The freedom wars and the future of human rights in Australia

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Address to the National Press Club, Canberra

I am delighted to have this opportunity to speak at the National Press Club here in Canberra about a topic that is of vital importance to journalists, freedom of speech and the unprecedented very public debate termed the ‘freedom wars’.

In doing so, I acknowledge the traditional owners of the land on which we stand and pay respect to the elders past and present.

As journalists, freedom of expression is crucial to your ability to scrutinise the political process. You are more aware than most that this freedom is a fragile flower to be nurtured. What brings me here today however is the wider question of how fundamental freedoms should be protected, especially where they appear to come into conflict.

On his appointment as Attorney General, The Hon Senator Brandis, has shone a spotlight on how human rights are protected under Australian laws. He makes an entirely valid point. In driving his reform agenda he observes that Australia has given weight to anti-discrimination laws in respect of race, sex, age and disability to the disadvantage of fundamental freedoms of speech, association, and religion, and freedom from arbitrary detention.

In exploring this observation, we might consider some recent examples where different rights and freedoms appear to conflict.

• One of those is freedom of association, which has been challenged by the Queensland government’s laws aimed at controlling criminal conduct by so-called ‘bikie’ gangs.
• The right not to be detained arbitrarily and right of a sovereign nation to protect its national security, are engaged in restrictive anti-terrorism laws that allow detention for several days without charge.
• Legislation imposing mandatory sentencing threatens the principle of an independent judiciary and the right of our judges to exercise discretion •
• The right to freedom of religion is considered by some to be at risk where same sex couples have a right to access faith-based aged care homes
• And, finally, the cause celebre, the Bolt case, where the right to freedom of expression appears to clash with the right not to be subject to racial abuse in public.

Such tensions among different rights have sparked the “freedom wars”, essentially a debate about how to ensure liberty of the individual while also ensuring equality and non-discrimination.

Some argue that Australia has become a nanny state that unnecessarily restricts individual autonomy. They reject treaties setting out universal norms of human rights, reject the findings of the United National Human Rights monitoring committees and ignore the concerns of the UN Human Rights Commissioner and the UN High Commissioner for Refugees.

Rather, these commentators look to the traditional common law and Parliament to safeguard Australian freedoms.

By contrast, others recognise the development of international human rights law since the adoption of the Universal Declaration of Human Rights in 1948 and stress the rights of the individual to protection from executive power.

Let me be clear about the position of the Commission. The current debate about how we should protect human rights exposes for discussion, the ad hoc and inadequate protections for many of the rights we take for granted.

Today’s debate about section 18C have however proved divisive and unproductive, polarising views and raising anxieties, particularly among minority groups.

Prioritizing freedoms, one against another, is a false and fruitless exercise. Yes, there are times where a line must be drawn between freedoms. As our former Chief Justice of the High Court, Murray Gleeson, says, “one man’s freedom stops where another’s begins...” Protecting vulnerable members of the community against discrimination and ensuring fundamental freedoms is not a choice between alternatives. Rather, we should focus on how to protect and accommodate all freedoms for an inclusive and fair society.

This essentially abstract debate about freedoms has now taken concrete form.
During the election campaign, the Coalition promised to repeal or wind back Section 18C of the Racial Discrimination Act, to prevent any repetition of the Bolt case. The Attorney-General has talked of a “multi-front war” being waged against freedom of speech and proposes new provisions to strengthen this freedom.

The consequence is that, for the first time in decades, an Australian government is seeking to water down legislation protecting human rights, and to reverse a trend towards increased protection for of the rights of minorities and vulnerable Australians.

Consistent with the Attorney’s concerns to highlight fundamental freedoms, he’s asked the Australian Law Reform Commission to determine those laws that breach rights.

One of the disturbing aspects of the freedoms debate, however curiously silent, is the inconsistency in approach. Those who emphasise individual freedoms have remained curiously silent in the face of the mandatory detention currently of about 4,700 asylum seekers in remote detention centers in Australia and Christmas Island.

To give you some human dimension to the effect of this policy, I would like to tell you about someone I met on Christmas Island during the course of the Inquiry I am holding into the detention of asylum-seeker children.

An 11 year old girl – let us call her Roma – fled from serious conflict in her home country and had been on Christmas Island for about 8 months. She remained composed as she told me how her own brother had been killed in front of her. She remained composed as she recounted how scared she was during the boat journey to Australia of the big waves and of sharks in the water. She remained composed as she showed me the sores on her arms that won’t heal in the tropical heat, and her red eyes caused by phosphate dust on the island.

It was only when Roma told me that during her eight months on Christmas Island, she’d spent just two weeks at the local school, and that was essentially just a playgroup, that she finally broke down in tears. She knows that to be deprived of an education while in detention is to take away not only her liberty but also her chances for a fulfilled life in the future.

How has it come to pass that Australian law permits such detention, contrary to some of the most basic principles of human rights law?

The answer is one that is exceptional to Australia. For relative to comparable legal systems we have very few constitutional or legislative protections for fundamental freedoms. We have no Commonwealth Bill of Rights or Charter of Rights unlike all other common law countries. But we do have some legislation prohibiting discrimination, protecting privacy, employment rights and criminal trial procedures and ensuring administrative power is exercised fairly. It is therefore inevitable that the AHRC, the courts and other government agencies have overwhelmingly been engaged in applying the predominantly anti- discrimination laws in the absence of laws protecting other fundamental freedoms.

While the evolution of human rights under the English common law dates back to the Magna Carta signed by King John 800 years ago, the modern evolution of human rights law is founded on the Universal Declaration of Human Rights. This was adopted unanimously by the newly formed UN General Assembly in 1948, under the Presidency of Australia’s feisty Doc Evatt. It was upon this Declaration that subsequent conventions relating to the rights of women, children, refugees and so on were based. Australia played a leading role in developing this law and is party to all of the main conventions .

But, here is the critical point – many of the most important treaties have not been implemented in Australian law by legislation. While Parliament has adopted laws on race, age, sex and disability, the freedoms set out in the ICCPR, ICESCR and the CROC are not part of Australian law The resulting disconnect between our international obligations and our laws reflects the ambivalent approach that Australia has taken to human rights.

In light of the failure to make human rights directly part of Australian law, how is it that in practice we meet a high standard of human rights compliance and, indeed, have a well-deserved reputation as good international citizens?

The answer lies partly in a culture that is both built upon and demands fundamental freedoms -the national insistence on a fair go, tolerance and equality of opportunity- and partly in a mix of judicial oversight, parliamentary scrutiny and administrative processes, and upon the monitoring and complaints functions of the AHRC.

In applying the common law, the courts take as their starting-point the principle that – as the High Court has stated:

– “Everybody is free to do anything, subject only to the provisions of the law”.


The courts adopt a presumption that parliament does not intend to interfere with fundamental human rights.

There is however a signal weakness in the common law protections. The common law can always be overridden by contrary and unambiguous legislation passed by Parliament - of course this reflects the supremacy of the parliament and our elected representatives.

You might remember the case of Ahmed Al-Kateb, a young Palestinian asylum-seeker who was born in Kuwait – he was effectively stateless and no other country would accept him. The government refused to release him from detention, and when his lawyers sought to challenge that in the High Court, the judges ruled that since the Migration Act gave the Immigration Minister the power to detain people indefinitely, they could not order his release.

The case was a low point in the history of Australian human rights, and it demonstrated that the courts are powerless if Parliament passes legislation that that unambiguously breaches fundamental freedoms. [I should in fairness point out that the Minister subsequently exercised his discretion to release Ahmed and he now lives, I am told, happily in Australian on a humanitarian visa. But the law remains unchanged.

There is a gap, therefore, between perceptions of Australia as a country with a proud human rights record and the reality that many of the fundamental freedoms protected in Europe, Canada, the US and our cousins in New Zealand are not available here. In each of these countries, all acts are viewed through the prism of human rights charters, bills of rights, and regional conventions along with international treaties.

This is the gap that the Australian Human Rights Commission attempts to fill. The Commission was established almost 30 years ago and has been supported by all federal governments on a bipartisan basis. It is a mark of a mature democracy that the President and Commissioners are appointed by the Attorney General and paid for by the tax-payer, but the Commission is otherwise independent of government.

It is ironic that 90% of our work on age, gender, aboriginal and Torres Strait islanders and human rights are respected and supported by both government and opposition parties. the 10 per cent of our work, particularly in regard to our asylum seekers, equally attract bipartisan rejection of our human rights objective.

The human rights commission is not a think tank, and it is not a left- wing ideological fringe dweller.

Our job is to monitor compliance by the Commonwealth with international human rights law, as defined by the treaties. Very much below the radar of the media, is one of our most important functions. That is to address the 18,000 or so inquiries and 2,000 formal complaints we receive each year – thereby providing all Australians with free and speedy access to justice. We do succeed in conciliating about 65% of complaints, and frequently these cases have a broader impact, bringing about systemic change, in government, business and service provision.

I’d like now to discuss two aspects of our freedoms in more detail; first, the amendments proposed by the Exposure Draft to the Racial Discrimination Act and secondly, the freedom from arbitrary detention by executive government.

When introducing his reforms, the Attorney observed that the successful civil prosecution of Andrew Bolt under section 18C was the catalyst. As is well known, this case concerned Mr Bolt’s comments that fair skinned aborigines took unfair advantage of their race to seek various benefits. The Federal Court found that these comments were both inaccurate and not made in good faith. Notably, no appeal was made to challenge the Court’s findings.

There is an old law school maxim that “bad cases make bad law”. The Exposure Draft is an attempt to prevent another Bolt case. It is bad law that responds to a bad case. Rather, law reform should identify the mischief to be prevented and on the basis of evidence, should adopt a proportionate remedy that addresses the problem.

As journalists you know that freedom of speech and the press is the litmus test for any healthy liberal democracy. It is not an absolute right but must be accommodated with other freedoms. In finding this accommodation it is helpful to ask why democracies protect freedom of speech. An important reason is that this freedom ensures an informed participation in representative democracy. It is therefore hard to see how racial abuse in public can possibly advance democracy or ensure inclusion of vulnerable minorities within the Australian community. Racial abuse is an attack on minorities that diminishes their dignity and has a chilling effect on their participation in social life. In short, freedom of speech can also be an abuse of that freedom.

Unfortunately, the Exposure Draft does not FULLY seize the opportunity to find the right compromise. It fails to identify the mischief to be prevented and adopts a free speech defense that, in effect, permits racial vilification and intimidation in virtually all public arenas.

S 18C renders it unlawful, but not criminal, to do an act in public that is reasonably likely to “offend, insult, humiliate or intimidate” a person because of his race, color or national or ethnic origin. A defense to prosecution is provided by s 18 D. If the accused acted “reasonably and in good faith” in respect of an artistic work or in the public interest, or a comment is “ fair and accurate” , then it is not unlawful.

The Attorney’s proposals envisage four major reforms.

The first major reform to delete the words “offend, insult and humiliate”, replacing them with “vilify” and retaining “intimidate”.

The thinking behind this is that the original wording sets the bar too low – in other words, it shouldn’t be illegal merely to hurt someone’s feelings. Indeed, as an international lawyer, I should acknowledge that the Racial Discrimination Convention itself does not require more than that states make unlawful words that are based on racial hatred or incite discrimination or violence.

I am happy to accept the removal of the words offend and insult, if the substituted words strengthen the law. The new draft adopting the word “vilify” –while on its face a powerful term- is limited to inciting hatred by a third party. That’s a very narrow definition, and in practice incitement will be difficult to prove. It would be better, I suggest, to revert to the more generally accepted definition of “vilify”, which is to denigrating the person or group spoken about.

“Intimidate” is another problematic word, because it is defined to relate only to fear of physical harm. Again, this is a limited definition that, if adopted, means the law can apply only to the rare situations in which racial abuse spills over into violence.

At the Human Rights Commission we are in a unique position to we know that most complaints of racial abuse, many of them involving material published on the internet, do not lead to physical violence. If psychological and social impacts are excluded from the prohibition, very few cases will be caught.

But such incidents can still have a devastating impact, and anyone who doubts that needs only recall the testimony of the ABC presenter Jeremy Fernandez, the AFL footballer, and Australian of the year Adam Goodes, and a French woman who sang her national anthem, the Marseilles, each of whom was subjected to racial abuse on the bus or the football field. These are but a few well known examples of the hundreds of complaints we receive about racial abuse in public.

I question the wisdom of disregarding the vast majority of racial abuse complained of by minority and community groups in Australia. Consider for example, the letter written last month by a coalition of groups representing our Greek, Jewish, Chinese, Arab, Armenian and Korean communities, in which they said that the proposed changes to S 18 C would “license the public humiliation of people because of their race” and “send a signal that people may spout racist abuse in public”.

It might be helpful at this point to reflect on some of the very few successful prosecutions brought under Section 18C, other than the Bolt case.

• In Jones v Tobin in 2003, Frederick Tobin was found to have breached Section 18C by publishing on the internet anti-Semitic material denying the Holocaust. This was, by the way, the first occasion on which the law was applied in relation to the internet, but we’re likely to see more such cases, given that many of the racial abuse complaints we receive relate to social media and other online fora..
• Courts do sometimes struggle to find the line between conflicting rights. In the Monis case a prosecution was brought under a law, similar to S 18C, that prohibited the use of the postal services in a way that is “harassing or offensive”. Man Haron Monis wrote letters to the families of Australian soldiers killed in Afghanistan that the Court found were ‘denigrating and derogatory’. In the High Court, lawyers for Manis argued that he merely expressed political opposition to the war in Afghanistan, and should be protected by freedom of speech. The High Court agreed that the postal law would be valid if it was a proportionate law in response to a legitimate aim. But in applying this principle to the facts the judges split 3:3. The result was that the conviction was upheld.

These few examples illustrate a fundamental point; the courts have found acts or words unlawful only in the most extreme cases, where their effect is far more serious than just “offending and insulting”.

The second major reform envisaged is the revision of the defenses to prosecution. As I said earlier, Section 18D currently protects speech that is fair and in good faith. This provision is to be amended so that a defendant need demonstrate only that the words were used in “the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter”.

To adopt such a wide exemption would be a truly radical change, sweeping away free speech exemptions that, over the past nearly 20 years, have been applied by the courts in a measured way to dismiss the vast majority of prosecutions.

Let’s look at a few of those cases.

• One involved a politics student who said that the Queensland police were corrupt. The case against him was dismissed on the grounds that his words were protected by the right to freedom of political communication.
• A book by Pauline Hanson and David Etteridge claiming that Aboriginal people received privileged treatment from government was found to have been published reasonably and in good faith, for a genuine purpose in the public interest
• In Kelly-Country, a standup comedian played a character called “King Billy Cokebottle” who was a grotesque caricature of an aboriginal. The court found that, in the context of a comedy performance where the aim was to give offence or make jokes at the expense of someone, the offence or hurt was not out of proportion and was reasonable.
• A cartoon published in the West Australian in 1997 and entitled ‘Alas poor Yagan” satirized the return to Australia from a graveyard in Liverpool of the head of an Aboriginal leader. It was found not to have breached Section 18C because it was published in good faith as an artistic work, and for a genuine purpose in the public interest.

What if the Exposure Draft provisions were to be adopted?

• Racial abuse of an athlete at a football match would be permitted, because it would be unlikely to intimidate that person or incite others to hate him or her on racial grounds.
• Holocaust deniers might be free to air their views, on the grounds that those views were part of public discussion of a political, social or academic matter.
• A Muslim woman wearing the hijab in the local park with her children could be abused on the basis of her religion, quite legally, because she was not physically intimidated and no one was incited to hate her.

Were there to be a re-run of Mr Bolt’s case, he would win the case, because his journalism would be deemed to be part of a public discussion on matters of political interest. And while it might be deemed that he had incited others to hatred, that would be close to impossible to prove. It is hard to avoid the conclusion that racial vilification and intimidation – the only forms of racial abuse that would remain illegal – would be permitted in virtually all public arenas. I mentioned earlier the importance of identifying the mischief to be prevented by law reform.

The Human Rights Commission is the first port of call for human rights complaints, and we receive no more than 2 or 3 complaints a year alleging a breach of freedom of speech.
By contrast, we saw a 59% spike in racial hatred complaints in 2013 along with a 5% rise in general race-based complaints.

In short, freedom of speech is not at risk for most Australians. Rather, the risk of abuse on racial grounds in public is all too frequent an occurrence. That brings me to the third reform. It’s proposed that the test of what is “reasonably likely” to vilify or intimidate should be based on the views of the “ordinary reasonable member of the Australian community”, rather than those of the group that is allegedly being vilified or intimidated. The problem with this, rational though it might seem, is that most Australians – those of Anglo-Saxon background, anyway – have not been abused on the basis of their race, and therefore could barely conceive of the profound impact of such behavior. The fourth proposed reform is that, for practical purposes, the ability of people to access justice, in a cost-free and efficient way, through the investigation and complaints process of the Human Rights Commission would be abolished. Those aggrieved by racial abuse will be limited to litigation under defamation laws, or rely on the criminal law; neither is a realistic option in most cases.

In light of these comments on the Exposure Draft, how can community and concerns be met that Sections 18C need to be reformed because it sets too low a threshold for racial abuse. As we are dealing with an Exposure Draft, there are opportunities to suggest a compromise before the Bill is introduced to Parliament. I propose the following:

• The offence of ‘Intimidation’ should include psychological and social harm.
• The new offence of ‘Vilification’ ought not to require proof of incitement of hatred in a third party. But be defined in ordinary sense of denigration.
• The impact on the victim’s group should remain at least a relevant consideration when assessing test of “reasonably likely”
• And, finally, the requirement for a defendant to prove good faith, and accurate and fair comment, should be retained in the free speech defense.

The AHRC does not have a corner on truth. Maybe others have better suggestions. But a serious attempt should be made during this consultation phase to bring the extreme positions closer to a compromise based on the harm to be prevented.

We now come to the second of my examples of accommodation of the balance between freedoms; the right not to be subject to arbitrary detention without trial and the right of a sovereign nation to determine for itself its national security, border control and migration policy.

It is a disturbing fact that about 4,700 asylum seekers are currently held in mandatory closed detention in Australia and Christmas Island, including nearly a thousand children.

A further 177 children are detained on Nauru and 1325 adults are detained on Manus Island. The detention of asylum seekers for years, without charge or trial, without access to the courts, or funding support for legal advice, raises profound concerns that Australia is breaching some of the most fundamental of freedoms- freedoms that were included in the Magna and have been upheld by the common law and reflected in every major human rights instrument since; freedoms including the right to a fair trial, the right not to be detained arbitrarily and the right not to be subjected to cruel and inhuman punishment. These freedoms are the essence of modern civilization and are universally recognized and usually honored.

There is growing concern about Australia’s detention of asylum seekers in the international community. The UN Human Rights Commissioner has recently called on Australia to reconsider its offshore processing policy and the UN HR Committee has found that the continued detention for years of 43 refugees on the basis of a secret ASIO assessment is arbitrary detention and cruel punishment contrary to international law.

It is ironic that Australia accepts international findings that suit it but ignores those that don’t. Can we continue to have international credibility when we rejoice in the findings of the International Court of Justice in the Whaling case or the Human Rights Committee in the case of homosexuality, but ignore the many findings of this Committee that Australia is in breach of the right not to be detained arbitrarily?
How is it that our legal system sanctions such policies? The High court has recognized that the Commonwealth can detain an alien for non- punitive executive detention for various reasons, including the perceived need to detain those suffering mental illness who have been charged with a criminal offence.

The High Court has rejected attempts to challenge the mandatory detention regime under the Migration Act as we have seen in the Al- Kateb Case In the minority, Justice Gummow emphasised that freedom from indefinite imprisonment at the will of the Executive is ‘at the very core of liberty secured by our Anglo-Saxon system.” One of the judges of the majority, Justice McHugh, pointed out that in the absence of a constitutionally entrenched Bill of Rights, it was not possible for the Court to determine whether the course taken by Parliament is unjust or contrary to human rights.

This then is my point. The Australian Constitution and laws do not protect the fundamental freedom from arbitrary detention by government. For the libertarian there can be no more powerful example of the need to protect the individual from executive power than our current asylum seeker detention policy. Sadly, those who speak loudest about fundamental freedoms remain silent on this issue.
The thousands of asylum seekers held today in our detention centers, or those persons detained with mental disabilities, have few laws upon which they can found an appeal to the courts. This is the fundamental flaw in Australia’s regime to protect human rights.

In conclusion what of the future of human rights in Australia?

I am all too well aware that the national consultation conducted by Father Frank Brennan, failed to attract the necessary political will to support his recommendation for a Charter of Rights. But let us not give up on the need for effective human rights mechanisms. One way is to enact specific legislation setting out core freedoms of speech, association, assembly, criminal trial procedures and protections against arbitrary detention. If such legislation proves faulty or ineffective, it can of course be repealed.

Why should an 11 year old girl be denied her liberty and access to education?

Why should a person of Indian race not be able to take their child to school on the bus without fear of racial abuse?

Why should an indigenous Australian not be able to enforce their right to protect their heritage against denigration?

Why should a Muslim woman not be able to enjoy the park with her children without fear of religious abuse?

It is the everyday freedoms that matter to most Australians, not abstract discussions about freedoms.

I know that Australia can find a way to protect and respect all human rights and freedoms in our multicultural society in a way that protects social cohesion and inclusion of all. We do need to avoid polarisation and politicisation. We need to try harder.

Thank you very much.