Senator Fraser Anning – The Repercussions Of His Comments

What are the consequences for freedom of speech, if any?

Senator Fraser Anning – The Repercussions Of His Comments

EVENTS SO FAR

Last week we discussed the possible culpability of Fraser Anning when he hit a teenage boy twice after having an egg slapped on the back of his head. This occurred after Senator Anning made anti-Islamic comments addressing the terror attack in Christchurch. He essentially blamed the victims themselves of the attack, stating that New Zealand’s immigration policy is a contributing factor. Members of Parliament are not letting this slide; yesterday the 3rd of April 2019 the Senate censured, otherwise known as putting forward a Motion of Disapproval, against Fraser Anning. There was even a push to suspend him from Parliament although the Senate does not have such power. Is this appropriate action to be taking? As discussed last week, there is no express freedom of speech here in Australia, although it is generally thought to exist. Where does this stand against hate speech? Is the need to be politically correct too demanding? Is Anning guilty of hate speech, and does Parliament have the power to dismiss him for this? If so, where does this power come from? These are the questions we seek answers to today.

WHAT DOES CENSURE MEAN?

A motion of censure relates to certain acts or omissions in Government. A censure motion “expresses more a disapproval or reprimand at particular actions or policies of the Government” as expressed by the Parliament here. There is no direct constitutional or legal consequence of a Motion to Censure. However, there can be great political impact by doing so. The Motion was made without any opposition except by Anning himself. Pauline Hanson for One Nation abstained from the vote. This type of act may prompt or influence the members of the public to vote Senator Anning out in the next election.

IS EXPULSION POSSIBLE?

Section 49 of the Australian Constitution allows for Parliament to declare its own powers, privileges, and immunities of its houses. These privileges were the same as those of the British House of Commons at the time of Federation and would be the case until our Parliament made its own declaration. The British House of Commons had at the time of our Federation, and still has, the power to expel its members. By default, the Australian Parliament had that same power until the Parliamentary Privileges Act 1987 was enacted, which states under section 8 ‘a House does not have power to expel a member from membership of a House.’ This was driven by the principle that our members of Parliament are to be directly elected by the people of Australia. Of course, Parliament could amend this power in the future, or simply repeal section 8. It is up to the members of the Houses to host debates on any practical consequences of such an amendment. For example, repealing section 8 would leave the door wide open for a majority political party in power to expel members of the Opposition; and there is a high risk of an unjustified motive driving such an act. However, even when the Australian Parliament did have the power to expel, it was rarely used. It is worth mentioning also that at the State Government level expulsion is possible. In NSW, it is possible to expel a member of Parliament where it is found they have engaged in conduct that does not align with their position and is likely to bring the house into disrepute.

WHAT ABOUT DISQUALIFICATION?

A politician cannot be disqualified by the Australian Parliament because of their behaviour. They can, however, be disqualified if they are convicted of an offence that is punishable by imprisonment for one year or more. This is set out in section 44 of the Constitution which provides circumstances in which a Federal member of Parliament may be disqualified. Has Senator Anning done anything which raises such a cause of action?

The Commonwealth Criminal Code Act 1995 makes it a criminal offence to use a carriage service to menace, harass or cause offence under section 474.17. A carriage service could be the internet, for example, and so includes the use of Twitter, as Mr Anning has done.

Section 474.17 states:

             (1)  A person commits an offence if:

                     (a)  the person uses a carriage service; and

                     (b)  the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty:  Imprisonment for 3 years.

This is a significant provision. If the Prosecuting Authority decides that Senator Anning has used a carriage service in a way that proves to be criminally offensive under the Act, he could not only be disqualified from Parliament, as the penalty exceeds the 1-year requirement as discussed, but he could be sentenced to a maximum of 3 years’ imprisonment.

Section 473.4 of the Act lists determining factors in whether material is considered offensive:

1)  The matters to be taken into account in deciding for the purposes of this Part whether reasonable persons would regard particular material, or a particular use of a carriage service, as being, in all the circumstances, offensive, include:

                     (a)  the standards of morality, decency and propriety generally accepted by reasonable adults; and

                     (b)  the literary, artistic or educational merit (if any) of the material; and

                     (c)  the general character of the material (including whether it is of a medical, legal or scientific character).

             (2)  If:

                     (a)  a particular use of a carriage service involves the transmission, making available, publication, distribution, advertisement or promotion of material; and

                     (b)  the material is private sexual material;

Although charges being brought against the Senator are unlikely, and gaol time would be even more unlikely, the finding of guilt of such a charge would strip him of his political title.

HATE SPEECH VS FREEDOM TO SPEAK?

Some may view the duty to be politically correct a bit too burdensome – but in this case, we have a public figure with access to millions of people who can read about or listen to his opinions. His opinions are objectively hateful and discriminatory, and not to mention he continues to make anti-Islamic remarks. After members of Parliament made submissions on the censure Motion, Senator Anning walked out of the room and proceeded to reject such a symbolic gesture with more hateful comments about the religion of Islam and Australia’s immigration policies. It is unclear at this stage whether the Senator will face any legal consequences for his comments, but the pressing question is where does this leave our freedom of expression?

If the result is that Mr Anning is not prosecuted, then his right to express himself at least in a legal sense is not affected. It is then simply a matter of him facing the political repercussions when he is condemned by others in Parliament. If the public votes him out then that act is in itself a form of justice, providing a clear indication that his words were not appropriate nor were they welcome.

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