Tuesday, November 12, 2013

Freedom:  the forgotten human right

George Brandis is right.  Sure, the phrase 'the freedom agenda' sounds a bit naff.  But a reorientation of public policy towards fundamental civil liberties is long overdue.

Australia's well-funded human rights establishment has completely vacated the field on basic rights like freedom of speech, freedom of conscience, and freedom of association.

Brandis' freedom agenda consists of two major proposals.

First, he wants to reform the Australian Human Rights Commission to include at least one freedom commissioner along with the six — yes, count them, six — commissioners dedicated to anti-discrimination and social justice.

Second, he wants to repeal section 18C of the Racial Discrimination Act, the provision which Andrew Bolt was famously found to have breached in 2011.

More on 18C in a moment.  The first idea is the most important one.  Institutions are more powerful than laws.

It is utterly indefensible that a body charged with protecting the great pantheon of human rights — according to its enabling legislation, those listed in the United Nations' International Covenant on Civil and Political Rights — should be so myopically focused on anti-discrimination.

That Brandis' plan to add a freedom commissioner — maybe just one, against six — is even in the slightest bit controversial demonstrates how skewed this body has become.

Here's an exercise.  Let's grant the commission the benefit of the doubt and accept it is statutorily obliged to weigh the right to protection against discrimination against the right to free speech.  (Somehow anti-discrimination always seems a bit weightier, but no matter.)  Yet even when such a balance does not need to be struck, the commission does not bother itself too much with free speech.

Take one of the most serious threats to free expression of the last decade:  Stephen Conroy's internet filter.

The Australian community has been debating this for the better part of a decade.  But the first mention the commission made of internet filtering was in September this year — that is, long after it was dumped, and after the government that proposed it was dumped.

Nor has the commission stepped up to the plate on the censorious nature of Australia's film and literature classification scheme.  In fact, the few times it has mentioned classification, the commission has proposed expanding classification to include racism (see, for instance, here).

The commission harbours a systemic, consistent, and unforgivable bias against some of the key rights it is supposed to protect.

Brandis' problem is that the human rights commission is probably unreformable.  But that's OK.  It's almost certainly unnecessary.

The commission's silence on key liberty questions demonstrates that.  Civil society organisations exposed the internet filter's threat to our rights, not the government's official human rights watchdog.

So if the human rights community seriously can't abide a freedom commissioner, then the commission ought be put out of its misery and abolished.

(At Crikey, Bernard Keane has argued we still need the commission's tribunal functions to adjudicate discrimination claims.  Perhaps.  But if so, let's spin off an anti-discrimination tribunal, and stop pretending it is anything but a minor specialist wing of the judiciary.)

Over the next few months we'll be able to watch the commission make the political case for its own abolition better than any outsider could.

Section 18C of the Racial Discrimination Act is one of the commission's darlings.  They are going to oppose its repeal vehemently.  See this piece in Fairfax papers over the weekend by the new race discrimination commissioner, Tim Soutphommasane.

The Coalition has promised to repeal section 18c "in its present form".  The present form makes it unlawful to offend, insult, humiliate and intimidate a person or group on racial or ethnic grounds.

There's an open question as to whether the Abbott Government will just delete the first two words — offend and insult — or all eliminate the whole section entirely.

It's not clear what the former approach would achieve.  Judges have unhelpfully preferred to read all four words together, rather than distinguishing each word individually.

Nevertheless, the most egregious sort of acts which could be considered to be humiliation and intimidation under section 18C are also covered by other state and federal statutes.  There are many laws against intimidation, disorder, stalking, and offensive conduct — to say nothing of state racial and religious vilification laws.

Soutphommasane rightly says section 18C has been used against people who aren't conservative columnists.  But those other uses do it no credit.

I wrote about one section 18C case in the Drum, which targeted a news website for anonymous comments.

In September, another case in the Federal Court fined a lawyer $12,500 for calling a security guard a "Singaporean prick" four years ago, and telling them to go back to Singapore.  Foul and offensive, yes.  But a society that relies on years of litigation to patrol the boundaries of civility is not a healthy society.

Now there's a looming case against the anti-Israel Boycotts, Divestments and Sanctions campaign.  A judge will decide if BDS is anti-Semitic too.  Then it will be "official".

In such a way, we substitute political and moral argument for lawyers and legal acrobatics.

Of course, any freedom commissioner worth their salt would be highly critical of conservative governments.  They would oppose the Queensland Government's bikie laws, the New South Wales government's restrictions on union campaign spending, and the national security state's proposed mandatory internet data retention scheme.

Then they would target our out-of-control defamation laws.

But these are contentious things.  Perhaps it's safest just to eliminate the Australian Human Rights Commission altogether.

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