Before too long, somebody needs to send communications minister Michelle Rowland a copy of Jonathan Sumption’s latest book: “The challenges of Democracy and the Rule of Law.”
With luck, it might encourage her to reconsider her plan for a renewed attack on freedom of speech – a concept whose importance to democracy is fundamental.
When Sumption speaks, it’s always worth listening. As well as being a former judge of the UK Supreme Court, he has been described by The Times as “The cleverest man in Britain”.
A former client, UK Labour strategist Alastair Campbell, famously said Sumption has “a brain the size of a planet”.
The opening page of his book provides a good signpost of what follows. He cites John Adams, one of America’s founding fathers, as warning that democracies fail from within.
“They fail because people spontaneously turn to more authoritarian forms of government,” Sumption writes.
Which brings us to Rowland’s latest plan for online communications.
She flagged its core elements in November and tabled a 211-page report in February about the same time as Sumption’s book launch.
That report, by Delia Rickard, deserves more scrutiny for one simple reason: it amounts to a fall-back plan after the failure last year of the government’s Misinformation and Disinformation Bill.
Just like the MAD Bill, this is an attempt to give a government agency broad powers to censor the internet by threatening online entities with massive fines.
Failure to comply would trigger penalties of up to $50 million or 5 per cent of global turnover, which ever is the greater.
And in another echo of the MAD Bill, Rowland’s latest scheme would achieve its goal using methods that breach core principles underpinning the rule of law.
It amounts to government over-reach on steroids.
In order to understand the extent of that over-reach it’s important to keep in mind what orthodox lawmaking would look like.
Nobody would bat an eye if Rowland confined her ambition to protecting Australians from the perils online by requiring bureaucrats to suppress information that had specifically been declared illegal by parliament.
That would place parliament at the centre of things thereby ensuring a proper debate and serious public scrutiny before any form of communication is outlawed.
That is how we decided to impose serious penalties on those who disseminate child pornography or incite terrorism.
Freedom of speech, like all fundamental rights, has its limits but those limits gain democratic legitimacy if they are imposed by parliament, not some “Big Brother” bureaucrat.
But even then, restrictions on speech by parliament should be clear and limited. That ensures everyone knows where they stand and can engage in robust debate within boundaries established by law.
That, however, is not what Rowland has in mind.
Instead of legislating to outlaw specific content, the communications minister plans to impose a statutory duty for online entities to prevent “harm”.
That term is so vague and imprecise it would enable unelected officials to impose punishments based on subjective assessments.
Some bureaucrat, under pressure from interest groups, might well decide a particular online discussion is harmful while others might consider it to be to a necessary critique of some wong-headed orthodoxy.
If this form of sloppy lawmaking catches on we might soon see other vague statutes requiring the courts to, for example, jail “bad” people for “a long time”. Is that six months or six years?
Sumption nails the argument against this sort of lawmaking.
He writes that John Stuart Mill believed the only purpose for which power might properly be exercised against individuals is to prevent harm.
But in recent years he believes there has been a subtle redefinition of the whole concept of harm so as to cover the discomfort caused by having to endure contradiction.
“Underlying much of the debate is a fundamental challenge to the objective notion of harm. When interest groups object to someone’s opinion, they commonly call for a subjective approach to its impact,” he writes.
“Harm is whatever the relevant target group perceives as harm.”
If Rowland’s scheme is enacted, and bureaucrats are responsible for suppressing discussions they deem harmful, robust debate about contentious issues will be rendered anodyne.
Under the MAD Bill the bureaucracy was to have been the arbiter of truth. Under its successor, the bureaucracy would be the arbiter of harm but the effect would be the same: censorship.
And that leads to the next problem.
The late Joseph Raz, who is cited by Sumption, made two points that seem to have escaped Rowland: the first is that people should be ruled by law, rather than government discretion.
The second is that the law should be capable of providing guidance for people on how to conduct their affairs. And for that to happen, the law should be stable, publicly accessible, clear and not retrospective.
The MAD Bill failed that test because its entire purpose was to rely on vague terms to hand increased power to a federal regulator.
The same flaw is apparent in any scheme that rejects precision and instead punishes the dissemination of any information that some bureaucrat deems to be harmful.
Sumption argues that democracy can only survive if our differences are transcended by our common acceptance of the legitimacy of the decision-making process – even when we profoundly disagree with the outcome.
That is why parliament cannot afford to offload its responsibilities to some government agency. It needs to own every restriction on freedom of speech and impose its will with caution, clarity and precision.
