Thursday, December 19, 2013

As officialdom tries to dilute them, human rights must be defended

The Human Rights Commission should defend our traditional human rights from a principled position because they are vital to the preservation of a free society.

The focus in defending human rights in recent years has been on free speech.  This is appropriate as free speech is arguably our most fundamental right.  Without free speech the capacity to defend all other human rights is diluted.

But it is clear that there are many other threats to the pantheon of traditional liberties, and many freedoms that have suffered neglect in recent decades.

The Australian Human Rights Commission is statutorily charged with promoting the principles within the International Covenant on Civil and Political Rights.  That obligation is entirely consistent with my view that the government's role is to create the legal framework to preserve and protect traditional human rights, such as free speech, association, movement, worship, property rights and self-determination.

But there have to be carefully delineated limits to human rights when they come into conflict.

For example, language that explicitly incites violence and directly threatens another individual's safety can be legitimately restricted.

Similarly, in broad principle, defamation law comes from a direct conflict between free speech and people's ownership over their earned reputation — essentially a property right.  Defamation law makes it justifiable to limit speech when it unjustly harms that reputation and the right for an individual to earn from it.

The question for government is:  where do you set the bar?  If the defamation bar is set too low free speech is curtailed.  Too high, then people can destroy other's reputation without recourse.  I think it's clear that, right now, the bar is too low.

But the broader concern is the dilution of human rights by governments in favour of other aspirational, often seemingly worthy, goals.

A practical example is Wednesday's decision by the High Court on the rights of unions to donate to political parties.  From a human rights perspective, the NSW laws preventing any collective of individuals seeking to speak through a common voice — unions, environmental groups, businesses and non-profits — from donating to a political party violated freedom of speech and association.

To its credit the court unanimously struck down the NSW government's restrictions on the basis that they "impermissibly burden the implied freedom of communication on governmental and political matters, contrary to the Commonwealth constitution".

The court's decision is important because it affirms the right to free political communication that the court found was implied in Australia's constitution two decades ago.

Another is the Queensland government's recent anti-bikie gang laws, being adopted in other states.

If bikies commit crimes the police should investigate and prosecute criminals.  But from a human rights perspective it is entirely unjust that freedom of association should be squashed to make the job of the police easier to investigate.  Rather than empowering police to prevent an already comprehensive list of crimes, these laws have created a host of new crimes that could easily be used to punish law-abiding citizens in the wrong place at the wrong time.

Some might say my approach to preserve and protect these traditional human rights is absolutist.  This is not the case.  But too often we have been willing to undermine fundamental rights in the name of "balancing" them.  Rights should be as absolute as possible.  Universal human rights need to be upheld and protected.

The Human Rights Commission should continue defending them from being further diluted.

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