Queensland has become the first parliament in Australia to enact a ban on the use of two political slogans: “from the river to the sea” and “globalise the intifada”. But its passage, while swift, has been rocky, with last-minute alterations making the law more vulnerable to a constitutional challenge.
As originally introduced, the bill was a quite sophisticated attempt to repel any constitutional attack. The high court has previously recognised a constitutionally implied freedom of political communication, which limits the powers of the state and federal parliaments to make laws that restrict or prohibit political communication. Parliaments can only enact these laws if they have another legitimate purpose, such as protecting people from harm, and they are targeted to achieving that purpose in a way that minimises restrictions on political communication.
If a law targets particular ideas or political content, rather than being directed at matters such as the place, manner or timing of the communication, then the court may require a “compelling justification” to uphold it. It applies a higher level of scrutiny to laws that burden one side of a political debate over another, because this is seen as distorting the free flow of political communication.
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When Candace Owens Farmer was denied a visa to visit Australia on a speaking tour, she challenged the validity of the law that permitted her exclusion. A number of high court justices stressed that the law was more justifiable than it might otherwise have been because it was “content neutral”. It permitted the exclusion of persons who risked “inciting discord” in the Australian community, but it was “indifferent to the content of any political communication”.
A Queensland law that bans two political slogans directly targets their content. The original bill tried to avoid that problem by making the law content neutral. It permitted a regulation to be made that banned a slogan if the minister was satisfied that it was widely known by the public, or by the members of a targeted group, as representing an ideology of extreme prejudice against the group.
By pushing any specific ban out of the statute into a regulation, it also made it harder to challenge on constitutional grounds, because the high court directs its assessment of constitutional validity to the statute, rather than regulations. It is instead an administrative law matter whether the regulation was properly made or falls within the power granted by the statute.
Neither of these factors would have made the law immune from constitutional challenge, but they would have made it much harder to establish invalidity. Similar to the Candace Owens Farmer case, the validity of the law might have been upheld as a content-neutral protection of the community from harm.
But in a stunning reverse, the Queensland government, which has complete parliamentary control, cast off the constitutional armour that its bill had carefully constructed, and left its law wide open to attack. It dropped the structure of a content-neutral law that granted a regulation-making power to ban slogans that meet particular criteria.
Instead, it opted for an outright statutory ban, stating that a “prohibited expression” means “from the river to the sea” or “globalise the intifada”. Thrown out are the requirements that the minister be satisfied that the expression represents an ideology of extreme prejudice against a group, such as a racial or religious group, and that the slogan is “regularly used to incite discrimination, hostility or violence towards a relevant group”. This is problematic, because they helped tie the prohibition to the particular harm it is intended to prevent.
The Queensland Criminal Code will now make it an offence for a person publicly to recite, distribute, publish or display these two expressions “in a way that might reasonably be expected to cause a member of the public to feel menaced, harassed or offended”, unless the person has a reasonable excuse. It doesn’t matter what the person using these expressions meant by them, whether there was any intention to cause this kind of harm, or whether any member of the public heard or saw them. The penalty is up to two years’ imprisonment.
Reasonable excuses include the use of these expressions for a genuine artistic, religious, educational, historical, legal or law enforcement purpose, for opposing the ideology represented by the expression, or some other purpose in the public interest, such as a fair and accurate report of an event or matter of public interest.
So why were these major changes made on the very day that the law was passed by parliament? It seems to have been a victory for people power. Queenslanders were concerned that such a power on the statute book was unwise and could be used to apply all sorts of restrictions on freedom of speech in the future. They were right to be concerned.
But by paring back these provisions to an outright ban of two political slogans, the government has exposed them to a greater risk of being struck down as invalid. From a political point of view, this may be the desired outcome. The government can say it did all it could and blame the high court if they are struck down, leaving political communication better protected for the future.
• Anne Twomey is a professor emerita in constitutional law at the University of Sydney
