Beyond human rights to exercising freedoms
Rights and Freedoms
National Press Club
Wednesday, 18th February 2015
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Introduction
Thank you.
Acknowledgement
I’d like to acknowledge Ngunnawal people’s enduring cultural connection to the land we meet on today.
Why freedom matters
Sitting behind infringements of human rights are human stories.
The human consequences detailed in The Forgotten Children[1] report should not surprise anyone.
The long-term arbitrary detention of children is not in anyone’s interest: theirs or ours.
I recognize there has been a lot of political debate surrounding this report. I won’t be fuelling any of it by offering comment.
My interest is policy and the best interests of the children.
As someone who cares deeply about liberty, I found interviewing children and their families in Darwin’s detention centres confronting.
Children struggled to be socially engaged and lacked the spontaneous energy and vitality that makes kids what they are.
Stopping the boats and the deaths at sea does matter.
The follow-through is to do what the government is now doing: getting children, adults and families out of detention.
It would make our nation proud to conclude that process by ensuring no child is ever detained again.[2]
Denying people, children or adults, their liberty suppresses their development and the opportunity to realize their full potential.
That’s why we care about freedom. Freedom drives human progress:
- It empowers individual autonomy and responsibility.
- It encourages respect for the individual and dignity of treatment for all.
- It fosters innovation and creativity – through the expression of individual choice and freely determined participation in economic, social and cultural affairs.
We should want big citizens, not big government. Freedom does not, and has never, depended on the permissions of a distant bureaucracy.
We're Australians. Born free, and inheritors of the compounded knowledge of thousands of years of history and culture from our European and Aboriginal heritage, and enhanced by continued migration from across the seas.
There are constant faddish political and social movements arguing for diminishing freedom. In a country like ours, freedom won’t die from a singular lethal act.
It is suffocated as people are taught the easy lie that they can indulge in the rhetoric of human rights in one breathe, and the dismissal of the freedom to exercise them in the next.
We’re told that we can speak freely, but not when it offends; we have religious liberty, but keep it to Sunday and the pews and don’t wear certain items of clothing; we can freely associate, so long as it ticks a politically correct box; and you own your own body, but we’re going to tell you what you can and can’t do with it.
It is also suffocated when one generation binds the fate of the next. Accumulating debt to pay for one generation’s lifestyle today only limits the freedom and choice of future generations.
Australia’s sixth Human Rights Commissioner
It's this reason I accepted the opportunity, one year ago today, to be Australia's sixth Human Rights Commissioner.
Like my Commissioner colleagues, my role is to look at systemic public policy issues. No Commissioner investigates complaints from the public. That is the role of the President.
On my arrival the President and I divided policy responsibilities. The President took international and asylum seeker issues.
The Act gives my office little statutory power. Its power is to bring parties together and prompt conversations that may not otherwise happen.
Ordinarily the Human Rights Commissioner is appointed with modest attention and given breathing room to develop their own agenda. I wasn't afforded that luxury.
Since being appointed I have been developing two work programs. The first is human rights.
The second is as defacto Commissioner for sexual orientation, gender identity and intersex status (SOGII) issues.
There has never been a Commissioner that's taken on this important role before, though the Victorian government is now following with its own equivalent appointment.
Rights & Responsibilities 2014 & SOGII consultations
When I took on the role of Australia’s Human Rights Commissioner I understood what it meant to be “Human Rights Commissioner”. I hadn’t properly thought about the “Australia” bit.
As you know, I am not short on opinion. But that isn’t enough. You can’t do this job without getting out of Pitt Street and hearing directly from Australians. So that’s what I did.
To action both roles I held two parallel national consultations throughout the second half of last year.
The Rights & Responsibilities 2014 consultation asked Australians what issues mattered to them amongst the core of liberal individual human rights and freedoms: freedom of speech, freedom of association, religious freedom and property rights.
In addition people raised with us issues ranging from Aboriginal incarceration rates, consultation in coal seam gas communities, to restrictions on free association for sex workers.
This country is full of incredible people carrying the weight of many on their shoulders to hold their community together. It has often been in the harshest conditions that I’ve witnessed the most inspirational acts.
The SOGII consultation is still ongoing. It's primarily focused on ensuring government programs that have an impact on people's day-to-day lives, such as health and education, treat everyone fairly and equally.
Reports from both consultations will be released shortly and give a clear indication of the challenges we've identified and which will be addressed over the remainder of my four years in office.
Today I’ll outline the themes that have arisen.
Human rights in Australia
Off the legacy of British and American revolutionary fire, Australians inherited respect for human rights primarily through common law.
They were pre-built into our culture. They are assumed, some would say taken for granted.
Australia is a deeply pragmatic country. We care about human rights, but not in isolation.
We expect others to exercise responsibility as a pre-condition of having rights.
To gain public legitimacy the freedom to exercise rights has to be nested with fairness and justice.
Human rights education
There's a clear need to ensure the full history of human rights is taught.
Today human rights are taught as something invented by the United Nations after the Second World War. That ignores the evolution of these ideas over thousands of years and the reasons why generations have fought and died to advance or defend them.
The 800th anniversary this year of Magna Carta gifts us an opportunity to correct this.
Magna Carta and subsequent events are not footnotes of history. They are the story of Western civilization, liberal enlightenment thinking, human rights and the creation of institutions that preserve our free society.
This period saw the departure from rule by Monarchs and religious leaders and ushered in an age that gave power to individuals, encouraged scientific discovery supported by the freedom to test and debate ideas, and democratized the creation of wealth.
While seemingly idiosyncratic, Magna Carta or Great Charter of 1215 was immensely important. It formally established equality before the law, protected religious freedom and property rights, in an early recognition of the rights of women provided protection to widows and, protection from arbitrary detention, in a later edition that sits in our very own Federal Parliament, established the rule of law.
The Magna Carta is the story of freedom.
Therefore, we will be developing education resources for Australian schools to tell that story and commemorate Magna Carta's anniversary.
Property rights are human rights
Magna Carta’s anniversary also provides the opportunity to reconnect Australia's human rights discourse back to their origins, particularly the importance of property rights.
The very foundation of human rights is that people own their own bodies and should be free to pursue their lives, their opportunity and their enterprise.
Preservation of property rights is central to the human rights cause.
They underpin autonomy, security, and the foundations of a market economy through physical and intellectual property to deliver the growth to deliver higher standards of living, art and culture, innovation and education and health outcomes.
Property is the foundation of industries past, and the entrepreneurialism and creativity of tomorrow.
Denying them has the reverse effect. In Perth I met with property groups who articulated the human cost of excessive environmental laws that destroy the security and opportunity for farmers to invest in their own future.
In Alice Springs we went to art galleries that ensured remote Aboriginal communities earned an income through the sale of artwork that is built on a respect for their intellectual property.
In his compelling book, The Mystery of Capital, Hernando de Soto, identified “Without formal property, no matter how many assets the excluded accumulate or how hard they work, most people will not be able to prosper”.[3]
The freedom to exercise property
If you need evidence to demonstrate the human consequences of denying property, you just need to look at Aboriginal Australia.
Mabo established recognition of the common law right of native title and the road for Aboriginal Australians to reclaim their available lands. But it was only the beginning of the story.
It's not enough for Aboriginal Australians to simply have property rights; they must also have the freedom to exercise them.
Unleashing the freedom to exercise native title must be part of the next chapter in ensuring our Aboriginal Australians, as Noel Pearson wrote in a recent essay, achieve their “equal liberty ... [and] the freedom to take responsibility”.[4]
Aboriginal leaders from Broome to Cairns have detailed to me the complex bureaucracy after native title is secured, including:
- Excessive regulations that undermine self-determination and entrench poverty.
- Land tax bills for property that they've never had the opportunity to develop.
- And legal restrictions that stop land being used as equity to raise the capital to be entrepreneurial.
This is neither fair, nor just.
We can't complain about the cost of welfare programs for Australia's first citizens, when we concurrently deny them the freedom to use the primary asset they own to escape dependency.
It is not our place to tell Aboriginal Australia how to use their land. But it is our duty to ensure they can by removing red tape. Reform requires:
- Flexible legal instruments enabling communities to use their title as they see fit, including with different ownership structures that meet their needs.
- Complimentary new business models that ensure finance can be raised, and risk can be priced, so communities can build economic opportunities.
- Mechanisms to raise finance for the development of housing and ownership.
Having met with leaders, there is an appetite for constructive reform to set native title free.
Reform must respect native title’s unique role as a sacred bond between Aboriginal Australians and their homelands.
Therefore, I’m proud to announce that my colleague, Mick Gooda, and I will be hosting a high-level forum on this subject later this year.
Any proposals from this forum will require the consent of native title holders if implemented and will not compromise the protection of the inherent legal rights of Aboriginal Australia.
We will be bringing together parties interested in reviewing and reforming native title to remove legal and regulatory barriers that hold Aboriginal communities back from reaching their full potential.
Housing affordability
These challenges don’t just befall Aboriginal Australia. Undermining the free exercise of property rights contributes to the housing affordability crisis in our cities and suburbs.
During an interview on a youth radio station in regional New South Wales I asked the host what issues her listeners had raised after reading my consultation paper. I know you all read it too. There was only one answer: property rights.
Housing affordability has been raised with me all across the country by business groups, younger Australians, rural Mayors and homeless support centres.
Most advocacy is dedicated to increasing the supply of social housing. Others have raised concern about security of rental tenure, particularly for older Australians.
But you cannot fix the problems of renting and ownership unless you fix the private market.
The wealthy can take care of themselves.
But middle and working class Australians, especially the young, face housing stress. Ignoring their problems simply pushes the problems further down the market to the detriment of the poor and disadvantaged.
That is the story I heard from disaffected homeless people at the Hutt Street centre in Adelaide. They raised concerns about accessing reliable accommodation with so much pressure on social housing.
Many factors contribute to rising house prices, from wealth disparity between generations, land release, environmental and planning regulations, as well as labour costs.
All increase costs and slow release of supply.
That isn’t the end of the story. We stop people using websites to rent out their homes for short term tenancies.
There are also geographic differences. The problems in our capital cities where land is scarce are different to communities like Halls Creek in outback WA where land is plentiful.
Solving the challenge of housing affordability is not just about building more houses on the outer fringe of our great capital cities where families will struggle to commute; nor towering skyscrapers in our CBDs where families will only temporarily fit; especially when established suburbs stop medium density development that can deliver proximity, livability and affordability.
There isn't a one-size fits all solution.
Making sure all Australians can access shelter is an area I intend to work on in the years to come.
Advancing religious freedom
Another priority is religious freedom.
In his Red Mass to open the NSW legal year Archbishop of Sydney, Anthony Fisher, highlighted that the “first right recognised in the Magna Carta was religious liberty”.[5]
Australia is a pluralist multi-faith country and religious freedom is a protected right in our Constitution.
It’s also an area of contention in accommodating competing human rights.
Religious groups have raised increasing concern that they feel their liberty is being limited only to prayer in houses of worship.
Secularist groups have criticized religious exemptions in anti-discrimination law that can be used against consumers of services and the hiring and firing of staff.
The issues are complex:
- Few would dispute that Rabbis have to be Jewish; but what about teachers in Jewish schools? Is that different from a gardener?
- If a Catholic school requires teachers to be Catholic, what about students? Should they be able to lawfully expel an unmarried pregnant student for not living their values?
- Does it make a difference if the school receives public money?
- Should we discriminate against religions from being providers of services because they won’t accept secular strings? Isn’t that a return to divisive sectarianism?
There’s no easy answer to these questions.
Our ambition should not be to debate religious freedom and secular government objectives as a zero-sum game. It is inconsistent with pluralism to push religion from the public square. It is as legitimate a motivation as any other.
At an interfaith summit on the Gold Coast it was clear to me that religious communities were concerned about their place in our nation’s future.
What we should be fostering is a robust and respectful discussion about what religious freedom means in 21st Century Australia.
Therefore, after consultation with many religious leaders and communities, I will seek to form an ongoing religious freedom roundtable.
The religious freedom roundtable will seek to bring together those of faith to discuss how we can advance religious freedom and its interaction with public policy.
The Commission is the right body to facilitate these discussions. Preserving religious freedom is part of our charter, but so too is the preservation of equality before the law.
Competing human rights
Communities have raised concerns about the consequences for religious freedom should the Federal Parliament legislate marriage for same-sex couples.
There is concern that if the law changes civil celebrants, venues and photographers will face fines if they don’t participate in weddings they disagree with, as has occurred in the United States.
I do not think that is constructive way forward.
Equality before the law
Government should not be in the business of marriage.
But a key part of the social contract between citizens and government is that civil responsibilities are matched with complimentary civil rights for all.
Every day gay and lesbian Australians are expected to fulfill their civil obligations.
They’ve paid their taxes, worked, volunteered in civil society, fought and died in battle, and fallen to save others at Port Arthur, and Martin Place.
They’ve met their responsibilities; shouldn’t they get their civil rights too?
We’re rightly persistent that marriage is a time-tested and valuable institution. It is the greatest social welfare scheme ever developed.
But as Edmund Burke argued a “state without the means of some change is without the means of its conservation”.[6]
If we believe in the enduring strength of marriage, we should be seeking to preserve them, not break them.
Respecting who people are
Whether or not you subscribe to ‘family values’, we should be valuing the family.
Many Australians are still becoming familiar with the notion that some people feel their physical and psychological gender are not the same, and are seeking to align them.
Through the tireless leadership of their community and contemporary role models, such as Cate McGregor, public awareness about transgender Australians has been raised.
Yet a requirement for married couples, where one partner seeks to change their gender, is that they are forced to get a divorce.
We should never be using the law to break resilient marriages apart.
Transgender Australians face enormous battles. Social research shows that as many as 90 per cent face stigma and discrimination, half experience verbal abuse, a third are threatened with physical abuse and around 20 per cent have experienced it.[7]
Despite efforts, there are still steps needed to ensure that government respects who transgender people are, not tell them who they are.
In Brisbane I met with mothers desperately seeking access to medical and mental health services for their transgender children. Their stories were heartbreaking. All they wanted was the opportunity for their children to grow up and live happy, healthy lives.
Further reform requires change to State and Commonwealth laws; it also requires service providers, to have the skills and resources to properly assist them.
In addition to the issues faced by people on their sexual orientation and intersex status, these issues will be catalogued in the Commission’s forthcoming SOGII report.
The report will then be used to affect practical reform to ensure every Australian is treated equally and receives fair treatment from government services.
Part of that process is public education. Understanding is improved through discussion. Everyone has to learn things for the first time. No one becomes more familiar through censorship.
Fighting censorship
We have to keep discussion open to educate and continue the march of social progress.
Recent tragic events in Paris and Copenhagen are a reminder that “free speech” is not a slogan; it is a principle to be defended even if expressions cross the line of social acceptability.
Last August the Commission organised a symposium on the full spectrum of free speech restrictions in Australia to consider pathways to reform.
The symposium showed wherever there’s censorship there’s a vested interest in keeping it.
That was demonstrated amply by the resistance to amending Section 18C of the Racial Discrimination Act last year.
The government’s proposal had flaws, but no more than the current law that uses a low bar to restrict free speech and includes an impossibly vague exemption. It must be amended.
I know the objective of this law is not to take subjects off the table. That’s part of the problem. The intention of the law doesn’t match its wording.
I understand why some communities feel the maintenance of this law is essential to their sense of security in our society, but for many of us so is the freedom of speech to defend ourselves.
Race, culture and religion regularly overlap.
If 18C can be used as a shield for unjustified criticism, then it can also be used for what is justified.
No group should be able to use law as a shield from criticism. That’s why 18C is neither fair, nor just, and should be repealed.
Australians continuously raise their concerns with me about the current wording of 18C. Most want reform.
It is utterly inconsistent with human rights that some legal privileges are afforded to some, and not others.
Many ask why their identity group doesn’t enjoy the same legal privilege.
It’s that question that demonstrates the absurdity of the law. Subjective tests such as “offend”, “insult” or “humiliate” are not justifiable restrictions on free speech: whatever the subject.
If the same standard were applied to all identity groups we’d be a straightjacket society unable to discuss controversial topics.
From listening to communities, the law doesn’t reflect the mischief advocates even want to address:
- Anti-Semitic slogans targeting school children on buses.
- Anti-Islamic abuse toward women wearing Niqabs.
- Threats of violence against Asian-Australians on public transport.
- Homophobic and transphobic bullying.
- Deliberately degrading Aboriginal Australians.
No one disputes the human consequences of invasive and abusive public harassment. In Kalgoorlie, I met with local social workers who’d faced horrific threats and acts of violence because of their race. It directly undermines their sense of security.
If the law is re-orientated toward addressing public harassment it would enjoy far more public confidence across the community than it does today.
18C is not the endgame in free speech reform. But it is a litmus test about whether we can seek reform to reclaim liberties forgone.
More work needs to be done to reassert the primacy of this important human right before reform is sought.
But we must seek reform because free speech goes to the heart of everyone’s individual autonomy and dignity.
Concluding remarks
In Sydney last year a senior religious leader passionately stressed to me that migrants come to Australia for our way of life and freedom.
They want to live in a free, pluralist open society, governed by democracy, with respect for property, religious freedom and free speech, often because they know what it means to have them denied.
Thankfully, many of us who have grown up in Australia don’t know that experience.
We can’t look to government to solve problems with more law.
Fostering a culture that respects rights, the freedom to exercise them and the informal institutions that ensure we’re accountable for the consequences of our conduct is vital.
Winning the argument for more freedom requires it to be seen as fair, and just.
Thank you.
[1] Professor G Triggs, President, The Forgotten Children: Inquiry into Children in Immigration Detention, Australian Human Rights Commission (2015). At http://www.humanrights.gov.au/publications/forgotten-children-national-… (viewed 12 February 2015).
[2] Excluding administrative detention for the purposes of establishing a person’s identity and the completion of a health and security assessment.
[3] H de Soto, The Mystery of Capital: why capitalism triumphs in the west and fails everywhere else, Black Swan Books, London (2000).
[4] N Pearson, ‘A Rightful Place: race, recognition and a more complete commonwealth’, Quarterly Essay 55 (September 2014).
[5] Archbishop A Fisher OP, Red Mass at the Opening of the Law Term 2015 (Speech given at St Mary’s Cathedral, Sydney, 2 February 2015).
[6] E Burke, Reflections on the Revolution in France, Oxford University Press (1999).
[7] M Couch, Tranznation; A report on the Health and Wellbeing of Transgender people in Australia and New Zealand, Australian Research Centre in Sex, Health & Society (ARCSHS) La Trobe University, Melbourne (2007).