried on in the public interest”).


Intrusive speech does not need to be protected, regardless of whether the idea is false or true.  People have the right to be left alone.


[3] “George Brandis defends 'right to be a bigot' amid Government plan to amend Racial Discrimination Act”, Emma Griffiths, ABC, 2014-03-24,


[4] “Attorney-General George Brandis: 'People do have a right to be bigots'”, Dan Harrison, Jonathan Swan, SMH, 2014-03-24,


[5] “Remembering the Nazis in Skokie,” Geoffrey R. Stone, Professor of Law at the University of Chicago,

“Approximately 5,000 of the Jewish residents [of Skokie] were survivors of the Holocaust. The residents of Skokie responded with shock and outrage. They sought a court order enjoining the march on the grounds that it would "incite or promote hatred against persons of Jewish faith or ancestry," that is was a "deliberate and willful attempt" to inflict severe emotional harm on the Jewish population in Skokie (and especially on the survivors of the Holocaust), and that it would incite an "uncontrollably" violent response and lead to serious "bloodshed."


The Skokie controversy triggered one of those rare but remarkable moments in American history when citizens throughout the nation vigorously debated the meaning of the United States Constitution. The arguments were often fierce, heartfelt and painful. The American Civil Liberties Union, despite severe criticism and withdrawal of support by many its strongest supporters, represented the First Amendment rights of the Nazi.


First, the village argued that the display of the swastika promoted "hatred against persons of Jewish faith or ancestry" and that speech that promotes racial or religious hatred is unprotected by the First Amendment. The courts rightly rejected this argument, not on the ground that the swastika doesn't promote religious hatred, but on the ground that that is not a reason for suppressing speech. After all, it the Nazis could be prohibited from marching in Skokie because the swastika incites religious hatred, then presumably they couldn't march anywhere for the same reason, and movies could not show the swastika, and even documentaries could not show the swastika. And if the swastika can be banned on this basis, then what other symbols or ideas can be suppressed for similar reasons. What about movies showing members of the Ku Klux Klan? News accounts showing Palestinians committing suicide bombings in Israel or showing Israelis attacking civilians?


Second, the village argued that the purpose of the marches was to inflict emotional harm on the Jewish residents of Skokie and, especially, on the survivors. Certainly, some residents would be deeply offended, shocked and terrified to see Nazis marching through the streets of Skokie. But they might also be offended, shocked and terrified to know that Schindler's List was playing at a movie theatre in Skokie ...  Making First Amendment rights turn on judgments about a speaker's subjective intent is a dangerous business, because intent is very elusive and police, prosecutors and jurors are very prone to attribute evil intentions to those whose views they despise.


Third, the village argued that if the Nazis were permitted to march there would be uncontrollable violence. But is this a reason to suppress speech? Isn't the obligation of the government to protect the speaker and to control and punish the lawbreakers, rather than to invite those who would silence the speech to use threats of violence to achieve their ends?


The outcome of the Skokie controversy was one of the truly great victories for the First Amendment in American history. It proved that the rule of law must and can prevail. Because of our profound commitment to the principle of free expression even in the excruciatingly painful circumstances of Skokie more than thirty years ago, we remain today the international symbol of free speech. (Ultimately, a deal was worked out and the Nazis agreed to march in Chicago rather than in Skokie.)


(continued …)

[6] The Nazi rally, ultimately held in downtown Chicago, did not advance their cause; Nazi’s remain unpopular. Likewise although the US Supreme Court did not curtail the free speech of the Westboro Baptist Church, the WBC has also remained unpopular. Recently hundred of residents chased them out of Moore, Oklahoma. (An American once explained to me “You absolutely have the right to burn an American flag, but don’t complain if some marine veteran punches you in the nose.” [Note: This was a hypothetical discussion.])


The Nazis and WBC both received their constitutionally-guaranteed free speech, but were rejected by the public in the marketplace of ideas. US Supreme Court Justice Louis Brandeis said: “It is the function of speech to free men from the bondage of irrational fears.”


Recently Cory Bernardi released a book critical of gay, single parent and step families. Warren Entsch, a step-father, objected, and a lively public debate ensued. Personally I thought it was a great day for free speech, to me marred only by Mr. Bernardi’s threatening Mr. Entsch over what I presumed either to be humorous satire or Mr. Entsch’s honestly-stated belief based on what we have seen in some other famous personages. That aside, Mr. Bernardi offered his ideas to the marketplace, and the marketplace spoke. Conversely if Mr. Bernardi had been prevented from offering his ideas to the public, he would have never had the opportunity to gauge his level of public support.


“Liberal MP Warren Entsch attacks Cory Bernardi on 'gay obsession',” Dan Harrison, SMH, 2014-01-08, “Mr Entsch, a former parliamentary secretary and chief opposition whip, said he cringed when he heard [Cory Bernardi’s] [book] … railed against ''non-traditional'' family arrangements such as step-families, single-parent families and same-sex parent families.”


“Cory Bernardi hints at legal action over ‘gay obsession’ jibe.” Daniel Hurst, The Guardian, 2014-01-08, “The conservative senator reportedly said his lawyers were 'having a look’ at a comment by Liberal MP Warren Entsch. … “Entsch also said that as a stepfather he was offended by Bernardi's comment that a biological mother and father who were married represented the ''gold standard'' for children's development. Entsch, a former chief opposition whip, said he was a step-father and cited the strength of his love for his daughter. “The love that I have in my family is as strong a bond as anybody's””


[7] Smolla, Rodney A., “Rethinking First Amendment Assumptions about Racist and Sexist Speech”, “[Nazi march organiser] Frank Collin did not merely exploit symbols in Skokie; he exploited the first amendment itself, and he did it to cause human suffering. "I used it," Collin said. "I planned the reaction of the Jews. They are hysterical"” [Quoting D. DOWNS, supra, at 19. See also D. HAMLIN, THE NAZI/SKOKIE CONFLICT (1980).]


[8] “ACLU History: Taking a Stand for Free Speech in Skokie,” ACLU, 2010-09-01, “In 1978, the ACLU took a controversial stand for free speech by defending a neo-Nazi group that wanted to march through the Chicago suburb of Skokie , where many Holocaust survivors lived. The notoriety of the case caused some ACLU members to resign, but to many others the case has come to represent the ACLU's unwavering commitment to principle. In fact, many of the laws the ACLU cited to defend the group's right to free speech and assembly were the same laws it had invoked during the Civil Rights era, when Southern cities tried to shut down civil rights marches with similar claims about the violence and disruption the protests would cause. Although the ACLU prevailed in its free speech arguments, the neo-Nazi group never marched through Skokie, instead agreeing to stage a rally at Federal Plaza in downtown Chicago.”


[9] “Clear and Present Danger,” Aryeh Neier,  Index on Censorship, 1998. The dangers of one point of view … It is the exclusive capacity to communicate that produces the link between incitement to violence and violence itself.”


[10] “The visual dehumanisation of refugees”, Roland Bleikera, David Campbell, Emma Hutchison & Xzarina Nicholson. “Dealing with refugees is one of the most contested political issues in Australia. We examine how media images of asylum seekers have framed ensuing debates during two crucial periods over the past decade. By conducting a content analysis of newspaper front pages we demonstrate that asylum seekers have primarily been represented as medium or large groups and through a focus on boats. We argue that this visual framing, and in particular the relative absence of images that depict individual asylum seekers with recognisable facial features, associates refugees not with a humanitarian challenge, but with threats to sovereignty and security. These dehumanising visual patterns reinforce a politics of fear that explains why refugees are publicly framed as people whose plight, dire as it is, nevertheless does not generate a compassionate political response.”


[11] Perhaps a far better way to promote tolerance of minorities is not by restricting freedom of speech, but by electing leaders who encourage tolerance:


“Influence: The Psychology of Persuasion,” Dr. Robert Cialdini, ISBN 978-0061241895.  Humans are greatly influenced before authority and conformity.


Memoirs of a Superfluous Man, Albert Jay Nock, 1943: “According to my observations, mankind are among the most easily tameable and domesticable of all creatures in the animal world. They are readily reducible to submission, so readily conditionable (to coin a word) as to exhibit an almost incredibly enduring patience under restraint and oppression of the most flagrant character. So far are they from displaying any overweening love of freedom that they show a singular contentment with a condition of servitorship, often showing a curious canine pride in it, and again often simply unaware that they are existing in that condition.” an/


[12]  “Remembering the Nazis in Skokie,” Geoffrey R. Stone, Professor of Law at the University of Chicago,


(… continued)


Ironically, but exquisitely, it was the Skokie controversy that caused the survivors in Skokie and around the world to recognize that, in the words of the new Holocaust Museum and Education Center in Skokie, "despite their desire to leave the past behind, they could no longer remain silent." It was in the wake of the Skokie affair that "Chicago-area survivors joined together to form the Holocaust Memorial Foundation of Illinois." As a result on this controversy, the survivors dedicated themselves to "combating hate with education." And so now, with only a handful of survivors still alive to see the moment, we now have this extraordinary memorial and museum.

[13] or woman. I use man as an example because in the male psyche the inability of a male to protect his family from harm is believed to be the most humiliating failure that can befall a man.


[14] Americans balance free speech with the 4th Amendment; the right to be left alone; Citizens have the right to free speech, and the right to be heard, but the listener also has the right to choose not to listen:


US Supreme Court Justice Louis Brandeis: “The right to be left alone—the most comprehensive of rights, and the right most valued by a free people.” 


“The Right to Privacy,” Warren and Brandeis, Harvard Law Review, 1890.

“Fighting words” is speech expressed to incite hatred or violence from their target. It is not protected speech, and so the speaker may be punished or subjected to damages for using it.


However the subjectivity of “fighting words” makes it open to abuse, as appears to have been the case in Chaplinsky v. New Hampshire where the “fighting words” doctrine was formed. The US Supreme Court appeared to make a serious error; Chaplinsky was a Jehovah’s Witness preacher verbally and physically abused by the crowd, and then by chief of police Bowering who failed to protect him. Chaplinsky was jailed for saying to that Bowering: “You are a God damned racketeer and a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” This appears to have indeed been a case of political speech that should have been protected, which the court failed to do.


Nevertheless the basic doctrine of “fighting words” seems sound, otherwise a stranger could board a bus and verbally abuse a school child to tears, and then play the trump card of ‘free speech!’


In the case of a captive audience, US Supreme Court Chief Justice Burger said: “The right of every person 'to be let alone' [The 4th Amendment] must be placed in the scales with the right of others to communicate.” )


“The Captive Audience Doctrine: Protecting the Unwilling Listener’s Right to Privacy from Unwanted Speech,” Ola Malik and Theresa Yurkewich, 2013-12-10. A good discussion of the US captive audience doctrine, and whether it can be applied to Canadian law.


For an alternate view on captive audiences: “Harassment Law and Free Speech Doctrine”, Eugene Volokh, UCLA Law School. “As applied to one-to-many speech, harassment law is an unconstitutional restriction on free speech.”


For an alternate view on fighting words: “The Trouble With "Fighting Words": Chaplinsky V. New Hampshire is a Threat to First Amendment Values and should be Overruled”, Burton Caine, 2004.


Just as a school child on a bus should be protected, so too should adults. Abusive speech of any nature (not just racial) can cause them emotional distress, as told by this case of Malaysian-born Australian news reader Jeremy Fernandez:


“My Rosa Parks moment in Sydney 2013”, Jeremy Fernandez, ABC, 2013-02-11.ABC newsreader Jeremy Fernandez has long experienced racism since moving to Australia as a teenager, but a 15-minute racist tirade he experienced in front of his [two year old] young daughter left him particularly shaken.”


The bus driver (of southern-European origin) then kicked Fernandez and his two year old daughter off the bus, though not the person racially abusing him:


Snyder v. Phelps is an American case where parishioners from Phelp’s Westboro Baptist Church (WBC) protested at some distance during the funeral of Albert Snyder’s son, Matthew Snyder, a US Marine who died in the Iraq War. Albert Snyder was distressed that they held signs such as “You're going to hell,” “God hates you,” “Fag troops” and “Thank God for Dead Soldiers!”


Albert Snyder sued Phelps under the tort of Intentional Infliction of Emotional Distress, but the US Supreme Court dismissed his law suit 8-1. They did so on the grounds neither WBC was not at, audible or (apart from the tops of their signs) visible to the funeral, and that Albert Snyder went out of his way to hear the speech which offended him (e.g. looking it up on the Internet), so the captive audience doctrine which might have allowed “fighting words” didn’t apply. For this and other reasons, the US Supreme Court ruled that WBC’s speech was protected political speech which Snyder was not entitled to receive damages because it distressed him.


Justice Samuel Alito dissented (and former Justices Ginsburg and Stevens agree with him) that “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like [Albert Snyder].” 


ULCA Law Professor Eugene Volokh provides a detailed explanation of the case: [105]


“Funerals, Fire, and Brimstone : Freedom of Speech and the Intentional Infliction of  Emotional Distress Tort”,  Eugene Volokh, 2010. “The defendants’ speech in  Snyder v. Phelps is uncommonly contemptible But many more ideas than just the Phelpsians’ would be endangered if the Court allowed the intentional infliction of emotional distress tort to cover the expression of offensive ideas. [Many examples …]”


Scholars such as Smolla and Strum who have written extensively on Skokie accept it may be reasonable to distinguish between public political speech intended to contribute to political debate, and that intended purely to cause emotional distress. However the US Supreme Court has consistently rejected that because relies on a subjective test. Volokh argues if the speech was not political in nature it may be possible to recover damages for Intentional Infliction of Emotional Distress. [no ref] (I recall reading US courts strictly apply tests to claims of damages for emotional distress because it’s too easy to fake, and so is only allowed in clear cases: e.g. the murder of a family member in front of you, but not for something someone said. Otherwise it might be used by the descendants of a deceased powerful person to sue a historian writing critically of them. See [160].)


American case law on free speech is interesting because they try and take an absolutist approach, yielding only if there is no other choice. That said, there are many exemptions: “incitement, false statements of fact, obscenity, child pornography, threats, and speech owned by others are all completely exempt from First Amendment protections”


“The Court allows content-based restrictions on speech when:

  a) it creates a clear and present danger of imminent lawless action,

  b) it constitutes fighting words,

  c) the speech, film, and so forth are obscene,

  d) the speech constitutes defamation,

  e) the speech violates regulations against false/deceptive advertising, and

  f) the government can demonstrate a compelling interest.”

“Words as Weapons—When Do They Wound? Investigations of Harmful Speech”, Leets & Giles, 1997. [no link]


[15] 2013-04-24(29) Open Letter to the High-Tech Community: Federal Government Corruption Makes Australia too Dangerous for High-Tech Business and Start-ups


[16] “Public service keeps fraud cases private”, 2011-09-24, SMH, Linton Besser, “Confidential files obtained using freedom of information show thousands of allegations of graft and abuse of office are being levelled against government staff each year - but only a handful are properly investigated.”


[17] “Federal agencies lack firepower to deal with fraud”, 2011-10-03, Canberra Times, Linton Besser. “An unknown number of corruption cases lie undiscovered inside the vast Commonwealth bureaucracy”,


[18] “The Whistleblowers’ guide to Journalists”, Brendan Jones, 2013.


[19] New York Times Co. V. Sullivan,


[20] US Supreme Court Justice Stevens concurring McIntyre v. Ohio Elections Commission: “But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.”  

I dispute Australian Justice Finkelstein QC’s premise that “in Australia free speech does not necessarily have the same primacy. For example, in Australia great weight is given to preventing prejudice to a fair trial, so restrictions are placed on what the media can publish about matters that are sub judice. The United States strikes this balance differently.” Rebutted thus:


[21] “Tim Wilson: Wilson: 'total free speech' needed for Human Rights Commission”, SMH, 2014-02-03,


[22] Steve Davies, Media Briefing, Ozloop, 2014-03-17, “Decent Australians are being bullied and destroyed by the predatory abuse of power by Australian Public Service agencies. … The Australian Government needs to compel public service agencies to obey the law, follow their own code of conduct and stop using taxpayers money to fund abusive practices..”


[23] While Human Rights lawyers rallied to support the freedom of association of bikies, they would not protect the free speech rights of Michaela Banerji and public servants, as they have failed to protect the rights of victims of government abuse.


Michaela Banerji said: “They [the HRC] take the view that one has to exhaust processes. I contacted privacy commissioner who made enquiries and decided that DIAC did not breach my privacy because it was conducting an investigation!”


But processes take forever, and can exhaust the victim of government abuse physically, emotionally and financially. Some examples: A Defence whistleblower who has spent 16 years going through formal complaint channels. Abused soldiers before the DART defence abuse review (which outlasted the government which called it). Gary Kurzer is still in the courts, having lost his wealth, health and marriage. 


[24] 2014-02-06. Royal Petition concerning Crime and Corruption within the Australian Public Service


[25] “Free speech, the public service and civilising behaviour:” Tim Wilson, SMH, 2014-04-08.


This piece by Tim Wilson begins by arguing it is not a restriction on free speech for a person to voluntarily enter into a code restricting it. It is true this is the case with private employment, and even the US doesn’t expect private employers to tolerate public criticism of their firm by an employee.


Tim Wilson concedes this is a grey area if the employer is the government, because it limits full democratic participation and says “public servants are allowed to be members of a political party and participate in the democratic processes of the nation.”


But he makes no mention of their “implied Constitutional right to free speech in regards to governmental and political affairs.” I ask: How could a public servant possibly be members of a political party if they aren’t allowed to expression a critical opinion on governmental and political affairs? And as citizens, how can they decide how to vote if  they aren’t allowed to express political opinions, exchange political ideas, to talk politics and participate in political discussion?


Tim Wilson says “In response there have been cries that this code limits free speech.” I think it’s common sense observation that it does limit free speech. The only person I'm aware of saying it doesn’t is Tim Wilson.


Tim Wilson says: “Yesterday Jenna Price wrote in Fairfax outlets that as "Hench Commissioner" I did not "leap in defence of our gentle, analytical and astute public servants".”


Tim Wilson certainly didn’t defend public servant’s implied Constitutional right to free speech in regards to governmental and political affairs. Perhaps he’s saying that by becoming public servants they have waived those rights. But that would be incompatible with his statement that they can still be members of a political party, and participate in democratic processes.


Tim Wilson says: “Price also said I "backed the reforms". This is factually inaccurate. It is not my place to endorse individual codes, but I have outlined that voluntary codes attached to employment conditions are not inconsistent with free speech.”


This is splitting hairs. Although he says it is “not [his] place to endorse individual codes, he offered no explicit criticism of the policy. Samantha Maiden in the Sun Herald came to the same conclusion (Samantha Maiden: “But newly appointed Human Rights Commissioner Tim Wilson dubbed the “Freedom Commissioner’’, has backed the reforms, arguing that public servants knew what they were signed up for”), and as did everyone I saw on social media responding to his words.


This isn’t the first time Tim Wilson has claimed to be misquoted by the media:


26 Jan @noeltowell: "@LaLegale ... @canberratimes We called @timwilsoncomau Michaela, and asked him what he thought. It's pretty routine stuff."

26 Jan ‏@timwilsoncomau: "@noeltowell ... @canberratimes Incorrect conclusions have been drawn from my comments, letter to ed has been sent"

26 Jan ‏@noeltowell: "@timwilsoncomau ... @canberratimes Seemed pretty straightforward to me Tim. I'm looking forward to having a read."


In this latest case on April 10 The Canberra Times printed a clarification of Mr. Wilson’s views, but they seemed to be a repeat of the views he already expressed on April 8 and 6. See [26].


Tim Wilson says: “Defending the universal human right of free speech is about the legal limits of speech. It is about when the law stops someone expressing their view. It is not about voluntary conditions we accept when we take employment. Conditions that are entered into through employment are not the same as the law.”


This is reasonable with regards to private employment. But it’s not reasonable when the government is the employer when those restrictions limits their ability to take part in the democratic process, as explained above/below.


Tim Wilson says: “All speech is legal, until it is made specifically illegal. But just because something is legal, it does not mean it is acceptable. For instance, it is legal to be homophobic, but it is not acceptable. Codes of conduct play an enormously important role in filling the gap between what is technically legal, and civilising and normalising behaviour.”


This is a furphy, because I don’t recall anyone complaining that public servants wouldn’t be able to make homophobic taunts. They were complaining about preventing public servants from criticising the Prime Minister.


Tim Wilson says: “Even the Australian Human Rights Commission, a body charged with defending free speech, has social media protocols for staff to preserve and protect the dignity of the institution. Codes of conduct include requiring people to not act in a sexist, homophobic or racist way. If people do, and it is connected back to their employer, they can face disciplinary action, or be terminated.”


And that would be true even under US Law: An equivalent government Human Rights body would be able to sack a Human rights employee publicly making homophobic remarks, even out of hours, because it would dissuade the public from approaching the body with complains of homophobic discrimination.


Likewise an employee of that body making racist remarks for similar reasons.


… which strikes me as ironic given the discussion over 18C and Liberal Attorney-General George Brandis' declaration: “People do have a right to be bigots, you know.”


Tim Wilson says: “At any time an individual no longer believes that they can abide by these standards they have the choice to terminate their employment. Codes attached to employment in the private sector cannot limit free speech because they are voluntarily entered into as a requirement of employment. Public service codes are not the same. They operate in a "grey space" because the government is the employer.”




Tim Wilson says: “Excessive restrictions can fundamentally undermine a public servant's capacity to exercise their full democratic participation, but if they are too loose they can undermine the important perception of impartiality. For instance, public servants are allowed to be members of a political party and participate in the democratic processes of the nation.”


This is a contradiction. Tim Wilson says public servants must maintain their “important perception of impartiality.” Yet they are allowed to join political parties. I would think a public servant being e.g. a member of the Labor Party would be a very clear indication of their perception of bias towards a particular party.


Unless Tim Wilson believes it is okay for them to be a member of the Labor Party, so long as they don’t express a political opinion such as Tony Abbott is a lousy Prime Minister,” even I don’t think Tony Abbott is a good Prime Minister.” Both make clear the speaker is not impartial. The first statement is also harsh, and perhaps the second too.


Perhaps Tim Wilson would argue it’s okay if they express that opinion but only in private, but he’s previously said they can’t express anonymous opinions because they might be traced back to them. And indeed, they’re encouraged to dob each other in, even violating anonymity to do so. With that same logic, they can’t express these thought as private opinions either. So they're permitted to be a member of the Labor Party, which supposedly is no indication of their bias towards a particular political party, so long as they never express those political opinions to anyone, let alone express stronger opinions, which would make campaigning in an election year extremely hard.


Fundamentally, It doesn’t make sense.


Tim Wilson says: “But they are not allowed to work for the Department of Health by day and moonlight as an anonymous journalist critical of the Department's work by night.”


That's an extreme statement, because moonlighting as a journalist by night implies they're holding down two jobs, and so may not have energy for their day job (which is why large companies do not allow their staff to hold a second job). Likewise to moonlight as a journalist by night they would have to spend much of their day doing news gathering, which would take away from their assigned workplace duties. But what if they’re just a blogger, perhaps even an occasional blogger or tweeter? What if they blog just one or two articles a year when some important issue arises?


Public service departments are famous for employing their own armies of spin doctors anyway: “Army of 1900 spin doctors costs taxpayers millions,” Noel Towell , Canberra Times, 2014-03-26.


What’s wrong with a public servant doing the same thing on their own equipment in their own time? Public servants serve the public after all. If they can inform us on matters of public interest and concern they are well placed to comment on given the expertise in their specific area of work, all the better. Likewise if they wants to express their own political opinions so they may take part in the democratic process. Public servants aren’t Mr. Abbott’s servants, and nor does he even pay them. They work for the public.


Tim Wilson says: “Social media is fundamentally no different to any other platform. It is still public.”


And we've established that public servants can’t speak anonymously or privately either; They can’t talk at all.


Tim Wilson: “Similarly, it is not unreasonable that there is an expectation that public servants act in a respectful manner in the public domain if they want to remain employed.”


But “respectful manner” towards whom? Is criticising the Prime Minister disrespectful?


And if the Prime Minister is so keen to be treated in a “respectful manner” on social media, then why does he go on social media and set himself up to be satirised by doing the same thing David Cameron was mocked for weeks earlier?


“Tony Abbott mocked for tweeting picture of himself on the phone,” Elena Cresci, The Guardian, 2014-04-10. “The Australian prime minister did a David Cameron and tweeted the picture on Wednesday. He was inevitably mocked by Twitter”, 11 April 2014.  10:25 PM./2014/apr/10/tony-abbott-mocked-for-tweeting-picture-of-himself-on-the-phone



Tim Wilson: “Even with the current protocols, public servants can make statements that are negative about government policy.”


... which may be restricted, silenced or forced to be convey weaker views, under the new social media protocols.


Tim Wilson says: “But there are justified limits to what an employer can reasonably accept when public comment crosses the line. Imagine the justified outrage if a public servant was caught holding the "Ditch the Witch" sign at the Convoy of no Confidence protests, or "F--- Tony, F---  Democracy" at March in March.”


Those signs were rhetorical hyperbole presumably design to convey the placard holders disapproval of the persons named.


It’s unlikely "Ditch the Witch" was meant to convey that Julia Gillard is in fact a witch, or that at the time they held up the sign she was standing next to a precipice which the placard holder hoped someone standing near her would promptly push her into causing her physical harm. It’s possible the sign was misogynistic, though without knowing more it’s also possible it wasn’t; Perhaps the speaker overlooked the potentially misogynistic connotations and chose those two words because they rhymed. Thus the difficultly in subjective interpretation of a speaker’s intent, and the danger of a speaker being misunderstood. But most likely the sign expressed the placard holder’s desire that Julia Gillard was removed as Prime Minister. Presumably the purpose of the sign was to influence public opinion, and/or convince the Labor Party or their minority government partners at that time to remove their support for her.


Likewise "F--- Tony, F---  Democracy" is probably meant to convey that the placard holder's disapproval of Mr. Abbott. "F---" is an expression I’m not fond of hearing in public, but I admit I myself occasionally utter in private to express frustration. In this case "F---" is vulgar slang used to “used alone or as a noun or verb in various phrases to express annoyance, contempt, or impatience.” Most likely then the placard holder was expressing annoyance, contempt or impatience with Mr. Abbott. Given Mr. Abbott has been accused of ruling undemocratically, the placard holder perhaps intended to convey they believed that Mr. Abbott was himself treating Democracy with annoyance, contempt, or impatience. Alternately it’s also possible the placard holder was indicating their own disapproval of Democracy, but this is unlikely given there is a comma between the two phrases suggesting they're not two contextually isolated messages. Thus illustrating again the difficultly in subjective interpretation of a speaker’s intent, and the danger of a speaker being misunderstood. But most likely the sign expressed the placard holder's disapproval of Tony Abbott.


So two signs are held at public rallies expressing someone’s disapproval for the Prime Minister of the day. One used language some people find offensive. The other expression may have been offensive; It’s hard to tell. But really, so what?


When Tim Wilson speaks of “justified outrage”, I am not sure if he is describing the signs themselves as outrageous, or if he means the prospect of a public servant holding them is outrageous.


Here are some of the other signs:


Tim Wilson says: “Of course those individuals have every right to express those views, but it doesn’t mean that the public service need continue to be associated with such vile conduct.”


The signs Tim Wilson cites use language I would not personally use and nor do I necessarily agree with the sign’s sentiment, but really, so what? I can’t say I'm that offended, and I thought many of the other signs were quite funny. (Perhaps Mr. Abbott didn’t, and that’s what’s behind this crackdown?)


I hardly think the existence of those two signs as sufficient reason to restrict free speech at public rallies, and nor would I be concerned if that sign was held by a public servant. So long as they do their job properly, what’s the problem?


Also Tim Wilson has picked as examples the two most “extreme” signs the public heard were present at both rallies. What about the many “less” offensive signs? Do people not have a right to display those either? Or the right to say on social media that they don’t like the Prime Minister or his polices? (Social media which Mr. Abbott's government has incidentally spent $4.3M of taxpayers’ money monitoring. )


Tim Wilson called this “vile conduct.” Tim Wilson once said he wants “almost total free speech,” so for a Human Rights Commissioner promoting free speech he seems rather squeamish.


Tim Wilson says: “Some have argued that if the conduct is anonymous then it should be excluded from the code, but that is absurd. That is like arguing that the public service should not terminate someone's employment if they are involved in offences outside of work hours because they did it anonymously.”


I had trouble understanding exactly what Tim Wilson is trying to say here; It seems to be ‘the public service should be able to sack someone for offences they commit anonymously.’' But if they're anonymous, how does the public service know who they are? If we take Tim Wilson's earlier statement that anonymous statements aren’t permitted because the anonymity can be revealed, he's basically saying ‘the public service should be able to sack someone for offences.’


But that statement itself is both obvious and not relevant to a discussion about anonymity.


The benefits of anonymous speech are well known.[54]


Tim Wilson says: “Before anyone screams "free speech", they should actually know what they are talking about.” ... “Sigh. Since taking the office of Australian Human Rights Commissioner I have gleaned many new insights into the state of human rights in Australia. One of the most important insights is that many Australians seem to have no idea what human rights are, and many certainly do not understand what free speech is.”


This reminds me of a common technique used to intimidate people in a debate: To paint oneself as an expert while implying the other party doesn’t know enough to voice their opinion, and so should butt out.


I think I have a reasonable understanding of free speech. And over the last few years I’ve spoken to many fellow citizens about free speech. All seem to have a good grasp of the subject, and are clear on the right of all Australians to criticise the government. Especially when it’s a bad government.


And if Tim Wilson is an expert on freedom of speech, why has he not raised the well-known free speech tenet that it is in the public interest for public servants to be able to speak out on matters of public interest and concern?[34] Likewise the well known tenet of the benefits of anonymous speech? [54] Or that given a democracy needs the free flow of information on matters of public interest to function effectively, why would we censor out those best placed to offer us informed opinions or neutral news? Surely these are relevant to this discussion about free speech by public servants, anonymously or not? What about the well known tenet of the dangers of using subjective tests to restrict speech? Is he not aware of them, or has he omitted them because they undermine his own position?


[26] This was presented as a clarification of Tim Wilson’s views published on April 10, but appears to be a repeat of the same views he had already expressed on April 8 and 6. Accordingly my responses here repeat largely my responses to his statements in those earlier articles.


“Freedom commissioner Tim Wilson expands on public servants' social media rights”, Markus Mannheim, Canberra Times, 2014-04-10.


Markus Mannheim: “However, he also appeared to criticise the scope of PM&C's rules, saying social media policies in the public service "should be specific to an employee's area of work to ensure that they do not limit a public servant's capacity to engage in democratic processes".”


In the absence of a statement criticising the code, that can be interpreted as guidance as to how the code should be implemented.


He does not retract from his position that criticism “cannot be harsh or extreme. He does a weak defence of the “implied Constitutional right to free speech in regards to governmental and political affairs.” etc.


He has not offered any explicit criticism of the code, or if he has, everyone including Samantha Maiden, Jenna Price and everyone I saw who responded to his words on social media have misunderstood him.


Markus Mannheim: “The Public Service Commission's existing guidelines on public comment, as well as individual policies in place across the bureaucracy, go much further than this: they warn that extreme or harsh criticism of any parliamentarian, political party or policy may breach the Public Service Act. The act obliges staff to be impartial and to uphold the public service's reputation, regardless of whether they are at work or acting as a private citizen in their own time.”


There's a big difference between obliging staff to be impartial in their actions, and being impartial in their thoughts. They are still allowed to feel strongly about a subject, but cannot express those strong thoughts on social media. As I said elsewhere: Either you agree with dumping three million cubic metres of sludge into the Great Barrier Reef’s waters, or you don’t.


Tim Wilson: “Protocols that stop public comment, including but not limited to social media, by public servants should be limited to the specific area that a public servant works in, and that is justified in light of their access to privileged information and the perception that they could be speaking on behalf of the government.”


If they're speaking anonymously (as Michaela Banerji was), then they can hardly be accused of speaking on behalf of the Department.


But Tim Wilson has said since anonymity can be violated, so public servants cannot rely on anonymity (despite there being strong reasons for protecting anonymous free speech).


But then there are many senior public servants with private Twitter accounts in their own name. It's quite clear they are speaking as themselves. For example APS CTO John Sherridan (@sherro58) who also says in his profile “Views are my own, unless noted otherwise.”


By comparison it was clear that the public servant who threatened Vanessa Powell from the official Immigration Department Twitter account was officially acting on the behalf of the department: +


There is no legitimate basis to claim confusion between private tweets from a person and official tweets from a department’s official Twitter account.


Tim Wilson: “I see no issue with a broader requirement that public servants who express views in the public domain on matters related to politics, the democratic process, their colleagues and policy should be done in a respectful way.”


As I've written elsewhere: It is not easy to write with “feigned calm and dispassion about events,” particularly when the events are themselves “harsh or extreme,” or enacted by fiat.


Tim Wilson: “Codes of conduct attached to employment are immensely important in normalising civil conduct in a society that values the right of free speech with responsibilities.”


Yet Tony Abbott called Julia Gillard "delusional," "in full Napoleon mode," "fake Julia", etc.


Tim Wilson: “As I read it, the current policy allows public servants to be critical of government policy, but requires that they do so in a way that does not compromise their capacity, or perception, that they will exercise their role as a public servant in an impartial way.”


Either they do their jobs properly, or they don’t. “Capacity or perception” is subjective, giving senior public officials the arbitrary power to persecute rank-and-file public servants who express opinions they disagree with.


US Supreme Court Justice Thurgood Marshall: “Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.”


Tim Wilson: “Ultimately public servants accept to be bound by these standards when they accept employment.”


As I've written elsewhere, if a private employee may quit their firm if they wish to publicly criticise them. But a public servant cannot quit their country. If Mr. Abbott did something “harsh or extreme” which upset Tim Wilson, would he give up his $300K+ a year job just so he could voice his opinion?


[27] “Colleagues told: Dob in political web posts”, Samantha Maiden, The Sunday Telegraph, 2014-04-06.


[28] “The Words of Justice Brandeis”, Ed. Solomon Goldman, Henry Schuman Inc, 1953, “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that the serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.”


[29] The Victorian Human Rights Charter proclaims you have the right to free speech… except when you don’t:



Freedom of expression

    (1)     Every person has the right to hold an opinion without interference.

    (2)     Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether— (a) orally; or (b) in writing; or (c) in print; or (d) by way of art; or (e)  in another medium chosen by him or her.

    (3)     Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary— (a) to respect the rights and reputation of other persons; or (b)     for the protection of national security, public order, public health or public morality.

Note the above exceptions allow the government to limit nearly any type speech:


“public order”: This is broad, and can be used to suppress any speech that criticises the government on the basis that it might lead to public disorder. For example, the Public Service Commissioner Stephen Sedgwick claims restricting the speech of public servants is necessary to protect the “relationship of trust that must exist between ministers and the APS” even though the example he used was in fact concealing crime, corruption and ineptitude by public servants.[43] [44] [45]


Professor of Law at the University of Chicago, Geoffrey R. Stone says even if there would be uncontrollable violence, “But is this a reason to suppress speech? Isn't the obligation of the government to protect the speaker and to control and punish the lawbreakers, rather than to invite those who would silence the speech to use threats of violence to achieve their ends?”


“To respect the rights of other persons”: This can be used to suppress speech which anyone finds offensive. But offence is subjective, and you can find someone who will be offended by nearly anything. See [105] for many examples). In 2005 Stephen Fry said: “'It’s now very common to hear people say, 'I'm rather offended by that','' he said, ''as if that gives them certain rights. It’s actually nothing more than a whine. 'I find that offensive.' It has no meaning; it has no purpose; it has no reason to be respected as a phrase. 'I am offended by that.' Well, so f---ing what?'” (See [14]).


Professor of Law at the University of Chicago, Geoffrey R. Stone says even if there would be uncontrollable violence, “Making First Amendment rights turn on judgments about a speaker's subjective intent is a dangerous business, because intent is very elusive and police, prosecutors and jurors are very prone to attribute evil intentions to those whose views they despise.”


That assumes the person censoring them is acting in good faith. If they’re corrupt, acting in bad faith, or the person speaking out is a whistleblower or one of their victims, it’s even worse.


“To respect the reputation of other persons”: Defamation law is a major problem in Australia, preventing the media from reporting about crime and corruption by wealthy criminals and corrupt politicians. America has struck a balance. Australia has not. pp. 129; New York Times Co. v. Sullivan,

“Defamation law fails the test,” Brian Martin, 2008:


“For the protection of national security”:  Perhaps the only thing we really need from any government is its ability to protect us from other governments. On that basis some restrictions are reasonable. But this can be abused by government to:


(i) prevent the speech of people opposed to war or militarism; such as anti-conscription speech[31] [32], anti-war speech[33], or Major General Smedley Butler’s “War is a Racket” speech.[30]

(ii) To hinder public discussion, such as Scott Morrison’s censorship of ‘operational matters’;,

(iii) To suppress matters which are related to national security but also in the public’s interest to know e.g. “The government’s zeal to turn back asylum seekers is pushing our patrol boats beyond their limits. Six of seven are out of action.”; It is in the public interest to discuss if the Abbott government’s use of the navy for an arguably political operation has compromised their ability to defend us from a genuine national security threat, but conversely printing this information could allow an enemy to take advantage of that weakness.


Public perception is that Defence would always make defence of the nation their top priority, but in practice that takes a back seat to politics and career advancement. Air Power Australia’s Peter Goon says “The root cause of pretty much all that ails and is broken in Defence, today, is the fact that the protection of the reputations and vested self interests of senior public officials, both past as well as present, is dominant over everything else, including the rights and well being of fellow Australians (as evidence by the defence abuse matters), and even the National Interest (e.g. Super Sea Sprite Helicopter debacle, AWD, F-35 JSF, etc. ).”


(iv) To suppress matters which are not related to national security, but simply embarrassing to the government; The Defence Department hides behind “national security.” Recently General Hurley tried to silence Senator-elect Lambie from speaking out about the rape and abuse of soldiers. I wrote to Senator-elect Lambie: “Defence hides behind secrecy to avoid scrutiny. But much of this is mock secrecy. Submarine operations in the Pacific should be kept secret. But crime, corruption, abuse, bullying, fraud, waste and mismanagement should most definitely not. It is very much in the public interest that these are discussed openly and in the media.”


I would argue that the Australian government tapping into the Indonesian phone system, spying on the Indonesian Presidents wife, refusing to apologise, and illegally entering Indonesian waters is itself a threat to national security. + + +

“public morality”:  This can be used by powerful people to push their own (publicly-declared) moral belief system onto others.


“public health”: Presumably this is limit cigarette and alcohol advertising. This is a complex because although people must be responsible for their own actions, there comes a point when their self-harm damages others in the community. e.g. Opium in China:


However it’s disingenuous of the government to claim it needs the power to limit free speech to protect public health, while at the same time it takes money from the alcohol and tobacco industries:


“Abbott can’t shake the stink of the tobacco lobby”, Michael Danby, ABC The Drum, 2011-06-14.


“Libs, hotels boss, reject impropriety,” Sean Nicholls, SMH, 2014-04-08, “NSW chief executive of the Australian Hotels Association Paul Nicolaou has remained at the helm of the Liberal Party's fund-raising body, the Millennium Forum, despite taking on the role of pubs lobbyist more than two years ago.”


I am a non-smoker and always have been, being convinced by a public education campaign at school and everything I’ve seen and read since. Cigarette advertising has never come close to persuading me (although perhaps alcohol advertising has), but it is free speech which has convinced me not to smoke. It’s unfortunate that some people smoke, and will do it regardless of scientific literature, government warnings or restrictions on advertising.


[30] “Smedley Butler on Interventionism”, Excerpt from a 1933 speech by Major General Smedley Butler, USMC.


“War is just a racket. A racket is best described, I believe, as something that is not what it seems to the majority of people. Only a small inside group knows what it is about. It is conducted for the benefit of the very few at the expense of the masses.


I believe in adequate defense at the coastline and nothing else. If a nation comes over here to fight, then we'll fight. The trouble with America is that when the dollar only earns 6 percent over here, then it gets restless and goes overseas to get 100 percent. Then the flag follows the dollar and the soldiers follow the flag.


I wouldn't go to war again as I have done to protect some lousy investment of the bankers. There are only two things we should fight for. One is the defense of our homes and the other is the Bill of Rights. War for any other reason is simply a racket.


There isn't a trick in the racketeering bag that the military gang is blind to. It has its "finger men" to point out enemies, its "muscle men" to destroy enemies, its "brain men" to plan war preparations, and a "Big Boss" Super-Nationalistic-Capitalism.


It may seem odd for me, a military man to adopt such a comparison. Truthfulness compels me to. I spent thirty- three years and four months in active military service as a member of this country's most agile military force, the Marine Corps. I served in all commissioned ranks from Second Lieutenant to Major-General. And during that period, I spent most of my time being a high class muscle- man for Big Business, for Wall Street and for the Bankers. In short, I was a racketeer, a gangster for capitalism.


I suspected I was just part of a racket at the time. Now I am sure of it. Like all the members of the military profession, I never had a thought of my own until I left the service. My mental faculties remained in suspended animation while I obeyed the orders of higher-ups. This is typical with everyone in the military service.


I helped make Mexico, especially Tampico, safe for American oil interests in 1914. I helped make Haiti and Cuba a decent place for the National City Bank boys to collect revenues in. I helped in the raping of half a dozen Central American republics for the benefits of Wall Street. The record of racketeering is long. I helped purify Nicaragua for the international banking house of Brown Brothers in 1909-1912 (where have I heard that name before?). I brought light to the Dominican Republic for American sugar interests in 1916. In China I helped to see to it that Standard Oil went its way unmolested.


During those years, I had, as the boys in the back room would say, a swell racket. Looking back on it, I feel that I could have given Al Capone a few hints. The best he could do was to operate his racket in three districts. I operated on three continents. [speech] + [book]


[31] Bill Hughes’ disagreement with the anti-conscriptionist Queensland Premier T. J. Ryan lead to Hughes creating the AFP (then Commonwealth Police Force) to suppress dissent. “Commonwealth Police Force”, Wikipedia, @2004-04-09, “During the latter stages of World War I, there was considerable tension within Australian society, particularly over the issue of introducing military conscription. On 29 November 1917, at a public rally over the conscription issue in the rural Queensland township of Warwick, an egg was thrown at Australian Prime Minister Billy Hughes. The offender was charged under Queensland state law, whereas Hughes wanted a Commonwealth charge preferred. The incident, and the perceived lack of action on the part of the Queensland Police, was the last straw for Hughes, who had spent months arguing and fighting with the government of Queensland, led by its anti-conscriptionist Premier T. J. Ryan, over a range of issues. Hughes doubted the loyalty of several prominent Queensland politicians and public servants, and felt that it was necessary to create a Commonwealth Police Force to ensure that Commonwealth law was adhered to in what he regarded as a "rogue" state.”


[32] The Fairlea Five: Jailing Conscription Activists


“Save Our Sons,” Lorena Allam, RN Hindsight, ABC,  2004-11-28, “Save our Sons [The Fairlea Five], “In the closing days of 1964, Prime Minister Robert Menzies introduced a bill in Parliament which would prove to be one of the most controversial and divisive decisions in Australia's history. … In the Australia of the mid 1960s, when most women were non-working housewives and mothers, a group of women calling themselves Save Our Sons broke with convention and took to the streets. They were vehemently opposed to conscription, and the system of sending men to fight in the Vietnam War - a system which Labor opposition leader Arthur Calwell dubbed 'a lottery of death'. … The Save Our Sons movement had representation right around the country, and in 1971, as anti-war sentiment grew within Australia, five SOS members were sent to jail, after they were found guilty of willful trespass for handing out leaflets to young conscripts on their way to Vietnam. Known as the Fairlea Five [named after the Melbourne womens  prison that they were sent to], the imprisonment of these women became a cause celebre, and possibly heightened the numbers of those Australians opposed to both conscription and the war. The women in Save Our Sons were mocked as communists, rabble rousers, naive mothers and neglectful wives. But over a period of ten years, they became some of the most vocal and effective critics against conscription and military engagement, and in doing so, many also found their own political voice.”


[33] Cases in Australia where political speech was denied a free speech defence:


“A blatant attack on democratic rights: Protestors jailed over antiwar sign on Sydney Opera House,” Richard Phillips, WSWS, 2004-02-04. “Two antiwar activists were sentenced last Friday to nine months’ periodic (weekend) detention and ordered to pay $151,000 cleanup costs for writing “No War” in red paint on the Sydney Opera House roof last year in protest against the impending war against Iraq. ...  The two men— [Astrophysicist]  Saunders, 42, and [environmentalist] Dave Burgess, 33—decided to paint the sign on the prominent Australian landmark on March 18, at the height of the international antiwar demonstrations and after the Howard government had fully committed itself to the illegal US-led invasion of Iraq. Television footage of the antiwar slogan was broadcast around the world. ...  Saunders and Burgess said they were deeply troubled about Prime Minister Howard’s denunciation of mass antiwar demonstrations on February 14-16 as a “mob” and felt it necessary to show the rest of the world that a majority of Australian people opposed the planned attack. ... In handing down the sentence, New South Wales District Court Judge Anthony Blackmore claimed that the political character of the protest was “irrelevant” to the malicious damage charges. “Whether it was caused by an irresponsible drunken man or one making a serious political point it makes little difference,” he said ... In the course of the case, Blackmore had prevented Burgess and Saunders presenting to the jury a political defence of their actions. He declared this inadmissible and rejected defence barrister John Doris’ argument that the jury should decide the relevance of any evidence. This virtually guaranteed a guilty verdict.


[Note: Usually I wouldn’t use WSWS as a source because right-leaning readers might assume the source is biased, but this is the most detailed account of their rejected defence that I have found online.]


One might ask why didn’t they drape a placard instead of painting the slogan? Perhaps they knew the police would quickly take it down. Defacing a cultural landmark obviously causes harm, but surely that should have been weighed against the ill they were trying to prevent? The Iraq invasion cost [the US] $1.7 Trillion, killed over 100,000 people and turned out to be fought on bogus grounds (no WMD). Even if Saunders and Burgess didn’t know this at the time, the premise that wars are expensive and cause much death (usually more civilians than soldiers killed) is well established.


Judge Anthony Blackmore wouldn’t allow them to present evidence of a political defence, so it became a case of did they deface a cultural landmark, or didn’t they? On that basis they were convicted, and the jail sentence would act as a strong deterrent to anyone else whom might attempt a similar protest.


“Howard ignored official advice on Iraq's weapons and chose war”, Margaret Swieringa, SMH, 2013-04-12,


“The 'difficult' war: Howard reflects on Iraq,” Michael Brissenden, ABC, 2013-03-28.


“Real cost of US war with Iraq: $1.7 trillion”, Kim Peterson, 2013-03-21.  +


Similarly Judge James Bennett did not allow Customs whistleblower Allan Kessing to present a public interest defence in his case. (“Directing the jury, Judge Bennett had described the evidence as circumstantial but told them not to take into account the public interest argument.” Senator Nick Xenophon later said “The scandal here is that this man, who deserves a medal for the work that he did 10 years ago, was actually persecuted through  the courts, had his life effectively ruined by virtue of being charged under Section 70 of the Crimes Act.” and “How many Australians have overdosed on narcotics as a result of corrupt customs officials allowing those drugs to be brought into the country. How many Australians have been injured or killed as a result of weapons being brought into the country as a result of corrupt Customs officials?”


The jury ignored the public interest defence and convicted Allan Kessing on circumstantial evidence. However evidence has since emerged of a wrongful conviction, but Allan Kessing doesn’t have the money to appeal it:  + +  +


[34] The US Supreme Court test as to when free speech by public servants is protected:


“Pickering still rules roost in First Amendment law,” John Rukavina, Fire Chief, 2002-06-01.


1. A public employee has a protected right under the First Amendment to comment on “matters of public concern,” no matter what the employer thinks.


2. If the employee's comments aren’t on a “matter of public concern,” those comments are not protected. (Most often when the court determines that speech isn’t a matter of public concern, it’s because the court has found that the employee has taken a private grievance public.)


3. If the employee's comments are on a matter of public concern, then the employer must demonstrate that the speech would “potentially interfere with or disrupt the government's activities, and can persuade the court that the potential disruptiveness” outweighs the employee's First Amendment rights.


[35] The “I’ve got nothing to hide” crowd should consider that without anonymity, nurses and doctors cannot safely report hospital malpractice:


“Jayant Patel whistleblower 'treated like a leper' by Queensland Health,” Hedley Thomas, The Australian, 2011-12-16. “The senior nurse who put her career on the line to expose killer surgeon Jayant Patel in one of Australia's worst medical disasters revealed yesterday how Queensland Health and the Bligh government had treated her "like a leper" since she blew the whistle. // Toni Hoffman told The Australian that her career, health and psychiatric wellbeing were now severely affected because bureaucrats and successive ministers caused her to be increasingly shunned and ostracised in the six years since the debacle was exposed.”


“The Mobbing of Lynette Downe at Nepean Hospital,” Westmead Hospital Whistleblowers, @2014-04-12, “There appears to be an ongoing lack of accountability, transparency and governance at Sydney West Area Health Authority as shown by the  bullying and reprisals against Dr Downe, the one doctor who was willing  to speak out for the her patients.”


“Nurses involved in whistleblowing incidents: Sequelae for their families,” Lesley M. Wilkes, Kath Peters, Roslyn Weaver, Debra Jackson. 2010-11-18 “Nurses involved in whistleblowing often face economic and emotional retaliation, victimization and abuse. Yet for many nurses, one major part of their whistleblowing experience is the negative impact it has on their families. This paper reports findings from a qualitative study pertaining to the effects of whistleblowing on family life from the perspective of the nurses. Using a narrative inquiry approach, fourteen nurses were interviewed who were directly involved in whistleblowing complaints. Data analysis drew out three themes: strained relationships with family members, dislocation of family life, and exposing family to public scrutiny. The harm caused to the nurses involved in a whistleblowing event is not restricted to one party but to all those involved, as the harrowing experience and its consequences are echoed in the family life as well. It is important for organizations to seek strategies that will minimize the harmful effects on nurses’ families during whistleblowing events.”


If these nurses and doctors kept silent, patients would still be dying. Yet these nurses and doctors would have clearly been better off if they had remained silent. Their abuse will surely discourage other nurses and doctors from coming forward in the future. In theory they can use formal complaints channels, but in practice Brian Martin has found ‘Formal channels [including the courts] don’t work when challenging a more powerful person or organisation.’ In those few cases where the complaint is ultimately acted on, the whistleblower and their family suffers abuse. Thus the only safe way for a whistleblower to report corruption is to do so anonymously.


Members of the public who remain politically disengaged and do not actively support medical whistleblowers are putting the health and safety of themselves and their family in mortal danger everytime they enter a hospital.


In theory the public can delegate their civic responsibilities to politicians, but in practice politicians (except for independents) look after their own interests, and those of their party and donors. Their constituents come a distant fourth, if they come anywhere at all. Victims of government abuse who approach politicians are shocked to discover most representatives have absolutely no interest in them at all. Citizens must accept the best person to fight for their own rights are themselves. US Supreme Court Justice Brandeis: “[T]he greatest menace to freedom is an inert people”


Mar 24 “gary kurzer ‏@hyperhedonist: if there is even one honest, decent politician on twitter prepared to represent citizens, please contact me. The silence is eerie.” +


[36] 2013-08-29: An Open Letter to the Public Service Commissioner concerning Systemic Corruption in the Australian Public Service. The case of Allan Kessing. In your speech you described Whistleblower Allan Kessing to your audience as a man who leaked material concerning security operations in the Australian Customs and Border Protection Service, and how he was “successfully prosecuted under Section 70 of the Crimes Act.” // Anyone who only had this description to go off might think Mr. Kessing some sort of miscreant. // You did not tell your audience that Mr. Kessing was charged for reporting corruption at Sydney Airport the government had failed to act on, or that he said “It is not possible, it is simply not credible to say that nobody knew there was this extent of corruption. Anybody who has the slightest experience of this area knew there were problems. The fact that they haven’t been acted on until now begs the question, why?” // Nor did you tell your audience that following his reports a drug ring (which included corrupt customs officials) was busted, or that a threat to airport security which could have been used to mount a terrorist attack on Australians was closed


[37] “Still life with Kennedy”, Joyce Morgan, SMH. 2003-05-26. “[National Gallery of Australia Director Brian] Kennedy's tenure has been dogged by claims and counter claims of sick building syndrome and damage to art works as a result of the air-conditioning system.The contents of the report, prepared for the Government's workplace safety adviser, Comcare, by an independent Adelaide engineer, Bob Wray, of DLI Safety Services, are being closely guarded. … But it comes as the gallery warned staff this month they could face jail terms if they release information to the public. The head of human resource management, Tony Rhynehart, told staff in a memo that they should not "communicate gallery information or express personal views about gallery operations to members of the media without the express permission of the director". // It reminded them that two years' jail was the penalty for breaching section 70 of the Crimes Act 1914 by which Commonwealth officers are bound.”


[38] 2014-04-08 Letter from Michaela Banerji to Attorney-General George Brandis QC, The Constitutionally Implied Freedom of Political Communication for Public Servants … You will be aware of the case of Michaela Banerji who was sacked from the Department of Immigration in September 2013 for breach of Code of Conduct for having used the social media platform “Twitter” to highlight the Australian Government’s responsibilities under the Refugee Convention towards asylum seeker. It was my view that the breach decision was void on the grounds that all Australian citizens, whether a public servant or not, have a constitutionally implied freedom of political communication. in their capacity as private citizens, to criticise government. … My case was to test this principle. However, as things turned out, the public interest organisation that was representing me was not prepared to argue the constitutional point on the grounds that it would expose me to potentially enduring legal process and huge legal costs. On its advice that it would be in my interest to end the litigation, the parties reached an out of court settlement in March 2014. … This is a most unsatisfactory situation which is creating a great deal of anxiety amongst those of us who take the view that such a freedom is absolutely essential to the proper functioning of a democracy.”


[39] “Public service keeps fraud cases private”, 2011-09-24, SMH, Linton Besser, “A code of silence surrounds graft accusations in Canberra.”


[40] “Our costly complacency on corruption”, Stephen Bartos, 2013-03-05, SMH, It is possible - no matter how great the present level of denial might be - that a federal equivalent of the NSW commission would reveal a high level of corruption. In the short term, this would tarnish Australia's reputation. But consider how much better that would be than having hidden corruption grow until finally it erupts in a scandal so gross that nobody can sweep it aside.”


[41] Steve Davies, Media Briefing, Ozloop, 2014-03-17, “Decent Australians are being bullied and destroyed by the predatory abuse of power by Australian Public Service agencies. … The Australian Government needs to compel public service agencies to obey the law, follow their own code of conduct and stop using taxpayers money to fund abusive practices..”


[42] 2014-02-06. Royal Petition concerning Crime and Corruption within the Australian Public Service.


[43] Speech by Public Service Commissioner Steve Sedgwick, National Portrait Gallery, 2013-07-30:


[44] 2013-08-29: An Open Letter to the Public Service Commissioner concerning Systemic Corruption in the Australian Public Service. “In your speech you say Confidentiality is necessary to preserve the “relationship of trust that must exist between ministers and the APS. Preservation of this relationship is essential in maintaining the APS’s tradition of impartiality and its reputation for being apolitical and professional.” But neither of these cases were about preserving the “relationship of trust that must exist between ministers and the APS.” They were about using Section 70 to conceal corruption and maladministration.


[45] Whistleblower's Kafkaesque saga a must-see,” Chris Merritt, The Australian, 2009-11-20. “It is the story of a shameful law and the ease with which governments and bureaucrats can use the Australian Federal Police and the justice system to prevent the community from learning about their ineptitude.”


[46] “Why Australian Public Servants need Free Speech,” Brendan Jones, 2014-03-26. Australian Public Servants need Free Speech.html


[47] “The Whistleblowers’ guide to Journalists”, Brendan Jones, 2013.
“Favours such as tips or an exclusive interview can create a strong sense of mutual obligation in a journalist. Just meeting a man, shaking hands and exchanging pleasantries can disincline a journalist from publishing information which could destroy his career, or even just make him cross. // A reporter who relies on a source for easy information must look the other way when the source is involved in dubious practices. Evan Whitton calls such a journalist ‘a prisoner of the source’ which is why for example ‘investigative reporting into police has got to be done from outside traditional police reporting.’ // It’s worth noting that the story of endemic corruption within the Commonwealth Public Service was not broken by a Canberra journalist, but by an investigative journalist in Sydney. // Although the government publicly attacked the credibility of his reports, there was no follow-up nor support from Canberra-based journalists. Labor Minister for the Public Service Gary Gray appeared to drive a wedge when he said: “This week The Canberra Times referred to a number of allegations about fraud, corruption and misconduct in the public service, which were previously reported in the Sydney Morning Herald. The Canberra Times rightly pointed out that there is no evidence of endemic corruption, or a culture of complacency, in the APS [Australian Public Service]. Correctly, The Canberra Times argued that sufficient anti-corruption systems exist and acknowledged that there is no need for an independent corruption commission like those that exist in New South Wales and Western Australia.” // Steve Davies of Ozloop says: “I am perplexed at the degree of passive reporting by The Canberra Times. In my opinion, much reporting is effectively a rehash of the APS ‘party line’. The media needs to understand criticising the public service is not the same as criticising the government. Self-censorship damages all these institutions.””


[48] “Where angels fear to tread”, Kate McClymont, SMH, May 4, 2013. “Chris Masters said "Journalists and broadcasters are just not going to do stories when defamation proceedings become as arduous and lengthy as this one was."


[49] “Suppression Stories,” Brian Martin, University of Wollongong, 1997,  ISBN 0 646 30349 X, ‘Formal channels [including the courts] don’t work when challenging a more powerful person or organisation.’


[50] 2014-03-25, Letter from Brendan Jones to Senator-elect Jacquie Lambie regarding General Hurley’s warning for Senator-elect Lambie not to criticise the military in the media: “You may wonder why a public servant would address an elected representative such as yourself using patronising and condescending language. Like most Australians, I believed we lived in a Democracy where public servants are accountable to elected politicians. After four years dealing with both I have come to realise that is not the case. Antony Jay, Creator of Yes Minister recently explained: “The central anomaly is that civil servants have years of experience, jobs for life, and a budget of hundreds of billions of pounds, while ministers have, usually, little or no experience of the job and could be kicked out tomorrow. After researching and writing 44 episodes and a play, I find government much easier to understand by looking at ministers as public relations consultants to the real government – which is, of course, the Civil Service.” Neither Labor nor Liberal politicians will challenge public servants, no matter what they’ve done: [… examples provided]”


[51] Justice Thurgood Marshall concurring in Rankin Et Al. V. McPherson.


[52] “Colleagues told: Dob in political web posts”, Samantha Maiden, The Sunday Telegraph, 2014-04-06.


Tim Wilson: “Anonymity should not justify exemptions because it can be connected back to the individual and their work”. But the irony here is having said that, the policy encourages public servants to violate anonymity by dobbing each other in. Samantha Maiden’s Article: “Colleagues will also be encouraged to dob in each other. [Policy:] “If an employee becomes aware of another employee who is engaging in conduct that may breach this policy, there is an expectation that the employee will report the conduct to the ­department,’’ the policy states.“ “This means that if you receive or become aware of a social media communication by another PM & C employee that is not consistent with this policy, you should advise that person accordingly and inform your supervisor.”


[53] US Supreme Court Justice Stevens concurring McIntyre v. Ohio Elections Commission.


[54] The importance of anonymous speech: In striking down the law, the court considered some important reasons to allow anonymous speech that weighed in their decision: 1) Enhance authority – “Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.” // 2) Encourage open discourse – “The interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.” // 3) Safety from retaliation – “The decision in favor of anonymity may be motivated by fear of economic of official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible.””


[55]  “Narrow focus confuses intent”, Tim Wilson, The Australian, 2014-01-23, “First, human rights as universal individual birthrights; second, human rights are designed to stop the abuse of government power over the individual. It’s out of this tradition that Australia’s common law rights evolved.  Similarly, it’s only with this history that Australians can understand the social contract that gives government legitimacy is coupled with human rights to put a brake on its excesses.”


[56] James M. Farrell, “The Child Independence is Born: James Otis and Writs of Assistance,” 2014.


[57] “The Writs of Assistance and the NSA”, The Tenth Amendment Center, @2014-04-08. A young John Adams was so moved by the persuasive power of Otis’s words, he wrote: “American independence was then and there born. The seeds of patriots and heroes, to defend the vigorous youth, were then and there sown. Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance…Mr. Otis’s oration against Writs of Assistance, breathed into this nation the breath of life.” 


[58] Abraham Lincoln: “We, the people are the rightful masters of both Congress and the courts not to overthrow the Constitution, but to overthrow men who pervert the Constitution.”


[59] The right against unreasonable search and seizure: US c.f. Britain, Canada, Australia: “Our Corrupt Legal System”, Evan Whitton, pp. 191 “British judges tend to let the evidence in if it is reliable. Australian judges have been supposed to let the evidence in since Bunning v. Cross  (High Court, 1978), if it is reliable and if the investigators’ misbehaviour is less vile than the crime alleged. A similar rule applies in Canada.”


c.f. The 4th Amendment of the US Constitution: “The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights that prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. It was adopted in response to the abuse of the writ of assistance, a type of general search warrant issued by the British government and a major source of tension in pre-Revolutionary America.”


[60] “Why ASIO cannot be trusted with more surveillance powers”, Brendan Jones @2014-04-08,


[61] “How the DTCA threatens Aussie High-tech companies”, Brendan Jones, @2014-04-08, “Public servants in the Attorney-General's Department have eroded Australians' right to privacy. Last year, even before the PRISM revelations, Fairfax revealed that public servants have warrantless access to our communications and physical location (via our mobile phones). These include not just law enforcement as you'd expect, but the Tax Office, Immigration, Defence, Health and Ageing, Medicare, state and local government and even the RSPCA. Monitoring includes phone and internet account information, outwards and inwards call details, internet access, and details of websites visited. // Public servants make 300,000 such accesses per year. Public servants can be junior and no warrant is required. The citizen targeted is not notified their personal data has been viewed. Although this is only supposed to have limited uses, experience has shown confidential data will be abused by public servants for extralegal purposes, economic advantage, commercial advantage, economic espionage, persecuting whistleblowers, monitoring journalists, and personal reasons including titillation, invasion of privacy and stalking. // Forcing high-tech companies to reveal encryption, telecommunications and IT security will allowing increased monitoring. Labor Attorney-General Nicola Roxon claimed mass surveillance is needed to reduce crime, but if that were true why did she not express concern at endemic crime in the public service? (Letter to Nicola Roxon: May 14, 2012) Roxon also moved to eliminate anonymity on the Internet, making it harder to criticise the government, report corruption and maladministration. // Access to police databases at least has some level of oversight, but if Defence abuse surveillance databases for commercial advantage no one would know anything about it. Neither the Defence complaints unit, the public service, the AFP, nor the oversight agencies have been shown capable of policing the department.”


[62] If Mr. Abbott did something “harsh or extreme” which upset Tim Wilson, would he give up his $300K+ a year job just so he could voice his opinion?


[63] “Tony Abbott bounces back as union woes hit Bill Shorten in latest poll”, Mark Kenny, SMH, 2014-02-17.

Tony Abbott: 45% Approval Rating, 47% Disapproval Rating.


[64] “Why does Australia promote secrecy by restricting free speech?” 2001-06-03, Crikey Editorial, “Australia has the most restrictive defamation laws of any English speaking country after Singapore.”


[65] “Do we have the right to freedom of speech in Australia?”, Find Law, @2014-04-08. First, let’s get the easy part out of the way: Australia does not have an explicit First Amendment equivalent enshrining the protection of freedom of speech in our Constitution. … The majority in the High Court held that there was indeed an implied freedom of political communication in the Constitution, basing their decision on the representative nature of our democracy. … However, it was the matter of Theophanous v. Herald & Weekly Times (1994) 182 CLR 104 where the implied freedom of political communication was truly turned on its head, with the High Court allowing a “constitutional defence” to be put forward regarding an action of defamation.  … “[t]hose sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.”

Note: The above summary doesn’t adequately explain the complexity of the our implied freedom of political communication. Unlike Americans who have a clear understanding of what free speech is and only need judicial interpretation on the most borderline of cases, it’s impossible for the average Australian to know what they can say without hiring a lawyer at considerable expense ($230-$500 per hour) to vet their statements, and then having the funds to defend them against a defamation action in the courts. People have been sued for all kind of things. For example, former Liberal Minister Ian MacPhee “used his own law firm Corrs Chambers Westgarth to sue former CASA chairman Dick Smith for bagging the McPhee approach to aviation safety.”


You would think a discussion of aviation safety would most definitely be in the public interest.


This uncertainty that you might be sued, charged or attacked by powerful interests creates a chilling effect on free speech; It’s safer for a person not to say anything.


Further the British costs system used in Australian courts means people can’t afford to escalate their case to the High Court. Michaela Banerji, the public servant sacked for anonymously twittering her political opinion on her own equipment on her own time could not afford a High Court Appeal. What is the point of having an ‘implied right’ if you cannot afford to ask the courts to uphold it?


[66] Towing back refugee boats in breach of international law:

“Asylum seeker boat push-backs may breach international laws, UN warns,” ABC, 2014-02-04,


“UN Refugee Agency says Australia may be breaching international law,” News Limited, 2014-01-11. “The United Nation's refugee agency says the Abbott Government's policy of towing or turning back boats may breach Australia's obligations under international law. Spokesman for the United Nations Refugee Agency (UNHCR) Babar Baloch says the organisation is seeking an explanation from the Australian government over reports a number of asylum-seeker boats have been returned to Indonesian waters.”


[67] The Manus Refugee Camp:

“The truth about Manus Island: 2013 report”, Amnesty International, 2013-12-11.


“Manus Island: One dead, 77 injured and person shot in buttock at Australian asylum centre,” Helen Davidson, Oliver Laughland, The Guardian, 2014-02-19,


“Manus Island's $3.5m kitchen in a tent,” Ben Butler, Rory Callinan and Georgia Wilkins, SMH, 2014-03-01. “A mysteriously costly field kitchen is a tiny part of the billions that the federal government spends on immigration detention Whatever it paid for, the $3.5 million is only a tiny fraction of the billions the federal government spends on the immigration detention system, which now supports an ecosystem of contractors, sub-contractors, workers and suppliers. Among them four big service companies - G4S, Serco, Transfield and Toll - have between them reaped contracts worth more than $5.6 billion from the Department of Immigration.”


[68] Dumping Three Million cubic metres of sludge into the waters of the Great Barrier Reef: “Death by sludge, coal and climate change for Great Barrier Reef?,” Graham Readfearn, The Guardian, 2014-01-31, “Authorities approve plans to dump three million cubic metres of dredge spoil into waters of already at-risk reef.”


“Grief for Great Barrier Reef, say environmentalists,” Tom Arup, Andrew Darby, SMH, 2014-02-01. “In a long-awaited decision, the Great Barrier Reef Marine Park Authority allowed the North Queensland Bulk Ports Corporation to dump three million cubic metres of dredge spoil in reef waters as part of its expansion of the Abbot Point coal terminal, north of Bowen.”


[69] Revoking World Heritage Protection for Tasmanian forests:

“Tony Abbott's bid to delist Tasmania's World Heritage forests tipped to fail,” Andrew Darby, 2014-02-04


[70] “Western Australia's shark cull will hit breeding stock of great whites,” Nicholas Ray, The Guardian, 2014-02-24,


[71] Climate Change:


“British publisher catalogues Tony Abbott's failings on the Australian environment,” Matt Young, News Limited, 2014-02-07,


[72] 2014 IPCC Summary,


[73] Reintroducing Knighthoods:


“Tony Abbott battered and ridiculed over knighthoods and changes to Racial Discrimination Act,” Malcolm Farr, News Limited, 2014-03-27,


“Tony Abbott living in the past by restoring knights and dames, say critics,” Jarded Owens, The Australian, 2014-03-26


Fortifying The Bunyip Aristocracy: Tocqueville, Wentworth and 1850s Australia,” Dr David Headon, Director Centre for Australian Cultural Studies Canberra.  Deniehy’s speech in support of the resolution is now regarded as one of the most memorable in Australian political history, as he paraded a selection of the Legislative Council's most eminent members imaginatively before his audience, These were men opposed to 'the very dearest interests' of the citizenry of New South Wales, men who brought 'contempt' on the country. Deniehy expressed his puzzlement as to how he might categorise them exactly. They were not like the grandees of Spain, who at least had 'antiquity of birth'. These men, he declared, were nothing more than a 'bunyip aristocracy', inferior 'political oligarchs' who 'treated the people at large as if they were cattle to be bought and sold in the market'. If New South Wales were to have an aristocracy, he concluded, let it not resemble 'that of William the Bastard but of Jack the Strapper' (Headon and Perkins 1998). The crowd loved it, according to the report of the conservative Sydney Morning Herald, responding with 'Great laughter', 'Great cheering', 'Vehement and prolonged applause'.”


“Daniel Henry Deniehy was an Australian journalist, orator and politician; and early advocate of democracy in colonial New South Wales.”


[74] Australia 'running out of money' for Medicare: Hockey,” SMH, 2014-02-21.


[75] “Medibank sale the first budget fix,” David Crowe, The Australian, 2013-10-23.


[76] 2014-02-06. Royal Petition concerning Crime and Corruption within the Australian Public Service.

2013-12-03 Multijurisdictional State & Federal Crime Report: DSTO (CONFIDENTIAL - Qualified Privilege), To: Australian Commission for Law Enforcement Integrity, VIC Office of Public Prosecutions, VIC Police Force, NSW Police Force, NSW Office of the Director of Public Prosecutions cc: Prime Minister Tony Abbott, Senator the Hon George Brandis QC, The Hon Joe Hockey MP - Treasurer, Senator the Hon David Johnston - Defence Minister, The Hon Stuart Robert MP - Assistant Defence Minister, The Hon Michael Keenan MP - Justice Minister.


[76] 2011-07-04 From Brendan Jones to Dr. Ian Watt, Secretary of Defence


[77] “Public service keeps fraud cases private”, Linton Besser, SMH, 2011-09-24, “Confidential files obtained using freedom of information show thousands of allegations of graft and abuse of office are being levelled against government staff each year - but only a handful are properly investigated.”


“Federal agencies lack firepower to deal with fraud”, Linton Besser, SMH, 2011-10-03. “An unknown number of corruption cases lie undiscovered inside the vast Commonwealth bureaucracy”,  


“Our costly complacency on corruption”, Stephen Bartos, 2013-03-05, SMH, “It is possible - no matter how great the present level of denial might be - that a federal equivalent of the NSW commission would reveal a high level of corruption. In the short term, this would tarnish Australia's reputation. But consider how much better that would be than having hidden corruption grow until finally it erupts in a scandal so gross that nobody can sweep it aside”.


[78] Public fraud costing $19B per year:  2013-08-29: An Open Letter to the Public Service Commissioner concerning Systemic Corruption in the Australian Public Service.


[79] Antagonising Indonesia:


“Tony Abbott rejects Indonesia's call for spying apology, calls for cool heads amid diplomatic row,” Emma Griffiths, ABC, 2013-11-19. “Australia's diplomatic row with Indonesia shows no sign of abating, with Prime Minister Tony Abbott refusing to apologise over revelations that Australia tried to tap president Susilo Bambang Yudhoyono's phone.”


“Australian navy went into Indonesian waters 'too easily' and 'often',” Kate Lamb in Jakarta and Oliver Laughland in Sydney, The Guardian, 2014-02-14. “Indonesian navy says incursions were occurring ‘more and more often’ before 6 January incident”


“Retired naval commander baffled by navy's explanation for entering Indonesian waters,” Tom Allard, SMH, 2014-03-03.


[80] Bullying Timor: “ASIO raids designed to show Timor who's boss,” Frank Brennan, 2013-12-05, “Tuesday's ASIO raid on the offices of lawyer Bernard Collaery was the latest ham-fisted Australian attempt to put the Timorese in their place.”


[81] A failure to act against officials who allegedly criminally supplied ASIO intelligence to Liberal Party donor Woodside:


Although it is not against Australian law for ASIO to collect intelligence, a public official supplying that information to another party for their financial benefit has breached Section 142.2 of the Criminal Code Act 1995, punishable by 5 years imprisonment:


142.2 Abuse of public office

(1) A Commonwealth public official is guilty of an offence if:

(a) the official:

(i) exercises any influence that the official has in the official’s capacity as a Commonwealth public official; or

(ii) engages in any conduct in the exercise of the official’s duties as a Commonwealth public official; or

(iii) uses any information that the official has obtained in the official’s capacity as a Commonwealth public official;


(b) the official does so with the intention of:

(i) dishonestly obtaining a benefit for himself or herself or for another person; or

(ii) dishonestly causing a detriment to another person.

Penalty: Imprisonment for 5 years.


Although a whistleblower reported the offence to the Inspector General of Intelligence and Security, they refused to take any action:


“Intelligence agency failed to investigate spying claims, lawyer Bernard Collaery claims,” Tom Allard, SMH, 2013-12-05. “The former senior spy who blew the whistle on alleged Australian bugging of East Timor's government took his case to the intelligence watchdog but it did not investigate and advised him to get a lawyer if he wanted to take the matter further.


“East Timor spying scandal: Tony Abbott defends ASIO raids on lawyer Bernard Collaery's offices,” ABC, 2013-12-04.


[82] “Australia's political donations: who gives and gets the most?” Simon Rogers, The Guardian, 2013-05-28.


[83] “The complex web of how money gets to Labor and the Coalition”, Nick Evershed, The Guardian, 2014-03-31.


[84] The promise of a “freedom agenda”:


“Shadow AG Brandis v. ‘ideologues’”, Speech: George Brandis, 2013. “What would justice look like under the Liberal-National Coalition? Here Shadow AG George Brandis lays down his ‘new-old’ angle on the liberties/rights law of the land. The very term “human rights” has been appropriated by the Left, as if human rights advocacy were a left-wing cause. The truth is that the human rights debate is both broader and more sophisticated than certain of its more voluble advocates are willing to admit. ...  My approach to the human rights debate starts with the proposition that human rights and individual rights are synonymous. No debate about human rights makes any sense unless we first recognize that rights are moral claims inhering in individual men and women (and, in certain circumstances, in corporations as well). I represent the only political party in the Australian Parliament which was brought into being for the very purpose of advancing and protecting the rights of the individual.”


[85] Increased public surveillance: “Attorney-General’s moves fast on new telco security arrangements,” Bernard Keane, 2014-04-03.


[86] Increased restrictions on freedom of speech: “Colleagues told: Dob in political web posts”, Samantha Maiden, The Sunday Telegraph, 2014-04-06.


“A restriction on secondary boycotts is a restriction on free speech,” Simon Breheny, The Guardian, 2014-04-04. “Proposed changes to restrict secondary boycotts run counter to the Abbott government’s stated 'freedom agenda' – but special treatment should not be awarded to environmental groups”


[87] “Tony Abbott bounces back as union woes hit Bill Shorten in latest poll”, Mark Kenny, SMH, 2014-02-17. Tony Abbott: 45% Approval Rating, 47% Disapproval Rating.


[88] An example of a policy not being revealed until after the election:


“No Coalition policy on data retention, copyright infringement,” Josh Taylor, ZDNet, “Australia's Shadow Attorney-General George Brandis has told ZDNet that Coalition policy on data retention and copyright infringement will be decided after the election, if the party forms government.”


“Push for Australians' web browsing histories to be stored”, David Wroe, Ben Grubb, SMH, 2014-03-17.


“Attorney-General’s moves fast on new telco security arrangements”, Bernard Keane, Crikey, 2014-04-03. “Within weeks of George Brandis being appointed Attorney-General in September, his department began a concerted push to obtain his approval for the development of a package of reforms along the lines proposed by then-attorney-general Nicola Roxon in 2012, starting with an industry consultation process. Documents obtained under the Freedom of Information Act by Crikey (large PDF)  — heavily redacted or exempted — show the department eager to use the report of Parliament’s Joint Committee on Intelligence and Security as a “road map” to implement over 40 reforms.”


[89] “WA Senate election results show swing away from major parties” ABC, 2014-04-06. “The Greens and the Palmer United Party (PUP) have emerged as the big winners after Western Australia's Senate election re-run.”


[90] “WA Senate count shows swing to Greens, PUP,” Rebecca Le May , SMH, 2014-04-06.


[91] With 67% of vote counted in the WA Senate Election: LNP only received 37% primary preferences, but (ALP=21% PUP=12.5% GRN=16% OTH=14%)=62.5%  @2014-04-06


[92] That is, he is enacting policies which the public were never given an opportunity to vote on, and which having been revealed appear to have sapped public support for him as show in the WA Senate Election.


[93] A public servant (who previously failed to act on crime and corruption) claims public servants are under threat from the public:

“The Australian Public Service thinks the barbarians are at the gate”, Steve Davies, Ozloop, 2013-10-29. “As stated in the Canberra Times piece Do public servants need protection from the public online? ‘Previous reported cases of cyber-bullying in the public service have involved bureaucrats harassing one another or public figures, but the commission believes that the nation's public servants now face a clear-and present danger from external cyber-bullies.’ A clear and present danger. Really? No. What is evident in much of this guide is that it’s an attempt to chill public discussion. To create a climate of fear uncertainty and doubt among members of the public who dare to criticise the public service. Make no mistake, this is the flip slide of the efforts silence public servants. To stop them from engaging online.”


[94] “Do public servants need protection from the public online?” 2013-10-24, The commission's acting Merit Protection Commissioner Karin Fisher told The Canberra Times she had not seen any cases of “extreme” threats and that the most common form of harassment was blogs set up to harass public servants. “Dealing with members of the public and what might be viewed as hostile or unacceptable behaviour from members of the public is not a new issue," she said. “What is new is the online nature of it.” “What this circular is about is a preventative measure to give agencies some assistance to help protect their employees if their interactions with members of the public online could be distressing for them or harmful.”


[95] What is telling here is that Karin Fisher was herself the APSC Ethics Manager and author of a letter responding for Public Service Commissioner Stephen Sedgwick refusing to take any action on crimes and corruption by senior public servants. A legal academic who with a QC reviewed this said: “I thought the responses (actually non-responses) you had from the APSC and  Karin Fisher in particular were very offensive. And wrong on the facts to boot - as you pointed out.” On 2014-01-21 this was raised with the incoming Liberal Public Service Minister Eric Abetz who claimed he was powerless to intervene.


2014-01-21 From Assisting LNP Public Service Minister Eric Abetz to Brendan Jones


2013-04-27 Response from Karin Fisher on behalf of Public Service Commissioner Stephen Sedgwick and comparison of statements by the PSC and Public Service Minister regarding APS accountability.


[96] “DIBP Australia: ‏@DIBPAustralia: @VanessaPowell25 it’s come to our attention that a Facebook post on your wall contains an offensive remark directed at a staff member.1/2”

“DIBP Australia: ‏@DIBPAustralia:  If you do not remove your Facebook post with immediate effect, we will consider our options further. 2/2” 


[97] “Government cyber snoops scouring social media,” Noel Towell and Amy McNeilage, Canberra Times, 2014-04-11. “Federal government departments are using increasingly powerful cyber-snooping equipment to monitor the social media lives of millions of Australians. A dramatic public confrontation between the Immigration Department and a Sydney political activist over her Facebook page has resulted in accusations that mass-electronic surveillance is being used to keep tabs on political dissent. Other large government departments including Centrelink, Defence and Social Services have done mass monitoring of social media activity. Centrelink's parent agency, the mammoth Department of Human Services, even has its own software, developed by the CSIRO and operated by a social media team of 10 public servants. // The Department of Immigration and Border Protection (DIBP) hires private sector contractors who can monitor more than half-a-billion ''pieces'' of social media each day on sites like Facebook, Twitter, YouTube, Pinterest, Flickr and blogs. Several commercially available social media-tracking platforms, some of them in routine use by public service online media teams, can easily track the web activities of protest groups and their individual members. Immigration experimented several years ago with powerful software called Radian6, which can provide surveillance across a range of social web platforms, but decided not to adopt the application for in-house use. The department's key research contractor said the monitoring undertaken for Immigration was about ''taking the temperature of society'' and that no reputable research company would help government departments compile ''hit lists'' of political opponents. // But pro-asylum seeker campaigner Vanessa Powell said she was intimidated and threatened when the DIBP tweeted her about an ''offensive remark'' it said should be removed from her Facebook thread immediately or the government would ''consider our options further''. ''I felt quite intimidated and threatened as well because I didn't know what action they were referring to when they said 'we will consider our options further','' Ms Powell said. When she identified the post in question - a comment using ''foul language'' a friend made about a photograph of a protest at a Sydney detention centre - she removed it. ''I was shocked that they were actively monitoring my account because it's just my personal page,'' Ms Powell said. ''They have no right to be spying on members on the public.''


[98] “Immigration department publicly bullies refugee advocate”, UKnowISpeakSense (Blog), 2014-04-06,


[99] “Whistleblowers And Secrecy – Ethical Emissaries from the Public Sect[or]”,  Dr William De Maria, 1995. This particular paper predates the Abbott government, but it is an interesting expose on how Australian governments use mock secrecy to limit free speech by public servants on matters of public interest and concern.


[100] Abbott government considers banning secondary boycotts:


“Australian government may ban environmental boycotts”, Lenore Taylor, The Guardian, 2013-04-03, “Coalition MPs and industry groups are using a review of competition laws to push for a ban on campaigns against companies on the grounds that they are selling products that damage the environment, for example by using old-growth timber or overfished seafood.”


“A restriction on secondary boycotts is a restriction on free speech”, Simon Breheny, The Guardian, 2014-04-04,


[101] On writing with feigned calm and dispassion about harsh or extreme events: “Green Light for War Crimes,” Noam Chomsky, The Little Magazine, May 2000, “It is not easy to write with feigned calm and dispassion about the events that unfolded in East Timor in 1999. Horror and shame are compounded by the fact that the crimes are so familiar and could so easily have been terminated.”


[102] Apr 6: “@JohnBirmingham: No, @TonyAbbottMHR isn’t being Gestapo-like ordering public servants to inform on each other. That’s not fair. He’s more STASI-like I’d say.”

Apr 5: “@geeksrulz UnAussie Govt wants Aussies to dob on each other. #Stasi #auspol #insiders #wavotes

Apr 6: “@DuncanWatson8: @JohnBirmingham @TonyAbbottMHR STASI is dead. Long live STASIO!”

Apr 7: “@mkentwell Apparently we are in a police state where people are monitored - who said Stasi?  … #auspol”

Apr 7: “@zippydazipster So we should spy on our coworkers now... Stasi anyone? Freedom of speech?? This is why having a pseudonym is still important.. #auspol”

Apr 9: “‏@roshart: It's always good when your HR policies feel like they're from a Stasi handbook. @GrogsGamut … via @abcthedrum #auspol”

Apr 7 “@milo_speaks Abbott has tried everything to control social media including buying followers and trolls. Now it's Stasi dob-in-a-mate intimidation #auspol”

Apr 7 “@clearticulation @DIBPAustralia You are sounding, behaving like the Stasi. Not in my name! @VanessaPowell25 #auspol”

Apr 7 “@Diddoms  In 18 days time media will B full of stories about Aussie mateship. PM will be waxing lyrical. 2Day he wants us to be Stasi dobbers #auspol”

Apr 6 “@ChazFH  Whilst I can understand that APS is meant to be apolitical, this Stasi-esque methodology by the Govt is obscene #auspol”

Apr 6 “@Stefenmac Have to admit Australian governments of both persuasions seem to be evolving into something that looks very Stasi-like. #auspol”

Apr 5: “@booboo397 @JustJen64 I think what is unAustralian is to ask people to report their work colleagues for being everyday Australians #auspol #Stasi”

Apr 5: “@k4_kennedy  @NewsAustralia @DIBPAustralia What?! What was post about? ASIO must be very busy! Or is that 'STASIO' -our own Stasi?”

Apr 5: “@dopsdingers Apr 5 Public servants beware of @TonyAbbottMHR's Stasi #StasiStyle #auspol”

Apr 5: “@elronxenu  Will it be a breach of the Public Service Code of Conduct to fail to report colleagues' criticism of the government? #auspol [A new Stasi]”


“Nothing to 'like' about social media gag,” Greg Jericho, SBS, 2014-04-09. “Departments now can build up dossiers of tweets and blog posts. Under a new HR policy that could have been borrowed from the Stasi, public servants now have to think twice before clicking "like" on a Facebook post criticising the Federal Government, writes Greg Jericho...”


[103]  Even though Tim Wilson has said it “is factually inaccurate” to say he "backed the reforms", he has not offered any explicit criticism of the code, or if he has, everyone including Samantha Maiden, Jenna Price and everyone I saw who responded to his words on social media has misunderstood him. [25] [26]


[104] A despotic government is a government in which the rulers have absolute, unchecked power. In theory, there are many checks on government power in Australia. In practice, those checks are not enforced: Corruption expert Howard Whitton said: ‘Systemic corruption is corrupt conduct which undermines a system which is put in place to ensure integrity. … Systemic corruption is real in Australia, and I think that ICAC has demonstrated that it is very widespread.’

Despotism”, Wikipedia, @2014-04-11, “Despotism is a form of government in which a single entity rules with absolute power. That entity may be an individual, as in an autocracy, or it may be a group, as in an oligarchy. The word despotism means to "rule in the fashion of a despot" and does not necessarily require a singular "despot", an individual.”,

Absolute Power: total control; The ability to exercise power without being accountable to anyone.

Lord Action said “Power tends to corrupt, and absolute power corrupts absolutely.”
Sir David Smith, KCVO, AO: “So the real question is not at all how much power does the Governor-General himself have or exercise, but rather how much absolute power does his presence in our system of government deny to those who are in Government …” 
But Governor-General Sir Peter Cosgrove says he will stay out of political debate, saying “I think your responsibility is to shine light but not generate heat. I think you've got to listen a lot, and take in everything you see. But you're not a participant in the political process.”

Victims of government abuse are denied access to criminal justice:, civil justice: and justice through administrative channels; Their only avenue left to them is to alert fellow citizens through freedom of speech.


Criminality in the government: As defined by the many cases where public officials and politicians have committed breaches under Criminal law, some the circumstances of which have even been reported prominently, yet never been investigated let alone prosecuted by the AFP or challenged by Parliament.


Also this: 2013-12-03 Multijurisdictional State & Federal Crime Report: DSTO (CONFIDENTIAL - Qualified Privilege), To: Australian Commission for Law Enforcement Integrity, VIC Office of Public Prosecutions, VIC Police Force, NSW Police Force, NSW Office of the Director of Public Prosecutions cc: Prime Minister Tony Abbott, Senator the Hon George Brandis QC, The Hon Joe Hockey MP - Treasurer, Senator the Hon David Johnston - Defence Minister, The Hon Stuart Robert MP - Assistant Defence Minister, The Hon Michael Keenan MP - Justice Minister.


[105] The danger of banning speech which is subjectively offensive (I):

“Funerals, Fire, and Brimstone : Freedom of Speech and the Intentional Infliction of  Emotional Distress Tort”,  Eugene Volokh, 2010. “But the Supreme Court has long, and correctly, held that such subjectively defined speech restrictions are not permitted under the First Amendment: “[I]f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an  ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” "


[106] Journalists accuse Great Barrier Reef protesters as being extremists:


“Barrier reef protesters are not 'eco-terrorists', they're ordinary Australians,” Paul Oosting, The Guardian, 2014-04-02. “Big miners and their spruikers have a razor sharp agenda to smear the everyday Australians working to protect the Great Barrier Reef. Protesters, some in costume, march along George Street in Sydney during a demonstration to save the Great Barrier Reef. Protesters, some in costume, march along George Street in Sydney during a demonstration to save the Great Barrier Reef. // Many Queenslanders would have had a little giggle on Saturday morning reading Des Houghton describe them as “anarchists” and “law breakers.” Andrew Bolt weighed in soon after in the same vein, quickly followed by Judith Sloan calling them “eco-terrorists.” // From my experience, nothing is further away from the truth. The protesters I know are people like Denise, a mother of three from Mudgeeraba on the Gold Coast, or John Wedlock, a second world war veteran from Maryborough, who have chipped in, signed petitions or attended events to protect the Great Barrier Reef. … Of course, the mining industry and its backers and spruikers have a razor sharp agenda. They're consciously framing the everyday Australians who actually live in these communities, and send their kids and grandkids to school in them, as "fringe" or "radical". Such a tactic softens the ground for future attacks on democratic participation and community input on the things people have a right to be concerned about: their health, their livelihoods and the beloved natural places which surround them. // The last thing the miners want is a community groundswell delaying their mammoth projects. Turning on the community suggests they are spooked by the growing support to protect our national treasures.


[107] The danger of banning speech which is subjectively offensive (II):

“Remembering the Nazis in Skokie,” Geoffrey R. Stone, Professor of Law at the University of Chicago,

“Making First Amendment rights turn on judgments about a speaker's subjective intent is a dangerous business, because intent is very elusive and police, prosecutors and jurors are very prone to attribute evil intentions to those whose views they despise.”


Additionally, it allows public officials to censor critics. US Supreme Court Justice Thurgood Marshall: “Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.”


It can also be used against whistleblowers.


Former Labor Justice Minister Duncan Kerr, now a Federal Judge and President of the AAAT, claimed he felt threatened by whistleblower Mick Skrijel, so the AFP swung into action.  Only Richard Ackland and the Financial Times reported these events:  +


[108] “Chilling Effect,” Wikipedia, @2014-04-08, “In a legal context, a chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction. The right that is most often described as being suppressed by a chilling effect is the US constitutional right to free speech. A chilling effect may be caused by legal actions such as the passing of a law, the decision of a court, or the threat of a lawsuit; any legal action that would cause people to hesitate to exercise a legitimate right (freedom of speech or otherwise) for fear of legal repercussions.”


[109] Why does Australia promote secrecy by restricting free speech?” 2001-06-03, Crikey Editorial, ABC’s Chris Masters warned ‘Australia is a very secret society and the defamation laws are a big contributor to this culture. Self-censorship is all about self-preservation and it is everywhere.’


[110] “Why does Australia promote secrecy by restricting free speech?” 2001-06-03, Crikey Editorial, “Australia has the most restrictive defamation laws of any English speaking country after Singapore.”


[111] 2013-08-29: An Open Letter to the Public Service Commissioner concerning Systemic Corruption in the Australian Public Service.


[112] 2013-04-27 Response from Karin Fisher on behalf of Public Service Commissioner Stephen Sedgwick failing to act and comparison of statements by the PSC and Public Service Minister regarding APS accountability.


[113] 2014-01-21 From Assisting LNP Public Service Minister Eric Abetz responding to Brendan Jones


2014-01-22 From Brendan Jones to Peter Goon cc: Senator Eric Abetz re his claim he is powerless to intervene


[114] 2014-03-25, Letter from Brendan Jones to Senator-elect Jacquie Lambie: “The Inspector General of Defence is accountable to General Hurley, the Secretary of Defence then Dr. Ian Watt and DMO CEO Warren King. So on July 4, 2011 (attached) I wrote to these gentlemen, warning: (i) Of major corruption within Defence the IG-D is not willing to investigate, (ii) that Defence Minister Stephen Smith despite advice had failed to act, and (iii) that the DSTO are prioritising their own commercial wealth creation goals over the operational requirements and safety of the ADF. I did not receive a response from any of these men, and Defence (unlawfully) told me my only avenue was to sue.”


[115] 2013-12-03 Multijurisdictional State & Federal Crime Report: DSTO (CONFIDENTIAL - Qualified Privilege), To: Australian Commission for Law Enforcement Integrity, VIC Office of Public Prosecutions, VIC Police Force, NSW Police Force, NSW Office of the Director of Public Prosecutions cc: Prime Minister Tony Abbott, Senator the Hon George Brandis QC, The Hon Joe Hockey MP - Treasurer, Senator the Hon David Johnston - Defence Minister, The Hon Stuart Robert MP - Assistant Defence Minister, The Hon Michael Keenan MP - Justice Minister.


[116] 2011-11-01 Letter to Merit Protection Commissioner and Public Service Commissioner Stephen Sedgwick regarding abuses of APS Code of Conduct.


[117] 2011-07-04 From Brendan Jones to Dr. Ian Watt, Secretary of Defence.


[118] “Politicians exclude themselves from dob-in laws,” Jessica Marszalek, Herald Sun, 2013-06-07,


[119]You better be careful blowing the whistle — new laws have holes”, Brendan Jones, Jul 30, 2013. (This article discusses other flaws with the whistleblowing laws besides politicians giving themselves immunity). Note: Rebuttal to Attorney-General’s response appears in the Comments


[120] Politicians gave themselves immunity  from the whistleblower ‘dob in’ laws:


“Politicians exclude themselves from dob-in laws,” Jessica Marszalek, Herald Sun, 2013-06-07, “Politicians have excluded themselves from new federal whistleblower laws expected to be passed this month in a move opponents believe will cover up scandal and corruption.Mr Wilkie's [alternate private member’s] Bill allows allegations to be made about politicians. He called the omission in the government Bill a "serious flaw", and "cynical move to prevent these public officials from making public interest disclosures ... entirely at odds with the spirit of whistleblower protection". But a spokeswoman for Attorney-General Mark Dreyfus said MPs and their staff had different roles from public servants and allegations should be dealt with by the Parliament. // The parliamentary committee report notes criticisms of both Bills, but says the Government's is the best option for maintaining integrity in the Commonwealth public sector and should pass. // Senator Milne said the recommendation was disappointing and shielding MPs and staff was "dangerous for democracy".”


[121] 2013-06-17 Letter regarding Political Donations and Opposition Silence on Corruption - To Sen Johnston, Mr Roberts, Ms Gambaro, Ms Bishop: Similarly I have not heard any criticism from the Opposition of the government’s flawed Public Interest Disclosure Bill. It’s laughable that the new bill exempts corrupt politicians. Mr. Dreyfus says it wasn’t necessary because politicians are held accountable through parliament. But Mr. Robert and Senator Johnston’s two-and-a-half years of inaction makes clear they are not.”


[122] “Decline of court reporting”, Crispin Hull, 2008-04-05, “In the nearly two decades or so that I had carriage of most of the defamation cases at The Canberra Times in several executive roles, I always dreaded the solicitor’s letter. The odds were stacked against media defendants – we were reviled by the politicians who made the law and detested by the judiciary who interpreted it. You knew the letter meant trouble – costly trouble.”


[123] High Court of Australia upholds secrecy within the Australia Day Honours system:


“Selection of Australia Day honours to stay secret,” Michael Inman, Canberra Times, 2013-12-06, “The details of how Australia Day honours are selected will stay secret, following a High Court ruling on Friday The court unanimously dismissed an application to force the Governor-General to release documents relating to Order of Australia nominations. The decision ends Karen Kline's six year fight against the Governor-General's office.”


“Australia needs an open 21st century honours system,” Steve Davies, Ozloop, 2014-01-07.” “Typically, in closed systems information is framed by relatively small numbers of people, and requests for greater transparency are resisted. This breeds suspicion and has the potential to distort decision making and, therefore, can result in corruption. More important, you have to question whether such secrecy has any place in the nations honours and awards system at all. Let's face it. It's 2014, not 1814. The community expects greater transparency and should have a say in the allocation of honours and awards.”


I am told by two victims’ advocates that a man who allegedly committed a horrific act received an honours award, greatly distressing his victim. The victims’ advocates said they alerted Government House who issued the award, but: “… Government House, has not taken the matter so seriously[, …their] staff have still failed to respond to requests for the material required to prompt a full investigation pursuant to the Ordinance of Termination and Cancellation. [… They] said via email is put it in writing, yet clearly more is required given the gravity of the matter.[… When they were] informed by the Government House Switchboard that [victim] had attempted suicide, [they] chose not to contact back and inquire about his safety and health, unlike [his former employer]” [2014-02-04 E-mail from Victims’ Advocate]


[124] High Court of Australia decisions which have not upheld freedom of speech:


“High Court rules on free speech cases,” Simon Breheny, IPA, 2013-02-27, “Two significant free speech judgments were handed down by the High Court today … Decisions such as these demonstrate how weak the implied right to freedom of political communication is. It simply can’t be relied upon for protection against laws that restrict our right to freedom of speech.”


This weakness has a chilling effect on free speech.


[125] And mothers:


[126] “United States Bill of Rights”, Wikipedia, @2014-04-09, “The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. Proposed to assuage the fears of Anti-Federalists who had opposed Constitutional ratification, these amendments guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and reserve some powers to the states and the public.”


[127] Ibid. Many were concerned that a strong national government was a threat to individual rights and that the President would become a king. … The impasse was resolved only when revolutionary heroes and leading Anti-Federalists Samuel Adams and John Hancock agreed to ratification on the condition that the convention also propose amendments.”


[128] “What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them.” – Thomas Jefferson to William Stephens Smith, 1787. ME 6:373, Papers 12:356


“The spirit of resistance to government is so valuable on certain occasions, that I wish it to be always kept alive. It will often be exercised when wrong, but better so than not to be exercised at all. I like a little rebellion now and then. It is like a storm in the atmosphere.” – Thomas Jefferson to Abigail Adams, 1787.


“Whenever any form of government becomes destructive of these ends [i.e., securing inherent and inalienable rights, with powers derived from the consent of the governed], it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.” – Thomas Jefferson: Declaration of Independence, 1776. ME 1:29, Papers 1:315


[129] The US Constitution.


[130] In his speech of March 3, 2014 Tim Soutphommasane gave a complicated explanation of Liberty.


I offer a simpler one. To me, Liberty is being left alone. I want nothing to do with this government or its bureaucrats. I don’t want them to tell me what I can say, do or whom I can talk to. I don’t appreciate being forced to deal with or buy services from them, when private enterprise in genuine competition works harder and treats its customers so much better.[131]


In their Declaration of Independence, the Americans wrote [The King] has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” This could describe the APS.


In 2012 I had walked away from all this, deciding although I would continue to live in this country I would have as little do with the government as possible. And so I began work on a new high-tech business developing civilian technology. But later that year the government passed the Defence Trade Controls Act forcing researchers to reveal even their "dual use" civilian technology (nearly everything is "dual use"; e.g. electronics, communications, IT security, medicine) to the public servants, to seek permits from them just to talk about it with others, and with no protection against them stealing it, and the threat of 10 years jail hanging over their head – guilty until proven innocent – if they ever break the law, even accidentally, when making a phone call or sending an e-mail.


In my opinion, the public servants currently promoting the DTCA act like tin gods; They are arrogant and ignorant. When I complained to one that my technology could be stolen, again, he responded that wasn’t his problem. When the universities warned it would drive their research off shore, another told them they could ‘keep boxing at shadows if it makes them happy.’ In their briefings it became apparent they didn’t even understand their own legislation. These people make the worst kind of rulers. I have no opportunity to vote for them, and politicians and their public service peers refuse to hold them to account. I have no respect for them, and yet I must submit to their rule.


The experiences of the last four years have broadened my outlook. As I have talked to other victims, academics, journalists, lawyers, corruption and whistleblowing experts, I have come to appreciate how pervasively corrupt this government is. I hope and believe most rank-and-file public servants are not corrupt, and I have occasionally worked alongside some very intelligent and dedicated ones. But where it most matters, in its senior ranks and amongst its oversight agencies, I have found them to be pervasively corrupt; Usually systemically; Sometimes worse.


Frank Serpico told the Knapp Commission: ‘Police corruption cannot exist unless it is at least tolerated ... at higher levels in the department.’ So long as these senior public servants and politicians ignore corruption, those public servants who wish to abuse their power over us are free to do so.


It’s not a matter of removing a few bad apples; The system is itself inherently corrupt. The American founding fathers gave the people rights to protect themselves from government abuse, but we as Australians have no such protection. Restoration of individual rights, notably freedom of speech, would go a long way towards fixing that; The US Constitution is a fine document, but even it can be improved upon. But short of that, the very least the Australian government can do is get out and stay out of our lives. I do not feel the need to be ‘led’ or ‘ruled’ by anyone.


To those well-intentioned public officials who believe they are pure of heart and wish to rule me anyway, US Supreme Court Justice Louis Brandeis warned: “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”


[131] The public services reputation for sloth and Laziness:

“Public Service Commissioner Stephen Sedgwick puts lazy bureaucrats on notice,” Noel Towell, Canberra Times, 2013-11-06.


“'Lazy civil servants have nowhere to hide': Top mandarin warns Whitehall's worst performers face sack in cull of 40,000 jobs,” Daniel Martin,  Daily Mail, 2013-07-09.


[132] “Republic, Lost. How Money Corrupts  Congress — and a  Plan to Stop It’, Lawrence Lessig, 2013.


[133] If some passes a politician money under the table, it’s illegal. But if they do it in plain sight and later receive favours, it’s as if they both think the public are too stupid to notice and make the connection. Corruption has become so blatant and law enforcement so compromised, they don’t even try and hide it.


[134] A militarised police force, and the police as the government’s gang:


“What do I know about corrupt cops? My Family owned a few.” J.D. Tuccille, Reason, 2014-02-18. Comment: “People ought to understand that the police is just the government's gang.” #comment


“Arrest-Proof Yourself”, Dale Carson [Former cop, FBI law man, criminal lawyer], 2007. “Cops are backed by courts, jails, judges, and the entire apparatus of the state. They can stop, arrest, search, attack, and even kill. It’s power. It’s the juice. It’s intoxicating, and nobody else has it. Police officers have to train not to let it go to their heads. When the cops show up, the music stops, the party’s over, and everybody snaps to attention. It’s la poli, the police, the fuzz, the heat, the man with the badge and the gun. In any medium to large city, cops are backed up not only by other officers, but by helicopters, boats, tear gas, explosives, snipers, dogs, SWAT teams, even armoured personnel carriers with artillery and high-calibre machine guns. If things get tense, the governor can call out the National Guard, which can muster infantry, cavalry, and armour equipped with mood adjusters like mortars and wire-guided missiles. Yikes!


Think law enforcement officers aren’t dangerous? This is an FBI SWAT (Special Weapons and Tactics) team. I’m on the bottom row, second from right, holding a CAR-16. This was a fully automatic assault rifle, with a barrel modified by FBI armourers to shoot tight groups in the 75 to 200 yards range common for urban snipers. We spent hours becoming proficient at making the CNS disconnect shot. This is a round fired through a suspect’s upper lip. It severs the brain stem and disconnects the central nervous system. The suspect drops immediately, so he cannot fire his weapon or attack other officers or hostages.


In some ways cops are similar to a gang. They have better haircuts than the Hell’s Outlaws and use deodorant, but they’re still a gang in one characteristic all gangs share: you can’t challenge just one member; you always have to deal with the entire gang. With cops, if you take on one, you take on all. Even cops who hate each other will stand shoulder to shoulder against outsiders. Cops are always the biggest gang in town, with the most guys, the most guns, and the most money. They show their blue colours with pride, 24 / 7, every day of the year. Challenging them is insanity. Cops never, ever, lose on the street. Whenever challenged, they call up reinforcements until they win.”


[135] Standing Armies and the Right to Bear Arms:


The English Bill of Rights and US Bill of Rights were written at a time when the public feared standing armies because of their obvious potential for domestic oppression.

James Madison: A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence against foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.”


The English and US Bill of Rights thus both put limits on the raising and control of standing armies, and gave people the rights to bear arms to defend themselves from oppression. Today the public simply accepts the presence of standing armies, as they do a militarised police force.[134]


The Right to Bear Arms: “The Second Amendment was based partially on the right to keep and bear arms in English common-law and was influenced by the English Bill of Rights of 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state.”


[136] The Obama administration is violating the US Constitution:


“Court Says NSA Bulk Telephone Spying Is Unconstitutional”, David Kravets, 2013-12-16,


“End runs around the Constitution – the NSA, Obama and the Fourth Amendment”, Judge Andrew P. Napolitano, 2013-11-07, Fox News,


Contrast “Hope and Change” Obama with the Obama we see today. He is a textbook case of Lord Acton’s dictum that power tends to corrupt, and absolute power corrupts absolutely.


[137] The abuse of executive power:


“When the US Government Can Kill You, Explained”, Adam Serwer, Mother Jones, 2012-03-05, “In the 5,000-word speech, the nation's top law enforcement official directly confronted critics who allege that the targeted killing of American citizens violates the Constitution. // "'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security." Holder said. "The Constitution guarantees due process, not judicial process." Who decides when an American citizen has had enough due process and the Hellfire missile fairy pays them a visit? Presumably the group of top national security officials—that, according to Defense Secretary Leon Panetta, decides who is targetable and forwards its findings to the president, who gives final approval.


“Not-So-Innocent Abroad,” Emily Bazelon, Slate, 2012-03-06, “Eric Holder says the United States can kill American citizens overseas and he doesn’t think he should explain why.”


“The Facts Behind Obama’s Executive Privilege Claim,” Cora Currier, ProPublica, 2012-06-21. “Yesterday, the Obama administration invoked executive privilege to prevent the release of certain documents to Congress related to Operation Fast and Furious, the arms-trafficking sting gone awry that came to light last year. (As we've detailed, federal agents lost track of hundreds of guns sold to suspected gun smugglers, many of which later turned up at crime scenes in Mexico). … The committee voted yesterday to recommend that Holder be held in contempt of Congress for not turning over some documents. Holder says that his office has already released thousands of documents, and that the others that Issa wants are internal communications protected by executive privilege.”


“Obama Discovers the Convenience of Executive Privilege”, Conor Friedersdorf, The Atlantic, 2012-06-21, “He criticized its invocation during the Bush years, and pledged to run the most transparent administration ever. But his hypocrisy is unlikely to hurt him. … These days the executive branch asserts the power to spy on, indefinitely detain, or kill anyone it likes without due process, so long as it invokes the specter of terrorism, even as it reshapes immigration policy with an executive order. But turning over documents about running guns into Mexico? That would supposedly put America at risk of the legislature dominating the presidency. It’s defensible theory that's absurd in practice.”


“FBI blocked in corruption probe involving Sens. Reid, Lee”, John Solomon, The Washington Times, 2013-03-13. “FBI agents working alongside Utah state prosecutors in a wide-ranging corruption investigation have uncovered accusations of wrongdoing by two of the U.S. Senate’s most prominent figures — Majority Leader Harry Reid and rising Republican Sen. Mike Lee — but the Justice Department has thwarted their bid to launch a full federal investigation.


[138] John Adams: “There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution.”


[139] Letter from Thomas Jefferson to James Madison, 1789-09-06. “I set out on this ground which I suppose to be self evident, "that the earth belongs in usufruct to the living;" that the dead have neither powers nor rights over it.”


[140] “Republic, Lost,” Lawrence Lessig, 2013. pp. 1.


[141] The Australian Constitution provides poor protection for individual rights:


“The Constitution as a protector for fundamental rights,” Michael Kirby, “The Hon. Michael Kirby, AC CMG argues that the Constitution is a mixed story for fundamental human rights, and presents the case for a bill of rights. … The Australian Constitution is one of the very few in the world that does not contain a substantive charter of fundamental human rights.  This defect came about by decision of the founding fathers (there were no mothers) in the 19th century.  They rejected a bill of rights as an American intrusion into notions of parliamentary sovereignty.  That decision was taken at a time of Aboriginal disempowerment, the White Australia Policy, imperial rule and a largely monochrome population of British settlers.”


[142] Legal costs rules in Australia, the UK and Canada favour the wealthy, c.f. the United States:

“In the United Kingdom, Australia and Canada, the losing side is usually ordered to pay the winning side's costs. This acts as a significant disincentive to bringing forward court cases.”
“The American rule provides that each party is responsible for paying its own attorney's fees, unless specific authority granted by statute or contract allows the assessment of those fees against the other party. … The rationale for the American rule is that people should not be discouraged from seeking redress for perceived wrongs in court or from trying to extend coverage of the law. The rationale continues that society would suffer if a person was unwilling to pursue a meritorious claim merely because that person would have to pay the defendant's expenses if they lost.

[143] “Our Corrupt Legal System”, Evan Whitton, pp. 129, “Libel  law has thus protected rogues, including organised criminals, some powerful and respectable, for seven centuries.”


[144] “Our Corrupt Legal System”, Evan Whitton, pp. 129-139,


[145] “Australia in a Nutshell: A Narrative History”, Frank G. Clarke, Rosenberg Publishing, ISBN 1877058130, 2003. Indeed the Monitor and the Australian took the lead in attacking Ralph Darling during 1827 and thereafter - on the grounds that his cruelty provided proof of the defective nature of autocratic government and demonstrated the necessity of trial by jury and a Legislative Assembly as curbs on the governor's power. Darling used the law against A.E. Hayes, the new editor and proprietor of the Australian, and succeeded in having him jailed for libel following an attack upon the governor in which Hayes had stated that Darling was so ignorant of the law, and so ready to disregard it, that he was not a fit person to rule over any British colony. To the governor's chagrin, but to the delight of their supporters, both men continued to publish their newspapers from prison and subjected every action of Darling to close inspection.”


[146] “Freedom of The Press and Freedom of Speech In Australia”,  Robin Speed, President, The Rule of Law Institute.


[147] “Our Corrupt Legal System”, Evan Whitton, pp. 134 “Geoffrey Robertson  QC wrote in  The Justice Game: ‘London is the libel capital of the world because English law heavily favours plaintiffs … So there have been celebrated cases where newspapers have published the truth, yet lost.’ Sydney cannot be far behind. John Wicklein, reported in the Columbia Journalism Review (November/December 1991): By a recent count, 142 defamation actions against newspapers, most of them filed by politicians and businessmen, were pending in Sydney, which has been called the libel  capital of the world. This is nearly twice the libel suits filed in the entire United States in any one year.”


[148] “The Whistleblowers’ guide to Journalists”, Brendan Jones, 2013.


[149] Investigative journalists have limited time and resources, and so only take on a couple of stories at a time; They certainly don’t report all the news that is bought to them. If they do take on a story they can usually they can print something, but they are careful to understate allegations, generally avoid naming names and sometimes omit important parts of the story. Often they are forced to sit on stories. Much corruption is not reported at all.


“Not for Publication”, Chris Masters, 2002. For every story that goes to air, there are dozens that never make the cut - perhaps because they cannot be fully checked, the source is unreliable, or because they are replaced by something more urgent. Yet these untold stories are often the most intriguing of all. Award-winning TV journalist Chris Masters draws on his assignments in Australia and overseas to tell some of the stories he couldn’t bring to Four Corners.”


“The Whistleblowers’ guide to Journalists”, Brendan Jones, 2013. “[ABC’s] Sue Spencer says Section 70 and risk of defamation can cause 4 Corners to not proceed with stories.”


[150] “Over half your news is spin”, Crikey, Mar 15, 2010. “after analysing a five-day working week in the media, across 10 hard-copy papers, ACIJ and Crikey found that nearly 55% of stories analysed were driven by some form of public relations. The Daily Telegraph came out on top of the league ladder with 70% of stories analysed triggered by public relations. The Sydney Morning Herald gets the wooden spoon with (only) 42% PR-driven stories for that week.”


[151] “The Whistleblowers’ guide to Journalists”, Brendan Jones, 2013.


[152] Reliance on official sources for leaks and easy news compromises journalists’ independence:


These are based on the observations of myself, other whistleblowers, victims of government abuse, victims advocates, corruption experts and academics. We have as evidence mountains of correspondence to journalists asking them to report corruption. There are perhaps only a dozen investigative journalists in Australia who will respond, however they are extremely busy and concentrate on only a couple of stories at a time. Daily and Beat journalists simply ignore you. But of more concern is that certain editors and Beat journalists, whom are aware of corruption by public officials, but withhold those allegations of corruption and make no mention of it even when running unbalanced spin and PR to their benefit. This is one of the shocks that greets whistleblowers; that certain earnest-faced journalists they’ve following for years and whom they assume fight for truth and justice are in private a very different kind of animal.


From a business point-of-view this is understandable; they produce stories quickly and cheaply for the paper with no risk of defamation. Their spin and PR curries favour, buying them increased access to powerful people. However in my opinion it is unethical to run one-sided stories, since by omission they breed a sense of complacency in their readers that their sources are clean, honourable men, and that Australia is a relatively clean country. In my opinion such journalists are no better than the corrupt police and corrupt public officials who protect criminals.

US Supreme Court Associate Justice Louis Brandeis: “I have talked to you about the wickedness of people shielding wrongdoers and  passing them off (or at least allowing them to pass themselves off) as honest men. ... If the broad light of day could be let in upon men's actions, it would purify them as the sun disinfects.”


I stress that there is valid role for beat reporters, and that only certain beat reporters do this, and in any case it is not the role of the beat reporter to investigate corruption; That is what investigative journalists are for. The problem is that Australia has very few investigative journalists, and worryingly, this appears to be an attempt by the government to influence two of Australia’s most respected investigative journalists:


In America on the other hand, beat journalists can and do investigate corruption because they are constitutionally protected. But corruption in Australia is largely goes unreported. Corruption expert Howard Whitton said: “Systemic corruption is real in Australia, and I think that [NSW] ICAC has demonstrated that it is very widespread.”


[153] First Amendment to the US Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


[154] New York Times Co. V. Sullivan,


[155] 2013-04-24 An Open Letter to Tyler Crowley and the Australian High-Tech Community – Visiting Entrepreneurs Program. Restrictions on the Freedom of the Australian Press … American journalists can promptly report corruption using Absence of Malice (The Public Figure Doctrine). Australian journalists have no similar protection and must sit on stories of corruption, sometimes for years. They can only safely report a story once it has gone to court under Judicial Privilege. But that takes years and many corruption stories never get to court, especially when the police (the AFP) is stonewalling. // If the media try and print it beforehand they can be sued for defamation. Even if what they print is true, trials are still lengthy and costly. Some cases have cost up to $7M and others have run for 13 years. Sir Leslie Thiess sued Channel 9 who alleged he was corrupt. Channel 9 won proving 67 out of 70 of the corruption allegations against him were true, but the trial cost them $5M they didn’t get back. // The Courier Mail’s Phil Dickie and ABC’s Chris Masters broke the story on endemic corruption in the Queensland government. That led to a Royal Commission with many police and politicians going to jail. Chris Masters and the ABC then spent the next 13 years in court fighting Defamation suits. They won, twice, but it cost them $1M in legal costs. To this day the ABC will not release the transcript of the TV broadcast for fear of further defamation actions 27 years after it happened. How’s that for a ‘free press’?”


[156] “Can we trust the media?”, Kellie Tranter, July 28, 2013. “In a survey conducted by Roy Morgan research in August 2004, 73 per cent of journalists surveyed said that media proprietors use their outlets to “push their own business and or political interests to influence the national debate”. // A 2006 Roy Morgan survey of journalists found that more than half claimed they were unable to be critical of the media organisation they worked for, 38 per cent reported they had been instructed to comply with the commercial position of the company for which they worked and 32 per cent said they felt obliged to take into account the political views of their proprietor.


[157] “Amazing Scenes! - Adventures of a Reptile of the Press,” Evan Whitton. In January 1968, Chandler published details of an old court case in which the just-elected Prime Minister, Gorton, did not appear in an altogether flattering light. Three days later, Sol got a telegram: RESIGNATION ACCEPTED, PLEASE VACATE OFFICE IMMEDIATELY. REPLACEMENT ARRIVES MONDAY. MURDOCH. 'I'm out, boys,' Sol said; 'I made Murdoch a million, and he's sacked me.'


[158] One thing that struck me while researching this letter was the vast gulf between stories in the American and Australian press. The American press will report corruption by their government. The Australian press is timid, instead criticising policies and personalities at best; With some notable exceptions, they generally only print corruption which the government has already moved against (by the police charging someone, or under Judicial Privilege).


[159] “Defamation law and free speech”, Brian Martin, “Sir Robert Askin was Premier of the state of New South Wales for a decade beginning in 1965. It was widely rumoured that he was involved with corrupt police and organised crime, collecting vast amounts of money through bribes. But this was never dealt with openly because media outlets knew he would sue for defamation. Immediately after Askin died in 1981, the National Times ran a front-page story entitled "Askin: friend to organised crime." It was safe to publish the story because, in Australia, dead people cannot sue. (In some countries families of the dead can sue.)”


[160] In 2004 Liberal Attorney-General Philip Ruddock promoted the idea that the families of the dead should be able to sue for defamation. Fortunately the proposal never became law.


[161] “Baffling bid to stop us speaking ill of the dead,” Richard Ackland, SMH, 2004-08-27, “It will be a bonanza for the legal profession and in that context it is pertinent to note that the cunning defamation lawyer Clive Evatt has welcomed these reforms, saying they are long overdue. "One laudable feature is the right of the estate to claim for defamation of the dead. This should halt the media's character assassinations which often follow death." He cites in this context Sir Robert Askin, Leo Port and Paul Landa, whose sainted memories were sullied in newspapers and books soon after they dropped off the twig. // While lawyers may be the winners, one cannot say the same of historians. One key argument put against the idea is that it will inhibit contemporary historical writing.”

[162] “Defamation law fails the test,” Brian Martin, Illawarra Mercury, 2008-08-27, I found out that many people - not just whistleblowers - are frightened by defamation issues. They search the web for information, find the leaflet and then contact me with their stories and their concerns. // Media organisations are quite familiar with the intricacies of defamation law. They have lawyers on tap to check contentious material as well as strategies to deal with legal actions. But the resources wielded by a large organisation are unavailable, indeed unknown, to most individuals. // Defamation law is supposed to protect reputations, but in practice it often serves to suppress free speech. Whatever the virtues and vices of the law for the media, it is an absolute disaster for ordinary individuals. It doesn’t protect reputations and it is regularly used to squelch open discussion.”


[163] Australia has no federal anti-corruption body like ICAC: “New body needed to fill cracks of corruption,” George Williams, Professor of Law at the University of NSW, 2012-05-22.“The lack of a national anti-corruption body means that dishonesty and breaches of public trust by parliamentarians and Commonwealth agencies may never be detected, let alone addressed.”


You cannot have justice without a search for the truth:


Evan Whitton has written extensively on how truth-seeking justice systems which do not hide evidence deliver fairer justice than the English adversarial system which conceals evidence:


“Making the law faster, simpler, fairer — and cheaper,” Evan Whitton, 2013-12-19, “The adversary system has complicated rules which conceal evidence. The inquisitorial system does not conceal evidence. Justice Russell Fox said the public knows that fairness requires a search for the truth, otherwise the wrong side may win. If the wrong side wins, justice is perverted. The adversary system does not try to find the truth. The inquisitorial system does.”,6009


ICAC, a truth-seeking justice system, is currently investigating Liberal Senator Arthur Sinodinos:


“ICAC: Arthur Sinodinos fronts corruption inquiry,” Michaela Whitbourn, SMH, 2014-04-03,


Liberal Trade Minister Andrew Robb responded by suggesting ICAC’s rule of evidence be tightened:


“ICAC: rules of evidence need a rethink, says trade minister”, Lenore Taylor, The Guardian, 2014-03-23,

“Andrew Robb says the rules of evidence at inquiries such as ICAC should be reassessed. … [Robb:] “I must say, though, that the absence of evidence and processes that are part currently – and have been for centuries – of the criminal and civil systems in our community, I think that’s something that needs to be assessed when we are assessing, or the states are assessing, the roles of these bodies such as ICAC that have been put in place in various states.”


But Evan Whitton quotes Justice Fox: Justice means fairness, and fairness requires a search for the truth, otherwise the wrong side may win. If the wrong side wins, justice is perverted. Evan Whitton notes that people found to be corrupt by truth-seeking ICAC and Fitzgerald inquiries later often walked free from the evidence-concealing courts.


Brendan Jones: “A brief statistical analysis showed the Adversarial system with a 50% failure rate with a jury and a 72.5% failure rate with a judge; A 38% failure rate continuing with Fitzgerald defendants [who had a special prosecutor] and a 69.8% failure rate continuing with ICAC defendants. The Inquisitorial system only has a 5% failure rate.”


“A right to know: ICAC must stay transparent”, Jenna Price, Canberra Times, 2014-03-25.


[164] “You better be careful blowing the whistle — new laws have holes”, Brendan Jones, Crikey, 2013-07-30. “The biggest failing of the new laws is that agencies will still investigate their own complaints. No minister wants to front a press conference on corruption in their department. An internal complaint unit can make the whole thing go away by tipping off the perpetrator and terrorising the whistleblower. The government can sit on a complaint indefinitely during which time the whistleblower is vulnerable to retribution and cannot talk to the media. // The new laws will be overseen by the Commonwealth Ombudsman. Although the Ombudsman’s office presents itself as a powerful oversight agency, whistleblowers find it a craven organisation reluctant to use the powers it already has. Janice Weightman, who blew the whistle on forged Defence security clearances, told The Courier-Mail: “Five of us went to the Ombudsman but didn’t get anywhere. They put it in the too-hard basket. We were given the impression that no one wins against Defence; they are too big and too powerful.”  Note: Rebuttal to Attorney-General’s response appears in the Comments


[165] “Suppression Stories,” Brian Martin, University of Wollongong, 1997,  ISBN 0 646 30349 X, Even in those few cases where the perpetrator was eventually bought to justice, the whistleblower was inevitably destroyed.


[166] “Warwick incident anniversary,”  Jason Byrnes, Duty Coordinator Intelligence, AFP, “from the Warwick egg was hatched the Commonwealth Police Force”


[167] “Commonwealth Police Force”, Wikipedia, @2004-04-09,  “At its peak the Commonwealth Police Force numbered about 50 men, almost all of whom were based in Queensland, despite the force notionally being a national one. Commonwealth Police had full police powers for federal offences, but their main task was to report on subversive activities of those opposed to the war and/or the Commonwealth government. Tensions between the Queensland and federal governments flared up a number of times, including during and after a federal police raid on the Queensland Government Printer's Office.”


[168] 2014-02-06. Royal Petition concerning Crime and Corruption within the Australian Public Service.


[169] 2014-02-06. Royal Petition concerning Crime and Corruption within the Australian Public Service.


[170] AUSTRALIAN HUMAN RIGHTS COMMISSION ACT 1986 - SECT 46I – Termination of appointment – “(1)  The Governor-General may terminate the appointment of the Commissioner because of: (a)  misbehaviour; or (b)  a disability that makes the Commissioner incapable of performing the inherent requirements of the office. (2)  The Governor-General must terminate the appointment of the Commissioner if the Commissioner: (a)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or (b)  is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any period of 12 months; or  (c) engages in paid employment outside the duties of the office of Commissioner otherwise than with the approval of the Minister.”


[171] The Governor-General is a check on the absolute power of the government:


“The Role of the Governor-General,” Sir David Smith, KCVO, AO: So the real question is not at all how much power does the Governor-General himself have or exercise, but rather how much absolute power does his presence in our system of government deny to those who are in Government, and who must first seek to advise and persuade him. In the words of another former Governor-General, Sir Zelman Cowen: "By a due attendance to the business of his office, by the exercise of functions and influence within the limits described by Bagehot [to be consulted, to encourage, and to warn], a Governor-General can, in appropriate cases, exercise an effective influence on the processes of government."” Proceedings of the Eighth Conference of The Samuel Griffith Society, University House, Canberra; 7-9 March, 1997.


[172] [172]  “Narrow focus confuses intent”, Tim Wilson, The Australian, 2014-01-23, “[H]uman rights are designed to stop the abuse of government power over the individual.”


[173] 2014-02-06. Royal Petition concerning Crime and Corruption within the Australian Public Service


[174] Steve Davies, Media Briefing, Ozloop, 2014-03-17, “Decent Australians are being bullied and destroyed by the predatory abuse of power by Australian Public Service agencies. … The Australian Government needs to compel public service agencies to obey the law, follow their own code of conduct and stop using taxpayers money to fund abusive practices..”



[175] American Constitutional Law Volume II, Stephens & Scheb, 2008, “Protecting citizens against crime is one of the fundamental obligations of any government.”