Free Speech: at a Price

In his regular column, Professor David Flint looks at some freedom of expression issues.

Few people would claim that freedom of speech should be absolute. It's generally accepted that it must be subject to reasonable restrictions prescribed by law and necessary in a democratic society.

Of course, there will always be disagreement as to what are reasonable restrictions.

The case of the four student editors from La Trobe University's newspaper Rabelais demonstrates this. The students are charged under the Classification of Films and Publications Act 1990 with printing and distributing an "objectionable publication". This was an issue of the newspaper which carried an article which allegedly promoted, incited or instructed in the matter of crime, that is, shoplifting.

Under the Act, there would be a complete defence to the charges if the issue was classified as "unrestricted". However, the Chief Censor refused to do this. In effect the issue was banned. The decision was taken without the editors being aware of the application by the Retail Traders Association of Victoria. They say that they only learned of the ban when the police provided a copy of the prosecution brief.

As supporters of the students point out, advocacy in favour of products and practices which are illegal could also easily be treated as the promotion of a crime. Examples could include drugs and euthanasia.

An appeal is being heard by the Classification Review Board in relation to the ban.

For years student newspapers have suggested all sorts of things which are controversial. Sometimes seriously, sometimes not. There is nothing new in students outraging their elders. Nevertheless, the then Federal Minister, Mr Crean, thought it serious enough to write to the Victorian Attorney suggesting criminal charges be laid.

And now we are finding that the media and films are being blamed for what happened at Port Arthur.

When other notorious mass murderers in earlier ages committed their crimes, for example Gilles de Rais, or Jack the Ripper, the fault could hardly have been television or films.

The Internet

The Internet seems to be exciting the censorious among us. It seems obvious that the responsibility for what is on the Internet should be with those who are editorially responsible for what is there, not the service providers. It is just not possible for the service providers to edit all material before them. It could be dangerous for them to try. It seems from some American decisions that they may well be liable for any defamation which appears.

Recently when somebody found that certain divorce cases were appearing on the Australian Legal Information Institute (AustLII) service, there was a great fuss. It was described as a breach of privacy. It was advanced as a justification for some new sweeping privacy law or for a law banning this use of the Internet.

The fact is that the cases were, and for a long time have been, those selected by the Family Court itself. Why?

Australian law is a case law system. Even when parliament has enacted a statute, lawyers need to know how courts have interpreted the statute so that they can advise their clients accordingly. Lower courts are bound by appeal court decisions and will apply these.

Parliament itself recognised that there should be an exception to restrictions on reporting in relation to law reporting. The Family Court selects those cases which contain legal points which lawyers and clients need to know.

Parliament could have decided that even in those cases the parties names should be deleted. It did not. So when AustLII, a law report service, put these up on the Internet, there was a great fuss.

There was even an argument that it was all right to put the reports into the print law reports because lawyers could be trusted not to read such cases for prurient or voyeuristic purposes. Obviously only a person who knew nothing about lawyers would think that.

The point is that if something is permitted in print, access should be equally permitted by computer.

AustLII is doing a great service. It is an initiative of Andrew Mowbray of the University of Technology Sydney, and Professor Graham Greenleaf of the University of New South Wales. Housed at the University of Technology Law School (I must confess an interest as Dean), it has a very small staff who are in the process of putting all the law up on the Internet. It would seem a fundamental right in a democracy for citizens to be able to read the law. After all, ignorance of the law is no excuse. Hitherto, our case and statute law was available only to those rich enough to subscribe to expensive services, or to those with the time to compete with students for the few copies in public libraries. In one state some judges once even claimed copyright in their judgments! Now, all Australians and, incidentally, foreigners (18 percent of users are based overseas) have used the service available to them.

In no other country is the law so freely and readily available. In the United States, private providers charge for this service - a search can be beyond the means of an ordinary citizen.

Making the law freely available to the people is of far more importance than some of the better known proposals to change our constitution. It is of revolutionary importance. AustLII is now the world's largest free provider of access to the law. You can search it at http://www.austlii.edu.au/

Additionally, The Council for Aboriginal Reconciliation's Reconciliation and Society Justice Library is on the site.

Economic issues

I was interested to read an article by Dana R Bullen, Executive Director of the World Press Freedom Committee, who argues that press freedom spurs economic growth. Countries with a free press do better, he says, because of the free flow of information and because decisions are taken more openly and not behind closed doors. As he says, where material is suppressed by governments it is usually because it is embarrassing perhaps in covering a mistake that has been made. Press freedom exposes corruption. It threatens someone's thirst for unchallenged power. It upsets someone's plan to manipulate information. Information about a failing enterprise is suppressed. The media are prosecuted for reporting that too much was spent in an arms deal. Reports of high level or low level misconduct are suppressed. Economic reports that are not sufficiently positive are played down. Serious health situations, industrial accidents and the like are covered up.

It's true, of course, that developing countries by absorbing their rural labour forces into manufacturing at low wages, importing technology and capital, can experience high rates of growth. I agree with Dana Bullen that they will not move into post-industrial societies without enjoying full freedom of expression and a free press. And that is what their people demand, when they are free to ask.

David Flint

see also
Index of David Flint's material on the website

Student Newspapers
Prof David Flint, in his November 1996 column, provides an update on the Rabelais case

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