The building blocks for a free society
AUSTRALIA’S most fundamental human rights have been diluted over decades. It is time to recognise them as central and essential building blocks for a free society.
Attorney-General George Brandis has asked me, as Australia’s next human rights commissioner, to focus on traditional liberal democratic and common law rights, particularly article 19 of the International Covenant on Civil and Political Rights.
From a classical liberal perspective, traditional human rights are a set of universal principles about the rights of individuals that protect their freedom including freedom of movement, association, worship, property and self-determination.
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More important, human rights are not a gift bestowed on us by government; they are our basic birthright as free people.
All rights should be defended, but the human right most being neglected is free speech. Arguably freedom of speech is the most important human right. It is the human right necessary to protect and defend all other human rights.
Article 19 of the covenant states: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”
Article 19 ought to be the human rights community’s starting point. But at the moment it seems more like a footnote.
Increasingly free speech has been pushed aside in favour of laws and regulations designed to stop people being offensive to each other, a steadily expanding corpus of anti-discrimination and defamation law, and the growing momentum towards restrictions on speech online.
Some of these new threats have come from politicians, responding to the latest moral panic. Others are the result of a judiciary incrementally lowering the bar on what constitutes legitimate speech.
But too often these threats have come from the very human rights activists and organisations that ought to be defending free expression.
This time last year the government presented for Australia’s consideration a radical new change to Australia’s anti-discrimination laws, the Human Rights and Anti-Discrimination Bill.
The bill was sold to the public as a minor consolidation of our labyrinthine discrimination laws. But it would have made it unlawful to offend someone, in any work-related environment, on the basis of a long list of attributes including their political opinion.
As such, it represented a fundamental threat to free expression. It would have buried Australian workplaces in litigation and had a substantial chilling effect on speech. Sadly, when such a fundamental human right was under attack, many human rights advocates didn’t raise an eyebrow. In its own submission the Australian Human Rights Commission did not defend free speech.
Of even greater concern, the commission recommended “further consideration of possibilities for the bill to cover discrimination on the basis of all protected attributes in all areas of public life”, not just the workplace.
If such a recommendation were implemented it would have been a wholesale assault on democracy. Political debate ought to be robust. That is a sign of health. We want politics to be a topic of passion.
Human rights activists have been missing in action on the way our mandatory film and literature classification system suppresses speech. They ran dead on the previous government’s internet filter.
Even more extraordinary was the absence of human rights voices in the debate earlier this year about media regulation.
A direct extension of free speech is press freedom. Protecting free speech is fundamental to the operation of liberal democracy. It is an essential principle for freedom of the press. Free speech and press freedom are one and the same; they are essentially interchangeable and mutually reinforcing concepts.
As 19th-century French liberal Benjamin Constant argued in his 1815 work, Principles of Politics: “Restrain(ing) the freedom of the press is to restrain the human race’s intellectual freedom. The press is an instrument such freedom can no longer do without, the question of press freedom is therefore the general one about the development of the human mind.”
Rather than identifying the proposed new media regulation as a dangerous reversion to state supervision of the free press, many human rights activists underplayed the threat or outright ignored it.
As human rights commissioner I will seek to reorient the human rights debate towards liberal democratic values and the philosophy of individual freedom. The most obvious freedom of speech issue this parliament will face is the Coalition’s promise to repeal section 18C of the Racial Discrimination Act. Section 18C has recently been controversial because of the Andrew Bolt case but, as its supporters are first to say, it has been used against many other Australians.
I will be urging the full repeal of section 18C. It is an unjustifiable limitation on free expression. The best way to undermine offensive or hateful language is not to shut it down, it is to challenge it, expose it for its flaws. The solution is more speech.
It is a central tenet of liberal democracy that the government’s primary task is to protect our human rights, not restrict them.
Tim Wilson is Australia’s next human rights commissioner.
Freedom on the offensive – George Brandis prepares a human rights trap
GEORGE Brandis is setting a diabolical trap for Labor and the Greens. He intends to force them to declare. Do they believe in human rights, or simply in pandering to complaining constituencies in exchange for political support?
- CHRISTIAN KERR
- THE AUSTRALIAN
The Attorney-General began to bait his trap with the announcement yesterday of the appointment of Institute of Public Affairs policy analyst Tim Wilson to the Human Rights Commission as “freedom commissioner”, but this is only part of the plan.
Brandis has thought deeply about rights and liberty during the past few years.
He watched Labor’s attempts to stifle free speech and cow the media. He has considered both the philosophical and political dimensions of the issues involved. And he came to government with an audacious plan.
Brandis believes he can expose the Left as morally bankrupt opportunists who pay mere lip service to genuine concepts of human rights and reclaim for the Liberals – small-l liberals, in particular – the mantle of liberty.
The immediate response to Wilson’s appointment suggests his strategy can succeed.
Twitter lapsed into incoherence. “Arch-conservative authoritarian Tim Wilson appointed to Human Rights Commission,” one twit spluttered, their outrage apparently blinding them to the fact that Wilson is a proudly gay libertarian campaigner for marriage equality.
Supposedly more measured minds also missed the real strategy. “What does Tim Wilson mean when he says ‘I will put freedom on the offensive’?” Andrew Giles, the Labor member for Scullin, Victoria, demanded to know.
“What does this mean for the protection of human rights?”
The Greens chimed in with “Appalled by Tim Wilson human rights appointment. Ideological appointment to drag away from human rights into a free-for-all.”
All these and more had read the headline of Brandis’s media release announcing the appointment and the first few paragraphs, but failed to finish.
The Attorney-General praises Wilson as “one of Australia’s most prominent public advocates of the rights of the individual”.
“He has published and broadcast widely on the topics of personal freedom, liberal democratic values and the rule of law,” Brandis continues. “He was at the forefront in thwarting recent attempts to erode freedom of speech, freedom of the press and artistic freedom – rights and freedoms Australians have always held precious.
“The appointment of Mr Wilson to this important position will help to restore balance to the Australian Human Rights Commission which, during the period of the Labor government, had become increasingly narrow and selective in its view of human rights.”
Then came the clincher. Yet it was missed. “Next year, I intend to bring forward reforms to the commission,” Brandis says.
These reforms, The Australian understands, are yet to be finalised. Yet it is almost certain that they will require legislation. And that will mean Labor and the Greens will have to make a stand.
What will they back – the human rights Brandis speaks of in his media release, or the human rights establishment and the culture of complaint with its professional victimhood, hurt and outrage, which can be assuaged only by public money?
Brandis’s opposition counterpart, Mark Dreyfus, appears to have spotted the wedge and ducked the debate for now.
Instead, he simply “questioned” the appointment, saying: “By appointing Mr Wilson, Senator Brandis has sent a strong signal about exactly the kind of blatant political agenda he wishes to pursue as Attorney-General.”
Dreyfus’s riposte, however, ignores Brandis’s philosophical commitment to human rights – let alone its long evolution.
The Attorney-General studied human rights law at Oxford under the famed legal philosopher and constitutional scholar Ronald Dworkin.
He was also taught by Joseph Raz, a giant in legal, moral and philosophical circles but little known outside the academic world.
After he returned to Australia, Brandis spent eight years teaching jurisprudence at the University of Queensland, concentrating on the work of the great liberal and libertarian philosophers, figures such as the American thinkers Robert Nozick and John Rawls.
This has led Brandis to develop a personal philosophy of human rights and politics.
The Attorney-General has a deep belief that conservatives and the Right of his own party have made a serious mistake in recent decades by opposing too much of the human rights agenda that has been put forward.
He believes liberals have missed a key opportunity to embrace the debate and enshrine freedom of speech as the greatest of all rights. Worse, he believes his side of politics has failed to advance a genuine agenda of liberty while also failing to expose a fundamental contradiction in the Left’s position on human rights.
Brandis believes the Left – as former Labor attorney-general Nicola Roxon proposed to do with her anti-discrimination legislation – seeks to protect people from being offended when they speak and act on human rights.
And he knows that laws can prevent people from being offended only by limiting the freedoms of others. He has a fundamental objection to what he sees as the Left’s human rights agenda: advancing some freedoms by limiting others.
With all this in mind, Brandis believes his side of politics should be on the front foot in the debate. Hence his bold step yesterday.
“For years the Labor Party has been allowed to get away with sailing under false colours by claiming the human rights debate as its territory,” the Attorney-General tells The Australian.
“To our shame, we on my side of politics have too often conceded that ground to Labor when we should have been fighting for it ourselves.”
Brandis puts human rights at the heart of the Liberal Party’s philosophy.
“The reality is that while the Labor Party was created to defend class interests and the Country Party was created to defend sectional interests, the only political party represented in the Australian parliament which was created for the very purpose of protecting the rights of the individual is the Liberal Party,” he says.
“Human rights is our core business and it is my firm intention to ensure that the real human rights, in particular the fundamental human freedoms, are restored to the heart of the human rights debate, where they belong.”
Brandis makes his views on the importance of these matters amply clear in yesterday’s statement.
He says: “I have asked Mr Wilson to focus on the protection of the traditional liberal democratic and common law rights, including, in particular, the rights recognised by Article 19 of the International Covenant on Civil and Political Rights” – the article mandating freedom of expression.
Brandis has already staked out this territory as a key battleground.
He has said the abolition of the “Andrew Bolt” provisions of the Racial Discrimination Act, which make it unlawful to offend and insult people because of their race, will be his key priority.
The move to amend or repeal Section 18C of the act, a key election commitment, will change the definition of racial vilification to eliminate at least two of the grounds that were used in a court ruling against the columnist over articles about light-skinned Aboriginal people.
Brandis has held consultations about whether his amendments should go further and wind back other potential grounds for liability.
The Attorney-General sees the new Human Rights Commissioner as a strong and capable ally.
“I chose Tim Wilson for this role because I saw in him a person who had the philosophical integrity, political smarts and personal toughness to take this cause to the heart of the action,” he says.
And he has made it clear that he will press on with his agenda in the face of opposition from the ALP: “If the Labor Party does decide to adopt an anti-freedom position then we will deal with the crossbench senators,” Brandis says.
Wilson, too, is spoiling for a fight.
“I’ll be putting freedom on the offensive, where it belongs,” he tells The Australian. He nominates free speech and media freedom as his two key priorities, saying both had come under attack under the last government.
“Freedom of speech and freedom of the press are essential for a free society,” Wilson says.
“A free media is a direct extension of the importance of free speech and are one and the same in importance.
“We need to remove the restrictions that have stopped people saying what they think and believe.
“Only through a contest of ideas will our society flourish,” Wilson continues, condemning the proposals by the previous Labor government to change anti-discrimination laws to ban conduct that “offends or insults”.
“We shouldn’t have restrictions on what may offend or insult because they just end up restricting speech and stop incorrect ideas being challenged and rebutted,” the new commissioner says.
Wilson expresses concern at the muted response to the media regulation and anti-discrimination laws put forward under Labor.
“It is clear that there were proposals in the last parliament to restrict free speech and freedom of the press,” he says. “Thankfully those were defeated, but it was deeply concerning to see them so easily come under attack and so little opposition to be voiced in the community, apart from a few learned sources.
“I was disappointed that some people, who should have been staunch defenders of free speech, didn’t stand up and assert the importance of these essential features of our democracy.”
Now, the fight for freedom is on. The trap has been set.