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 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.
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 Article 1 of the Universal Declaration of Human Rights:
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.
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).
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.
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.
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.
Classical liberals believe in a minimal state – as political philosopher Robert Nozick puts it, a “night watchman” state – that does not interfere with the privacy of citizens and their freedom to live, work and be educated in any way they see fit.
Wilson has alluded to all of these ideas in public statements. Like attorney-general George Brandis, Wilson has argued 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.
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.
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.
First, the philosophical foundation for the classical liberal idea of human rights is very shaky, as argued by the likes of philosopher Joseph Raz. Historically, classical liberals view rights as bestowed by God or derived from some essential human essence.
But many Australians seem to take a more pragmatic view of human rights, as noted 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.
Community consultations show that many Australians are also more ambitious than many classical liberals about what these rights should consist of. Brandis has said 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 inter-related and inter-dependent. It is a mistake to think that something like a right to adequate health care is too vague to be an enforceable right.
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.
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 Article 2 of the Universal Declaration of Human Rights, which reads:
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.
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.
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 children in immigration detention. 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.
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).
To a classical liberal, this sort of utilitarian approach to rights should never be acceptable. Wilson’s intervention on this issue will be important.