Taking the odious option in a censorship war

It's awkward defending something you find despicable, but here goes.

For some time, Australia's been the frog naively lolling in tepid water, while a cabal of governments, bureaucrats and finger-waving political correctionists quietly dial up the heat to roil against free speech, degree by dangerous degree, either hoping we won't notice, or that we'll see it as a fair counter to the ‘hate media'. Most of us, including businesspeople, are like the frog, and have kept our mouths shut.

Two recent examples of 'reforms': Former Attorney-General Nicola Roxon's unintended stab at restricting free speech through her attempt to "tidy up” a messy raft of rights laws, including reversing the onus of proof among other ills. Also, the federal government's 1984-ish proposal that telecommunications carriers retain for two years all records of every citizen's phone calls, texts, internet searches, and more, exposing us not just to government intrusion, but creating a dribbling juicy target for hackers and disgruntled or gossipy officials.

Both measures are indefensible in a civil, democratic society.

But now to defend the despicable. By that I don't mean a person – in this case, a Muslim cleric Man Haron Monis, whom I know little of. I mean the act he has been criminally charged with under section 471.12 Criminal Code: posting offensive letters to the families of diggers killed in Afghanistan.

Last Wednesday, a split High Court effectively dismissed Monis's appeal against his conviction by a lower court.

Many, perhaps most reasonable people would find these letters offensive. Horrible. Hateful. Hurtful. A parent myself, I shudder to think of the personal pain a grieving, unsuspecting mother or father felt after pulling one of them out of their mailbox.

According to High Court Judge Dyson Heydon: "One of the communications… is couched in unctuous expressions of regret for the ‘difficult time' through which the parents are passing, ‘condolences for the loss of your son' and statements like ‘May God grant you patience and guide us all to the right path.' But it calls the son a murderer of civilians. It expresses sympathy to his parents, but not to him. It compares the son to a pig and to a dirty animal. It calls the son's body ‘contaminated'. It refers to it as ‘the dirty body of a pig'. It describes Hitler as not inferior to the son in moral merit.”

The letters might be odious, yet it wouldn't have been a crime – and nor should it be – if Monis had scrawled the same words on a placard, or even shouted them in a public street. So why is it a crime when he mails them to private addresses?

This law is an unwarranted constraint on free speech. Far beyond Monis's case, it fashions an iniquitous hook to hang people up on for simply expressing their views – in complete privacy – if a government, bureaucrat or other dictator of public virtue decides they don't like them.

In the wrong hands, this law has clear potential to chill debate on controversial topics.

It's in living memory when Australian governments and police wielded wide, vague laws like cudgels to smash protest and stifle dissent. In the 1970s, many took to the streets on hot political issues. But in New South Wales, the average citizen hit those streets with great apprehension, since the Askin government was notorious for swinging its hated Summary Offences Act 1970 around.

Under that foul law, anyone in, or within earshot, of a public place risked three months' jail merely for uttering "unseemly words”, defined as "obscene, indecent, profane, threatening, abusive or insulting words”. (If enforced even-handedly, that law might have sent Premier Askin himself to the slammer.)

Askin justified his 1970 law as essential for public order, but used it to crush dissent, in tune with his infamous 1966 "Run over the bastards” line when anti-Vietnam War protesters threw themselves in front of the motorcade he and US President Johnson were travelling in through Sydney in.

Strangely, this newer (1995) federal law which Monis has been convicted under has two elements worse than Askin's.

The penalty – two years' jail – is eight times harsher than Askin's three months. Further, at least Askin's law was for acts committed under the public gaze.

Imagine this. It's 2002 and TV news cameras are beaming an anti-Iraq War rally in Melbourne live to millions. Someone waves a placard claiming that Prime Minister John Howard is a war criminal. Offensive to Howard as this is, the criminal law would ignore it. But if the same protester saw his photo on the front page of the next day's paper, cut it out and stupidly stuffed it inside an envelope and popped it into the postbox addressed to Howard's wife or children, the sender could be jailed for two years.

Around the world, governments still burn books and imprison writers and artists for daring to criticise a regime or mess with its sense of order.

Fortunately, Australia neither burns books nor jails writers nor artists. But I am scratching my head that our legislators – some old enough to recall the Askin era personally – consider it okay to jail someone for two years, not for writing, shouting or publishing something contentious, but for taking the extra micro-step of daring to mail it to a single individual's private address.

This is a sneaky "gotcha” law, the kind that can be dragged out of its shadows when the powers that be can't find anything else to pin on someone who is a nuisance to them. This should worry the hell out of citizens in a democracy.

If a fanatical atheist were to mail to a nun an image of Andres Serrano's sacrilegious work, Piss Christ – a work offensive to countless Christians – he or she could be jailed for that, even though there is no law preventing a gallery of newspaper displaying the work itself. Bad manners and poor judgment should not be regulated.

This worries me, not just as a citizen or a company director, but as a novelist. If one of my stories offends someone, even when it can be sold freely in bookstores or via the internet – and long may that last – this insidious law means I can be jailed should I naively post a copy to someone who hates it. By this standard, Dan Brown could be jailed for life in Australia for his Da Vinci Code. As could the producers of Broadway hit musical The Book of Mormon.

This federal law allows political and moral censorship by stealth.

In my view, what Monis wrote was despicable. While he can fairly be censured for that, he shouldn't be censored. Nor should it be a criminal offence to write those letters and post them. A law that makes it one is a far greater offense… against free speech and democratic values.

John M Green is a leading company director, commentator and novelist. His upcoming novel, The Trusted, an eco- and cyber-thriller, is being released in April in paperback and ebook. Click here for a free chapter and book trailer.