It’s a little surprising that, outside the RWDB blogs, virtually no attention has so far been paid to the current trial of Canadian right wing pundit Mark Steyn on (effectively) religious vilification proceedings by the British Columbia Human Rights Commission. Admittedly it’s all happening in far away Canada, but Steyn is a fairly well known figure in Australia and even visited on a speaking tour quite recently.
The Steyn proceedings are extremely disturbing for the future of liberal democracy in Canada, and by extension parts of Australia that have enacted similar “hate speech” laws (e.g. Victoria). Indeed it’s in some respects more disturbing than the not dissimilar proceedings against Australian fundie god-botherers Danny Nalliah and Daniel Scot of Catch the Fire Ministries (the VCAT decision in which was mercifully reversed by the Court of Appeal in any event). Like Nalliah and Scot, Steyn’s “hate speech” comments dealt with Islam and its more extreme and worrying elements.
Unlike Nalliah and Scot’s rather bizarre diatribe, Steyn’s words were undeniably part of mainstream political discourse. That such discussion could be prohibited in a supposedly liberal democratic country is quite extraordinary and even frightening. Personally I agree with most of what Steyn had to say, albeit that I might have expressed it a bit less trenchantly and with a few more qualifiers. But that really is beside the point. The whole point of freedom of speech is that one is free to speak, within very broad limits, irrespective of whether others may disagree or be offended.
There was, however, a MSM article about the Steyn case in The Australian today, by its pseudonymous columnist Jack the Insider. Unfortunately it is replete with both factual and legal errors, both major and minor. I’m not sure exactly at what institution Jack is an “Insider”, probably the back bar at some Surry Hills pub judging by his Oz photo and the quality of his thinking (or lack of same).
Jack says: “More recently, the Canadians introduced a charter of rights and freedoms, again without constitutional amendment. ” In fact the Canadian Charter was enacted as part of Canada’s Constitution by the Uk Parliament by the Canada Act 1982.
Jack also says: “The charter enshrines freedom of expression but makes no mention of freedom of speech.” But that’s because “freedom of expression” is a wider term than “freedom of speech”, designed to convey that images and symbolic speech as well as words are covered by the constitutional freedom.
However, the major defect in Jack’s “reasoning” is his claim that the Steyn proceedings are a consequence of Canada’s possessing a bill of rights at all. The basic premise of Jack’s article is that the Steyn case is a salutary reminder of the dangers for Australia if we had a constitutional bill of rights (or indeed any bill of rights). In fact if anything the Steyn case is made possible by the fact that the Canadian Charter is a weaker form of bill of rights, at least as to freedom of speech, than its US counterpart, and by the fact that the Canadian Parliament apparently regards other values like protecting racial, religious and other minorities from being offended as more important than free speech. Hence it has enacted the Human Rights Act (roughly equivalent in its scope and objects to Australian states’ anti-discrimination laws and the federal Racial Discrimination Act, Sex Discrimination Act and Disability Discrimination Act) under which Steyn is being prosecuted.
The Canadian Charter rights (including free speech) are expressly qualified by Article 1 in a manner which to a significant extent limits their effectiveness as restraints on the legislature. Article 1 provides that the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
That seemingly innocent qualifier has been interpreted by the Canadian courts and Human Rights Commission in a manner which makes its constitutional guarantee of free speech almost meaningless, or at least subordinate to a very wide range of other collective rights and interests:
Although freedom of expression is an important fundamental value, we in Canada value just as much the equality rights of all individuals. Equality means a respect for the inherent dignity of all human beings whatever their colour, race, language, sex or religion. Freedom to express ones idea ceases to be freedom of expression or opinion when it is used to stand in the way of the promotion of equality. Freedom of expression ceases to be a fundamental characteristic of democratic values when it becomes a vehicle for the promotion of hate. (See Canada (Human Rights Commission) v. Canadian Liberty Net,  3 F.C. 155, at para. 60)
As a result the Canadian Charter is effectively useless in protecting free speech where that speech sufficiently offends someone because of their colour, race, language, sex or religion!
By contrast, the US Constitution’s First Amendment guarantee of freedom of speech is expressed in unqualified terms and has long been interpreted not to permit any law which abridges free speech unless it is appropriate and adapted (to use the Australian expression) to regulating lewd and obscene language or images, profanity, libel and insulting language only when it amounts to “fighting” words i.e. language likely to provoke immediate violence/serious breach of the peace. Consequently a “hate speech” law not dissimilar to the provisions under which Steyn is being pursued was held to be unconstitutional in R.A.V. v. City of St. Paul in 1992.
However, Australia doesn’t have a bill of rights at all*, neither a strong US-style one nor a weaker (in free speech terms anyway) Canadian one. Consequently there is no constitutional impediment whatever to Australian parliaments enacting laws like the Canadian Human Rights Act under which Mark Steyn is being pursued (subject to the qualification explained below). Indeed, as I observed earlier, there are close parallels between the Steyn proceedings and the Catch the Fire Ministries case in Victoria.
The entire premise of Jack the Insider’s article is therefore fundamentally misconceived. The Steyn case is not the result of Canada having a bill of rights, if anything it’s a result of its having a form of bill that is too weak to provide the effective protection of free speech that its US counterpart does. The Steyn case doesn’t provide a lesson for Australia about what can happen if a country has a bill of rights (as Jack believes), because Steyn-type prosecutions can happen and already have happened in Australia. If anything, the lesson we can draw from the Steyn case is that Australia needs a strong US-style guarantee of freedom of speech rather than a Canadian-style one with weasel words that subordinate free speech to other and potentially freedom-denying values. It’s more than a bit of a worry when the only discussion in the Australian media of an important legal matter like the Steyn case is the sort of ignorant, incoherent garbage spewed out by Jack the Insider.
*PS Just a quick qualifier. Australia does in fact have a limited implied constitutional freedom of political speech, and several Justices in the recent (2004) decision in Coleman v Power (namely Justices Gummow, Hayne and Kirby) appeared to favour a strong US-style interpretation whereby a law which incidentally burdened free political communication would only be valid if appropriate and adapted to preventing a real and immediate threat of breach of the peace. For example, Kirby J said:
It follows that s 7(1)(d) can, and should be, construed so that it conforms to the Lange test as reformulated in this appeal. As so construed, “insulting” words in the context of the Act are those that go beyond words merely causing affront or hurt to personal feelings. They refer to words of an aggravated quality apt to a statute of the present type, to a requirement that the insulting words be expressed “to” the person insulted, and to a legislative setting concerned with public order. They are words intended, or reasonably likely, to provoke unlawful physical retaliation. They are words prone to arouse a physical response, or a risk thereof. They are not words uttered in the course of communication about governmental or political matters, however emotional, upsetting or affronting those words might be when used in such a context.
In such communication, unless the words rise to the level of provoking or arousing physical retaliation or the risk of such (and then invite the application of the second limb of the Lange test) a measure of robust, ardent language and “insult” must be tolerated by the recipient. In Australia, it must be borne for the greater good of free political communication in the representative democracy established by the Constitution.
If that reasoning achieves majority High Court support, and if Steyn’s words were held to be concerning political rather than just religious matters (as I think they are at least in part), then it may well be that Australia’s constitutional system would already prevent a Steyn-type case in this country 11. KP: although I note that the Victorian Court of Appeal didn’t think much of a similar argument in Catch the Fire Ministries – I think they’re wrong [↩]. But if that is so, it’s because we already have limited US-style constitutional bill of rights protections.