Section 18C, Human Rights, and Media Reform: An Institutional Analysis of the 2011-13 Australian Free Speech Debate

By Berg, Chris; Davidson, Sinclair | Agenda: A Journal of Policy Analysis and Reform, January 1, 2016 | Go to article overview

Section 18C, Human Rights, and Media Reform: An Institutional Analysis of the 2011-13 Australian Free Speech Debate


Berg, Chris, Davidson, Sinclair, Agenda: A Journal of Policy Analysis and Reform


Introduction

Between 2011 and 2013 Australia was engaged in a sustained debate about freedom of speech. This paper provides an institutional economic analysis of the key public policy issues in that debate. The first issue concerned restrictions on 'hate speech'. This debate was sparked by a 2011 court case, Eatock v Bolt ('the Bolt case') and also a subsequent debate about a proposed Commonwealth Human Rights and Anti-Discrimination Bill (the 'HRAD Bill') in 2012. The second issue concerned regulatory control of the print media, beginning with the Gillard Government's Independent Inquiry into Media and Media Regulation (the 'Finkelstein inquiry') in 2011 that led to a legislative package of media controls introduced to parliament in 2013.

We employ a 'subjective political economy framework' (see Allen and Berg 2016) to examine these issues. Building on the insights of Djankov et al. (2003), in this framework institutional (or political) change is driven by shifts in the perceived trade-off between disorder costs and dictatorship costs of social control. Economists have long looked for a way to integrate ideas into their explanations of political and economic change (McCloskey 2015; Rodrik 2014). The subjective political economy framework allows us to explain how exogenous shocks disrupt the status quo and lead to the possibility of institutional change. With this framework we can draw some conclusions about the future trajectory of the freedom-of-speech debate in Australia.

A number of scholars have examined these controversies separately. Gelber and McNamara (2013) and Hirst and Keeble (2012) have placed questions of race and racism at the centre of the public debate surrounding the Bolt case. Likewise, Stone (2015) questions the apparently myopic focus on the Bolt case by conservative and liberal commentators. Tate (2016) considers that the Bolt case brought out competing visions of freedom of speech in the liberal tradition. Lidberg and Hirst (2013) and Finkelstein and Tiffen (2014) respectively characterise the response to the Finkelstein inquiry as 'hyperactive' and 'extreme'. Pearson (2012) considers proposals for media regulation in the context of Australia's absent constitutional protection for the free press. By contrast, the HRAD Bill has received less attention. Gelber and McNamara (2013) mention the HRAD Bill in passing, and note that many critics of the government's legislation rhetorically connected the HRAD Bill to the Bolt case.

We add to this growing literature in two ways.

First, we make good the existing literature's lack of the kind of clear politicaleconomy framework that will permit generalisable conclusions about how the debate proceeded. At the core of our framework we place the relative costs of 'disorder' and 'dictatorship', and the role of 'status quo disrupting' exogenous shocks producing pressure for institutional change. We advance two examples of this: first, where an exogenous shock has led to an increase in perceived dictatorship costs; and, second, where an exogenous shock has led to an increase in the perceived costs of disorder.

Second, we provide a close reading of the debate itself. While other scholars have purported to scrutinise the debate surrounding each of these episodes (Gelber and McNamara 2013; Stone 2015), the source material on which they found their analyses is thin, and that thinness leads to some critical mischaracterisations of the debate itself.

We conclude that exogenous shocks create the possibility of policy change, constrained by viable institutional alternatives to the status quo. In the case of the media reform process, the disorder costs were borne by the Gillard Government and with the expiry of that government we would not expect media reform to be a major political issue, at least in the absence of a further exogenous shock. In the case of s. 18C, however, we conclude that the revealed dictatorship costs of legislation that prohibits offensive or insulting language suggest the controversy will be ongoing. …

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