Freedom set to reclaim its spot at heart of human rights debate

One of the most fundamental changes promised by a Coalition government goes to the heart of what it means to live in a liberal democracy. Around the corner of this election, Australians look set to enjoy greater freedom.

That is the simple yet profound agenda of senator George Brandis who, if polls are correct, will become our new attorney-general. Brandis understands something his Labor predecessors apparently didn't: fundamental human rights are the birthright of every human being, not legislative gifts bestowed on us by government.

His aim is to reposition freedom, and in particular freedom of speech, at the heart of the human rights debate.

Speaking at the Centre for Independent Studies last week, Brandis explained the great paradox of recent years. At a time when human rights are constantly discussed, the most fundamental human right to free speech has been sidelined from that conversation. For example, the Labor government's recent Human Rights and Anti-Discrimination Bill was a draconian attempt - under the guise of human rights - to prohibit the expression of political opinions just because someone might find the opinion offensive or insulting.

The aim of then attorney-general Nicola Roxon was not just to curb free speech but also to effectively reverse the onus of proof in favour of the complainant.

The government also tried to muzzle the media. Former communications minister Stephen Conroy proposed a new body, the public interest media advocate, with the unfettered right to license media regulators according to its own vague criteria - with no right of appeal.

While these attempts ultimately were defeated by a groundswell of community opposition, that an elected government thought it could impose unprecedented limitations on our most basic freedoms raises the question: how did it come to this, where freedoms grounded in the ideas of the Enlightenment have been marginalised from today's human rights debate?

Understanding the answer to that question is critical to addressing the present imbalance. Brandis blames both sides of politics.

Thirty years ago, the Left used the language of liberty in the classical libertarian sense to pursue women's liberation, gay liberation and an understanding that censorship of thought was an illiberal travesty. Since then, too many on the Left have abandoned libertarian notions of human rights and embraced a new definition of human rights that elevates egalitarian rights.

Again, understanding the history is important. Brandis traces the shift to the redefinition of rights by legal scholars such as Ronald Dworkin (who lectured Brandis at Oxford University), who said that the most fundamental human right is the right to "equal concern and respect".

By elevating in human rights discourse the right not to be disrespected, a powerful human rights movement emerged that recalibrated human rights in favour of victimhood. Feelings became the lingua franca of human rights.

Human rights legislation and anti-discrimination bureaucracies grew apace and the right not to be offended now trumps the right to speak freely. Free speech became the obstacle to the Left's notion of human rights as egalitarian rights.

The full meaning of these developments crystallised in September 2011, when the Federal Court found Herald Sun columnist Andrew Bolt guilty of breaching section 18C of the Racial Discrimination Act for expressing a political opinion. This shocking decision, says Brandis, signalled the moment when esoteric debates about free speech moved from university lecture theatres to the front bar of RSL clubs.

While ordinary Australians, sections of the media and the Institute of Public Affairs took up the fight for free speech, the one institution charged with defending free speech was missing in action, says Brandis.

That travesty led Brandis, during Senate estimates hearings in February, to ask Gillian Triggs, head of the Australian Human Rights Commission: what had the AHRC done to promote free speech? What steps had it taken, what programs had it undertaken to defend free speech? What arguments did it make to defend free speech during these important debates?

"I do not see a freedom project in the Human Rights Commission," Brandis remarked.

Triggs's answer exposes the problem: "We have had an emphasis on the proper limitations of freedom of speech."

Brandis also lays blame at his side of politics for the marginalisation of free speech.

"We let the Left take over the language of human rights," he says, pointing out, incredulously, that the centre-right parties abandoned the issue in the same century where the blind pursuit of left-wing ideology led to the deaths of many millions of people.

Brandis says the Liberal Party must re-embrace this issue. "We are the party of human rights. Remember that only one party (the Liberal Party) was established to advance the rights of the individual," he says.

"The ALP was formed to represent workers' interests, the National party to represent sectional interests and the Greens, well, they promote vaguely environmental interests. We have to make the human rights arguments on our own territory again."

The AHRC has five discrimination commissioners to promote egalitarian rights but none to promote the core human right to freedom of expression. As attorney-general, Brandis would appoint a new freedom commissioner to the AHRC. Sections of the illiberal Left will detest this move, which is why it is so critical.

Brandis also would reform the Racial Discrimination Act so that Australians could freely express their political views without threat of prosecution under section 18C.

His other focus is the gradual erosion of procedural rights undertaken by both sides of politics. Brandis will ask the Australian Law Reform Commission to audit federal statutes to identify those that have limited the right to silence, reversed the onus of proof and in other ways abrogated traditional rights. His aim is to push back against this erosion of the most basic civil rights.

By contrast, and learning nothing from past mistakes, the incumbent Attorney-General, Mark Dreyfus, said last week that if the Rudd government were re-elected, he would push ahead with Roxon's freedom-threatening Human Rights Bill.

On the freedom front, the contrast between Dreyfus and Brandis could not be starker. And if placing free speech at the heart of the human rights debate also helps lift the less overt, but equally stifling, political correctness that has enveloped us these past six years, then Brandis will truly be changing the nation for the better.

janeta@bigpond.net.au