Wednesday, December 18, 2013

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.

Australia's human rights commission should be asked 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.

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.

The human rights commission should 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.

It should 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.

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