I was very enthusiastic about the first judgement by a single judge of the Australian Federal Court because it moved in the direction of Australian personal rights to free speech in political discourse.
I wrote about it (reference below)
But that was banged on the head by the three judges on appeal and their decision stands as the High Court will not hear a further appeal.
The Federal Government cannot make a law on any topic that it likes. It must find the power somewhere in the constitution. The general power of governments is retained by each of the States unless referred to the Federation.
The Australian Law Reform Commission recommended a review of section 18C of the Racial Discrimination Act suggesting that the Constitutional power that is used has been overstepped.
This is because there is no reason for a hurt feelings test - the test of personal offence or insult – in order to comply with Australia’s international agreement on human rights made under the Constitution.
When Labor Shadow Attorney General Mark Dreyfus says he wants to set “a standard about speech generally” (Jewish Community Council of Victoria Event March 22. Australian 22 August p 13)
we should be very afraid.
Former Army Officer Bernard Gaynor’s dismissal case is important for three reasons.
1. It illustrated the interaction of the balance of the three separate parts of government.
With the Constitution as an interpretive guiding umbrella it is important to remember that it is not a Statute. It is not to be interpreted in the same way as ordinary laws passed by parliament from time to time and which can always be overturned by the next parliament.
The Parliament can pass whatever laws it likes – subject to them not being invalid according to the Court’s interpretation of the Constitution – and subject to electoral backlash.
2. When you are in the Army you have to follow orders and can be dismissed for not doing so.
The Parliamentary Statute that was used to dismiss him was called in to question with respect to implied free speech. The Army Chief executive’s action under the law, and the law itself, to dismiss Gaynor was under scrutiny for invalidity. Federal Law as now held is that Gaynor had no right to free speech that was breached and the law allowing his dismissal was valid and used validly.
3. The Court was called to re-consider what Constitutionally implied free speech means.
The Court re-stated that Free Speech is not an individual right. Although the first Court decision (to overturn Gaynor’s dismissal) by a single judge moved on from that starting point to say that Bernard had rights to free speech that were breached when he was sacked. That crucial move was wrong according to the three Full Federal Court Judges who heard the appeal. They confirmed that the Constitution did not protect individual free speech. It is a public right only not to have laws that restrict political discourse unless they are for a legitimate reason.
Goodness knows what labor will decide is a good reason to supersize s18C. Senator Penny Wong thinks that disagreeing with her is Hate Speech and Islamic activists want to outlaw their critics.
We should all be very afraid.
For prior article on this go to