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How Australians lost their right to free speech, with Josh Krook
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Update: Australiana is now Fire at Will - your safe space for dangerous conversations.
We now live in an age where words are violence. Where morality is assessed in Silicon Valley boardrooms instead of local communities. Where free speech is encumbered with so many legislative ifs and buts that it’s rapidly losing meaning.
The great tragedy is it feels like there are less and less people willing to stand up for a belief that previous generations fought and died for – the right to think and say what we believe. Host Will Kingston is joined by legal theorist Josh Krook to discuss how free speech in Australia is eroding before our eyes.
Follow Will Kingston and Fire at Will on social media here.
Subscribe to The Spectator Australia here.
Subscribe to Josh’s blog here.
Note: We had some minor sound quality issues arising from Josh calling from the UK. Stick with it. It's worth it.
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Transcript
Introduction to The Spectator Australia Series
00:00:00
Speaker
The Spectator Australia magazine combines incisive political analysis with books and arts reviews of unrivalled authority. Subscribe today at spectator.com.au forward slash subscription.
00:00:27
Speaker
G'day and welcome to The Spectator, a series of conversations on Australian politics and life. I'm Will Kingston. Sticks and stones may break my bones, but words will never hurt me. That familiar refrain from our parents to stop us whinging about the mean things other kids were saying about us in the playground.
00:00:46
Speaker
You don't hear it much these days. In fact, I imagine in some circles it's positively heretical.
Is Free Speech Under Threat in Australia?
00:00:52
Speaker
We now live in an age where words are violence, where hate is not just unpleasant, but illegal, where free speech is encumbered with so many legislative ifs and buts that it's rapidly losing meaning. The great tragedy is it feels like there are less and less people willing to stand up for a belief the previous generations fought and died for, the right to think and say what we believe.
00:01:14
Speaker
One person still fighting for it is Josh Crook. Josh is one of Australia's most interesting public intellectuals. In an age of specialization, he's one of the last polymyths, with work spanning law, politics, humanities, and even interactive game design. His writing has been featured in the Financial Times, Business Insider,
00:01:30
Speaker
and the ABC, although we won't hold that against him. However, it was his article in the Law Society Journal last year titled, Does Australia Have Free Speech? That Drew My Attention. In it, he argued democratic debate in Australia is facing an unprecedented and existential threat. Josh, welcome to Australia. Thanks for having me, Will.
00:01:51
Speaker
I want to go through the different ways in which freedoms are being curtailed in Australia and they range from government intervention to the decisions of private companies and then a broader and insidious cancel culture. I think it's important to acknowledge at the outset though that this isn't really an abstract debate for
Censorship Experiences and Legal Challenges
00:02:10
Speaker
you, is it? In 2020, government censorship in fact cost you a job. Tell us about that experience.
00:02:18
Speaker
I mean, all of this is on public record now that at the time I was working for the government and I wrote a couple of things about COVID and the global response to COVID in terms of the competition amongst governments for medical supplies. And I also wrote something about the tech companies. And I actually lost my job over those two articles. They weren't very controversial. They weren't about government policy or anything like that.
00:02:45
Speaker
It was just seen as unacceptable for me to be writing about these topics. And it's part of what is a broader problem in the government where you're really not allowed to talk about anything, really, if you're working for the government in a public platform. What was the precise rationale that I imagine your manager at the time gave you? Well, they tied it back to the Banerjee decision, which was this High Court decision in 2019.
00:03:13
Speaker
and I can get into that if you like. Paul's on that at the moment because we will get into Banerjee because I think it is the catalyst for a lot of the problems Australia is facing. Before we do that though, did you think of fighting this? I did consider it. I think one of the problems that you face is that because of
00:03:32
Speaker
the lack of rights that we have in Australia, it's actually very difficult to take up a case or to do something on the legal side of this. So to go that route, you really need more robust laws that you can rely on to take it up. And you just don't have those, unfortunately.
00:03:52
Speaker
We will get into the legal framework that we have to work within a bit later. I want to start with, I guess, the four dummies thinking around why does free speech matter? I was listening to one of Jordan Peterson's interviews the other day. He had a very apt take on free speech in the West. He says, we haven't really had to consider an existential threat to our liberty since
00:04:16
Speaker
the end of World War II. And over the subsequent years, complacency has set in and we've almost forgotten how to argue for free speech on first principles, John Stuart Mill's style, because we haven't had
Why is Free Speech Crucial for Democracy?
00:04:28
Speaker
to. And so in a relatively short space of time with the rise of woke and identity politics where free speech has been attacked, we've been completely unprepared for the response. My question is to you, what is the simple reason why free speech matters?
00:04:44
Speaker
So I mean, the simple explanation is that free speech is essential to a democracy. And I think one of the big problems in the debate at the moment is that it's being framed as purely a right wing issue or like a fringe right wing issue when it isn't. It's actually about democratic debate generally. I think what a lot of people don't know is that the I Have a Dream speech, the famous speech by Martin Luther King Jr.
00:05:07
Speaker
was only allowed to happen because the government gave him permission to have that speech on the National Mall in Washington, for instance. So free speech is really fundamental. It brings about the debate. It allows you to talk about politics and politicians. It allows you to criticize politicians when they do the wrong thing. And it allows us to have a functioning democracy without free speech.
00:05:29
Speaker
If everyone is silent, then really what happens is that politicians end up making the decisions and big companies end up making the decisions without the public having a role in that conversation. All the examples that you gave there had a connotation that they'd be positive additions to the public debate.
00:05:48
Speaker
I imagine you also think that negative things about, say, particular people, nasty things, potentially even hateful things, still should be free. What's the argument for the bad things being harmful but nonetheless legal? There are going to be negative sides to the debate. There are going to be negative sides to how people characterize each other in the public debate. And that's okay. That's sort of part and parcel of what politics is about.
00:06:13
Speaker
In general, we should be more accepting that there's going to be negative parts to the debate and there are going to be positive parts to the debate, but that's part of the public discussion. You know, you're always going to have the trolls, you're always going to have people getting angry. That's part of the public conversation. And I think if you shut it down completely,
00:06:31
Speaker
what happens is that that goes underground and you start having this more toxic sort of debate. And I think that's where we're actually seeing the rise of conspiracy theories and things like that is from this sort of shutting down public conversation and really pushing people to the margins where they start
00:06:46
Speaker
coming up with more fringe ideas. Yes, I think that is precisely right. But interestingly, younger generations don't seem to get that line of logic. I was reading a pretty old study. Now it's five years old, but I think if anything, the numbers would be worse today. And it found that fewer than half of 18 to 21 year olds across 18 countries agreed people should not be allowed to express nonviolent opinions
00:07:14
Speaker
that offended minorities. So again, I think most of us can agree that saying things about minorities that are nasty is not a nice thing to do, it's not a good thing to do, it's not something we should tolerate on a moral level in society, but it seems like younger generations don't understand that there still should be that legal right to be able to do so because ultimately it does prevent that toxic underground debate that you've just mentioned. Why do you think younger people particularly really struggle with this as a concept?
Generational Views on Free Speech and Identity
00:07:44
Speaker
I think what has happened more recently is the rise of online spaces and the rise of people creating their own avatar and identities online. And that's a very fragile thing to do. And so what's happened is that a lot of young people I think feel very threatened in the online environment in particular, that someone will attack their created identity, will attack their
00:08:08
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their avatar, the person that they like to be online and the way they want to present themselves. And so they've created fairly firm rules around that.
00:08:18
Speaker
The other thing that's happened is that I think that there are some legitimate cases around hate speech laws and vilification and calling people to commit violence, for instance. There's some certain aspects where there is a legitimate concern, but then that concern has blown up to cover the entire debate. We've seen this a lot with companies where they create rules around racism and sexism, but then they actually end up banning all social media commentary by their employees.
00:08:47
Speaker
So they sort of use that as the excuse to broaden it out to batting way more than you would actually think when you use that as the premise. And I think that's what we're seeing a lot of as well. That's interesting. And it's reflective of a broader trend against any form of nuance in public debate generally. And you can say that this was seen in COVID.
00:09:10
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climate change, any number of different issues where shades of grey have been rejected in favour of a really black and white cultural response and policy response. Let's get into the meat and bones of this. You mentioned the Banerjee case. My eyes can glass over reading legal cases, which is why I was a very middling law student. This case everyone should in fact know about in Australia. It's that important. Give us a layman summary of it and why it matters.
00:09:36
Speaker
Right. So I have to give you a bit of a history before we stick into it. But basically, when our Constitution was written in Australia, there was no right to free speech written into the Constitution. So you can't go to the Australian Constitution and look that up as you can in America or Germany or other Western countries. It doesn't exist in the Constitution. That was a lot of people. That was a surprise a lot of people. Yeah, people expected to exist. And people often when you survey people, they think we have the American Constitution.
00:10:03
Speaker
What happened in 1992 is that there was this huge case where the High Court decided that because we have the right to vote in the Constitution, that should include
00:10:14
Speaker
the right to speak about politics. And they said that to have a free and fair election, you need to be able to criticize the politicians. You need to be able to criticize the government. And because of that, we should be able to talk about politics. So they implied this right to political communication into the Constitution. A bit of judicial creativity there. A little bit, yeah. Yeah, it wasn't an originalist sort of position. It was trying to read something into it.
00:10:43
Speaker
But they basically said, yeah, without political discussion, you don't really have a proper election. And then what happened in 2019 is that the High Court sort of went back on a lot of that, and that is what happened in the Banerjee decision.
00:10:59
Speaker
And so to give you the story, Michaela Banerjee was working for the immigration department and she was extremely critical, let's say, of the government's immigration position. And she started this anonymous Twitter account where she posted thousands of tweets criticizing the government's policy, but not under her own name and almost entirely outside of working hours and not on a work device. So these things are all mentioned.
00:11:26
Speaker
and anonymous in the sense that it wasn't tied to her work. She didn't mention who she worked for, these sorts of things. The government ended up finding out about the account and firing her for it. And she took the government to court and it went all the way to the high court.
00:11:41
Speaker
And the High Court said a number of things. So she was trying to rely on that earlier 1992 decision and say, well, we have this political freedom, this political speech freedom in the Constitution. And that's really why the government shouldn't fire me. I should be able to talk about these things.
00:12:00
Speaker
And the High Court said, actually, no, that this right that's been read into the Constitution, it doesn't apply to individuals. It doesn't apply to groups. It only applies to political communication as a whole.
00:12:15
Speaker
Now, to my mind, that doesn't make much sense, because I've always thought that individuals and groups create political communication as a whole. So I'm not really sure of the logic that they were following down that path. The other thing that they said, which I think is also quite controversial, is that you can never be anonymous online. And in the age of social media and so on, you will always be found out, which
00:12:41
Speaker
I think there's a strange thing to say. They didn't back that up with any data or statistics or so on. They just said that that was the case. It really does sound like a comment from a group of 50 to 70-year-olds who haven't spent much time on social media. Basically, yeah. I think they would be surprised by how many people are writing under pseudonyms and under fake identities and pretending to be aliens and whatever else. People are crazy online. They're not
00:13:07
Speaker
they're not always themselves so i think that that was a strange comment so that was their logic in the case and they basically said that she couldn't assert this right to free speech and so that the government was actually correct and was able to fire her and hold her responsible for her comments
00:13:25
Speaker
as if she were posting as a public servant as her own identity. To oversimplify, we didn't have any protection for free speech written directly into the Constitution. A 1992 case infers it.
00:13:40
Speaker
broadly, we get to 2019, and that is ripped away. And suddenly, again, free speech protections, such as they were, are no longer read into the
Impact of Censorship on Public Service
00:13:50
Speaker
Constitution. What are some other ways that the government has responded that have limited our free speech? Yeah, so I think I think what you really have to think about is the consequences of that decision, because the effect meant that over two million Australians work in one sense or another for the government at a local state federal level.
00:14:10
Speaker
That includes people like teachers and people working for the fire department and so on. It's a really broad cross-section of society. That's the immediate effect is that whatever they decide will apply to this huge group of people. The ABC did a poll and they revealed that over 50% of the scientists that they polled felt like their research was being suppressed when they were working for the government. And the former head of the CSIRO has come out and said that his research was suppressed. And in fact, when he wanted to talk about his research being suppressed,
00:14:39
Speaker
That was also suppressed. You might ask, why isn't this a big public debate? Well, all of the people who are affected are not allowed to talk about being affected. So it's sort of this closed loop where you can't have a public server time because they'll get fired for talking about it.
00:14:58
Speaker
you can't have these people on because they'll face the consequences. That's the other thing that happened is that people were told that you're not allowed to talk about this, you're not allowed to go public with this, even the fact that you're being silenced. That was rolled out across various government departments and it really cemented certain laws which I don't think should be on the books.
00:15:22
Speaker
One, that's also troubling, the Border Force Act from 2015, it makes it a crime for journalists to report from immigration sources that they have in immigration detention, sentenceable by two years in prison. Things like that start, you struggle to challenge those things when the courts undermine free speech rights and lawyers start losing options in terms of taking cases to court.
00:15:46
Speaker
What I am concerned about is that when you have issues that shape federal elections, immigration, education, things like that, those should be kind of free game. Everyone should be able to talk about those issues.
00:15:59
Speaker
And when the government has laws on the books saying you can't, this is a crime, this is a crime, you know, you'll get fired for this, you'll get fired for that. That's when it starts becoming quite pernicious to our public debate. It's really terrifying. Do you see any likelihood that there will be a correction of some sort or are we on a slippery slope here? The problem here is that the incentive is towards silencing and there's very little pushback.
00:16:24
Speaker
One of the things that's concerned me is that the law schools have been very silent on this. The legal profession has been very silent on this. There's a reluctance to talk about these issues. There's a reluctance to say that this is wrong, actually, and that we should be creating new laws to protect ourselves.
00:16:41
Speaker
It's really worrying. I imagine one of the reasons why there is so little pushback is because too many people are buying narratives or excuses from government. So I imagine with the example you mentioned, national security would be given as one potential reason why you're not allowed to have that conversation with an immigration department member. You mentioned as well the online discourse and online safety and the safety of young people is often used as a rationale for curtailing free speech.
00:17:09
Speaker
online. This has been a big issue in the UK where you're speaking to us from where supposedly conservative governments are trying to push through an online safety bill at the moment.
Tech Companies' Role in Content Moderation
00:17:21
Speaker
The first draft of that bill included an obligation on tech companies to police
00:17:26
Speaker
legal but harmful content, which is, if you stop and reflect on those words, an extraordinary thing for a government to say, legal but harmful. Now, that part has gone in subsequent drafts of the bill, but it does point to a worrying instinct from government, particularly a government that's meant to be a conservative government. Should we ask Twitter or Facebook to police legal but harmful content? Why? Why not?
00:17:51
Speaker
So, I mean, I think it's the government's job to decide what the law is and make those decisions themselves. I think it's strange when you push it onto private companies in that way. I think it's sort of an absence of responsibility, which is quite common in the UK at the moment. It's not to criticize the UK government. That's sort of the situation.
00:18:11
Speaker
But I think that there's a broader trend here of the tech companies kind of acting as proxy arms of the government in certain respects and sort of coming in and filling the gaps. When it comes to harmful content, there's obviously illegal material that shouldn't be online. The tech companies need to be involved in that process because the government can't step in and control the algorithms and so on. The tech companies have control over their systems.
00:18:38
Speaker
But every company has an obligation to follow the law. That's what the criminal law is for. This goes beyond that to policing materials, which are illegal, but subjectively harmful based on rationale. God knows how that is actually determined. Yeah. Well, I mean, this is part of the broader trend that's happening at the moment, which is that laws are introduced to protect one thing and then it just gets expanded out to cover all sorts of different aspects. That's really the trend that we're seeing across the board.
00:19:08
Speaker
I think one of the problems with this is that we haven't created effective ways of protecting young people, which aren't the over policed measures.
00:19:22
Speaker
Yes, that's right. What are some practical ways to improve online safety, which we can all agree is important without resorting to heavy handed censorship? So one of the things is to give people more control over what they see online. So you might know that we have all sorts of what are called recommendation systems built into these platforms, which control what you see on your newsfeed, control what you see on YouTube and so on.
00:19:47
Speaker
And I think it's quite important to give people more control over those systems to say, I want to see more of this, I want to see less of this. Because at the moment, we're getting that anyway, we're just getting that from the algorithm telling us what we want, which I don't particularly like. I think that we should have more control over that. That could help. And I think that particularly for parents, for instance, that gives you a bit of leeway to help your kids avoid certain harmful content.
00:20:11
Speaker
interrupt you there, do you think that's something Elon Musk is trying to do with Twitter at the moment? I think it's very difficult to know what Elon Musk is trying to do with Twitter at the moment. I do think he's voiced this as an idea of his many ideas to give people more control over what they see and how they see it and I'm definitely in favor of that part of it. I think it's important to empower people online and I do think that we're in a stage where people are actually quite disempowered online where they
00:20:39
Speaker
They're told what they want by these systems. The tech companies have billions of dollars worth of advertising that they're throwing at people, personalized ads and so on. And I think that people do feel slightly psychologically under attack at times when they're on these platforms. Part of what we're seeing is the emotional reaction to that environment, is that people get very defensive, people want to feel more safe and secure, and they start trying to push for government action and so
Society's Dependence on Government Solutions
00:21:05
Speaker
on.
00:21:05
Speaker
when really we could change the platform slightly and make them more relaxing places of, you know, the Internet of old, for instance, was a much more relaxing place to be than Twitter today, for instance.
00:21:17
Speaker
You know you're getting old when you're talking about the good old days, including the internet as part of the good old days. It's not like playing with a ball in the backyard. The internet was still part of the good old days, just a slightly more genteel version of it. It feels like in so many areas, we want the government to solve our problems. We want more government regulation. We want to have more government control. Why do you think, and this is a big question,
00:21:42
Speaker
We as a society seem to want to get government to solve these sorts of problems as opposed to just saying, I'm not going to pay attention to that tweet or I'm not going to listen to that person. Well, I mean, the cultural expectations have shifted. So the younger generation, there's been this cultural shift where we expect authority to work for mainly for us.
00:22:04
Speaker
And at times that can be a good thing. I do think that there's certain changes that are needed in society to help protect young people at certain stages in life. But I think most of this is a very small percentage of the population and it's a small percentage of the population in American universities largely that are controlling this debate. And so it's difficult to judge how much of this is reflective of young people today or how much of it is reflective of
00:22:32
Speaker
the loudest voices at American universities who seem to dominate the conversation in this area. People do want to feel safe and people do want to feel secure and I think the online environment can be particularly pernicious. What we have today that we didn't have in the past is that you can have this mob effect in an online environment. Before the internet, you know, you could offend people in your local community and there could be some people who get very angry at you. But this idea that you would have thousands of anonymous strangers online piling on
00:23:01
Speaker
That seems relatively new, and it does seem to be a problem that we haven't really worked out how to solve. And I think using the big stick and just cancelling everything seems to be one way of solving it, but not necessarily the best way.
00:23:14
Speaker
Yes, there's only so many people that you can fit into an angry mob going down the street, whereas an online mob is limitless in scope. So we talked about the warring trend of government censorship. Obviously, the tech companies now are, to your point, almost proxies of that censorship.
00:23:34
Speaker
a less obvious form of censorship or a softer form of censorship, and that's self-censorship, which is encouraged as a result of a broader cancel culture. I speak to so many people who don't buy into identity politics, who don't buy into wokeism, but they compliantly go along with things like unconscious bias training because they're afraid they'll lose their job if they
Self-Censorship and Professional Repercussions
00:24:01
Speaker
don't.
00:24:01
Speaker
What do you say to people in that position who are self-censoring in a corporate environment? Well, the first thing I'll say is that I think it's far worse than what you're presenting it as. I think that the self-censorship is actually extending well beyond controversial comments at this point. I know someone who went to a job at a major law firm in Sydney, for instance, and the firm had printed out their entire Twitter feed and pointed to a photo of them raising a champagne glass at a wedding to cheers the bride and groom.
00:24:31
Speaker
And they asked them, why is this on your feed? This is unacceptable. What was the supposed problem? Well, the rationale was that clients might see that you drink alcohol, and that might bring the firm into disrepute. Oh, great. Yeah, so I don't know what century these clients are from, but having a toasted wedding is fairly
00:25:00
Speaker
You know, they didn't look drunk or anything like that. And this is the culture. And so what that person did was that they deleted their Twitter account. And this is what I've seen more and more of over time is that most of the people I know who are working for professional firms have deleted their social media accounts or have changed their names on social media to go under suit names. Almost all of them. I don't know many people who post under their real name anymore. The Blackboard obviously hasn't been speaking to those particular lawyers.
00:25:28
Speaker
Yeah, I don't think so. So that is sort of where we're at, which is sort of mass self-censorship. I think it goes well beyond the debaters around controversial comments or people being racist or sexist or whatever, but wedding photos is now part of the game. In Tasmania, they were saying that if you post the wrong emoji in response to a government article that they'll fire you.
00:25:53
Speaker
minor, minor, minor things now that are coming under force. And what that's resulting in is mass self-censorship. I didn't know anyone in government who had a social media account. I was one of the few people who did because I just thought it was ridiculous to delete your accounts when you're working for someone. But that's uncommon. Most people do follow those guidelines and they're not even guidelines. They're beyond the guidelines. That's kind of the point. The guidelines are at one level.
00:26:22
Speaker
but the self-censorship is way beyond it and that's what we're facing.
Should Australia Amend the Constitution for Free Speech?
00:26:27
Speaker
What do we do about this? What can we actually do to address these different freedom of speech threats that we've talked about?
00:26:36
Speaker
believe in a constitutional amendment for free speech. If you just said that to the average person on the street, you'd struggle to find anyone who would say no to that, surely. You'd struggle to find anyone who doesn't think we already have it. So I think that's true. Look, I think that there's a fear of certain situations. Obviously, hate speech that can lead to violence is one area where people are very afraid and defamation. But I mean, you can include those as exceptions if you want to.
00:27:06
Speaker
I do think that without a constitutional protection, the government can do what it wants, basically. And so to protect something in the constitution means it's somewhat above government. It's really hard to change the constitution, as we'll find out later in this year. But it's something that's very difficult to do. And so if you put it in there, then it's difficult to change. There is a reason why free speech is called the right upon which all other rights
00:27:32
Speaker
rest. The fact that no one's really speaking about this is very, very worrying. And the fact that it doesn't seem to be high up on the priorities of any of our politicians is even more worrying. So Josh, please, you're one of the few people who has actually got the courage and the intellect to be able to keep having these conversations. So please keep doing it. It's incredibly important.
00:27:51
Speaker
I strongly recommend to all our listeners to subscribe to your blog, New Intrigue, which is newintrigue.com, wonderfully eclectic mix of literature, philosophy, tech, law, politics. So please, for everyone listening, go out and check it out. Josh, thank you for joining us. Thanks for having me. Thank you very much for listening to this episode of Australiana. If you enjoyed it, please subscribe. And if you really enjoyed it, please leave us a rating and a review.