tag:theconversation.com,2011:/ca/topics/tim-wilson-9156/articlesTim Wilson – The Conversation2022-05-03T04:17:16Ztag:theconversation.com,2011:article/1821332022-05-03T04:17:16Z2022-05-03T04:17:16ZWhy teal independents are seeking Liberal voters and spooking Liberal MPs<figure><img src="https://images.theconversation.com/files/460887/original/file-20220503-16-5mcav5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Diego Fedele/ AAP</span></span></figcaption></figure><p>One of the Morrison government’s biggest challenges in this election campaign is the rise of the “teals”, a group of 22 independents who have received funding from Climate 200. </p>
<p>Running on platforms of science-backed climate action, integrity reform and real progress on gender equality, they are challenging Liberal MPs in urban electorates traditionally considered Liberal party heartland. </p>
<p>Treasurer Josh Frydenberg, who is facing a serious threat from medical doctor Monique Ryan in the inner-Melbourne seat of Kooyong, has repeatedly used the term <a href="https://www.theaustralian.com.au/nation/politics/fake-independents-holding-balance-of-power-frydenberg/video/14e2b293d6628a3c787420dcaf4594d0">“fake” independents</a> to describe these challengers. Former Prime Minister John Howard has similarly <a href="https://www.smh.com.au/politics/federal/anti-liberal-groupies-john-howard-blasts-teal-independents-20220423-p5afl5.html">accused</a> them of “posing” as independents. Prime Minister Scott Morrison <a href="https://www.skynews.com.au/australia-news/politics/scott-morrison-slams-independents-as-voices-of-labor-after-it-was-revealed-one-candidate-was-in-labor/news-story/ccc36cae1f401f179ff668566a63b5f7">says</a> they are the “voices of” Labor and the Greens.</p>
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<a href="https://theconversation.com/below-the-line-former-independent-cathy-mcgowan-hits-back-at-john-howards-anti-liberal-groupies-jibe-podcast-182038">Below the Line: Former independent Cathy McGowan hits back at John Howard’s ‘anti-Liberal groupies’ jibe – podcast</a>
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<p>This strategy of playing the woman and not the ball – as well as the advertising spend in electorates like Kooyong – suggests the Liberals are concerned. They have some good reasons to be. </p>
<h2>The teal appeal</h2>
<p>It is certainly true these independents are running in Liberal, not Labor seats. But as Climate 200 convener Simon Holmes a Court <a href="https://www.theaustralian.com.au/commentary/independents-seek-to-reclaim-centre-from-wealthy-goliaths/news-story/aa0bef99301dbd5fde60608c4dfa9109">argues</a>, they are running with the goal of dislodging government MPs (which of course, happen to be Liberal). </p>
<p>It is worth noting that not all the Climate 200-backed independents use the <a href="https://www.abc.net.au/news/2022-04-20/teal-independents-who-are-candidates-what-electorates/101000412">teal colour</a> for their campaigns. North Sydney’s Kylea Tink uses pink, while Indi’s Helen Haines uses orange. Yet, the choice of teal for most campaigns – a colour between blue and green – does give an indication of their message to the moderate Liberal voters they are trying to attract. </p>
<p>The teal independents are speaking directly to moderate Liberal constituents who are frustrated with the (blue) Liberal Party’s positioning on social and environmental issues. </p>
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<img alt="A building with election signs for both Monique Ryan and Josh Frydenberg." src="https://images.theconversation.com/files/460891/original/file-20220503-13-xyur6w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/460891/original/file-20220503-13-xyur6w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/460891/original/file-20220503-13-xyur6w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/460891/original/file-20220503-13-xyur6w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/460891/original/file-20220503-13-xyur6w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/460891/original/file-20220503-13-xyur6w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/460891/original/file-20220503-13-xyur6w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Kooyong residents have been bombarded with campaign material from sitting member Josh Frydenberg and independent challenger Monique Ryan.</span>
<span class="attribution"><span class="source">Diego Fedele/AAP</span></span>
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<p>While these same voters may never vote Labor or Greens, many are alienated by Morrison and his government, particularly on climate change and women’s issues. </p>
<p>It is significant that <a href="https://www.climate200.com.au/candidates">19 of the 22 Climate 200 candidates</a> are women, all of whom have had highly successful careers in their own right. High-profile candidates include Ryan (Kooyong), a professor and head of neurology at the Royal Children’s Hospital, Zoe Daniel (Goldstein) a former ABC foreign correspondent, and Allegra Spender (Wentworth) the chief executive of the Australian Business and Community Network.</p>
<p>The teal independents are not political staffers taking the next step towards inevitable political careers. These are professional women making a radical sideways leap because, they say, this is what the times require. It’s a compelling story.</p>
<h2>Climate 200</h2>
<p>To receive Climate 200 funding and campaign support, teal independents have agreed to run on three key policies - climate, integrity, and gender equality - and have demonstrated they have the backing of their communities.</p>
<p>Holmes a Court has been at pains to argue his organisation is not a political party – it is a platform to support independents based on their commitment to the three main goals. As he <a href="https://assets.website-files.com/614ca2641b78b5811a37016f/620df46e57fdd24b0303548c_Independents%20and%20Climate%20%E2%80%94%20The%20Hope%20to%20End%20the%20Lost%20Decade.pdf">told</a> the National Press Club in February:</p>
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<p>The movement is nothing like a party – there is no hierarchy, no leader, no head office. No coordinated policy platforms.</p>
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<h2>Policy comparison</h2>
<p>So, how do the independent candidates measure against the Coalition, Labor and the Greens? I have reviewed the policy platforms of Spender, Ryan and Daniel as three of the most high profile new independent candidates. </p>
<p>On climate, Spender proposes to cut emissions by “at least 50% by 2030”, while Daniel and Ryan want 60% by 2030, and Daniel adds an <a href="https://www.zoedaniel.com.au/policies/climate/">80% renewable energy target by 2030</a>. </p>
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<a href="https://theconversation.com/whats-going-on-with-independent-candidates-and-the-federal-election-173587">What's going on with independent candidates and the federal election?</a>
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<p>These targets are more ambitious than both the Coalition and Labor, but less ambitious than <a href="https://www.abc.net.au/news/2022-04-22/federal-election-liberal-labor-greens-climate-change-policies/101007970">the Greens</a>, who want 75% emissions reduction by 2030, and net zero by 2035.</p>
<p>On integrity in politics, all three independents variously demand a “strong”, “effective” anti-corruption body “with teeth”, greater transparency around tax-payer funded programs, reform of political campaign funding rules, and truth in political advertising. These policies largely align with Labor’s integrity policies, which include a <a href="https://www.alp.org.au/policies/national-anti-corruption-commission">National Anti-Corruption Commission</a> by the end of 2022. They also align with those of the Greens, who add a role for the National Audit Office to <a href="https://greens.org.au/platform/democracy#clean-up-politics">audit all government programs</a>.</p>
<p>Finally, all the teal independents have a range of policies to increase women’s safety and equality, including childcare, parental leave, better pay for caring professions, women’s rights at work and programs to end family violence. On these policies, and simply the way they recognise the urgency of this issue, the independents are also more aligned with Labor and the Greens than the Coalition.</p>
<h2>The Liberal response</h2>
<p>The Liberal Party is certainly taking this challenge seriously, diverting campaign funding and resources to seats that it would otherwise consider safe.</p>
<p>For example, it is spending up big on nine-metre-wide billboards <a href="https://www.afr.com/politics/federal/threatened-frydenberg-splurges-on-billboards-20220324-p5a7ik">to “sandbag” Kooyong</a>, a seat that has been held by that party since Federation. In Wentworth, Dave Sharma’s posters use <a href="https://www.smh.com.au/politics/federal/no-one-owns-a-colour-sharma-denies-copying-spender-s-teal-brochure-20220312-p5a43f.html">the same colour teal</a> as his challenger, Spender, and have no Liberal party logo. In Goldstein, a stoush over election signs ended up in <a href="https://www.theguardian.com/australia-news/2022/mar/23/independent-zoe-daniel-wins-court-battle-over-election-campaign-signs">court</a>. </p>
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<p>Another way they are taking it seriously is by trying to undermine the authenticity of the independents. If voters are seeking something different from the major parties, what better way to sway them away from changing their vote than suggesting their local independent isn’t really independent? </p>
<p>On this, the Liberal party is incorrect. It is better to locate these candidates within a lineage of independents that includes Tony Windsor, Cathy McGowan, and Kerryn Phelps. Their goal is to use the power of the cross-benches in a hung parliament. A Labor majority would, in fact, diminish their power if elected, and work against their ambitions. </p>
<h2>The power of independents</h2>
<p>Major polls are suggesting a tight race between the major parties. A hung parliament, with independents holding the balance of power, is a highly possible outcome post May 21. </p>
<p>Despite fear campaigns from both major parties, it is worth remembering that Australia’s last minority government was one of <a href="https://www.theguardian.com/news/datablog/2013/jun/28/australia-productive-prime-minister">the most successful</a>, passing more legislation than any modern government before or since.</p>
<p>Windsor and Rob Oakeshott have both said they decided to support Julia Gillard’s government because she treated them with respect during negotiations in 2010, unlike her opponent, Tony Abbott. </p>
<p>This is a lesson that the Liberal party would do well to heed again. </p>
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Read more:
<a href="https://theconversation.com/could-the-2022-election-result-in-a-hung-parliament-history-shows-australians-have-nothing-to-fear-from-it-181484">Could the 2022 election result in a hung parliament? History shows Australians have nothing to fear from it</a>
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<p class="fine-print"><em><span>Amy Nethery does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>One of the Morrison government’s biggest challenges in this election campaign is the rise of the so-called ‘teals’.Amy Nethery, Senior Lecturer in Politics and Policy Studies, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1676262021-09-09T03:33:05Z2021-09-09T03:33:05ZAustralia’s ‘A’ rating on human rights is under threat with a handpicked, politically engineered commissioner<p>The Morrison government’s <a href="https://www.sbs.com.au/news/who-is-lorraine-finlay-australia-s-new-human-rights-commissioner/5c9452a7-2a4b-4199-b87b-52dbec57c929">handpicked appointment</a> of a new human rights commissioner, Lorraine Finlay, threatens to undermine the independence and legitimacy of the Australian Human Rights Commission itself.</p>
<p>It could also damage Australia’s credibility on the international stage and lead to a downgrading of our commission by the body that serves as a watchdog for human rights commissions around the world. </p>
<p><a href="https://www.asiapacificforum.net/resources/manual-on-nhris/">National human rights institutions</a> are independent, legal bodies established by parliaments, which use the powers of the state to promote and protect human rights. </p>
<p>The maintenance of this independence is critical. Human rights commissions often tread a fine line in ensuring they have support and adequate funding from governments, while also maintaining the ability to freely criticise them. </p>
<p>If these bodies are to do their jobs well, their leaders must be prepared to offend their governments and have the independence to do so. </p>
<p>This is less likely to happen if the senior appointments within the institution are politically engineered, rather than the result of an open and competitive process. The Coalition government has a poor track record on this, and Finlay’s appointment is just the latest example of this.</p>
<h2>Guiding principles for human rights bodies</h2>
<p>The first independent human rights bodies were established in the late 1970s and early 1980s in New Zealand, Canada and Australia. By the early 1990s, there were about 20 of them around the world claiming to be independent. </p>
<p>The United Nations sponsored the first gathering of these institutions in Paris in October 1991. They drafted and adopted what became known as the <a href="https://www.ohchr.org/en/professionalinterest/pages/statusofnationalinstitutions.aspx">Paris Principles</a>, which <a href="https://www.asiapacificforum.net/support/what-are-nhris/paris-principles/">set minimum standards</a> for national human rights institutions. </p>
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<a href="https://theconversation.com/do-we-need-a-new-human-rights-commissioner-yes-but-its-complicated-54729">Do we need a new human rights commissioner? Yes, but it's complicated ...</a>
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<p>The principles require these bodies to be independent from government. They also highlight the importance of a clear, transparent and participatory process for appointments, which allows for representation from broader society.</p>
<p>As such, the principles became a test for the credibility and legitimacy of national human rights institutions around the world. </p>
<p>One of the greatest challenges for international human rights is not the process of lawmaking but implementation. That’s why the principles are so important — they help ensure these bodies operate independently to hold governments to account.</p>
<h2>Australia’s ‘A’ rating is now in jeopardy</h2>
<p>Today, there are <a href="https://en.wikipedia.org/wiki/National_human_rights_institution">scores of national human rights institutions</a> around the world, including in countries with dubious human rights records such as Russia and Iran.</p>
<p>Not all of them have been accredited by the <a href="https://ganhri.org/membership/">Global Alliance of National Human Rights Institutions</a> (GANHRI). This organisation was set up to periodically review and analyse these national human rights bodies to ensure they are complying with the Paris Principles.</p>
<p>Australia’s Human Rights Commission is currently classified as an “<a href="https://www.ohchr.org/Documents/Countries/NHRI/StatusAccreditationChartNHRIs.pdf">A status</a>” institution, meaning it has full participation rights at the UN Human Rights Council (the right to attend and speak up at UN meetings) and can take part in the governance of GANHRI (including voting rights). </p>
<p>Partially compliant human rights commissions are given “B status” and may only participate as observers. They are essentially works in progress. Among the countries in this class are Myanmar, Venezuela, Chad, Libya and Bahrain.</p>
<p>In 2015, <a href="https://www.forum-asia.org/?p=33462">Thailand’s Human Rights Commission</a> was downgraded to “B status” for its consistent shortcomings, which included the selection and appointment process of commissioners and serious issues around independence and neutrality. </p>
<p>Australia is due for its accreditation review in early 2022, and its “A status” is now in jeopardy, thanks to its handpicked new human rights commissioner. </p>
<p>A status downgrade can severely damage the legitimacy of the Australian Human Rights Commission and people’s confidence in its long-term ability to effectively protect human rights.</p>
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<h2>A pattern of political appointments</h2>
<p>This is not the first time an Australian human rights commissioner was handpicked by the government. In 2013, the Abbott government <a href="https://www.smh.com.au/politics/federal/tim-wilson-appointment-to-human-rights-commission-stirs-controversy-20131217-2zjbk.html">sparked enormous controversy</a> by appointing Tim Wilson as commissioner — a vocal critic of the Human Rights Commission and its work. </p>
<p>Following this move, the Australian Human Rights Commission was <a href="https://www.ohchr.org/Documents/Countries/NHRI/GANHRI/SCA%2520Final%2520Report%2520-%2520Nov%25202016%2520-%2520English.pdf">criticised</a> by GANHRI in its 2016 review for not “following the merit-based selection process”. It said such an </p>
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<p>appointment has the potential to bring into question the legitimacy of the appointees and the independence of the [Human Rights Commission].</p>
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<p>The next <a href="https://humanrights.gov.au/about/news/commission-welcomes-new-appointments">three appointments</a> for senior roles in 2016 were then done in a competitive process, including Ed Santow as human rights commissioner.</p>
<p>However, Finlay’s appointment as the new human rights commissioner, as well as the 2019 appointment of Ben Gauntlett as the disability commissioner, were not conducted transparently. Neither process was open or competitive.</p>
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<h2>Why this matters</h2>
<p>Australia has long been a leader in promoting the Paris Principles, affirming the importance of strong, independent human rights institutions around the globe. </p>
<p>The government should agree to and mandate a legislated appointment process for all senior leadership roles. This is not a radical approach.</p>
<p>When GANHRI criticised Australia in 2016, it expressly called for future selection processes to be transparent and competitive. This process should involve publicising vacancies to maximise the number of potential candidates and promoting broad consultation from the outside community and subject matter experts. </p>
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<p>Candidates should also be assessed on the basis of pre-determined, objective and publicly available criteria. And newly appointed commissioners should not be representatives of any other organisations.</p>
<p>An open process that promotes merit-based selection is necessary to preserve the Human Rights Commission’s independence. It is also critical to enabling the commission to do its work both at home and abroad.</p>
<p>If we cannot ensure the process to appoint a human rights commissioner is fair, what does this say about the fate of human rights in this country?</p><img src="https://counter.theconversation.com/content/167626/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Justine Nolan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>An open process for appointing commissioners is necessary to preserve the Human Rights Commission’s independence and legitimacy.Justine Nolan, Professor of Law and Justice and Director of the Australian Human Rights Institute, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/818472017-07-31T10:21:54Z2017-07-31T10:21:54ZShowdown on same-sex marriage looming within the Liberals<figure><img src="https://images.theconversation.com/files/180358/original/file-20170731-30708-cglr3e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">There is a big question over whether Malcolm Turnbull can keep control of the same-sex marriage debate.</span> <span class="attribution"><span class="source">Richard Wainwright/AAP</span></span></figcaption></figure><p>Just like Tony Abbott in 2015, Malcolm Turnbull is heading into a perfect storm on same-sex marriage. And as it was for Abbott, it has the potential to be very dangerous for him.</p>
<p>There is a big question over whether Turnbull can keep control of this debate. More to the point, perhaps, is whether he’ll even try.</p>
<p>His present strategy seems to be to stick tight to the government’s current policy of a plebiscite – which it can’t get through the Senate – and see where the Liberal party room lands.</p>
<p>With parliament resuming next week, the government’s plebiscite commitment is being openly and concertedly challenged by several backbenchers, who are making a determined move to get it ditched and the issue settled by a free vote in parliament.</p>
<p>Three gay Liberals were out in the media on Monday pushing for change. Western Australian senator Dean Smith, with opinion pieces in two national newspapers, wrote, “It is time to resolve the matter, in Parliament.” Smith has a private member’s bill.</p>
<p>The member for Brisbane, Trevor Evans, said a free vote was the “quickest and most likely course” for achieving reform.</p>
<p>And Victorian Liberal Tim Wilson declared he had “a personal conflict which torments and challenges me on a daily basis and I’d like to see this issue resolved.”</p>
<p>Intense work is going on behind the scenes. Warren Entsch, a Liberal from north Queensland who has been a long term campaigner on this issue, said “I hope we can have a cordial conversation [in the Liberal party room] about the policy and the way forward. It’s time for a resolution.</p>
<p>"My view is that there must be a parliamentary vote. I don’t see any form of a plebiscite as an option”. And that includes Peter Dutton’s idea of a postal vote.</p>
<p>It’s unclear whether the advocates for change have the numbers in the Liberal party room to overturn the plebiscite policy.</p>
<p>While they are determined, they face tough opposition.</p>
<p>NSW Liberal Craig Kelly said on Monday that “we have an obligation to stick with our election commitments. If we don’t we will be punished”.</p>
<p>Former minister Eric Abetz declared that “the only people talking about this and putting the issue into the media are a select few who have a different view to the Prime Minister and the party room as a whole.”</p>
<p>Tony Abbott has yet to buy in this week.</p>
<p>But while some conservatives are intransigent, others would like to get the matter off the agenda. As Turnbull himself said in 2015, criticising Abbott’s proposed plebiscite, “One of the attractions of a free vote is it would have meant the matter would be resolved in this parliament, one way or another, in a couple of weeks.”</p>
<p>In the background are the Nationals, seeing this as another Liberal distraction from what they regard as issues higher up on the agendas of their voters. On Monday Nationals were lobbying for a postal vote. The plebiscite was a commitment in the agreement between Turnbull and the Nationals leadership when he became leader.</p>
<p>If the push for change lost in the Liberal party room, would the rebels abide by the decision, or would they cross the floor when, for example, there was a move by Labor for a vote in parliament?</p>
<p>That would be a major defiance of the party room. Given the government’s razor thin majority, it could allow a bill to be brought on.</p>
<p>Some took Turnbull’s comment on Monday that “in our party, backbenchers have always had the right to cross the floor” as sanctioning such action.</p>
<p>But the Prime Minister’s Office quickly said this was not meant to be any sort of green light, but rather a statement of how the Liberal party operated, in contrast to Labor’s binding rules.</p>
<p>One irony for Turnbull, as he stands by the present policy, is that some – though not all - of those who are agitating to scrap it are from his own moderate faction.</p>
<p>Cabinet minister Christopher Pyne provoked anger from among conservatives when he recently predicted at a factional gathering that same-sex marriage might be delivered “even be sooner than everyone thinks”.</p>
<p>One can understand why Turnbull would be inclined to try to stay above this fray and let events play out, rather than move to lead them.</p>
<p>It might seem the safest course, in a situation that could be delicate for his leadership.</p>
<p>But such safety carries its own risks. If the party room stuck with the plebiscite and the rebels successfully defied it to enable a vote on a bill that subsequently passed, Turnbull would be humiliated.</p>
<p>On the other hand, if the party room changed the policy, authorising a free vote that ended in reform of the law, Turnbull would hardly be able to claim much of the credit for delivering the policy via the process that he championed in 2015.</p><img src="https://counter.theconversation.com/content/81847/count.gif" alt="The Conversation" width="1" height="1" />
If the push for change lost in the Liberal party room, would the rebels abide by the decision, or would they cross the floor when, for example, there was a move by Labor for a vote in parliament?Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/547292016-02-15T05:04:35Z2016-02-15T05:04:35ZDo we need a new human rights commissioner? Yes, but it’s complicated …<figure><img src="https://images.theconversation.com/files/111446/original/image-20160215-22566-9zj45b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Tim Wilson has announced he is stepping down as human rights commissioner to contest the Liberal preselection for Goldstein.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>Tim Wilson has <a href="http://www.theguardian.com/australia-news/2016/feb/15/tim-wilson-resigns-to-seek-liberal-preselection-for-seat-of-goldstein">announced</a> his resignation as human rights commissioner to seek Liberal Party preselection for the federal seat of <a href="http://www.aec.gov.au/profiles/vic/goldstein.htm">Goldstein</a>. Wilson <a href="http://www.smh.com.au/federal-politics/political-news/tim-wilson-appointment-to-human-rights-commission-stirs-controversy-20131217-2zjbk.html">resigned from the party</a> in 2013 to work at the Australian Human Rights Commission and is now heading back into the political fold. </p>
<p>So the question now is: does Australia still need a human rights commissioner? If so, should an incoming commissioner have the same “freedom” mandate as Wilson?</p>
<p>First, a little historical context. The role is provided for in the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ahrca1986373/s8b.html">Australian Human Rights Commission Act</a>, and Brian Burdekin was appointed to it upon the commission’s establishment in 1986. Next came more human rights luminaries – Chris Sidoti, Sev Ozdowski and Graeme Innes – who each simultaneously held the role of disability discrimination commissioner. </p>
<p>In the years leading up to Wilson’s appointment, from 2009-2012, the commission president, Catherine Branson, held the title, but the role was widely <a href="http://www.theguardian.com/commentisfree/2015/feb/27/ruddock-asked-me-to-do-my-job-without-fear-or-favour-brandis-ended-that-tradition">considered to be redundant</a>.</p>
<p>It therefore came as a surprise when the new Coalition government appointed a full-time human rights commissioner in 2013, especially as it was Wilson, who was a director of an organisation committed to the commission’s abolition – the Institute of Public Affairs. </p>
<p>Attorney-General George Brandis <a href="http://www.smh.com.au/federal-politics/political-news/tim-wilson-appointment-to-human-rights-commission-stirs-controversy-20131217-2zjbk.html">declared</a> the government’s intention was to “help restore balance” to the commission’s work, which had become “increasingly narrow and selective in its view of human rights”. Much can be said – and <a href="http://www.abc.net.au/news/2013-12-19/joseph-tim-wilson-human-rights-commission/5166506">indeed has been</a> – about the appropriateness of this move, but that is now water under the bridge.</p>
<p>The commission does focus on anti-discrimination work. This makes sense, since federal legislation provides strong <a href="https://www.humanrights.gov.au/employers/good-practice-good-business-factsheets/quick-guide-australian-discrimination-laws">protection against discrimination</a> on several grounds (race, sex, disability and age), but eschews specific protection for most other human rights due to the lack of a human rights act. </p>
<p>The commission has <a href="https://www.humanrights.gov.au/our-work/commission-general/publications/strategic-plan-2014-2018">limited resources</a>, and allocating them primarily to work underpinned by the “big stick” of legislation makes sense. Discrimination remains one of the most prominent human rights issues facing Australian society, a fact underlined by Wilson’s own <a href="http://www.smh.com.au/federal-politics/political-news/human-rights-commissioner-tim-wilson-calls-for-end-to-statesanctioned-discrimination-on-marriage-20150609-ghk3d0.html">LGBTI</a> and <a href="http://www.smh.com.au/federal-politics/political-news/native-land-rights-should-be-overhauled-human-rights-commissioner-tim-wilson-says-20150218-13id4u.html">Indigenous</a> rights work. </p>
<p>When Wilson was appointed, his brief, according to Brandis, was to champion freedom of expression and other “traditional liberal rights” which the government believed were being neglected. Incidentally, Brandis also asked the Australian Law Reform Commission to look into legislation that encroaches on these “traditional” rights and freedoms, and it <a href="http://www.alrc.gov.au/publications/alrc127">found a great many</a>. Its final report is due to be tabled this month.</p>
<p>That Wilson was to focus only on “negative” freedoms (which generally involve government restraint) rather than also covering “positive” rights (which require the government to act) was a troubling aspect of his appointment from an <a href="http://www.abc.net.au/news/2013-12-19/joseph-tim-wilson-human-rights-commission/5166506">international law point of view</a>. </p>
<p>Nevertheless, the renewed focus on rights and freedoms other than non-discrimination was welcome, since it highlighted the fact that they do not enjoy strong legal protection in Australia. For example, there are only two jurisdictions (the <a href="http://www.austlii.edu.au/au/legis/act/consol_act/hra2004148/s16.html">ACT</a> and <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/cohrara2006433/">Victoria</a>) where a person is legally protected against a breach of their right to freedom of expression, along with a host of other civil and political rights.</p>
<p>We have many more laws <a href="http://www.alrc.gov.au/publications/laws-interfere-freedom-association">limiting freedom of association</a> (which Wilson also <a href="http://www.smh.com.au/federal-politics/political-news/new-human-rights-commissioner-tim-wilson-calls-for-bikie-laws-repeal-20140108-30hmb.html">promoted</a>) than <a href="http://example.com/">protecting it</a>. It’s a great reminder that a proper human rights act would make the commissioner’s work more effective.</p>
<p>Despite the benefits it may have brought, Wilson’s appointment came at a great cost to the commission, which has had its funding <a href="https://www.ag.gov.au/Publications/Budgets/Budget2015-16/Documents/Portfolio-budget-statements/11-2015-16-PBS-AHRC.pdf">reduced significantly</a>. Innes, who served as an extremely effective disability discrimination commissioner from 2005 to 2014, saw his former role merged with the age discrimination commissioner’s to save a <a href="http://www.smh.com.au/federal-politics/political-news/appointment-of-human-rights-commissioner-has-come-at-a-cost-labor-20140515-zrdlc.html">claimed A$1.7 million</a>. The role of sex discrimination commissioner had gone unfilled for many months; an <a href="http://www.abc.net.au/news/2016-02-11/kate-jenkins-named-new-sex-discrimination-commissioner/7160828">announcement</a> was made last week that Kate Jenkins will start in April. </p>
<p>The political nature of Wilson’s appointment was not an isolated act. The government also placed unprecedented pressure <a href="http://www.theguardian.com/commentisfree/2015/feb/27/ruddock-asked-me-to-do-my-job-without-fear-or-favour-brandis-ended-that-tradition">on Innes</a> and on the commission president, <a href="http://www.smh.com.au/federal-politics/political-news/row-involving-human-rights-commission-president-gillian-triggs-puts-careers-on-the-line-20150226-13qdog.html">Gillian Triggs</a>.</p>
<p>In the wake of Wilson’s resignation, the opposition has <a href="http://www.theguardian.com/australia-news/2016/feb/15/tim-wilson-resigns-to-seek-liberal-preselection-for-seat-of-goldstein">called for</a> the position of disability commissioner to be reinstated properly in the place of a new human rights commissioner. </p>
<p>So what should happen from here?</p>
<ul>
<li><p>Both Innes and Wilson should be replaced on a full-time basis, with appropriate funding;</p></li>
<li><p>As the Castan Centre noted in a media release welcoming Jenkins’ appointment, the process of appointments to the commission should be made transparent and put at arm’s length from the executive in the spirit of the <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfNationalInstitutions.aspx">Paris Principles relating to the Status of National Human Rights Institutions</a>;</p></li>
<li><p>Overall funding for the commission should be increased to enable it to champion a wide range of human rights and freedoms adequately. Its funding should also be “ring-fenced” – that is, guaranteed so that (quoting the Paris Principles) the commission will “not be subject to financial control which might affect its independence”.</p></li>
</ul>
<p>In a media release, Brandis lauded Wilson for “single-handedly reshaping the human rights debate in Australia” and “restoring balance to a debate which had previously been dominated by the priorities and prejudices of the left”. </p>
<p>Putting aside the many problems with this statement due to space constraints, an <a href="http://www.theguardian.com/commentisfree/2015/feb/27/ruddock-asked-me-to-do-my-job-without-fear-or-favour-brandis-ended-that-tradition">article by Innes</a> last February paints a very different picture of Brandis and Wilson’s effect on the commission. </p>
<p>Previous attorneys-general, while still defending their governments’ actions, acknowledged the commission’s job is sometimes to give government a “kicking” without fear or favour. The present government seems to believe it is above such treatment and has <a href="http://www.abc.net.au/news/2015-02-28/gillian-triggs-burdekin-says-abbott-brandis-made-political-error/6270658">treated the commission badly</a>. It is not too late, under the new leadership, to make up for this.</p><img src="https://counter.theconversation.com/content/54729/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adam Fletcher is a Research Fellow at Monash University's Castan Centre for Human Rights Law.</span></em></p>The next human rights commissioner needs to be appointed at arm’s length from government and with the ability to criticise government where required.Adam Fletcher, Research Fellow, Lecturer & PhD Candidate, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/430082015-06-09T10:54:25Z2015-06-09T10:54:25ZGovernment’s own ‘freedom commissioner’ Tim Wilson questions citizenship plan<figure><img src="https://images.theconversation.com/files/84360/original/image-20150609-10726-19rjvcz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Tim Wilson sympathises with the government's aim of finding ways to tackle the national security threat posed by foreign fighters, but has reservations about the method.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>It’s awkward for the government – but very good for the public debate – that the Coalition’s citizenship-stripping initiative coincides with the 800th anniversary of the Magna Carta.</p>
<p>Next Monday’s birthday is focusing attention on the broad issue of the protection of citizens and the rule of law. That’s adding fuel to criticisms of the government’s plan, which includes legislating to strip citizenship from dual nationals engaged in terrorist activities, and consideration of extending this to those with sole Australian citizenship if they are eligible to become nationals elsewhere.</p>
<p>Doubts are coming not only from those the government would claim as the “usual suspects” on the political left but from concerned conservatives, including Australian Catholic University’s vice-chancellor, Greg Craven, who argued last week that the initiative as proposed would be knocked out by the High Court.</p>
<p>Now Tim Wilson, the man Attorney-General George Brandis appointed as Human Rights Commissioner, to be particularly the “freedom commissioner”, has weighed in.</p>
<p>In an address to the Sydney Institute’s Tuesday forum on “The legacy of the Magna Carta”, Wilson sympathised with the government’s aim of finding ways to tackle the national security threat posed by foreign fighters.</p>
<p>But Wilson has reservations about the method, saying three questions haven’t been satisfactorily clarified.</p>
<p>These are:</p>
<ul>
<li><p>“Why Australian-born citizens, who are dual nationals, should be stripped of their citizenship.</p></li>
<li><p>"Why Australian sole citizens could be stripped of their citizenship and how that could be done without rendering a person stateless.</p></li>
<li><p>"Why executive government should decide whether a person’s citizenship is removed on the basis of mere suspicion of terrorism, and not the courts.”</p></li>
</ul>
<p>Wilson said that “these issues must be addressed before any proposal is passed through the parliament”.</p>
<p>Executive government had a role to make determinations quickly and in the national interest, Wilson said. But “any decision of the government should be temporary to address the immediate threat and must have a higher threshold test than suspicion”.</p>
<p>A person’s citizenship was the basis of all other rights, Wilson said, and any attempt to remove it should be treated with “extreme caution”.</p>
<p>Wilson’s speech comes after Friday’s observations by Human Rights Commission president Gillian Triggs – whom the government is trying, unsuccessfully, to spook out of her position – in an address to a Justice Connect dinner.</p>
<p>Triggs argued that seeking to strip citizenship from people who were “potentially dual nationals” was a clear example of the “overreach of executive power” that is occurring much more broadly.</p>
<p>“This proposal strikes at the heart of Australia as a largely migrant nation. Not only may this idea violate Australia’s international obligation not to render a person stateless, but also the decision may be at the discretion of a minister, without recourse to judicial processes.”</p>
<p>Triggs said the proposal wasn’t new. A bill was introduced last year to give the minister discretion to strip citizenship where there was “fraud or misrepresentation, or where the minister is ‘satisfied’ that a person is not of good character, all without trial or conviction”.</p>
<p>“Magna Carta has something to say about this: it provided that no man is to be ‘outlawed or exiled’ except by the law of the land,” Triggs said.</p>
<p>Last week Communications Minister Malcolm Turnbull also delivered strong words about the importance of the rule of law.</p>
<p>Turnbull has promoted a minimalist course of extending and modernising the present law that automatically removes citizenship from dual citizens fighting in the armed forces of a country at war with Australia.</p>
<p>But the government wants to go beyond this in its legislation to be introduced this month. It proposes to include people in Australia providing help to the foreign fighters. This would raise the prospect of some arbitrary decisions – otherwise why not charge these people under existing laws?</p>
<p>The range of warning voices indicates that aspects of the proposal for dual citizens need re-examination and revision, especially the provision to put decision-making power in the hands of the immigration minister.</p>
<p>The government says there would be protection in that the minister’s decisions would be subject to review. But Immigration Minister Peter Dutton has flagged this would be a review only of the process followed – thus a very limited one – not of the basis on which the decision was made.</p>
<p>All this is apart from the constitutional question mark over the plan.</p>
<p>Labor is in an awkward position, having given approval in principle of the dual citizen measure. One can see Tony Abbott looking to play wedge politics as soon as the opposition raised objections about detail. But the issues are too important for wedges. </p>
<p>Three things need to happen in the short term. The government should think carefully when friends such as Wilson and Craven sound warnings; Liberals like Turnbull who appreciate the rule of law should fight on; and the legislation should be carefully examined by the parliamentary committee on intelligence and security, which has successfully produced bipartisan recommendations for change on earlier occasions.</p>
<p>The fraught issue of ministerial discretion applies to both the proposal for dual citizens and the more radical option for Australian-only citizens, which is out for consultation. The latter option just has further problems as well.</p>
<p><strong><a href="http://michellegrattan.podbean.com/e/bruce-billson-1433320017/?token=928bdb59fdbbe9bc296d187d6b269ef3">Listen to the latest Politics with Michelle Grattan podcast, with guest, Small Business Minister Bruce Billson, here</a> or <a href="https://itunes.apple.com/au/podcast/politics-michelle-grattan/id703425900?mt=2">on iTunes</a>.</strong></p>
<iframe id="audio_iframe" src="https://www.podbean.com/media/player/s6mbn-567090?from=wp" data-link="http://www.podbean.com/media/player/s6mbn-567090?from=wp" height="100" width="100%" frameborder="0" scrolling="no" data-name="pb-iframe-player"></iframe><img src="https://counter.theconversation.com/content/43008/count.gif" alt="The Conversation" width="1" height="1" />
It’s awkward for the government – but very good for the public debate – that the Coalition’s citizenship-stripping initiative coincides with the 800th anniversary of the Magna Carta. Next Monday’s birthday…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/244522014-03-18T19:36:16Z2014-03-18T19:36:16ZWhat is a ‘classical liberal’ approach to human rights?<figure><img src="https://images.theconversation.com/files/44031/original/f6xbcczt-1395011487.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Federal attorney-general George Brandis wants to champion a 'classical liberal' approach to human rights, but what does this actually mean? </span> <span class="attribution"><span class="source">AAP/Daniel Munoz</span></span></figcaption></figure><p>Tim Wilson, Australia’s Human Rights Commissioner, has announced that he will take a <a href="http://www.abc.net.au/lateline/content/2013/s3946783.htm">“classical liberal”</a> approach to human rights. There is a fair degree of confusion about what this means.</p>
<p>Classical liberalism is not a coherent body of political philosophy. However, in relation to human rights, there are three key ideas that most classical liberals subscribe to.</p>
<p>The first is the idea that all people are born with rights, which they hold simply because they are human. This is the idea that underpins <a href="http://www.un.org/en/documents/udhr/index.shtml#a1">Article 1</a> of the <a href="http://www.un.org/en/documents/udhr/">Universal Declaration of Human Rights</a>:</p>
<blockquote>
<p>All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. </p>
</blockquote>
<p>Not everyone shares this belief. Many people believe that rights are simply entitlements granted by the state and held only by citizens. But for classical liberals, rights are much more than this. They are universal (held by everyone) and inalienable (they continue to exist regardless of whether or not governments recognise them).</p>
<p>The second idea concerns what human rights actually are. Classical liberals believe that the list of genuine human rights is quite short. It is comprised primarily of those things that are necessary to preserve life and individual liberty. </p>
<p>This list includes the right to be free from torture, slavery, arbitrary arrest or detention. Freedom of association and freedom of speech are also seen as legitimate human rights. But other rights, particularly economic and social rights, are viewed as mere aspirations.</p>
<p>Thirdly, classical liberals believe that the role of the state in fulfilling or protecting human rights should be very limited. States should do only what is necessary to protect life and property.</p>
<p>Classical liberals believe in a minimal state – as political philosopher Robert Nozick puts it, a <a href="http://en.wikipedia.org/wiki/Night-watchman_state">“night watchman” state</a> – that does not interfere with the privacy of citizens and their freedom to live, work and be educated in any way they see fit.</p>
<p>Wilson has alluded to all of these ideas in public statements. Like <a href="http://www.smh.com.au/national/george-brandis-reveals-new-direction-for-human-rights-commission-20131220-2zqpk.html">attorney-general George Brandis</a>, Wilson <a href="http://www.smh.com.au/national/tim-wilson-wilson-total-free-speech-needed-for-human-rights-commission-20140202-31uzm.html">has argued</a> in favour of focusing the attention of the Australian Human Rights Commission on the rights championed by classical liberals, particularly the right to free speech. </p>
<p>Wilson has talked about the problems that occur when certain rights (such as the right not to be discriminated against) collide with other rights (such as the right to freedom of association). Like Brandis, Wilson has criticised the Australian Human Rights Commission for its emphasis on anti-discrimination.</p>
<p>But there are several reasons why a classical liberal approach to human rights does not necessarily reflect the needs and aspirations of contemporary Australian society.</p>
<p>First, the philosophical foundation for the classical liberal idea of human rights is very shaky, as <a href="http://www.ucl.ac.uk/laws/jurisprudence/docs/2008/08_coll_raz.pdf">argued</a> by the likes of philosopher <a href="http://en.wikipedia.org/wiki/Joseph_Raz">Joseph Raz</a>. Historically, classical liberals view rights as bestowed by God or derived from some essential human essence. </p>
<p>But many Australians seem to take a more pragmatic view of human rights, as <a href="https://www.humanrights.gov.au/news/speeches/practical-power-human-rights">noted</a> by Aboriginal and Torres Strait Islander Commissioner Mick Gooda. Rights are the important interests and values that democracies have decided to protect. Far from making rights less important, this makes them more so.</p>
<p><a href="http://www.ag.gov.au/RightsAndProtections/HumanRights/TreatyBodyReporting/Pages/HumanRightsconsultationreport.aspx">Community consultations</a> show that many Australians are also more ambitious than many classical liberals about what these rights should consist of. Brandis <a href="http://www.smh.com.au/federal-politics/political-news/george-brandis-asks-australian-law-reform-commission-to-find-laws-that-encroach-on-rights-freedoms-and-privileges-20131211-2z6qm.html">has said</a> that freedom is the core human right without which nothing else is possible. But food, work, education and social security are also important. Rights are <a href="http://www.ohchr.org/en/professionalinterest/pages/vienna.aspx">inter-related and inter-dependent</a>. It is a mistake to think that something like a right to adequate health care is too vague to be an enforceable right.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/44033/original/fkb73pdg-1395012673.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/44033/original/fkb73pdg-1395012673.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/44033/original/fkb73pdg-1395012673.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/44033/original/fkb73pdg-1395012673.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/44033/original/fkb73pdg-1395012673.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/44033/original/fkb73pdg-1395012673.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1006&fit=crop&dpr=1 754w, https://images.theconversation.com/files/44033/original/fkb73pdg-1395012673.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1006&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/44033/original/fkb73pdg-1395012673.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1006&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Human Rights Commissioner Tim Wilson has criticised the government’s policy of detaining asylum seeker children.</span>
<span class="attribution"><span class="source">AAP</span></span>
</figcaption>
</figure>
<p>Finally, Australians seem to aspire to more than a society where individuals are just left alone to pursue their own interests and where the best a government can do is prevent individuals from being arbitrarily deprived of life or property.</p>
<p>For example, ensuring that certain groups of people are not discriminated against is a central part of an equal society. As Brandis points out, since its establishment in 1986, the Australian Human Rights Commission has spent much of its time advancing the idea in <a href="http://www.un.org/en/documents/udhr/index.shtml#a2">Article 2</a> of the Universal Declaration of Human Rights, which reads: </p>
<blockquote>
<p>Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. </p>
</blockquote>
<p>This is hard, slow work, done on a case-by-case basis and through public education and training. It certainly lacks the glamour of the classical liberal rhetoric around liberty and freedom, but it has been a vital part of achieving a fairer society and a better life for millions of Australians.</p>
<p>So far, Wilson has not been at his most convincing championing rights of privacy or arguing for more free speech. Where his views have resonated is on subjects such as <a href="http://www.abc.net.au/local/audio/2014/02/18/3947210.htm">children in immigration detention</a>. On this issue, Wilson has simply said that he doesn’t think it is right. This is the sort of visceral response shared by most Australians.</p>
<p>In addition to his gut feeling that imprisoning children is wrong, as a classical liberal, Wilson should find the government’s entire asylum seeker policy deeply troubling. What the government is doing is violating the rights of the few (asylum seekers) in the name of achieving a greater good for the many (preventing deaths at sea and protecting Australia’s sovereignty). </p>
<p>To a classical liberal, this sort of utilitarian approach to rights should never be acceptable. Wilson’s intervention on this issue will be important.</p><img src="https://counter.theconversation.com/content/24452/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Catherine Renshaw does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Tim Wilson, Australia’s Human Rights Commissioner, has announced that he will take a “classical liberal” approach to human rights. There is a fair degree of confusion about what this means. Classical liberalism…Catherine Renshaw, Lecturer, School of Law, , Australian Catholic UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/235062014-02-26T00:28:47Z2014-02-26T00:28:47ZFree speech: what it is and what it isn’t<figure><img src="https://images.theconversation.com/files/42453/original/h2ft958r-1393309615.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Attorney-General George Brandis has no qualms about "shackling" free speech to protect property, hence his presence at a copyright forum this month, yet he rejects other constraints.</span> <span class="attribution"><span class="source">AAP/Alan Porritt</span></span></figcaption></figure><p>Tim Wilson has finally taken up his post as Human Rights Commissioner after <a href="https://theconversation.com/the-two-tims-the-ipa-and-the-future-of-human-rights-in-australia-21576">controversy about his appointment</a> late last year. Many questioned the suitability of a candidate without relevant legal-administrative experience and a self-proclaimed “traditional” view of human rights. At issue here is Wilson’s supposedly classical conception of the rights of the citizen, built upon a certain understanding of the <a href="http://www.smh.com.au/comment/tim-wilson-as-officialdom-tries-to-dilute-them-human-rights-must-be-defended-20131218-2zlcc.html">institution of private property</a>.</p>
<p>This conception leads Wilson, along with federal Attorney-General George Brandis (who virtually hand-picked Wilson) to <a href="http://www.smh.com.au/national/tim-wilson-wilson-total-free-speech-needed-for-human-rights-commission-20140202-31uzm.html">defend what he calls “traditional” free speech</a> and in the process <a href="http://www.smh.com.au/federal-politics/political-news/george-brandis-to-repeal-bolt-laws-on-racial-discrimination-20131108-2x50p.html">rail against section 18C</a> of the Racial Discrimination Act.</p>
<p>Before looking at this legislation, it’s worthwhile setting out what’s at stake and reflecting on the meaning and import of free speech in democratic societies.</p>
<h2>A history lesson</h2>
<p><a href="http://www.unistudyguides.com/wiki/Dicey,_Parliamentary_Sovereignty_and_the_Rule_of_Law">A. V. Dicey</a> once defended the liberties of the English citizen by observing:</p>
<blockquote>
<p>A man may with us be punished for a breach of law, but he can be punished for nothing else.</p>
</blockquote>
<p>Dicey offered this in an essay on the meaning of the rule of law. It captures the classical libertarian notion of liberty, with which the rule of law is intimately connected, as something residual rather than positive. For Dicey and the classicists, freedom is the space left for every subject after the law has reached its limit. </p>
<p>In what way, then, does the common law afford citizens freedom of speech? After all, freedom of speech sounds rather more positive than residual. In some respects, it’s odd that neoliberals should insist on it at all, given that the classical notion of liberty is negative.</p>
<p>While it’s arguable that <a href="http://plato.stanford.edu/entries/mill/">John Stuart Mill</a>, one of the champions of free speech in the 19th century, was a classical liberal, Mill also supported worker-owned syndicates of the kind supported later by some Fabians, Marxists, socialists and anarcho-syndicalists. In any event, Dicey provided the strict and more theoretically precise sense of liberty. </p>
<p>Dicey’s conception, although far from perfect, is properly tethered to the rule of law (by definition, in fact). There’s something almost “unclassical” about free speech, if by “classical” we have in mind 19th century aristocrats-cum-industrialists who overwhelmingly saw liberty through the prism of law and contract.</p>
<h2>The common law: is speech special?</h2>
<p>Now, at the risk of inviting some opprobrium, I would like to suggest what everybody already knows full well. There really is no such thing as free speech, if this just means the right to say what one wants. Even as an ideal to which our laws should aspire, it proceeds from an understanding of liberty absent restraint, which is impossible.</p>
<p>There is no freedom without law. One might as well go around saying that there is such a thing as the “freedom of behaviour”. Have you ever heard classical liberals campaigning passionately for “freedom of behaviour”?</p>
<p>There are laws, and then there’s the area left for the individual after the law’s reach is fully extended.</p>
<p>There’s no freedom of behaviour, or freedom to swing one’s arm, or freedom to move one’s elbow. There’s the right for someone not to be struck in the face by a swinging arm, and only after that, and in that context, the right for a person to swing their arm. </p>
<p>Defending the right to free speech is in some ways just as strange as defending the freedom of behaviour. Why is speech special?</p>
<p>Actually, speech and action are not as different as they appear. Crying “fire” in a crowded theatre when there’s no fire is more like a speech-act than plain talking. Telling someone their mother has just been run over by a bus when it isn’t true, if it causes mental harm to the hearer, is better understood as an act causing harm rather than an utterance. It is treated as such by the law.</p>
<p>Telling someone you’ll beat them to a pulp in a menacing and predatory tone may well constitute an assault, even if no punches are thrown, or were intended to be. An extremist cleric preaching suicide missions and violence against unbelievers would probably fairly be considered guilty of sedition. Speech can be deadly. Why start from the presumption that it isn’t?</p>
<p>The <a href="http://www.lawhandbook.org.au/handbook/ch24s02s01.php">law of defamation</a> and misrepresentation protect reputation and financial interest over the right of free speech. <a href="http://www.artslaw.com.au/info-sheets/archive/cat/copyright-moral-rights/">Copyright violation</a> and <a href="http://www.artslaw.com.au/info-sheets/archive/cat/confidentiality/">breaches of confidence</a> are further examples where speech is not free.</p>
<h2>Protection from harm</h2>
<p>What brings these cases together isn’t the unifying concept of free speech, or even private property, but the concept that Mill brought into focus in his essay <a href="http://en.wikipedia.org/wiki/On_Liberty">On Liberty</a> – that is, the occasioning of harm to others. This is where the critical discussion of free speech laws inevitably hovers.</p>
<p>How broadly do we construe this notion of harm? To mean only clear and direct dangers (as Mill would have had it)? Or as potentially extending to causing offence among a racial minority (as the legal philosopher <a href="http://www.nytimes.com/2004/04/05/us/joel-feinberg-77-influential-philosopher.html">Joel Feinberg</a> argued it might)?</p>
<p>Whatever your answer, the presumption that somehow speech is special gets us nowhere. It is misleading. It is the false premise in so much of what passes for debate about the right of individuals to believe what they want and to express their beliefs.</p>
<p>We want all our freedoms maximised. For any proposed law, we should be asking about the cost to freedom, per se. If the infringement of our freedom is urged in the name of preventing some questionable kind of harm (like harm to “national security” or “sovereignty”), it’s the freedom lost that needs to be weighed in the balance, regardless of whether that freedom relates to words or deeds.</p>
<p>Too often free speech is little more than a slogan, which the enemies of freedom use to advance the interests of the rich and powerful against the disenfranchised. If we must have slogans, what we need is a better slogan to describe the ideal/reality adverted to in the phrase “free speech”.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/42455/original/bgvstg69-1393312064.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/42455/original/bgvstg69-1393312064.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/42455/original/bgvstg69-1393312064.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/42455/original/bgvstg69-1393312064.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/42455/original/bgvstg69-1393312064.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1006&fit=crop&dpr=1 754w, https://images.theconversation.com/files/42455/original/bgvstg69-1393312064.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1006&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/42455/original/bgvstg69-1393312064.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1006&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Tim Wilson and other ‘free speech’ advocates are less consistent than they like to think.</span>
<span class="attribution"><span class="source">AAP/Supplied by Institute of Public Affairs</span></span>
</figcaption>
</figure>
<p>And that is, obviously enough, freedom of opinion (the freedom to express one’s opinions and beliefs). It is this freedom that is recognised and protected under international law (such as Article 19 of the <a href="http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx">International Covenant on Civil and Political Rights</a> and the <a href="http://www.un.org/en/documents/udhr/">Universal Declaration of Human Rights</a>).</p>
<p>Perhaps even opinions, if expressed a certain way, may lead to clear and present danger. But these cases are extremely rare. It is probably just because the expression of an opinion or belief is so unlikely to lead to harm that we take the expression of opinion to be fundamental and non-negotiable.</p>
<h2>Racial discrimination</h2>
<p>Judging by Brandis’ recent attempts to “protect” free speech, and the brief he’s given to the incoming Human Rights Commissioner to prosecute the case against <a href="https://www.humanrights.gov.au/glance-racial-vilification-under-sections-18c-and-18d-racial-discrimination-act-1975-cth">Section 18C</a>, these obvious facts about free speech seem not to be getting through.</p>
<p>The maligned Section 18C doesn’t touch upon the expression of opinions or beliefs. It fastens upon acts or communications that offend, insult, humiliate or intimidate another group of people on racial grounds. And as <a href="https://www.humanrights.gov.au/glance-racial-vilification-under-sections-18c-and-18d-racial-discrimination-act-1975-cth">Section 18D</a> makes clear, it doesn’t prohibit even this where the communication is made in good faith and, for instance, where it is an accurate report in the public interest, or is otherwise a belief genuinely held.</p>
<p>It may be that Section 18C goes too far. There are certainly problems with the formulation of Section 18D (of a largely technical kind). But couching concerns about these provisions in the treasured argot of free speech as a way of justifying their outright repeal is to betray little genuine concern for human rights. </p>
<p>Someone concerned with human rights here would acknowledge the real issue posed by Section 18C, which is whether the right to offend and insult should be given priority over the right of members of an ethnic community to live free from racially inspired offences and insults.</p>
<p>It’s this issue - about the nature of the harm caused, and whether the blow to freedom is too high a price to pay for eradicating this particular vice – rather than questions of free speech in the abstract, that is decisive.</p>
<p>And once you factor in that Section 18D attempts to safeguard the free expression of genuinely held beliefs, you appreciate that these provisions don’t actually seek to place fetters on free speech (defined properly as the freedom of opinion). Cleaning up Section 18D must be a matter of making it work better in achieving the objectives of Section 18C. Repealing the provisions altogether is just a way of ignoring the real issue they pose under cover of whitewash and cant.</p>
<p>The values underpinning Section 18C, social cohesion, civility and respect, are clearly important conditions of stable social living. They’re intangible, perhaps, but not much more than Ed Snowden’s “harm” to state relations. Wilson acquiesced in Snowden’s criminality last year (although he softened his stance <a href="http://www.abc.net.au/lateline/content/2013/s3946783.htm">when interviewed</a> last week on ABC’s Lateline).</p>
<p>Of course, arguments in these matters can go both ways. Perhaps respect and social grace should be inculcated in non-legislative ways, left to chance, to the marketplace of ideas, so that those “with evil in their hearts” are ridiculed in turn for their racist taunts. </p>
<p>Yet the common law hasn’t left defamatory speech to chance. Nor assault, copyright, misrepresentation and breaches of confidence. Nor wilful injury occasioning mental harm. These cover an amazing variety of circumstances.</p>
<p>They can only barely be understood as cases involving the protection of property, which is why your notion of “property” ends up being highly abstract and elastic when you go down that road. None of these wrongs is new (even wilful injury began life in the halcyon days of the 19th century). And none necessarily involves anything more than speech for its physical commission.</p>
<hr>
<p><strong>Listen to the new Politics with Michelle Grattan podcast with guest Human Rights Commissioner Tim Wilson <a href="http://michellegrattan.podbean.com/2014/02/25/tim-wilson/">here</a>.</strong></p>
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<p class="fine-print"><em><span>John Zerilli does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Tim Wilson has finally taken up his post as Human Rights Commissioner after controversy about his appointment late last year. Many questioned the suitability of a candidate without relevant legal-administrative…John Zerilli, Tutor in Law and Philosophy, PhD Candidate, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.