Pauline Hanson's comments in Parliament on the so-called `race issue' have been hurtful and divisive. She has referred to "the privileges that Aboriginals enjoy over other Australians" and has been critical of the so-called `guilt' or `Aboriginal Industry' putatively generated and defended by "the fat cats, bureaucrats and do gooders" who are said to feed off it.(1) She has not, of course, been alone; for example, Senator Ross Lightfoot has asserted on more than one occasion in Parliament that Australian Aborigines are the "bottom colour of the civilisation spectrum".(2) In any case, such provocative and often inaccurate speech has been Uttered with legal impunity, giving rise to a number of questions about the rights, duties and special privileges of Parliamentarians, especially where the issues of recognition and reconciliation are concerned.
In the Westminster Tradition, Parliamentarians enjoy enormous speech freedoms. These freedoms affirm the sovereignty of Parliament, facilitate the cut and thrust of Parliamentary politics and, perhaps most importantly, ensure that the truth will out. It is imperative that our Parliamentarians are enabled to speak candidly without fear of the consequences.(3)
While I wish to affirm the sovereignty of Parliament and its right to police its own breaches of privilege, I argue here not only that Parliamentarians in general have a stronger obligation than private citizens to speak truthfully and justly, but also that Australian Parliamentarians in particular have a special obligation to speak carefully and thoughtfully when referring to any issue affecting the original inhabitants of this nation.
The speech of Australian Parliamentarians is a special case of speech for two reasons: firstly, the extraordinary privileges enjoyed by members of Parliament carry with them equally extraordinary duties to speak truthfully and temperately; secondly, non-Indigenous Australia's unusually uncomfortable and troubled relationship with Indigenous Australia and the absence of Aboriginal representatives in Parliament means that any speech on the subject should be chosen and uttered with great care.
Freedom of speech and expression is, of course, one of the most important themes in liberalism. For Justice Michael Kirby, "individual self-expression" is a "vital attribute" of a free society and is just as important as "the protection of life itself". The capacity to criticise the Government, he adds, "is a vital protection against tyranny".(4) That freedom of speech is a precondition of representative democracies was recently validated by the Australian High Court decisions which found in our Constitution an implied right to freedom of political communication. The Court found that since Australia is an (effective) representative democracy, guarantees of freedom of communication or discussion could justifiably be implied as a necessary condition of the practice of representative democracy.(5)
But even the most vehement defender of free speech admits that there is no such thing as an absolute right of speech, As the late Justice Lionel Murphy noted: "free speech is only what is left over after due weight has been accorded to the laws relating to defamation, blasphemy, copyright, sedition, obscenity, use of insulting words, official secrecy, contempt of court and Parliament, incitement and censorship".(6) Every Australian is, therefore, restrained in her/his speech by these various conditions. All of us, that is, except for our Parliamentary representatives speaking from within the hermetic environment of the Parliamentary chamber. Nothwithstanding the fairly modest constraints imposed by standing orders and the informal bridle of party discipline, Australian Parliamentarians may more or less say what they like, protected as they are by Section 49 of the Constitution against questioning or impeachment "in any court or tribunal" outside of Parliament.(7)
Libertarians, while they may not always like what Pauline Hanson has to say, argue strongly for her right to speak as she does. Free-speechers often say that race hate speech is a legitimate aspect of public debate.(8) The freedom to say horrible, even "nasty, vicious, wrongheaded, and downright evil" things is regarded as essential for a the functioning of a vital democracy.(9) Some regard controls on racist speech as a form of `mind control'. A popular mainstay here is, of course, the inevitable slippery slope type of argument which runs along the lines: `once you suppress one form of speech, the way is certainly open to suppress others. Where would it end?'(10) Others suggest that government suppression of hate speech deprives members of the group subject to race-hate "important, if distressing knowledge".(11) It has even been suggested that "offensive graffiti and race hatred are often the only means of self expression of some sections of the community."(12)
Perhaps the best known liberal defender of the importance of free speech is John Stuart Mill, and it is to his views on the subject that free speechers invariably advert when defending their `right' to speak. Mill was a passionate advocate of free expression because he regarded it as an essential precondition for the achievement of human happiness and "the mental well-being of mankind". He provides a number of persuasive arguments against the suppression of speech: firstly, the suppressed opinion may be true and "to deny this would be assume our own infallibility"; secondly, even if the "received opinion" is true, it will only be a "living truth" rather than "a dead dogma" if it is "fully, frequently, and fearlessly discussed";(13) thirdly, it is generally the case that "conflicting doctrines ... share the truth between them"--a lively dialectic between competing points of view is necessary to, and constitutive of, intellectual progress.(14) Mill even tells us that the suppression of an opinion we know to be false is an "evil".(15) On this basis, the right of Pauline Hanson and other public figures to denigrate and disseminate misinformation about indigenous Australians would seem to be permissible. But it will be shown that this right is complicated by a conflict which exists between Mill's defence of free of speech and his views on representative government, in particular his preference for the `trustee' over the `delegate' form of parliamentary representation.
Speech: Harm: Cause
For a liberal like Mill, the only grounds for limiting speech are to prove that it causes `harm' to the interests of others. Part of the difficulty about speech is that it is impossible to show with certainty that a particular speech act actually caused harm. Civil libertarians are generally loathe to acknowledge the harm of speech. Andrew Norton argues, for example, that "(t)here is little evidence to suggest that racist propaganda is a significant source of racist views, rather than a reflection and reinforcement of pre-existing prejudices"(16) while Carl Cohen asserts that although "(w)ords can hurt ... there is a great difference between verbal hurts and physical blows".(17) Tony Katsigiannis says, quite accurately, that "(w)hatever one may think of the nexus between speech and action, there has never been any conclusive proof of a causal connection between the two."(18) Even those who acknowledge the harm of speech deny that it outweighs the harm of suppressing it.(19) One way of getting around the speech/action nexus is to argue that racist speech is itself harm, rather than a cause of harm. As Solomon and Tatz suggest:
Sticks and stones do break bones and words not only hurt, but maim and kill. It is nonsense to argue verbs and adjectives are of no moment, unworthy of criminal prohibition. Words have power. Words influence actions. They create reality.(20) In the case under consideration here, they represent a significant obstacle to the process of recognition and reconciliation.
Speech which impugns the dignity of any racial group undoubtedly "inflict(s) severe emotional distress and makes minority members of a society more susceptible to overt acts of discrimination and hatred."(21) We know intuitively, yet cannot prove absolutely, that racist speech damages the social and civil standing of its targets. Damage to reputation leads, of course, to economic loss, as even the most stalwart defenders of free speech will admit.(22) And we all know that when the reputation of any group or person is consistently denigrated and...