What would justice look like under the Liberal-National Coalition? Here Shadow AG George Brandis lays down his ‘new-old’ angle on the liberties/rights law of the land.
Shadow AG, George Brandis QC
With Australians heading to the polls this weekend, the HRLC asked the three people contending to be the next Commonwealth Attorney-General to outline their visions and priorities for human rights and justice in Australia. Here’s what the Liberal Party’s George Brandis had to say… (This item first appeared in Rights Agenda, the newsletter of the Human Rights Law Centre of Melbourne. You can find Labor’s Mark Dreyfus’ piece here and The Greens’ Penny Wright’s here.)
Reclaiming human rights from the fury of ideologues
There has been, in the course of the past few years, an almost unprecedented level of discussion of human rights issues in the national political debate. That is to be welcomed, for mainstream political discourse should be focused on, and articulate about, the human rights implications of political decisions.
Unfortunately, however, the discussion of human rights issues has been both narrow and one sided. The very term “human rights” has been appropriated by the Left, as if human rights advocacy were a left-wing cause. The truth is that the human rights debate is both broader and more sophisticated than certain of its more voluble advocates are willing to admit.
My approach to the human rights debate starts with the proposition that human rights and individual rights are synonymous. No debate about human rights makes any sense unless we first recognize that rights are moral claims inhering in individual men and women (and, in certain circumstances, in corporations as well). I represent the only political party in the Australian Parliament which was brought into being for the very purpose of advancing and protecting the rights of the individual.
The Labor Party was created to protect the interests of a section of the community defined by reference to its relative economic position. The National Party (originally the Country Party) owes its existence to the desire to protect the interests of a section of the community defined by geography – those who live in regional and rural Australia. The Greens were originally a party devoted to a single cause – protection of the natural environment – and although their interests have diversified to the protection of a variety of left-wing causes, nobody would suggest that the protection of the rights of the individual is among them.
Only the Liberal Party was created to protect and defend individual rights – a point made time and again by our founder, Robert Menzies. So the Liberal Party enters this debate as the only party for whom rights are core business.
Sadly, over several decades, the language of human rights has been appropriated by the Left. And, as the parties of the Left have appropriated the language of human rights, they have distorted the debate to the extent that certain fundamental rights are either devalued or in some cases eliminated from the conversation entirely.
The current state of the human rights debate in Australia would have been unrecognizable to the scholars of the Enlightenment, or the signatories to the Declaration of Independence. In particular, they would have been astonished to learn that the most fundamental of all human rights – freedom – has been displaced in the service of the ideological ends of the Left.
Let me give two examples. During the last Parliament, the Government seriously considered establishing an office, entitled the “Public Interest Media Advocate”, whose very purpose was to cast a judgmental eye over what newspapers published. If newspapers defied the Advocate’s rulings in relation to the appropriateness of particular editorial conduct, they could have faced sanctions analogous to those for contempt of court.
The inspiration of the Advocate was the Finkelstein Report on media regulation, which was explicit in its disdain for the orthodox liberal conception of freedom of the press, preferring the collectivist values of what it described as “the new intellectual climate” of the twentieth century. It is alarming how many of those who claim to be defenders of human rights were either silent, or, even worse, supportive in the face of such a blatant attempt to limit press freedom.
In Senate Estimates earlier this year, the President of the Australian Human Rights Commission, Professor Gillian Triggs, conceded that the Commission was largely missing in action during the press freedom debate. So were many others who pose as defenders of human rights.
The second example is the debate over the exposure draft of the Human Rights and Anti-Discrimination Bill last year, which contained provisions which could have had the effect of limiting freedom of discussion of important political and social questions on the specious ground that other members of the community may have found then offensive or insulting. The test was not the objective test of reasonableness, judged by ordinary community standards, but the subjective test. The onus of proof on the core issue was reversed in favour of the complainant.
It is difficult to think of a law which would have had a greater chill effect upon freedom of speech. Yet, once again, the human rights lobby were largely either silent or, worse, apologists.
A Coalition Government will defend freedom of speech and expression. We regard these rights as fundamental human rights which should not be subordinated to the illiberal ideological agenda of the Left. We will always support appropriate anti-discrimination laws.
It was, for instance, following the recommendations of the Liberal senators who sat on the inquiry into the Human Rights and Anti-Discrimination Bill that the Government moved to amend the Sex Discrimination Act to include sexual preference as a protected attribute. But we will not allow invasive legislation to restrict traditional rights and freedoms on the basis of specious claims that they are truly a further advance of anti-discrimination measures. It is alarming that last week the Attorney General Mark Dreyfus said that, were the Government to be re-elected, it would reintroduce the Bill.
As well, we will ensure that the Australian Human Rights Commission is observant of its statutory mandate to uphold all human rights, not merely some. We will remove from the Racial Discrimination Act the provisions under which the broadcaster Andrew Bolt was successfully prosecuted merely because he expressed a controversial opinion.
And we will review the Commonwealth statutes to identify – and we will then, where appropriate repeal – those numerous instances were traditional procedural rights, such as the presumption of innocence, the privilege against self-incrimination, and legal professional privilege, have been attenuated or abrogated entirely.
A Coalition Government will put the real human rights debate – the rights to freedom of expression, freedom of the press, the traditional rights of the individual in defending himself against the power of the State – front and centre before the Australian people.
No longer will the most precious human right of all – the freedom of the individual – be devalued. True to our liberal heritage, it will be defended, including against the bogus claims of those who would limit it in the service of other ideological ends.
The role of the political Left has, historically, been to trample upon the rights and freedoms of individual men and women in the name of messianic ideological causes. It should be the role of those who really care about human rights to protect them from the fury of the ideologues. This a Coalition Government will do. – Senator George Brandis, Shadow Attorney-General
– from http://www.hrlc.org.au 3 Sept 2013
I am not a lawyer but is the term ‘prosecuted’ valid to use with respect to the Andrew Bolt case? His opinion was not questioned only his malicious disregard of the facts. There is no penalty other than the finding.
Freedom of the press is very important but do not pretend that it has anything to do with individual freedoms. It is very important that the very wealthy are not persecuted by the legislature, the government nor the courts. I just don’t think the very wealthy need your or my support. I do think some very wealthy warrant ridicule for their actions. Is your support and cheering influenced by your benefit from their reprehensible activities?
When you are reviewing Commonwealth statutes don’t forget to review your Party’s ‘terror laws’ and the mandatory detention of some (arbitrarily selected) asylum seekers.
NOTE: In the Bolt case, the applicants sought an apology, legal costs, and a gag on republishing the articles and blogs. They did not seek damages.