(en)free speech, political dissent & illegality

Peter McGregor (p.mcgregor@nepean.uws.edu.au)
Thu, 5 Dec 1996 16:59:11 +1000

Please use/publish/disseminate (advice would be appreciated) - comments welcome
Free speech, political dissent & illegality

Peter McGregor 5th December,1996

A. A spoonful of freedom helps the bullshit go down

The status of the rights of citizens varies, both over time within any
society, & also between societies. The concept of rights as somehow natural
or inherent in social life, & as universal, is question-begging. On the
contrary, it is more perceptive to conceive of them as being 'given' or
'taken away', by those in authority ( the state, parents, employers,
teachers, etc.). It is more accurate, & hence productive to think of rights
as if they are licenses. How different is the right (license) to drive a
car, & to have a bank account, from the right (license) to religious
worship, to sexual acts & preferences, & to political convictions ? Each
involves a measure of freedom ... to drive (legally), or to fuck (legally).
For instance, before the first World War, it had been legal to belong to
the Industrial Workers of the World (IWW). Yet, by 1917 the IWW had been
declared an illegal & criminal organisation. Similarly the Menzies
government attempted to make membership of the Communist Party illegal.
Thus it is evident how rights can be 'lost', but they can also be 'won'.
The measure of that win or loss is reflected in the legal system. A
society's legal system is the rationale for the maintenance of the status
quo at that moment; & rights are the 'necessary illusions' of freedom,
those 'emotionally potent oversimplifications' without which citizens may
just decide to take matters into their own hands ... (1)
In Australia recently the legal boundaries of the rights to free speech &
political dissent have become harder to define. I want to consider some of
these Australian developments, & then draw comparisons with a major court
case in the UK.

B. Free speech: the High Court's ruling on the Constitution

The Howard government has indicated it intends to support the re-opening &
over-ruling of the High Court's 1994 landmark decisions in Theophanous v
Herald & Weekly Times Ltd, & Stephens v West Australian Newspapers Ltd.
Both rulings were seen as allowing & encouraging free speech in the public
discussion of political matters.

Consider the Theophanous case. In 1992, the Herald-Sun published a
letter-to-the-editor from Bruce Ruxton criticising ALP politician Dr.
Andrew Theophanous. Theophanous sued & initially won. Then, on appeal to
the High Court, a majority of four-to-three ruled that Theophanous, being a
'high public official', was fair game, provided the paper had published
without malice, without a reckless disregard for the truth, or without
reasonable care. The ruling aroused a wide consensus of opposition across
the major parties. Justice Deane, who had supported the ruling, commented
how politicians had become accustomed to defamation actions as both a
source of tax-free income, & a gag for critics. According to the Australian
Law Reform Commission, 26% of defamation actions were being taken by
hypersensitive politicians. (2)
The High Court ruled there was an implied protection for political
discourse in the Constitution: specifically allowing the freedom to
criticise those who presume to high office (including judges).
Since 1994 this constitutional ruling has resulted in a somewhat more open
society, but with the recent changes in the membership of the court in a
less libertarian direction, politicians are now going for a reversal. (3)
As a recent Sydney Morning Herald editorial put it, 'the broad principle of
freedom to speak out on matters of political importance as one of the
foundations of the free & democratic society' is again under threat. (4)

C. Beyond free speech to political dissent

(i) Albert Langer

During the campaign for this year's Federal Election, Albert Langer, as
spokesman for a group called 'Neither !', was threatened with prosecution,
if he - & his group - continued to publicly advocate a specific system of
voting. Mainstream politicians regularly advocate particular voting
choices. Yet, despite the legality in Australia, of putting all the
candidates one doesn't like equally last - in other words, to deny a
preference to either of the major parties ('NEITHER Labor nor the
Coalition') - the advocacy of such a vote was technicaly illegal. When
summonsed & ordered to refrain from such advocacy, Langer refused to accept
the court's ruling, & was accordingly jailed indefinitely, for contempt of
court. Despite considerable public outcry, he was held in jail until the
election was over. Especially since people around Australia immediately
followed Langer's example - without being summonsed, arrested, or otherwise
restrained - this jailing of Langer was seen as (a) illogical & irrational,
& (b) an appallingly arbitrary, de facto if not de jure, infringement upon
his right to free speech on political matters.

(ii) The Bankstown/Blaxland Four

In July a Local court case in Bankstown reinforced/expanded the rights to
free speech, & to the public expression of one's political opinions. Four
East Timor activists (The Bankstown 4), had been arrested in February at a
protest/occupation at the electoral office of the then Prime Minister
Keating. Magistrate Bradd dismissed charges of trespass, accepting the
defence of Stuart Littlemore (QC) that the demonstrators had 'lawful
excuse' to remain on the premises. Littlemore's argument was that the
electoral office of a parliamentarian, while private property, is a public
place because people have been invited to visit, with open-to-the-public
office hours being displayed. Littlemore cited, on the one hand, the
various international covenants (eg. on Political, Social & Economic
Rights), that have been ratified by the Australian government; & on the
other hand, the High Court Theophanous ruling, that the Australian
constitution allows free speech on political matters...
According to Bradd, it would appear that the constitutional right of
citizens to free speech on political matters in a public place does not
disappear just because they are instructed to leave, whether by the police
or the owner. This case significantly expands our 'rights' - what we can
get away with. For instance, it has implications for what may constitute a
'public place' (eg. shopping malls, parks, government & other offices).
Anywhere frequented by the public would appear to have a claim to be such.
Also, it interprets an occupation/sit in/ protest as an exercise of one's
constitutional democratic right to free speech. (5)

(iii) The Gift Shop/Federal Parliament 'riot'

There have been other recent similar direct actions, eg., the occupation of
the foyer of the Federal Government offices in Sydney at the May 30 rally
against education cuts, & non-violent occupations of both Howard's &
Vanstone's electoral offices.
However the huge Budget demonstration in Canberra may become a considerable
de facto reversal of such progress - unless we manage to contextualise the
event: what (legal) authority (other than during martial law &/or a state
of emergency), do the police or government have to lock the doors & deny
entry to citizens, even if they are demonstrating ? Parliament is meant to
be the house par-excellence of the citizenry; the symbol of democracy, of
the public expression of political differences. If, like an electoral
office, or any other public place, the premises are 'open' for operations,
surely the public are entitled to exercise their constitutional right to
free speech, including the right to enter in order to protest ?

D. Beyond free speech & political dissent to direct action & freedom

The recent 'Seeds of Hope' case in the UK is quite momentous, both in
itself & in what it portends. In February, four women had engaged in a
Ploughshares action, in which they broke into British Aerospace's
Lancashire plant, housing 24 Hawk warplanes being exported to Indonesia.
With household hammers they inflicted damage estimated at $3(Aus) million
to one of the Hawk fighters. After 6 months in custody, & a week long
trial, a jury has acquitted them of all charges, both of conspiracy & of
criminal damage (30/7/1996). The ruling is an instance of a 'higher cause'
outweighing the ordinary considerations of criminal law. (6)

Under UK law (Criminal Law Act, 1967), one is allowed to use reasonable
force to prevent a crime. Under international law, governments & companies
are complicit in breaches of international law, such as genocide & other
war crimes, should they knowingly trade in the equipment of such crimes.
The most telling example cited by the defendants was the Zyldon B case
where two German industrialists were found guilty, at the Nuremberg
Tribunal, of war crimes, for providing the gas used to exterminate people
in concentration camps.
Citing international & UK legislation against genocide, the women claimed
justification: they claimed their moral choice, their freedom to disarm the
warplanes, could also be legally justified by the 'lawful excuse' to employ
reasonable force to prevent the greater crime of the use of the planes by
Indonesia against the people of East Timor.
The defendants argued that the mass murder in East Timor has amounted to
genocide. Evidence was presented to the court that these Hawks are used
primarily for ground attacks in counterinsurgencies; that such Hawks have
been used previously by the Indonesians to attack East Timorese civilians;
that the plane the women attacked already had Indonesian markings, & that
its departure was imminent.
Hence the defence argued that such trade constituted UK complicity in that
& that further killing was prevented by this lawful disarming of the
warplane. The justification argument was that all other legal methods had
been tried over the preceding 3 years, both by the defendants & many
others, to prevent the shipment of the planes to Indonesia; that they were
now ready for delivery - 3 of the 24 had just departed - & that once they
left the UK, nothing further could be done to prevent their genocidal use
in East Timor.

The jury - as citizenry of the UK - have effectively condemned the arms
trade between their government & Indonesia. In such a case, the jury has
acted as a barometer of public feeling, (a) on the law, (b) on this
specific political issue, & (c) on whose rights/freedom should (morally)

While the state's, & the corporation's powers & (legal) rights
respectively, have been eroded/over-ruled, for the moment - by the people,
through the jury system - the struggle presumably is now under way to
reverse such a victory('win'). (And similarly the struggle to reverse the
Theophanous ruling.)

E. Freedom, beyond the law ?

The 'rights' ordinary people have is an expression of (the struggle over)
the balance of power, within a society, & at that time. (7)
The notion of rights, as was suggested at the beginning of this article, as
natural or universal, is mystifying, as is all ideology: their variability,
relativity & malleability is only too evident in the definition (ie.,
limitation !) of freedom as 'obedience to the law'.
Rights are the concepts & practices of hegemony & social control, respectively.

Historically freedom has rarely been given; rather, it has usually had to
be taken.
We should feel no need to justify defending our & others' freedom.
'Victor Serge tells how, during the sack of Razoumovskoe, revolutionaries
were criticised for smashing some porcelain. Their reply was: "We shall
smash all the porcelain in the world to change life. You love things too
much & people too little ... you love people too much as things, & people
as people you don't love enough." Everything we do not have to destroy
should be saved: such, in its most succint form, is our future penal code.'
Similarly the Seeds of Hope women smashed up an expensive weapon of war.
When the political & economic forces of oppression are protected by the
law, the resort to direct action may justify - yes, necessiate - breaking
the law & any property that maintains oppression.

Direct action is an expression of one's freedom to act, of one's room to
move. If we don't exercise that freedom, we may find it is getting harder
to move at all: & if we don't rock the boat, we sure won't be able to sink
Obedience to the law, & the right to freedom are the alibis of servitude.


1. Chomsky, N. Necessary Illusions (1989) citing Reinhold Neibuhr
2. Lane, T. Free speech walks the tightrope, SMH, 3/10/1996
3 Flint, D. " " " " "
4. (editorial) The threat to free speech, SMH, 3/10/1996
5. Transcript Court Case 10, Bankstown Court, 22/7/1996 (copies available
from the author - audiotape or print formats - a significant & amusing
6. Seeds of Hope - East Timor Ploughshares, Newsletter 4,
7. Pullan, R. Guilty Secrets: Free Speech & Defamation in Australia
8. Vaneigem, R. Revolution of Everyday Life (1967)