Opening minds to ‘forgotten freedoms’

Opinion by Human Rights Commissioner, Tim Wilson. First published in The Australian on 17 May 2014.

Reform is not the end of debating free speech in Australia, it is the beginning

The “forgotten freedoms” provide the foundations of our liberal democracy, and we have to reconnect with them.

There are competing views about how human rights and freedoms should be approached. After all, human rights are an ­entirely political construct.

Two competing interpre­tations sat at the heart of mid- 20th century debates about the development of international human rights treaties.

One was the liberal tradition. Liberal human rights protect the individual from the abuse of government power, support people’s ownership of their own lives and their capacity to pursue their opportunities and enterprise; so long as they do no harm to others. Importantly for liberals, human rights are an assertion of our natural birthrights.

To keep them sacrosanct, human rights are few — such as freedom of speech, association, movement, worship, freedom from arbitrary detention, equality before the law and property rights — and rarely come into conflict when individuals exercise them.

By comparison, the socialist approach was about using human rights as an instrument to ensure democratic participation. They saw human rights as a means to advance objectives and, like all ­aspects of socialism, the individual came second.

Australia, and other Anglo­sphere nations, were built on a ­liberal approach. Yet many international treaties are infused with the objectives of the socialist tradition.

This process has disconnected human rights from their origins. Governments negotiated what human rights are. They are now perceived as gifts of government. It’s time to press the reset button on human rights and take them back to their liberal principles.

To do so, it is important to understand what liberal human rights are not. Human rights are not the same as civil rights.

Human rights are universal and exist from birth; civil rights are the gift of citizenship.

Human rights are not the same as social justice.

Human rights are about uncompromisingly protecting the autonomy of the individual; social justice is broadly about advancing equity.

Human rights are not the same as anti-discrimination.

Apart from equality before the law, human rights can actually be about exercising discrimination, such as free association; whereas anti-discrimination is about removing unjust prejudice.

Human rights are not about protecting groups of people.

Universal human rights can only exist for individuals, though they can be exercised collectively; by comparison, group rights cannot be extended to everyone.

Elevating these objectives to the status of human rights simply dilutes the integrity of all human rights. When everything is a human right, nothing is.

They can no longer be sacrosanct principles. They just become worthy aspirations that regularly conflict with each other.

Human rights and freedoms are also not the same thing.

Freedoms are the exercise of our human rights. If you compromise human rights, you compromise the exercise of freedoms.

To the extent that we are having “freedom wars”, it is merely the 21st century incarnation of the philosophical, political and legal contest of ideas about the relationship between the individual and the state.

To that end, there are four foundational human rights that need to be strongly reasserted — freedom of association, religion, expression and property. They are “the forgotten freedoms”.

It probably seems odd to refer to freedoms that we exercise on a daily basis as “forgotten”. But as foundational freedoms they are being taken for granted and are consequently compromised.

The importance of freedom of association cannot be under­stated. It underpins our freedom to build community and civil ­society, engage in political action and protest, and join a union. Or not.

But it is under pressure in the face of governments seeking to advance other goals.

The most recent example is the introduction of anti-bikie laws. If individuals are engaged in criminal behaviour, the government should pursue their conduct to the full extent of the law.

The Queensland government has acted to limit the impact of their laws on free association, but a human right has still been criminalised.

Practices that aid unions operating a “no-ticket, no-start” work environment are as much an encroachment on free association as government restrictions stopping membership. As are periodic laws that compel university students to join their student unions.

And there are periodic efforts to get private associations to lose exemptions from anti-discrimination laws that allow them to have gender-based memberships.

Free association is also directly intertwined with freedom of religion. The exercise of individual rights through collective worship is an expression of both.

In a document that is almost ­silent on human rights, the ­Australian Constitution includes uniquely explicit provisions on the freedom of religious worship.

Yet the breadth of what is considered the exercise of religious freedom is regularly scrutinised, and the capacity for anti-discrimination exemptions to be claimed for the exercise of religious faith is coming into sharp public focus.

Only last month, the Victorian Supreme Court of Appeal made a ruling that could recast the breadth of the exercise of ­religious freedom.

The Court of Appeal ruled that exemptions for religious freedom under state discrimination laws did not apply to the Christian Brethren’s Phillip Island camp when it declined access to a group that taught the acceptability of homosexuality.

The Victorian Supreme Court concluded religious exemptions should be interpreted narrowly and that the Brethren were not entitled to discriminate.

While broad anti-discrimination objectives are not the same as human rights, they are one and the same when it comes to the human right of equality before the law. It is a human rights violation for government to unjustifiably discriminate.

The line between religious practice and the necessity of the competing human right of equality before the law is greyed significantly when faith-based bodies take public money.

Many religious faiths compete in a marketplace to provide outsourced public services.

Many Australians, understandably, believe gov­ernment non-discrimination stan­dards should apply for these services funded by the taxpayer.

In practice, that means institutions like religious schools face a choice about whether they would rather close their doors than be told by the government how to exercise their faith.

And at the heart of these considerations for both government and faiths is the question of what religion is.

Is it something practised in a house of worship on Sunday?

Or evident in the practice of the exercise of all of an individual’s freedom? Where this line is drawn has a profound impact on the full ­realisation of this important human right.

Arguably the most forgotten of all human rights is property. Yet it should be utterly uncontroversial.

Article 17 of the Universal Dec­laration of Human Rights states that “everyone has the right to own property alone as well as in association with others” and “no one shall be arbitrarily deprived of his property”.

Property rights are not just about physical property.

Property rights are people’s ownership of their own bodies, the use of physical property and land and intellectual property.

Property rights are regularly compromised by legislation and regulation, such as native vegetation legislation that restricts how legitimate property owners can use their land.

However, the biggest questions around the full realisation of property are in the personal ­domain.

If people own their own bodies then what role is there for government to tell them what they can do with it?

People’s ownership of their bodies poses serious questions, and difficult answers, about how we can end our own life, and the degree of bodily autonomy we have to take risks and live with the consequences.

These questions are exacerbated when the consequences of risk are carried by the taxpayer by providing safety net services.

And it is freedom of expression or, as we commonly refer to it, free speech, that we use to protect ourselves and defend all other human rights.

It is the extension of the abso­lute human right of freedom of conscience and thought, and it has been thrust onto the national political agenda by the Abbott government’s decision to replace sections of the Racial Discrimination Act.

As Robert Menzies argued in his second Forgotten People speech, “so few of us have objective minds — detached minds — and what we conceive to be the truth is very often coloured or ­distorted by our own passions or interests or prejudices. Hence, if truth is to emerge and in the long run be triumphant, the process of free debate — the untrammelled clash of opinion — must go on”.

In a liberal democracy, we must approach free speech as a blank canvas where restrictions must be justified; we do not seek permission. In a liberal democracy, all speech is legal until it is made ­illegal, and not the other way around.

We are never called on to ­defend free speech from the ­excessive use of “please” and “thank you”. Free speech only needs to be defended when it crosses the line of social ­acceptability.

A primary justification for compromising human rights is that individuals cannot be trusted to exercise them responsibly.

It was a theme touched on by David Kemp in his recent Alfred Deakin lecture at the University of Melbourne.

Invoking the spirit of Adam Smith’s The Theory of Moral Sentiments, Kemp argued that “the wisdom of our democratic history behind us tells us that a good society is created not by pursuing the illiberal with tribunals, punishments and bans, but by the morality that grows out of the desire of people to be validated by the good opinions of others”.

To responsibly exercise their human rights, individuals have to be able to exercise their responsibility. Responsibility comes from spontaneous order, not government direction.

Of course, there are justified restrictions on free speech, but they occur at the margins, such as the imminent explicit incitement of violence against others.

Reforming the Racial Discrimination Act is not the end of debating free speech in Australia, it is the beginning.

There are many other issues that we also need to discuss — defamation laws, anti-­terrorism laws, media regulation, freedom of information and the competing property rights and free-speech interests in intellectual property, to name a few.

I’ll be seeking to reassert these “forgotten freedoms” during my term. Unless they’re properly respected as the foundations for our liberal democracy, they risk being incrementally curtailed.

Tim Wilson is Australia’s Human Rights Commissioner. This opinion piece draws on a speech to the Sydney Institute on 13 May 2014.