Freedoms versus anti-discrimination laws? A false debate

Responsibility, anti-discrimination laws, human rights and freedoms - these words have been at the center of an ideological debate about how to protect fundamental freedoms, including freedom of speech, freedom of association and freedom from detention without trial. But if we are serious about securing these fundamental freedoms in Australian law, we must legislate to protect them, just as we have done to protect us from discrimination.

Some commentators argue these fundamental freedoms have not been adequately defended and that the independent Commonwealth agency I lead, the Australian Human Rights Commission, has emphasized anti-discrimination laws over the core freedoms that are vital to a robust democracy.

As is often the case in public discussion, the truth usually lies somewhere between polarized views, between the light and the shade, between right and wrong.

Indeed, to pit freedoms against anti-discrimination laws is to create a false debate.

A significant amount of the Commission’s work reflects the legislation it is required to implement. And this is the point. Its powers are limited by the failure of respective Federal governments to enact fundamental freedoms in Australian law.

It is little understood that Australia is unique among comparable legal systems - that we have few constitutional or legislative protections for the freedoms we take for granted and which, for the most part, are protected in our daily lives.

Critically, Australia has not implemented the core human rights principles, set out in the International Covenant on Civil and Political Rights 1966, including freedom of speech and freedom from arbitrary detention. Other benchmark international obligations, such as the Convention on the Rights of the Child, are also not directly part of Australian law.

In the Australian Constitution, there are only minimal protections provided for basic freedoms - and no explicit protection for the right to freedom of speech. Additionally, the Commonwealth has no Bill or Charter of Rights, like those adopted in the UK, Canada, New Zealand and the United States. The contrast between the way human rights are treated in Australia and the way they are treated in Europe and North America is stark.

There are of course other means by which human rights can be protected. Australia has taken an individual path to protect fundamental freedoms through national laws, the common law and cultural conventions. Australia has relied on its judges to apply principles that have been developed at common law over many centuries, on a case-by-case basis, since the Magna Carta in 1215. Through this time-honoured process, the High Court has affirmed the principle of ‘legality’ and strongly supported fundamental freedoms against executive power.

Parliament has given specific legislative effect to some only of Australia’s international treaty obligations - in the Racial Discrimination Act, Sex Discrimination Act, and Disability Discrimination Act - and has enacted additional laws on age, children and indigenous Australians.

Consistent with this preference for administrative rather than legislative protection for human rights, the Commonwealth established the Australian Human Rights Commission in 1986. It is testimony to the strength of Australia’s democracy that, despite the Commission’s function to hold government to account on human rights protections, it has been supported on a bipartisan basis by all federal governments for nearly 30 years.

With this evolution, Australia’s unique approach to human rights has produced a significant gap in legal protections for some rights, such as the right to freedom of speech or freedom from arbitrary detention, while comprehensively preserving the right protection against certain forms of discrimination.

The Commission has long argued for more complete legislative protection for fundamental freedoms and, in this regard, welcomes recent proposals to strengthen freedom of speech.

But let me be clear. All human rights should be protected. There is no hierarchical order amongst them. Human rights are seldom absolute. Nor are they isolated from one another. The challenge is to find a balance between rights. It is not appropriate to cherry pick one’s favourite right over another – such as the right to freedom of speech over the right to anti-discrimination.

Today’s debates about the right not to be abused on racial grounds in public, the freedom of ‘bikies’ to associate, the policy of mandatory detention of asylum seekers and anti-terrorism laws, are all subject to this balancing process.

Commonwealth laws to articulate our freedoms would provide a guiding star for the courts, administrators, government and the community and a valuable clarification of Australian values – just as they do with anti-discrimination.

We live in a country where most people think or assume our freedoms are protected. In fact, our legal system does so only in a piecemeal fashion, leaving many black holes in effective protection It now seems the planets are aligned for opportunity. There is really only one sensible option If we are truly serious about securing the right to our fundamental freedoms in this country - we must legislate.