Abstract
This monograph has focused upon the threat posed to expressive freedom by the framework of laws invoked to thwart the activities of terrorists and their supporters. Separate chapters have explored the varying extents to which the ‘war on terror’ has curtailed aspects of freedom of expression, including the impact on journalists and newsgathering activities. The weaknesses in the international legal system for protecting unpopular expression that were identified in Chap. 2 naturally concentrated attention on the domestic legal environment. In this concluding section of materials, some of the themes that underscore the writing in Chaps. 3, 4, 5 and 6 will be taken up again. The forward-looking emphasis in the final chapter seeks to ascertain whether, consistently with our domestic constitutional traditions, a more robust defence of dissenting opinion and unpopular political associations may be attempted. Specific attention will be paid to the notion of common law constitutionalism and a substantive conception of the rule of law in formulating a stronger defence for dissenting expression.
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- 1.
(1930, Faber & Faber, London) at p. 106.
- 2.
Perilous Times: Free Speech in Wartime (2004, WW Norton & Co. New York) at p. 529.
- 3.
Shklar remarks in her essay ‘The Liberalism of Fear’ that the ‘basic units of political life are not discursive and reflecting persons, nor friends and enemies, nor patriotic soldier – citizens, nor energetic litigants, but the weak and the powerful.’ in (ed. S Hoffman) Judith N Shklar – Political Thought & Political Thinkers (1998, Univ. of Chicago, Chicago) at p. 9.
- 4.
Ordinary Vices (1984, Harvard Univ Press, Mass.) at p. 4.
- 5.
(2005, Harvard Univ. Press, Mass.)
- 6.
Ibid., at pp. 6–7; N Belton, ‘Who needs publishers?’ (1993) 22 Index on Censorship 7. See similarly the case of Naguib Mahfouz the Egyptian Nobel Prize winning author who survived an assassination attempt in 1994 by an Islamic fundamentalist after the publication of his novel Children of the Alley.
- 7.
Of course, as was noted in Chap. 6, the Committee issuing DA Notices is not currently subject to the Freedom of Information Act 2000.
- 8.
Why Societies Need Dissent (2005, Harvard Univ. Press, Mass.) at p. 7.
- 9.
Democracy and the Problem of Free Speech (1993, The Free Press, New York).
- 10.
‘Beyond the Republican Tradition’ (1988) 97 Yale L J 1539.
- 11.
Perilous Times: Free Speech in Wartime (2004, WW Norton & Co. New York) at p. 533.
- 12.
It may be argued that these caveats weaken significantly the claim of ‘progress’.
- 13.
Ibid. Although, an alternative explanation of what has happened is that the courts are forever involved in a game of ‘catch-up’ with executive policies. That is, at the outset, the courts elaborate a doctrine to find unconstitutional an existing policy affecting free speech or other liberty. Subsequently, a new threat to peace/security/order is identified by the executive which demands a new policy response which is formulated in a way to avoid falling foul of the courts' previous rulings. In turn, this later policy response is also adjudged unlawful. The court announces a new rule to capture the essence of the illegality only for a subsequent threat to prompt a further policy response crafted to avoid giving constitutional offence. For an argument along these lines, see M Tushnet, ‘Defending Korematsu? Reflections on Civil Liberties in Wartime’ (2003) Wis L Rev 273.
- 14.
G Robertson QC & A Nicol QC, Media Law (5th edn.) (2008, Penguin Books, London) at p. 673.
- 15.
See for example the discussion of the new offence of ‘glorification’ of terrorism in Chap. 4.
- 16.
‘The Pathological Perspective and the First Amendment’ (1985) 85 Colum L Rev 449, at 449–450.
- 17.
Blasi is careful to acknowledge the concern that the courts may have a limited ability to guess precisely what sorts of challenges will arise in pathological periods, although he claims that the historical record of the US courts gives less cause for concern, ibid., at 510–511. See for a contrary view Tushnet, ‘Defending Korematsu? Reflections on Civil Liberties in Wartime’ (2003) Wis L Rev 273.
- 18.
Ibid., at 457–458.
- 19.
J Jowell & A Lester, ‘Beyond Wednesbury: substantive principles of judicial review’ [1987] PL 368, at 372.
- 20.
R v Secretary of State for Home Department ex parte Brind and others [1991] 1 AC 696.
- 21.
Ibid. at p. 749 and see the comment by Thompson that the House of Lords failed ‘to articulate what is meant by freedom of expression.…’ B Thompson, ‘Broadcasting and terrorism in the House of Lords’ [1991] PL 346 at 348.
- 22.
See for example Sedley J in Redmond-Bate v DPP [2000] HRLR 249 and the House of Lords Derbyshire County Council v Times Newspapers [1993] AC 534.
- 23.
(1992) 177 CLR 1.
- 24.
(1992) 177 CLR 106.
- 25.
For anticipation of this development and the implication of other constitutional freedom see the judgments of Murphy J in cases such as Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 and Victoria v Australia Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25; and Stephen J. in Attorney General (Cth): Ex rel McKinlay v Commonwealth (1975) 135 CLR 1.
- 26.
Per Brennan & Gaudron JJ. or ‘indispensable’per Mason CJ.
- 27.
For commentary see inter alia G Williams, ‘Engineers is Dead, Long Live the Engineers!’ [1995] 17 Syd LR 62; S Walker, ‘The Impact of the High Court's Free Speech Cases on Defamation Law’ [1995] 17 Syd LR 43. A Stone ‘Freedom of Political Communication, the Constitution and the Common Law’ (1998) 26 Fed L Rev 219.
- 28.
(1997) 189 CLR 520, 567. See further M Chesterman, Freedom of Speech in Australia – a delicate plant (2000, Ashgate, Aldershot) ch. 2.
- 29.
Australian Capital Television Pty (1992) 177 CLR 106, 159.
- 30.
(1997) 189 CLR 520, 568.
- 31.
(2003, OUP, Oxford).
- 32.
Ibid., at pp. 261–262.
- 33.
Ibid., at p. 89.
- 34.
Allan traces the origins of this autonomy-based defence of dissent and disobedience to Thomas Scanlon's influential essay ‘A Theory of Freedom of Expression’ in (ed.) R Dworkin, The Philosophy of Law (1977, OUP, Oxford).
- 35.
Constitutional Justice – a Liberal Theory of the Rule of Law (2003, OUP, Oxford) at p. 90.
- 36.
US 444 (1969).
- 37.
US 494 (1951). See for such criticism, J Rawls, Political Liberalism (1996, Columbia Univ. Press, New York) at pp. 352–253.
- 38.
US 568 (1942).
- 39.
Allan acknowledges that a speaker engaged in an otherwise serious and reasoned criticism of government might lapse into ‘the most opprobrious insult’ and argues that it would be wrong for exclude constitutional protection for the speaker on account of the lapse, Constitutional Justice – a Liberal Theory of the Rule of Law (2003, OUP, Oxford) at pp. 109–110.
- 40.
Ibid.
- 41.
Ibid., at p. 111.
- 42.
Political Liberalism (1996, Columbia Univ. Press, New York) at p. 354.
- 43.
US 652 (1925), Holmes & Brandeis dissenting.
- 44.
Ibid., at p. 669.
- 45.
Second Treatise of Government (1980, Hackett Publishing Co. Indianapolis) s. 225.
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Cram, I. (2009). Conclusion. In: Terror and the War on Dissent. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-00637-1_7
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