Sticks and Stones: Freedom of Speech and Racial Discrimination

Are we the subjects of rulers anxious to protect their citizen’s ideas from being challenged, hovering overhead like a mother to her child on the first day of school? Do we all need to develop greater mental strength and meet criticism, and our critics, directly and without interference? Are we allowing good ideas to be repressed in exchange for the protection of uniform thought? Have we created a world in which one’s options for individual thought and expression are limited to this or that flavour of the same product?

The proposed repeal of Section 18C of the Racial Discrimination Act is based on such questions about the ideal extent of free speech. Although the principles underlying these questions have been hinted at, no detailed assessment of these principles, or opposing principles, has been attempted. Recent court judgments applying Section 18C allow an assessment of how these competing principles are balanced and whether change is needed.

Freedom of Speech in Australia

The Implied Constitutional Right and its Limits

The Australian Constitution contains no express right to freedom of speech. Instead the High Court of Australia has found that the right must be implied from the principles of democracy espoused by the Constitution. Judgments in the cases of Nationwide News Pty Ltd v Wills, Australian Capital Television Pty Ltd v Commonwealth, Theophanous v Herald and Weekly Times and Lange v Australian Broadcasting Corporation stepped out the basis for, and the limits to, the Australian right to freedom of speech.

For a democratic state to work all people represented by the governing body must be able to assert their will on the body’s policies and actions. Without the ability to freely assert an opinion, the subjects lose their ability to influence those that govern them. Most significantly, those people who hold points of view dissimilar to those who govern, or to the majority of people, lose their ability to participate in society. Brennan J said (at page 47) in Nationwide News Pty Ltd v Wills that:

“To sustain a representative democracy embodying the principles prescribed by the constitution, freedom of public discussion of political and economic matters is essential; it would be a parody of democracy to confer on people a power to choose their Parliament but to deny the freedom of public discussion from which the people derive their political judgments.”

In the Court’s view, the right is more shield than sword; it can be used to fight prosecution pursuant to a law that reduces free speech but cannot be pleaded as the basis of a claim against another.

The breadth of topics for discussion that are covered by the right go beyond speech related to an upcoming election. Instead:

“there are no limits to the range of matters that may be relevant to debate in the Commonwealth Parliament or to its workings. The consequence is that the implied freedom of communication extends to all matters of public affairs and political discussion, notwithstanding that a particular matter at a given time might appear to have…little or no connection with Commonwealth affairs.” (Mason CJ, Australian Capital Television Pty Ltd v Commonwealth, page 139)

On whether the right is amenable to restriction and, if so, when, the Court distinguished the Australian implied right and jurisprudence on the American First Amendment. The judges consistently found that public speech could be limited, so long as the restriction was in aid of a compelling competing interest (particularly the interest of preserving an “ordered society or for the vindication of the legitimate claims of individuals to live peacefully in such a society”, Deane & Toohy JJ, Nationwide News at page 77) and the limitation only restricted speech to the extent necessary to protect that interest.

Unlike the Unites States, where ample jurisprudence exists confirming that public speech is sacred and not to be limited, the Australian right is seen as important but limitable where a competing and equally valid interest may be trampled by an unquestioning commitment to speech.

Section 18 of the Racial Discrimination Act 1975

A notable limitation to freedom of speech is cut out by Section 18C of the Racial Discrimination Act 1975. This Section states that:

(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

This section restricts all speech that may offend a person or a group of people because of their protected attributes. To ensure balance between the need to eliminate offence to people on one or more these basis with the need to allow democratic debate, Section 18D provides a number of exceptions:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

The exception for fair comment on a matter of public interest made reasonably and in good faith is important in the context of speech intended to persuade readers. It attempts to draw a line between speech which is merely hurtful to a person’s or a group of people’s self-identification, and speech which may be hurtful for those same reasons but retains its credibility as making a positive contribution to public debate. The balance sought correlates with the balance required by the High Court to ensure the constitutionality of the legislation.

The application of Section 18C

The bones of the legislation have been built upon by the common law, giving it substance and, by closer and closer approximations, attempting to deliver the outcomes the legislation aims to provide.

The judgment in the case of Eatock v Bolt provides a sound basis for examining how the Court has drawn the line between speech that infringes on Section 18C and that which is protected by Section 18D. It is a true test of whether the legislation walks the constitutional line successfully. Further, this case appears to be the first cause in effecting the current attempts to change the legislation to remove the protection afforded by Section 18C.

Andrew Bolt writes opinion pieces for an Australian newspaper. In 2009 he wrote two pieces which were the subject of a complaint under Section 18C. The articles alleged that a number of Australians with white skin but Aboriginal ancestry were part of a trend of people with similar characteristics who identified as Aboriginal instead of identifying with their, say, European background. It was alleged that they did this for the purpose of gaining either political or professional advantage. The complaint made was that the article insulted and demeaned white skinned Aboriginals, implying that there are not genuine Aboriginals.

In the Court’s judgement a number of important factors affecting the types of speech captured by the prohibition were discussed.

Harms covered by Section 18C

The first matter of importance was how significant an act must be to offend, insult, humiliate or intimidate; the importance lying in whether causing a minimal offence will be captured and therefore how careful the commentator must be in pitching their speech. Bromberg J found, relying on earlier authorities, that:

“…the section is concerned with consequences it regards as more serious than mere personal hurt, harm or fear. It seems to me that s18C is concerned with mischief that extends to the public dimension. A mischief that is not merely injurious to the individual, but is injurious to the public interest and relevantly, the public’s interest in a socially cohesive society”. (paragraph 263)

and further that:

“the conduct caught by s18C(1)(a) will be conduct which has “profound and serious effects, not to be likened to mere slights””. (paragraph 268).

This definition, requiring a minimum level of harm, ensures that only speech that causes an effect on a group or a person’s race or ethnic background to the extend that social cohesion is threatened will be scrutinised.

Bromberg J evaluated the articles written and found that the emotive language and general tenor of the articles were such that the message conveyed to the reader would have serious negative consequences on the treatment of the complainants and regard for white skinned people identifying as Aboriginal in public. As a result, Bolt was found to have caused offence at the level required to be sanctioned unless it fell within one of the exceptions.

Fair comment exception

The claim was defended, at least in part, on the basis that the articles were protected under Section 18D. They were argued as being comments made reasonably and in good faith and were fair comment on a matter of public interest. The defence argued that the divisive nature of the trend of people unscrupulously obtaining advantage as a result of their claimed Aboriginal identity, and the resultant devaluing of assistance provided to black-skinned Aboriginals in comparison, were issues of public interest.

When assessing whether the fair comment exception applied the Court said that this exception was the same as the fair comment defence to defamation proceedings. This step led the Court to assess the freedom of speech/freedom from offence balancing dilemma using prior authorities from defamation cases that had already grappled with the difficult task:

“The right to be free of offence gives way to the reasonable and good faith exercise of freedom of expression. The right to freedom of expression is limited to its reasonable and good faith exercise having regard to the right of others to be free of offence. The requirement of proportionality does not involve the subjugation of one right over the other and is consistent with achieving a balanced compromise between the two.” (paragraph 350).

Fair comment in defamation jurisprudence is particular in choosing what statements it covers and what it avoids. The defence does not require strict proof of accuracy and truth, the High Court having previously pronounced that the fair comment defence extended to those that reasonable people would consider abhorrent.

Speech gains protection only if it is genuine comment and can be recognised as such; it does not cover statements of fact or comments that appear to be made as if they are fact. To ensure that a comment is identified as such, the common law defence requires that the facts underpinning the comment are “expressly stated, referred to or notorious” (paragraph 355). Only then can the reader weigh the value of the comment against the facts presented, and not be led to believe the comment is factual in itself.

The safeguard built on this reasoning is that comment, when provided with the supporting facts, can be assessed as such by the reader against the stated facts. Any assertions made are clear to be just assertions which the reader can evaluate. It avoids the reader being convinced of an opinion as if it were fact itself. Drawing on the judgment of Bingham LJ in Brent Walker Group Plc v Time Out Ltd:

“The law is not primarily concerned to provide redress for those who are the subject of disparaging expressions of opinion, and freedom of opinion is (subject to necessary restrictions) a basic democratic right. It is, however, plain that certain statements which might on their face appear to be expressions of opinion (as where, for example, a person is described as untrustworthy, unprincipled, lascivious or cruel) contain within themselves defamatory suggestions of a factual nature. Thus the law has developed the rule…that comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated”. (paragraph 375).

Even where the facts stated are not found to be completely correct the defence can be applied, particularly so where the issue being addressed is of high importance. Where reasonable effort is made to obtain correct information and the article is written in a reasonable manner (for example, making concessions where a background fact couldn’t be verified or denied) and where offence to the person or people being criticised is done in a matter that minimises the harm to their reputation, the defence can still be used.

The decision on whether Bolt’s conduct met these criteria can be summarised in the following two paragraphs:

‘In my view, Mr Bolt was intent on arguing a case. He sought to do so persuasively. It would have been highly inconvenient to the case for which Mr Bolt was arguing for him to have set out the facts demonstrating that the individuals whom he wrote about had been raised with an Aboriginal identity and enculturated as Aboriginal people. Those facts would have substantially undermined both the assertion that the individuals had made a choice to identify as Aboriginal and that they were not sufficiently Aboriginal to be genuinely so identifying. The way in which the Newspaper Articles emphasised the non-Aboriginal ancestry of each person serves to confirm my view. That view is further confirmed by factual errors made which served to belittle the Aboriginal connection of a number of the individuals dealt with, in circumstances where Mr Bolt failed to provide a satisfactory explanation for the error in question”. (paragraph 405)

and

“The tone and gratuitous nature of both the specific and general comments made contributed to the disrespectful manner in which the people in the ‘trend’ were dealt with and contributed to the intimidatory effect of the articles”. (paragraph 412).

Given the serious intimidatory effect and offensive nature of the articles, the failure to present the facts on which much of the opinion was based, the errors in the assertions made (which could have been uncovered easily or by contacting those mentioned in the article), and the unreasonable manner the people mentioned were depicted, the articles were deemed to not fall within the fair comment exception.

The push for repeal

Section 18C, 18D and related provisions have been slated for repeal and replacement by a new section proposed in the exposure draft titled Freedom of Speech (Repeal of S. 18C) Bill 2014.

If passed, the Act would reduce protection to racially motivated acts which vilify or intimidate. Unlike the current legislation the meaning of intimidate is limited to fear of physical harm to person or property and not intimidatory behaviour in the broader sense. There is no protection, such as in the current Act, from speech that is insulting or offensive.

A wide exception exists for any speech that is made “in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter”. Given the High Court’s previous wide definition of political discussion, it would seem that most public speech will be covered by this exception.

The tension between the rights to freedom of speech and freedom from offence has for long been a tug-of-war, each side having their own view on the most important values society should hold. The next section will investigate these justifications, drawing largely on writings from the United States where the tension between freedom of speech and ‘hate’ speech has played out in many court rooms.

The conflicting rationales

There would appear to be little doubt that constitutionally the Racial Discrimination Act is valid; although not tested by the High Court, the reasoning in Bolt appears in line with the reasoning in defamation cases such as Theophanous as to what speech repression is allowed.

But the Constitution would allow the repeal of the Section 18C protection. The choice must be made legislatively as to where we want the line to be drawn. Such a choice requires an examination of what is sought to be protected in both scenarios.

The case for unrestricted free speech

Historical events, such as religious dogmatism in the face of the scientific enlightenment, demonstrate in a vivid way the effects of the loss of the right to criticise the workings and organisation of society. The repression of minorities in favour of the majority and similar strict utilitarian societies in the past have the same effect of awakening the libertarian in us all. There are, from what I see, three main and interconnected reasons why some hold concerns about any restriction on the right of individuals to speak whatever they wish.

The pursuit for the discovery of truth

The story of Galileo Galilei discovering evidence and proposing a theory which bucked the earth-centered view of the universe prevalent at the time, and particularly the backlash against it by the then all-powerful Catholic Church in favour of maintaining earth-centric dogma, resonates with anyone who holds an opinion they believe to hold the truth. The fear of repressing an idea that may turn out to be correct ignites protest from the intellectual rebel.

This truth-seeking function of the First Amendment protection of speech leads the United States Supreme Court to consistently protect all speech that contributes to the ‘marketplace of ideas’. By allowing all public statements of ideas (save those that cause a “clear and present danger” of immediate physical harm to those receiving the statements), the public can then engage in debate and discover the truths of the world. Any attempt by authority to limit the content of a particular idea is expected to distort the final conclusion.

Robert Post cites part of the judgment in the case of Terminiello v Chicago 337 U.S 1, 4-5 (1949) on point:

“A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute…is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance, or unrest…There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups”. (page 304, footnote 181)

Such thinking traces back through history to the struggles of overcoming government censors to promote new ideas. Cato’s letter No. 15, published in 1720 by Thomas Gordon that:

“Without freedom of thought, there can be no such thing as wisdom; and no such thing as publick liberty, without freedom of speech”.

The same phrase is quoted in Bromberg J’s judgment in Eatock v Bolt  (paragraph 226) but attributed to Benjamin Franklin in 1752.

The free marketplace not only allows ideas to be communicated but also allows those ideas to be tested. In doing so, those ideas that withstand scrutiny will be all the more persuasive. John Stuart Mill’s essay On Liberty raises both issues of speech suppression:

“The greatest harm done is to those who are not heretics, and whose whole mental development is cramped, and their reason cowed, by the fear of heresy. Who can compute what the world loses in the multitude of promising intellects combined with timid characters, who dare not follow out any bold, vigorous, independent train of thought, lest it should land them in something which would admit of being considered irreligious or immoral.” (page 94 of  Utilitarianism, Liberty and Representative Government by J.S. Mill, published as part of the Everymans Library for J.M. Dent & Sons Ltd, 1948)

and

“If even the Newtonian philosophy were not permitted to be questioned, mankind could not feel as complete assurance of its truth as they now do. The beliefs which we have most warrant for have no safeguard to rest on, but a standing invitation to the whole world to prove them unfounded.” (pg 83)

The rejection of restraint to avoid dogmatic adherence to present ideas of how nature and society works or should work is a valid one. It is certainly the value that perpetuates scientific discovery. But further to advancing this ideal, it also flows into the following reasons for the need for restraint of speech to be minimal.

Self-determination

The ability for a community as a whole, and each individual in it, to arrive at their own conclusions on an idea are intertwined, at least in theory. How individuals view themselves and conduct themselves are the result of the principles and practices that are threaded through the community as a whole. How a community conducts itself is in turn, perhaps paradoxically, dictated by the principles and practices of all the individuals that make it up.

I don’t wish to labour only on the words of one man, but Mill’s statement of individuality has poignancy and brevity:

“It is not by wearing down into uniformity all that is individual in themselves, but by cultivating it, and calling forth, within the limits imposed by the rights and interests of others, that human beings become a noble and beautiful object of contemplation; and as the works partake the character of those who do them, by the same process human life also becomes rich, diversified, and animating, furnishing more abundant aliment to high thoughts and elevating feelings, and strengthening the tie which binds every individual to the race, by making the race infinitely better worth belonging to”. (page 120-121)

Of course, Mill’s reference to ‘race’ was to the human race. The need for unfettered speech to allow people to determine their own conduct and the conduct of the community is a necessity. There is no role for government to play in the development of both save to ensure that government doesn’t encroach on the marketplace of ideas. Ideas need to be available for trade and all who wish to contribute to or receive wisdom from this market be free to do so. In discussing the tenor of American judgments on First Amendment application to hate speech, Massaro wrote that:

“The approach to hate speech that is most familiar to contemporary Americans is that urged by the civil liberties theorists. Their argument, which urges broad protection of offensive expression, hinges on faith and fear. The faith is in peoples’ capacity to withstand, reject, or fob off insults, or to engage in critical and effective counterexpression. The fear is of people’s tendency to define the category of offensive ideas too broadly and idiosyncratically, so as to suppress important criticisms of orthodoxy and to curtail revolutionary possibilities and individual creativity.” (page 222)

The effect of free expression and counterexpression is expected to result in the development of an agreement or common view on an issue. Enforcing restrictions on public speech in the name of what is ‘right’ is considered intolerable as,:

“Since no one can know in advance what is in the public interest (at least before the legislature votes), people must be free to speak their mind on any subject and advocate any position, no matter how ridiculous or wicked it may appear to others. Regulation of speech henceforth must be confined to issues of procedure – that is, where and when one may speak – to ensure that debate on the great issues of the day takes place in an orderly manner.” (Balkin – Some Realism about Pluralism: Legal Realist Approaches to the First Amendment, page 294)

The ability to freely exchange ideas without fear or reprisal and the ability of people individually and collective to develop from that exchange leads to the final defence of the right: the preservation of democracy.

Preservation of democracy

The suppression of speech has been seen in history to result in the oppression of people; this still occurs in many countries. The ability to control dissent fails the test of what constitutes a democracy. Democracy requires the people to decide what is right and wrong, good and bad, and it is through the expression of ideas that the democratic society flourishes. It is this freedom in the marketplace of ideas that allows the attainment of the public self-determination, which in turn deems the society a democratic one. Richard Delgado cited an earlier argument by a Professor Emerson in Toward a General Theory of the First Amendment that:

“In a democracy, as Professor Emerson argued, all members of society must be permitted to voice their opinions so that the government’s authority is derived in fact “from the consent of the governed”.”  (page 178)

The case for restriction of harmful speech

Racial speech causes a harm that must be protected against

In response to the libertarian argument that only speech that causes a clear and present danger of harm should the restricted, proponents of restriction argue that there is palpable harm caused to the individual and the group of people that hate speech is directed at. The alleged harm is to self-identity and self-worth, both in the individual and in the group.

As the basis for his proposal for a right of action in tort for racial insult, Delgado (above) listed some notable harms of racially motivated speech.

“The racial insult remains one of the most pervasive channels through which discriminatory attitudes are imparted. Such language injures the dignity and self-regard of the person to whom it is addressed, communicating the message that distinctions of race are distinctions of merit, dignity, status and personhood. Not only does the listener learn and internalize the messages contained in racial insults, these messages color our society’s institutions and are transmitted to succeeding generations”. (page 135-136)

“Social scientists who have studied the affects of racism have found that speech that communicates low regard for an individual  because of race tends to create in the victim those very traits of ‘inferiority’ that it ascribes to him.” (page 146)

Recognition of psychological illness and the effects of bullying on psychological stability has increased dramatically over the last few decades. Legislation and regulation has increased over the denigration of others, particularly in the workplace. The harm of words is no longer considered to be ‘mere slights’ where they have the potential to cause serious psychological harm and, on this basis, it is argued that such speech should be required to defer to the right to be free from harm.

Reduces equality between groups and therefore equality in speech

On the basis of the harm caused, debate about the application of the First Amendment has played out in the context of how it should be balanced against the rights contained in the Fourteenth Amendment and the right to equal treatment enunciated in Brown v Board of Education.

The argument from equality is grounded in the difference between procedural equality for all people and substantive equality between all people, somewhat in the vain of the Anatole France dig at the fairness of procedural equality that:

“In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread”.

Ensuring that no speech is denied can paradoxically result in speech being practically denied or relegated in its force and appreciation. This is particularly so where a person or minority group of people is maligned on a basis other than merit to the effect that an expression made by them, whether of an idea or rebuttal of an idea circulating in the marketplace, may be considered little more than stock of ‘junk’ status. Where the derogatory speech is allowed to continue it can seep into the general consciousness of the people and fester to the point of being indistinguishable as a mere opinion but take on the status of fact.

“Equality is not merely a matter of identical social and legal treatment of individuals, but it also must take into account inequalities in legal and social outcomes with the historical maldistribution of social goods and political power”. (Massaro, above, at page 241)

and following on from the lack of substantial equality, Balkin (above at page 397) describes the resultant effect on the debate of ideas:

“Although the form/content distinction allowed “dangerous” speech to be protected, this guarantee of liberty promised only a formal liberty of speech and only a formal equality of opportunity for its exercise. Yet as is often the case, guarantees of formal liberty and formal equality generally favor those groups in society that are already the most powerful. Guarantees of formal liberty and formal equality generally do not guarantee, and indeed may sometimes even thwart, substantive liberty and substantive equality.”

As with the argument that debate between equals enhances democracy, so it is argued that the silencing effects that a lack of substantive equality entails will result in the inability of the democratic body from determining itself in a manner representative of all people within it. Whilst it may appear that all are treated equally and, from a procedural perspective, they are, the minority are at an increased likelihood that malicious speech against them will not be easily fought with counterexpression. In his article Dignity and Speech: The Regulation of Hate Speech in a Democracy, Alexander Tsesis argues this line:

“Hate speech is a threatening form of communication that is contrary to democratic principles. It not only asserts personal opinion but also aims to prevent segments of the population from participating in deliberative decision making.” (page 501)

and finally and more generally that:

“The First Amendment is designed to allow for open debate, encompassing popular, controversial and unpopular points of view. In and of itself, speech is a neutral medium that can just as easily promote fascism as democracy, justify genocide as it does enjoyment of civil rights.” (page 512)

Racist speech does not add any meaningful ideas to the marketplace 

 “Racist and sexist speech is hard to defend…the civil libertarian  cannot in his or her heart truly imagine that the speech of the Ku Klux Klan or the Nazis can have any redeeming social value. The libertarian is forced to defend racist and sexists on the pure market principle that the lack of any discernible redeeming value does not matter”. (Massaro (above), page 175)

Attack on unrestrained speech is also directed at the notion that there are no bad ideas and that the body politic must not weed out ideas that it considers bad. It is argued that lack of value in the idea expressed combined with the harm caused to the people subjected to the opinion and to the ideals of an equal society should result in restraint being applied.

The basis of the claim that there is no value in racist ideas appear to arise from the assumption that those who express an idea with hallmarks of racism do not seek to inform or convince the reader (Delgado, above, at page 177). Instead, the aim is to intimidate and exclude the identified groups from enjoying their political rights (Tsesis, above, page 504) and to allow such speech does nothing but preserve and reinforce the rights of racist speakers and the maligned status of the targeted (Tsesis, page 508). The harm to victims of hate speech is serious, and the value to society in allowing this speech is slight (Massaro, page 234).

This compounding of negative effects on people and on the marketplace of ideas entrenches the ideas as reality, distorting the possibility for finding truth:

“Stereotypic beliefs form the rationale for feelings of disdain and disparagement. When tied to prejudiced attitudes, stereotypes help create a number of behaviours ranging from avoidance to violence. Our review of stereotypes indicates that one’s perceived reality is not reality itself, but is a mixture of fact and fiction, if not total fiction. Yet when people act upon these stereotypes, the actions are carried out in the real world, not in their stereotypic world… The source of prejudice are varied. But regardless of how and why prejudices form, the fact remains that, like seeds, prejudice takes root, grows and blossoms into what may become violent hate.” (Tsesis, above, page 520, quoting Kleg, Hate Prejudice and Racism)

The combined effect of these complaints against unregulated free speech is that the expression of racist opinion contains no or very little inherent value as a truth-seeking expression, but does have the effect of injuring those it is directed at and appealing to prejudices held by others. These in turn can lead to those harmed by the initial speech to shy away from defending themselves or expressing their own opinion and, if they do, the opinion having less consequence due to a reduced value being place on that person’s opinion.

Where should the line be drawn?

There is an obvious tension between the two positions. One one hand, the fear of rejecting truths and of empowering a government over its people held by libertarians are valid, as is the need to promote equality of people in plural societies and avoid the harm caused by hate speech. As Post said at the end of his essay which ultimately defended the freedom of racist speech from repression:

“The strict implication of this essay, then, is not that racist speech ought not to be regulated in public discourse, but rather that those who advocate its regulation in ways incompatible  with the value of deliberative self-governance carry the burden of moving us to a different and more attractive vision of democracy” (Post, above, page 326)

This challenge is fair enough given what is at stake. So, here goes.

Shrug off the insult and fight back

Given the ill-effects of racism on targeted groups and the likely flow-on effects to their participation and contribution to democracy, to argue that the ill-conceived racist expression is best dealt with by counter-expression is as equally ill-conceived as the racist expression itself. Countering racist opinion is unlikely to result in the minority of people who continue to cling to racist values changing their mind or result in some future unanimous societal consensus that racism is bad. Even if such was possible, the immediate harms caused to victims can only be seen as putting the right to express (not the right to hold) a perverse, antiquated and illogical opinion above the right not suffer injury at the hands of another.

The ‘clear and present danger’ exception used in the United States only protects people from immediate physical harm or the fear of such harm. This may accord with what was in the head of J.S. Mill when he said that the right should only be restricted where there it causes harm. But we are more understanding of mental harm; the damage it does to the person, to the people around them and to communities of people. I don’t think it unethical or a failure of logical argument to not cite scientific studies of this point, and instead point to the mounting public knowledge of mental illness and the harms of bullying and harassment of victims.

It is not a big leap from balancing freedom of speech against physical harm to balancing that right against the recognised psychological harm of insulting and degrading speech. The argument could be made that one piece of writing or one piece of speech that insults a person or group is not enough to cause a serious harm. But this understates both the effects of the insult on the victim and the effect of the words on how the victim is viewed and treated by others.  Where the insult draws upon deep-seated distrust or prejudice, installed through the historical differentiation of people, there is good reason to believe that the insult will cause immediate harm or will awaken the feelings appealed to in others and result in ill-treatment of the targeted people.

The inherent value argument

I cannot accept the assertion that hate speech has value in the marketplace of ideas or that excluding racist speech could result in us rejecting a sound idea. Through roughly two-and-a-half thousand years of the development of logic and reason, from its birth in Ancient Greece to its domination of scientific discovery today, humans have learned to think critically. We are able separate out ideas that hold some value as an idea ripe for testing and debate from those ideas which are internally devoid of the possibility of having any merit.

Racist speech, at least most forms I can recall and imagine, is rarely if ever any more than an attempt to paint a picture of the group targeted that suits the writer’s argument, and then disparage that picture to gain support from the reader. To the logician this is something like a ‘straw man’ argument. By the writer building his or her own picture of the target, any facts about the target that, if included in the description would negatively affect the opinion being made, can be left out.

The straw man can be as simple and identifiable as the use of the word “Nigger” in a manner apt to reinvigorate the ideas of African-American inferiority, or “Jew” in a manner evoking historical mistrust and mistreatment of those people. Or it can be used to make out an argument that the writer wants to appear as being an opinion based on verifiable facts and made in the public interest, but does little more than spread untruths about the targeted group among his or her readers. In both cases, the straw man painted is an attempt set up the issue to be discussed in such a way that, once the truth of those asserted facts is accepted by the reader, the opinion derived from those facts must also be accepted.

Given such opinions have no true factual basis, the opinions themselves hold no weight as an idea. For an idea to have any prospect of influencing the public, the body politic or an individual in their private lives, the idea must (or at least should) be logically sound. An idea based on false facts is as susceptible to collapse as a building constructed on shifting sand.

If we look at speech based on racist opinions as being, significantly more likely than not, devoid of logical premises, we see that we are not at risk of rejecting good ideas. Instead of weeding out illogical ideas promoting inequality, we would be more apt to concentrate and debate ideas that are more likely to hold some important truth.

There is the possibility, however minimal it is, that an opinion that appears to be racist has some value. This would be particularly so if, as discussed by Bromberg J in the Bolt case, the factual basis of the opinion has some truth. If a blanket ban on any speech which may offend or insult a person or group was enforced, a diamond idea in the rough of its context may be lost.

I admit that it is hard of think of an example to expand upon this point. But lets say that a study showed that a particular group of people, identified by their culture, had a higher incidence of sexually transmitted disease, and the purpose of the study was to give an opinion about action that could be taken. This article may be read by some of the subject group as offensive, implying something derogatory about their sexual conduct. But if the data is tested and appears to be well founded, or at least is sought out with reasonable pursuit for accuracy, the opinions drawn from the data are appropriate and do not imply some fact in the data which is not present, and is written in a manner that focuses on the problem and not an expression of opinion against the group, the opinion should be allowed.

The history of ill-effects of inequality on people leaves little doubt that racist opinions have as much value as an argument that the earth is flat and supported on the back of a turtle. The litany of evidence of the ill-effects of racism on the individual people targeted, the groups insulted and on society in general must lead to the conclusion that an opinion contrary to this evidence must be supported by some very strong evidence. I like the words of the late Carl Sagan:

“Extraordinary claims require extraordinary evidence.” (Carl Sagan, Cosmos)

If the approach to ideas and opinions based on racist values was treated as so unlikely to hold value as historical evidence dictates it will, the libertarian protection of all ideas as having value in themselves must fall away, and rational testing of ideas must result.

The fear of complaint and freezing opinion

The argument that the possibility of being complained against causes people to self-censor must also be addressed. It is reasonable to hypothesise that the fear of being forced to pay to defend what turns out to be a protected opinion  will cause some good ideas to not be publicised at all. But this, I fear, is due to the problems of the legal system itself and the cost of access to it, not of the regulation itself

This problem is already being addressed. Complaints made under the Racial Discrimination Act are made to the Australian Human Rights Commission which aims to conciliate and resolve the complaint. Lawyers need not apply. Only when the complaint is not resolved can the complainant issue proceedings. This possibility, not wanting to withdraw his or her work on the basis of an unfounded complaint unresolved at conciliation, may be of concern. But a commission or tribunal with the power to resolve disputes in a no legal costs setting, similar to some lists in the Victorian Civil and Administrative Tribunal, would reduce this problem.

It must also be noted that compensation isn’t necessarily the aim of the game for complainants. The result of the Bolt case was a retraction of the articles penned and an apology. For many complainants this cathartic act of justice will be enough.

Limiting a complainant’s prayer for relief to such corrections could be considered undervaluing the actual damage done to the targeted people, so changes to the right to compensation would need to proceed with caution. A lack of compensation is equally prone to attack on the premise that it may be financially beneficial for a publisher to attract attention through racist remarks and apologise later where there is no risk of paying damages to those affected. But the sight of the same writer or the same publication having to print full-page retractions and apologies at the same rate that it publishes the articles must have some effect on the hip pocket of those who profit, and on the reputation of the bigots who write the articles.

If we manage to correct the problems with the cost of the legal system, the concern about freezing opinions for financial fear will be largely resolved.

Have faith in the intelligence of all people; to protect is to insult

Libertarians argue that we should not put faith in the government and the legal system to decide right from wrong, and instead they appeal to flattery; people are intelligent and will be able to see through opinions lacking in logic. This appeal must resonate with everyone – no one considers themselves a fool or easily conned.

In an ideal world, this appeal would have significant merit. If all readers were educated to a high level, trained in critical thinking, able to distinguish assertion of fact from assertion of opinion and able to entertain an idea without accepting it; and if all writers were accurate and truthful in setting out the facts they base their opinion on, draw only rational conclusions from the facts and tread carefully where unfair caricatures and insinuations are possible, then racist and other forms of speech would die a natural death.

This may occur in an Utopian society. Given the glaring deficiencies in our society this argument is a straw man in itself; if you accept the initial premise, the conclusion that follows appears valid. But the initial premise is a con.

I am not averse to trying to depict what a Utopian society would look like, however unattainable it may seem. In such a world there is unlikely to be a need for restriction as all writers would see the futility and waste that illogical arguments, appealing to differentiation of people on the basis of some differences in DNA base-pairing, would be. There is no reason to believe we can’t eventually reach such a place in time, but it is not now. We need to strive for substantive equality before bare procedural equality will attain the same outcome.

Richard Rorty, quoted by Massaro in his conclusion on page 265, talks about the preconditions for ultimate freedom of speech:

“‘Free discussion’ here does not mean ‘free from ideology,’ but simply the sort which goes on when the press, the judiciary, the elections and the universities are free, social mobility is frequent and rapid, literacy is universal, higher education is common, and peace and wealth have made possible the leisure necessary to listen to lots of different people and think about what they say”.

If we ever meet such an ideal of social organisation and cohesion, then government interference would barely be necessary. Until then, legislation must enhance equality and do so by holding public social commentators to higher standards of logic and care.

Conclusion

I do not accept the reasons why American style ambivalence to racism should be tolerated in light of the injury it causes and the lack of possible positive effect it could have. The Constitution allows its regulation within reason and we should do so.

If the thought process of Bromberg J in Eatock v Bolt is the process that all Section 18C cases are decided upon then it is difficult to rationalise the proposition that the section results in the right to freedom from offence being given to much weight compared to the right to freedom of speech. His Honour’s reasoning draws parallels to assessing inflammatory pieces on the logic of their arguments and their efforts to preserve dignity when the opinion strays in to areas that may cause serious harm. But, this is to be expected. The development through the Common Law of the fair comment defence in defamation proceedings has long sought to find the right balance between allowing expression of ideas and restraining harm.

The pitfalls with the costs of the legal system and its possible effect on speech are of some concern, but the initial complaint process under the Act has the effect of eliminating costs when a complaint is initially made. What needs to follow is the ability for a binding decision, using the deliberation process of Bromberg J, to resolve disputes that don’t resolve at the Human Rights Commission in a cheap but effective way.

The procurement of egalitarian values of equality must be assisted. If we should reach an age where equality truly exists then the libertarian argument for procedural equality only will be valid once more. Hopefully we can one day meet that objective.

 

My earlier than expected break

After committing to posting more articles here I was managing to put some writing out into the ether with regularity, until….

…my second son arrived a couple of weeks earlier than expected! That, along with the reduction in free time that results, probably barely pass as adequate reasons for the transmission break.

At the time I was working on a piece about the proposed changes to the Racial Discrimination Act 1975 by the Australian Attorney-General and how the current law interacts with Freedom of Speech in the wake of the judgment in Eatock v Bolt. The project was becoming bigger than I expected which might have been noticed by my posting of two previously completed university articles.

I’m still researching for the piece, but may post a shorter version in the near future rather than one that includes significant detail about the philosophical basis of the right to freedom of speech, and where critics of such legislation as the Racial Discrimination Act 1975 say the extent of any curtailment of that right lies.

But for the moment, I’ll leave it to this observation:

Donald Sterling made racist remarks in a private telephone conversation which was recorded and leaked to the media. The result was his ban from the NBA for life and a fine $2.5M. Former player and current Mayor of Sacramento, Kevin Johnson, declared that it was message to all bigots that their bigotry will not be tolerated. This has occurred in a country where the right to freedom of speech is of much broader scope than in most countries, but where the general population (at least in this instance) sees the destructive impact on society that can brought about by its abuse.

Where the power of freedom of speech to shape society and empower people by allowing them to question traditional dogma and form their own views is used to defend speech which does nothing but harm others, a line is drawn. This line is built on the acquired understanding over time that unfettered speech used for an inappropriate purpose harms society and citizens, not enhance its aims and give freedom to its people.

Yet, freedom of speech is being used as the argument for why the Racial Discrimination Act should be repealed; it limits the ability of people to freely make racist remarks to the point of them being offensive, insulting, humiliating or intimidating where those remarks are not a fair comment done reasonably and made in good faith. All because a writer in a widely circulated newspaper wrote a number of articles attacking a group of people regarding their identification as Indigenous Australians in a completely misleading manner, and was ordered to publicly apologise. That and because, as Mr Brandis said, “People have the right to be bigots you know”.

 

 

Lies, Damn Lies and Killing Sharks (Part 1)

On 15 January 2014 Greg Hunt, the Commonwealth Environment minister, approved a request by the Western Australian Government to be exempted from the Environment Protection and Biodiversity Act 1999 (Cth) so that it could proceed with plans to set up 72 baited drum lines in order to cull white sharks, tiger sharks and bull sharks greater than 3 metres long. The exemption is required due to the listing of those species being listed as threatened species.

The predominant reasons for granting the exemption were:

1. A statistically significant increase in shark attack strikes in Western Australia in the years 2010 to 2013 compared to population increase;

2. As a result of point 1, people are scared of entering the water and there is anecdotal evidence of tourist businesses suffering financially;

3. The proposed cull will reduce the incidence of shark attacks and will provide useful information to other states in dealing with the same problem;

4. The Western Australian government have implemented measures to reduce the risk of death to other sea life from the exercise; and

5. It is in the national interest (due to points 1 to 3 above) for the cull to be allowed, and therefore within the class of reasons the EPBC Act gives as being the basis for an exemption to be allowed.

1. Statistically significant rise in shark attacks

At the outset, I am not formally trained in statistics and have only learned small sections of statistical analysis in passing. I would be grateful for any comments from those with greater knowledge about my analysis and conclusions.

The assertion made is that, when adjusted for population increase over time, the number of shark attacks has risen by a statistically significant degree. The paper this is based on (here) doesn’t provide the population or shark attack numbers used. However, a comparison between graphs on pages 10 and 11 of that paper (showing frequency of attacks per year and frequency of attacks per year per 100,000 people respectively) don’t show any major distortion. On the basis of this lack of distortion, my analysis will use the non adjusted figure of shark attacks per year, which I have obtained from the Shark Attack File.

However, before doing so, one variable not taken taken into account for which it could be argued must be accounted for in order to properly analyse the data, is any increase in average time spent per person in the ocean. Such a variable could result in an increased number of attack incidents due to the same number of people entering the water, the same number of sharks in the water, but an increase in the chance the two will interact.

Below is my tabling of shark attack data over the past 30 years extracted from the Shark Attack File. The data represents number of people injured per attack. Therefore, there may be incidents where one incident injures two people. Further, I’ve attempted to remove all reports listed as a hoax or reports where a shark has been caught in Australian waters with human parts found in their stomach contents (therefore not necessarily an incident which has occurred in Western Australia), but I cant guarantee that all instances of such data points have been completely removed.

One other point to note is the greater number of reports of minor incidents in the later years of the data. Data in the earlier years appears to be limited to incidents with either very serious or fatal outcomes, while there are greater reports of minor incidents or incidents where no injury is reported in the last decade or so. This may be a common finding in databases reliant on the reporting of events which are gaining increased importance or scrutiny for some particular reason. This skewing of the data can lead to false trends being extracted from it.

YEAR AUSTRALIA WESTERN AUSTRALIA
Incidents Fatalities Incidents Fatalities
2013 18 3 7 2
2012 22 3 7 2
2011 18 5 6 3
2010 16 2 5 2
2009 30 0 5 0
2008 18 2 3 1
2007 18 2 2 0
2006 12 1 2 0
2005 17 2 2 1
2004 16 4 6 1
2003 9 1 3 0
2002 12 3 1 0
2001 13 1 3 0
2000 18 5 2 1
1999 2 1 0 0
1998 4 2 0 0
1997 10 2 3 1
1996 15 1 2 0
1995 7 1 2 1
1994 3 1 1 0
1993 7 3 1 0
1992 6 1 0 0
1991 7 1 2 0
1990 8 1 0 0
1989 12 2 1 0
1988 7 3 1 0
1987 4 2 1 0
1986 5 0 2 0
1985 2 1 0 0
1984 3 1 1 0

Given the assertion about shark attacks being significant above the average in the years 2010 to 2013, I’ve decided to use the chi-squared test to assess the statistical significance of the number of attacks over those 4 years compared to the average of the proceeding 26 years (1.77 incidents per year):

Year Expected Average ( E ) Observed Number ( O ) O – E = D D²/E
2010 1.77 5 3.23 10.4329 5.8942937853
2011 1.77 6 4.23 17.8929 10.1089830508
2012 1.77 7 5.23 27.3529 15.4536158192
2013 1.77 7 5.23 27.3529 15.4536158192
           
      Sum D²/E   46.9105084746
      Degrees of freedom = 3    

A chi-squared value of 46.91 with three degrees of freedom gives an absurdly high, statistically significant p value of much less than 0.05, meaning that the likelihood of the increased number of shark incidents in those years could occur by chance alone is less than 5% (this is the level considered to give high enough confidence for the null hypothesis, such as “shark attack incidents per year remain static, to be rejected). This does not mean that shark incidents are definitely increasing, or that there is some underlying cause for an increase in shark incidents (such as a greater number of sharks in the ocean).

There may well be a better way of analysing this data than the chi-squared test given we are using a yearly data set and the chi-squared value I got being extremely high (and I’m open to suggestions in the comments).

There is a further assertion in the exemption statement that the increase in average attacks from 1995 on-wards is also made. Whether this is correct or not is not my main concern.

My concern with basing public policy on statistical analysis of this data is that the low number of attacks per year means any analysis will be of low statistical power. With such a low average number of attacks per year figure and a sampling of a small number of years to compare to the long term average, small deviations above or below the average can result in a statistically significant, but none-the-less erroneous, conclusion. Similar problems arise in medical trials when small sample sizes can lead to either significant improvements in effectiveness of, say, a specific treatment, not being found to be statistically significant, or, as in this case, statistical significance is found in a sample set which, after a few more years worth of data is collected, could yet be seen to be no more than a ‘blip’ in the data based on chance alone (see here, which I found to be useful in explaining the difficulties in making positive assertions about statistical significance test in large sample sizes and small sample sizes equally, and about drawing conclusions for analysis of single data sets by themselves).

Further, debate continues about the ability reliably draw conclusions based on a statistically significant finding from a single or small number of experiments or trials – how reproducible the result is is a greater determinant of whether the statistics are describing an event or occurrence that is really occurring, as does the debate about whether some tests are actually useful in drawing meaningful conclusions from otherwise good data. See here, here, here for example.

Statistical analysis is an extremely useful tool to study a given hypothesis and be able to draw conclusions as to the probably that an effect shown in the data gathered is due due to chance alone. But these tools are subject to limitations. The presentation of statements about statistical significance give undue legitimacy to policy decisions where the limitations to the analysis are not provided or explained.

2. Effect on people entering the water and on tourism businesses

Statistics are given of the number of holiday makers to Western Australia, how many intend to enter the water and what percentage of the State’s economy comes from tourism. A further generalised assertion that “There is substantial public concern about the safety of water based activities in Western Australia, and anecdotal evidence that the frequency of shark strikes is impacting on businesses in Western Australia”, and this is followed by a report of report of dive business saying that it had had a 90% drop in people wanting to learn to dive.

If the improper use of data and statistics is the failing in attempting to give legitimacy to the assertion that there is problem with shark attack frequency, then the lack of legitimate, grounded, provable evidence of these asserted problems is the failing with this trumping up of the effects of the ‘problem’.

One would be excused for thinking that the application for exemption has been put forward by people have done no more than read the newspapers and searched holiday stats from their own tourism department website to create a narrative it could use to promote the plan.

The real difficulty with realistic concern about increasing shark safety is the ‘zero infinity problem‘ – the chance of it happening to any particular person is so low that it barely warrants concern, but the effect on the victim if it does occur are infinite (in a non-mathematical sense of that term). To, at least in part, base policy decisions with likely deleterious effects on a population of any living thing by playing on heightened concern of something so unlikely to happen, and then in turn superimpose that on financial reasons, must be considered poor leadership.

Conclusion

Reliance on these two factors to support such a move as actively killing threatened species is significantly flawed. Statements about the statistical significance of a problem on minimal data points, followed by generalised statements of the effect of the problem with no proper basis in evidence, cannot pass as being reasonable premises to infer that action must be taken, let alone the mode of action to be taken.

The tragedy proprietary rights impose on the commons

A recent focus of Australia’s attention was on the actions of three protestors who boarded a Japanese whaling ship to remonstrate with the crew members catching whales in and around designated Australian sanctuaries.

The three activists were then detained on board, requiring intervention by the Australian Government to have them released.

Viewpoints on this issue varied significantly within Australia, even though it can be said with confidence that most people disagree with Japanese whaling in all forms and in all areas.

Conservative chants about the sanctity of the protection of property by law were widespread. The act of trespassing by these three men on the Japanese ship was abhorred as illegal, immoral and detracting, if not completely destroying, the noble intent of their actions.

Greenpeace recently reported an incident with similar connotations, where a Court in Denmark was asked to punish an activist for trespassing on boats found to be illegally fishing in an area barred from such activity to save an endangered endemic species of Cod.

Whilst I am relying solely on the Greenpeace report as to the conduct of the court proceedings, and making an assumption that the law of trespass on private property by persons not acting with a greater authority than an ordinary person, there could be no doubt that the protection of property would see the activist convicted, despite the cause and the positive impact the actions had in enforcing the fishing ban. As far as I am aware, there exists no ‘noble cause’ exception to either the criminal or civil trespass laws.

However, the Danish Court, quite surprisingly and despite a plea of guilty to the charge, acquitted the activist and Greenpeace Nordic on the basis that the trespass was justified.

From a purely legal perspective, this finding is absurd, but a debate about how a court could find the two not guilty without a legal basis, and given the plea of guilty, is not the intent of this article.

The immutability of legal protections granted by law in all its forms, even where the protections are contra to ideas of morality, justice or equality (which you may read as equality between all life or equality between humans) is the current concern, as is mantle on which such rules are placed.

The most extreme extrapolation of this concern, where pronounced laws are all-powerful and must be obeyed despite their effect, can be seen in the Nuremberg trials of Nazi criminals. The regular defence raised in these trials was that despite the allegations that their acts were ‘crimes against humanity’ and international law, they were acts in accordance with the laws of Germany. Therefore, they argued, they could not be prosecuted, given that the laws were assented to by a sovereign government.

Modern day examples that might be used are the forced evictions of people from public areas which featured prominently in the Arab Spring uprisings and Occupy movements. Whether you agree with these movements or not, the actions of such protestors of voicing their concerns and seeking change, in their view, for the betterment of society, were met with the enforcement of proprietary laws over the land on which they stood to voice these concerns, even where these actions in themselves did not cause damage.

A more regular example is the removal of protestors from otherwise public lands where logging licences have been granted to a private company. The removal, and the following charges laid, are based on a legal protection to the licensee over the land from adverse actions of people who, other than their intent to protest, would be allowed on the land.

The imbalance seems most striking where law securing property rights is utilised to protect the furtherance of activities that in themselves may be illegal, immoral (whether that morality be derived from religion, ethics or otherwise) or against the will of some part of society, whether it is a majority or minority will. Further, where the damage caused by such protected activities is not caused to a person or to an object over which another person has proprietary rights that can be enforced, the law, particularly criminal law, struggles to appreciate the validity of those ‘criminal’ actions such as trespass taken to halt the destructive, but protected, activities.

It cannot however be said that pedestal of proprietary rights over land has remained at its lofty heights throughout time. Much like free market capitalism, exceptions to the general rule have been introduced so that the tragedy of the commons does not forever plague us.

For instance, laws regulating pollutants contaminating and emanating from private land is regulated through Environmental Protection laws, as they do for proposed constructions on private land which may affect protected public land, such as in the Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

A more regularly used piece of regulation which acts to restrict the use of private land is found in local planning regulations, which of late have been updated to involve considerations of climate change and rising sea level when local Councils are considering a building or planning permit.

The questions for the future must be: Can (or will) government imposed regulation adapt to the evolving environmental conscience in a timely manner? Further, equitable outcomes achieved through regulation, at least historically, require complex legislation. Just look at the taxation laws in most developed countries which have this aim.Therefore, will environmental prosperity through equitable regulation be so complex as to end up being unworkable?

Finally, will the idea of private property forever restrict appropriate environmental action which alters the allowed use of land where competing economic interests are effected?

Although small-scale or singular domestic housing application have been rejected outright under current regulations (see reports of the recent Narrawong Planning Control Decision for example), large-scale, environmentally destructive but economically advantageous (depending on who you are) developments continue to get approval. Looking outside Australia, the Tar Sands Pipeline between Canada and the USA is another example of environmental issues being in conflict private proprietary rights to the use of land and natural resources.

Could the idea of property, an idea that was once exclusively linked with power, and which wields lesser but still formidable power now, be the problem itself? Could the abolition of private property be the means of overcoming the accumulation of private wealth with legal protection to the detriment of adjacent land, rivers, oceans and atmosphere?

Were use of property influenced not by private interests in an economically driven society but by a truly communal, active, local community, the considerations of local environmental features effected by any action taken on that community’s land would receive paramount recognition and protection, and not a disconnected, procedural, uninterested view that such consideration generally receive now.

Such a change would need to be preceded by changes both in societal organisation and in psyche. The time for economic rationalisation of all actions and the strive for global economic growth would need to be replaced with concern for local issues and communal provision of the necessities for life such as shelter, food, water and clothing. Personal growth and satisfaction would need to flow away from consumptive self-gratification and into self-awareness, awareness of other people and awareness of other living things. Rights dependent on legal proclamation need to be replaced by universal rights of all beings, whether human, faunal, floral or natural.

The future of protecting environmental qualities requires more than just further incremental encroachments on historical ideals of rights to property and profit, attempting to leave the remainder of the economic system intact. It requires a relinquishing of these ideas, replaced with small-scale, communal, self-sufficient, conscious and conscientious existence.

The Separation of Reality and State

The post below is a copy of my submission to the Planet Ark World Environment News Letter to the Editor Competition, entitled “The Separation of Reality and State”.

Below is my letter to the Editor in response to the article “BP will not be banned from offshore lease sale”, which can be found here.

Dear Editor,

What an outrageous statement!

“Do you administer the administrative death penalty based on one incident?” Michael Bromwich asks himself.

Perhaps he should ask Troy Davis!

But the State sanctioned destruction of human life is a matter for another context. The State sanctioned destruction of the biosphere is the alarm that imminently sounds.

Surely the imposition of capital venture over public land for the sole benefit of State and Multinational Corporation, to the dismay and despite the condemnation of the people, would have George Washington, and all those who have fought for the liberty of people from the wishes of an overarching power, turning in his and their graves respectively.

Pierre-Joseph Proudhon once proclaimed “property is theft!”

Indeed it is. And, indeed, it is destructive. And, indeed, such extensions of proprietary right to the company with the most capital to purchase it, regardless of the possible consequences to not only that which it has acquired but to all other land, all other fauna, and all other flora, is reckless endangerment of life.

But, with the increasing separation of the person from the State and the Corporation (both of which are figments of legal and historical imagination), increasing are the barriers to stop people, people who are connected to the land, to the sea, to the plants and to the animals, from being able to assert their own right.

The right to protect what they enjoy. The right to protect these elements of our world, not only for the benefit of human-kind, but for each of these elements to exist in their own right.

The vast majority of individuals have grave issues with the disaster in the western Gulf of Mexico, both for its environmental effect and its human death toll.

Not that an individual could cause such painful devastation, but should he or she do so, through his or her own negligence and the taking of short-cuts, the sanction imposed upon them through the mechanisms of State power would be crushing.

And yet, the corporate veil again exists to limit the extraction of retribution to a mere monetary one (both in sense of form and size) without any restriction of liberty that a natural person would have imposed upon him or her, let alone on their ability to partake in a similar activity again.

I admit that my first temptation on reading the article was to criticise the administrative decision to allow BP to participate in the lease sale.

However, the problem is far deeper than of just one administrative action.

It is a problem of societal systems.

Systems that allow decisions to be made, apparently on behalf of the governed but yet made whilst far removed from the governed, to allow companies to build private wealth and capital.

It is this system which willingly allows the destruction of the biosphere, to the detriment of all.

Cameron Tout.

Are you SUPER green?

The ‘Occupy’ protests are gathering momentum around the United States and around the world.

The original protest started in Wall Street, New York, the location that many see as the centre of free market economics and the negative, even disastrous, consequences that the ever-growing, ever consuming, global economy has had on people, communities and the environment.

Like many others, I look with fondness at the ideas behind the action, and embrace my seeming exclusion from “the 1%” given my lack of participation in such products of capitalist culture such as the stock exchanges.

But, have I really avoided feeding the machine? Initially, no. The culprit? The ever forgotten Superannuation Fund.

For anyone unfamiliar with Superannuation, in Australia all employers are required to contribute a set percentage on top of a worker’s wage to managed investment fund, the purpose of which is for that money to contribute to that worker’s retirement.

Like many, attaining retirement age is a long way off. Accordingly, my concern about the retirement savings in my fund is of little concern.

And for many people, a lack of attention means having an investment with a default superannuation fund, with the default investment option. The default option is usually a direction to the fund’s managers to invest in Australian and international shares.

And, alas, I was unwittingly working against the 99%, however slight the effect of my money may be.

With the changes of law regarding superannuation funds some years ago (allowing people to choose their own fund or set up their own fund), a number of organisations commented on the possibility of people using their compulsory savings to the benefit of social and environmental causes, such as The World Wildlife Fund, Eco Investor and the Australian Conservation Foundation.

And now, a number of Superannuation Funds are either entirely dedicated to, or provide investment options for, sustainable and ethical investment of their member’s Super funds.

After my quasi-epiphany, I looked at my fund and found my forced participation in stock markets were being used acquire unidentified, unlimited shares. But in the Product Disclosure Statement I found an option available that would direct the fund manager to only invest in companies with long-term environmental and social standards, and avoid those that did not.

Of course, this does not completely eliminate the risk that my savings would be invested into companies that I may be opposed to, but it is a start. And for anyone with the time to dedicate, a self managed superannuation fund would give you complete control over those employer contributions.

I, like many other people who have little concern for retirement, need to remember that the law requires an employer to make contributions to our retirement fund, which will be invested on our behalf by fund managers that know nothing of our values. Taking no interest in world financial systems may tempt us to choose to ignore these savings, but to ignore them is to allow them to contribute to the maintenance of the status quo. Even if they are invested in cash by default, this cash is invested in, and used by, banks, which may then invest it in environmentally unfriendly, socially irresponsible companies. Greenpeace has been vocal in protesting against banks who choose to lend to big polluters.

Therefore, I urge all those concerned with the actions of the big banks, the big polluters, and the control they hold over our environment, both natural and societal, to evaluate their Superannuation fund, even though it means momentarily partaking in the very system which feeds the mechanism that assists these organisations and to which we are opposed.

The importance of being NIMBY

The term NIMBY (“Not In My Back Yard”) usually has poor connotations of a person or a group complaining about a development that will effect them and shouldn’t proceed. The negative view usually arises from a suspician that the complainant only decries the development because of its personal effect, and wouldn’t care about it otherwise.

But the NIMBY is something that should be promoted, not admonished. Everyone should consider being a NIMBY themselves.

The reason?

Any medium and large scale development will have an adverse effect, whether it be on the community, the amenity and character of the area and/or the natural environment of the effected site and it’s surrounds.

Local Councils, in general, will look at the economic effects of these developments when a permit is sought. Although there are policies and guidelines causing Councils to consider non-economic effects, in a market based, GDP driven, financially focused world, it is not hard to imagine that economic considerations will take precedence.

It is through the work of those people and organisations concerned about the adverse effects of a development that force the environmental impact to take greater importance in the decision making processes of the Council and, hopefully, see inappropriate development stopped, either by the Council or by the relevant tribunal. Alternatively, greater controls or restrictions placed on the development than otherwise would have been imposed may help to protect what may have been otherwise vulnerable to destruction.

If we are to force government agencies at all levels to give greater weight to environmental issues such as habitat destruction, conservation of biodiversity and climate change, active NIMBY’s need to be everywhere.

Cormac Cullinan, an environmental lawyer, author and commentator, in discussing Wild Law jurisprudence, states:

“I have little doubt that if every person tried to heal just one tiny area of degraded and abused land in a way that strengthened their personal relationship with it, Earth governance and justice would soon flourish”.

An in depth analysis of Cullinan’s reference to Earth governance and Wild Law is beyond this particular post, but, briefly, refers to a political and societal system where the way we govern ourselves is in line with, and not paramount to, the methods and rules with which the universe and the earth governs itself and all it’s component, competing and complimentary parts.

Local people and local groups have the greatest knowledge and connection to the environment at the location of a proposed development. These voices will have the most credence when the true effects of a development need to be known. And if every community has its NIMBY individuals and NIMBY groups, very soon a development in any part of a country, a continent and, maybe one day, the world, will not be spared of a critical review of the cost of the development on the local and global environment as against the gain to be had by the developer or any other person that may benefit from the development going ahead.

For anyone who wishes to take action, you are not alone in your fight. In Australia, the Australian Network of Environmental Defender’s Offices (“the ANEDO”) provide information and assistance in every state and territory regarding planning and environment controls, and I’m sure there are similar organisations internationally. A link to the ANEDO is in my blog roll.