Date: 
Tuesday 13 May 2014

Author

Tim.Wilson

Acknowledgements

Thank you for your kind introduction.

I would like to begin by acknowledging the Gadigal people of the Eora Nation, who are the traditional owners of the lands on which we are meeting tonight.

I also want to acknowledge the Sydney Institute.

In your 25th year, I want to express my personal congratulations to the Institute, its membership and its founders, Anne and Gerard. The Sydney Institute is a lighthouse that guides the debate underpinning Australian democracy. The country is stronger for having the Institute. Congratulations on your 25 years, and good wishes for those to come.

Thank you all for taking the time to come and hear my first major address as Australia’s Human Rights Commissioner.

My role as the Human Rights Commissioner

The position of Human Rights Commissioner is established under the Australian Human Rights Commission Act 1986 (Cth).

There are currently eight Commissioners at the Commission, which includes the President and Commissioners that focus on discrimination on the basis of Age, Sex, Race and Disability. There’s also the Aboriginal and Torres Strait Islander Social Justice Commissioner and the Children’s Commissioner.

And then there is my office – the Human Rights Commissioner.

The role of the Human Rights Commissioner differs from the other Commissioner’s portfolios that provide specific focus through relevant pieces of Federal legislation. 

International human rights issues, including asylum seekers, predominantly sit with the President.

Since my role potentially encroaches on the policy areas of other Commissioners – and I don’t wish to duplicate or unnecessarily tread on other’s toes – my role is to focus on domestic civil and political rights.

When announcing my appointment late last year, the Attorney-General, George Brandis, noted the absence of a ‘rights’ culture in Australia and asked me to focus on advancing rights and freedoms, particularly the rights to freedom of opinion and expression.

Resulting from my classical liberal approach to human rights and views about greater freedom for the individual, the Attorney-General dubbed me the ‘Freedom Commissioner’ – and I can assure you that is precisely what I plan to be. I want to advance rights and freedoms with complimentary responsibilities.

My approach to human rights – from philosophy to law

There are competing views about how we should approach human rights and freedoms. After all, human rights are a political construct.

I’ve made it clear that I will be approaching human rights from a classical liberal approach – that human rights are the protection from the abuse of power by government against individuals, people own their own lives and pursuit of their enterprise, while ensuring they do not do harm to others. Human rights are narrow, can be reasonably exercised consistently and rarely come into conflict.

Human rights underpin people exercising their freedom.

Since starting in this role, and engaging with many people, one point is clear: there is a fundamental lack of understanding about what human rights are.

Commentators can ascribe their own reasoning. My conclusion is that the lack of understanding comes from human rights being disconnected from their foundational principles.

Sometimes worthy civil rights and social justice aspirations have been elevated to the sacrosanct status of human rights and anti-discrimination has been conflated with human rights.

I consider what I am about to say to be uncontroversial, but apparently it is not.

One. Human rights are not the same as civil rights. [PAUSE] Human rights are universal and exist from birth; civil rights are the gift of citizenship.

Two. Human rights are not the same as social justice. [PAUSE] Human rights are about uncompromisingly protecting the autonomy of the individual; social justice is broadly about advancing equity.

Three. Human rights are not the same as anti-discrimination. [PAUSE] Apart from equality before the law, human rights can actually be about exercising discrimination, such as free association; whereas anti-discrimination is about removing unjust prejudice.

Four. Human rights are not about protecting groups of people. [PAUSE] Universal human rights can only exist for individuals, by comparison group rights cannot be extended to everyone. 

In practice, universal human rights often conflict with these otherwise worthy aspirations.

The four objectives I have outlined are all broadly confused because of the development of treaties under the banner of human rights.

It is understandable that countries sought to internationalise human rights values after the Second World War through treaties. However, this process has disconnected human rights from their origins. Governments negotiated what human rights are. They are no longer seen as rights of birth. They are now perceived as gifts of government.

And the UN system that has continued to add ‘new’ human rights to the list has resulted in the dilution of their integrity.

As argued by Daniel Hannan in How We Invented Freedom and Why it Matters the internationalisation of human rights Europeanised them. Hannan argues:

While the contents of the various European and international human rights codes are generally unobjectionable, the elevation of such codes to the detriment of national sovereignty and parliamentary democracy is wholly at odds with the Anglosphere tradition.[1]

As a consequence, parliamentary democracy comes second to international jurists who establish new standards and challenge democratically elected governments.

But from a classical liberal perspective the much broader challenge is reconnecting human rights to their principled origins.

In his history of the International Covenant on Civil and Political Rights, the Austrian human rights lawyer, Manfred Nowak, wrote about how Articles 19 and 20, the Articles about freedom of thought and expression, perfectly demonstrate the tension between the socialist and liberal traditions on human rights.

According to Nowak in:

the liberal view, every individual has the freedom to form his or her own opinions free from external indoctrination and to defend them in the “free market of ideas” without fear of repression ... The zone of legitimate State intervention commences at the point where the expression of an opinion interferes with the rights of others or constitutes an obvious, direct threat to life in society.[2]

He continues:

According to the socialist view, human rights are, in general, the embodiment of the very essence of the Socialist State and are marked by an “objective conformity of interests between the citizen and the socialist society freed of class antagonism”.[3]

Nowak’s analysis of the socialist view is infused with the rhetoric of the day. But the broad objective of the socialist view is to interpret human rights as an instrument to ensure democratic participation, not protect the universal rights of the individual.

These are clearly inconsistent approaches. Yet this tension is infused through international treaties which elevate worthy aspirations to the status of sacrosanct human rights principles.

Defending freedom is merely the evolution of past intellectual debates about the relationship of the individual to the State. To the extent that we are having ‘Freedom Wars’, it is merely the 21st Century incarnation of the philosophical, political and legal contest of ideas.

The consequences of this are now being felt in Australian discussions about human rights. Human rights have been debased from their liberal tradition and have been compromised as the socialist tradition has become more pervasive.

We need to press the reset button on discussing human rights in Australia.

The ‘forgotten freedoms’

I will be taking discussion about human rights back to their origins and will be spending the next five years reconnecting them back to their foundations and their universal applicability.

Human rights are the foundational building blocks of our liberal democracy.

Human rights are not the same as freedoms. Human rights are the protection against government encroachment. Freedoms are the exercise of those rights.

To that end there are four foundational human rights that need to be strongly reasserted – freedom of association, religion, expression and property.

They are ‘the forgotten freedoms’.

It probably seems odd to refer to freedoms we exercise on a daily basis as ‘forgotten’.

But as foundational freedoms, they are being taken for granted and are consequently compromised.

Any compromise is rarely explicit. Instead compromises occur through the incremental advancement of worthy objectives encroach on rights.

As Human Rights Commissioner I will be reasserting the primacy of these forgotten freedoms.

I won’t explore the breadth of threats to all of these forgotten freedoms tonight. I will have more to say about them in the near future in separate speeches. But I will provide some cursory examples and provide a deeper exploration of the ‘freedoms’ most relevant to contemporary debate – freedom of expression.

Freedom of association

It is a universal human right to freely associate with others. But is a right under pressure in the face of governments seeking to advance other goals.

The most recent example is the introduction of anti-bikie laws which have criminalised free association.

Obviously, if individuals are engaged in criminal behaviour the government should pursue their conduct to the full extent of the law.

I should note that I have met with the Queensland government and they have provided a clear explanation about how they have implemented these laws.

I do believe that they have done as much as possible to limit the impact of their laws on free association.

But nevertheless, the laws still criminalise free association and do fundamentally compromise a human right.

Not that these laws sit alone. In the past I have defended private associations that have gender-based membership requirements.

Freedom of religion

Freedom of religion is also facing its own equivalent challenges.

Since starting in my role, I have met with representatives from a number of religious institutions. One of their concerns is that the human right of religious worship will increasingly be narrowed to only cover activities on Sunday inside a house of worship.

Only last month, the Victorian Supreme Court of Appeal made a ruling broadly along these lines. The Court of Appeal ruled that exemptions for religious freedom under State discrimination laws did not apply to the Christian Brethren’s Phillip Island camp when it sought to discriminate against a group that taught the acceptability of homosexuality;[4] a teaching that was contrary to the Christian Brethren’s faith.

That group took the Christian Brethren to Court, and the Victorian Supreme Court concluded religious exemptions should be interpreted narrowly.

Challenges are regularly posed to religious institutions that accept taxpayer’s money to provide services.

Property rights

Arguably the most forgotten of all human rights is property.

Of all the forgotten freedoms I talk about, property rights appears to be the one that attracts the most response.

Yet it should be utterly uncontroversial. Article 17 of the Universal Declaration of Human Rights states that ‘everyone has the right to own property alone as well as in association with others’ and ‘no one shall be arbitrarily deprived of his property’.

Property rights are not just about physical property. Property rights are about people’s ownership of their own bodies, the use of physical property and land and intellectual property.

Property rights are regularly compromised by legislation and regulation, such as native vegetation legislation that restricts how legitimate property owners can use their land.

Freedom of expression

As outlined, I will have more to say on these rights and the threats to them in the near future. As a consequence of government proposals the most immediate forgotten freedom to be discussed, and the one I will outline in more detail tonight, is freedom of expression, or as we commonly refer to it, free speech.

Freedom of opinion and expression provides the foundation for a free and democratic society as it is ‘integral to the enjoyment of the rights to freedom of assembly and association, and the exercise of the right to vote’.[5]

Free speech is an essential human right in a liberal democracy. It is the extension of the absolute human right of freedom of conscience and thought.

The High Court has established our democracy is built on free political communication.[6]

Free political communication also underpins ‘the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights’.[7]

Free speech is the human right we exercise to defend all other human rights. We are never called in to defend free speech from the excessive use of ‘please’ and ‘thank you’. We are only ever called in defend free speech when it crosses the line of social acceptability.

The importance of free speech was highlighted by its inclusion as the second subject of Sir Robert Menzies’ Forgotten People speeches. Menzies argued:

So few of us have objective minds – detached minds – and what we conceive to be the truth is very often coloured or distorted by our own passions or interests or prejudices. Hence, if truth is to emerge and in the long run be triumphant, the process of free debate – the untrammelled clash of opinion – must go on.[8]

Menzies continued by quoting John Stuart Mill and his seminal work, On Liberty, and identified that there is speech that can cause significant harm and can be legitimately curtailed.

Despite not having explicit Constitutional or legislative protection, Australia has a relatively good track record on free speech. But it does not mean that we should be complacent. As already outlined, few threats to our freedoms come from deliberate curtailment. Instead they come through incremental encroachments. The encroachments are often introduced with good intentions to advance legitimate policy goals.

Not all encroachments are uncontroversial. Menzies identifies, like Mill and many others who have written on the subject, that there are limits to free speech. They exist when they conflict with other human rights.

For example, it is uncontroversial that people cannot use speech to imminently incite violence against other persons.

These are the sorts of issues we are exploring in the current debate about the Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act) and section 18C that makes it unlawful for a person to ‘offend, insult, humiliate or intimidate’ another person or group of people on the basis of race.

As you are all aware, the Attorney-General released an exposure draft of amendments to the Act in March that has sparked further debate.

My views on repealing this section of the Act are well established. In a liberal democracy we must approach free speech as a blank canvas where restrictions must be justified; we do not seek permission. [PAUSE] In a liberal democracy all speech is legal until it is made illegal, and not the other way around.

Censorship is not just an affront to the rights of the speaker; it is also an affront to the rights of the listener to hear, to learn, to be challenged, to inform their own views, to support and to oppose.

There are legitimate restrictions, but in its current form, the wording of section 18C is not one of them.

To the extent that there are legitimate restrictions they should apply consistently. If speech is inappropriate, it should not get special treatment because it relates to race.

In its current form the Racial Discrimination Act is a law that violates human rights and it must be fixed.

Section 18C is also democratically dangerous. Under Section 51 (xxvi) of the Australian Constitution the Commonwealth Parliament shall:

have power to make laws for the peace, order, and good government of the Commonwealth with respect to ... the people of any race, for whom it is deemed necessary to make special laws.

So long as the Parliament has the power to design race-specific laws, the capacity to limit public discussion about relevant subject matter undermines important democratic participation.

It is dangerous not just by limiting democratic participation; it is also dangerous for the minorities that these laws may seek impact.

If the Parliament can legislate on it, we must be free to talk about it.

And the assumption behind 18C is that different groups within the community cannot be criticised. I openly contest this proposition.

One of my roles as Australian Human Rights Commissioner is to address human rights issues that affect lesbian, gay, bisexual, transgender and intersex Australians. That requires speaking out against prejudice in all its forms.

Yet the current Act hampers my capacity to call out culturally-ingrained prejudice in different ethnic communities in case someone is ‘offended, insulted’ or ‘humiliated’.

But in making the Racial Discrimination Act human rights-compliant, it is important to approach change with considerable caution, to look back at the development of the law and to have an intellectually honest debate.

We are not debating the acceptability of racism. Racism is always unacceptable. We are debating the extent that the law should tackle racism before it infringes on free speech. Even with legislative change there is an ongoing need to provide complimentary anti-racism programs, such as former Attorney-General, Philip Ruddock’s introduction of Harmony Day.

However, there are a number of problems with defending the existing law.

First, many have used a straw man to misrepresent the change that advocates seek. They argue that advocates for change want total liberty. In doing so, they have invoked the spirit of Isaiah Berlin’s famous quote in The Crooked Timber of Humanity, ‘total liberty for the wolves is death to the lambs’.[9]

It is a neat quote. But it does not accurately represent the debate we are having.

There are many groups that seek change to the law, but they are not seeking to unleash the wolves.

The government’s exposure draft includes restrictions on ‘vilification’ and ‘intimidation’.

The argument is a straw man that is easy to set up and knock down, but it is not intellectually robust.

Second, many have argued against change because the introduction of section 18C was preceded by three significant inquiries. The assumed conclusion is that these inquiries argued for the introduction of these laws. The reverse is true.

The Royal Commission into Aboriginal Deaths in Custody recommended that there should be a Federal civil offence against racial vilification but that it should exclude ‘demonstrations against the behaviour of particular countries, publication or performance of works of art and the serious and non-inflammatory discussion of issues of public policy’.[10]

The Royal Commission counselled for the definition of vilification to be based on the spirit of the International Convention on the Elimination of all Forms of Racial Discrimination which prohibits ‘racial violence, discrimination or hostility’.[11]

Then there was the inquiry by the Australian Human Rights Commission’s predecessor, the Human Rights and Equal Opportunity Commission, with their 1991 report from the National Inquiry into Racist Violence.[12]

In this report, the Commission called for the creation of a civil offence against ‘incitement of racial hostility’,[13] ‘an express prohibition of racist harassment’,[14] as well as a Federal criminal offence against ‘racial violence’.[15] The Commission also recommended the creation of an offence of ‘incitement to racial violence’.[16]

Finally, there was the Australian Law Reform Commission’s 1992 report titled Multiculturalism and the Law, which examined the issue of racial speech. Recommending a civil offence, the Law Reform Commission supported ‘making incitement to racist hatred and hostility unlawful’.[17] While it provided no explicit definition of racial hatred, it is clear that the intention was to focus predominantly on speech that could act as a precursor to violence.

Even then, one Commissioner dissented the recommendation expressing ‘the view that in a democratic and pluralist society freedom of expression is of special importance which may necessitate tolerance of obnoxious and hateful views which do not incite violence’.[18]

Each of these inquiries clearly raises concerns about racism in Australia. But none come even remotely close to arguing for the wording of ‘offend’, ‘insult’ or ‘humiliate’ which later appeared in section 18C of the Racial Discrimination Act. Rather, they raised the need to deal with ‘vilification’, ‘hostility’, ‘harassment’ and ‘violence’.

Any fair analysis would conclude that the recommendations of these three inquiries did not recommend the current law. This is not just my conclusion.

The Parliamentary Library’s Digest to the 1994 Bill that gave us section 18C identified:

In the case of civil offences, it was recommended that “incitement to racial hatred or hostility”, or “racial vilification” or “incitement to racial hostility” be the subject of the civil offence. All of these descriptions involve a high threshold of serious conduct. The Racial Hatred Bill, however, establishes a civil offence with the significantly lower threshold of conduct which “offends, insults, humiliates or intimidates”.[19]

The Parliamentary Library continues:

It is often argued that these three reports are the basis for the Commonwealth’s proposed legislation, however, the Racial Hatred Bill 1994 is in some respects completely contrary to the recommendations of these reports.[20]

Third, there has been a constant implication that advocating for reform is inconsistent with human rights principles. The reverse is true.

Looking historically, the 1994 debate clearly shows that many human rights bodies were advocating against the spirit of section 18C. The Parliamentary Library’s Digest outlined:

The Human Rights and Equal Opportunity Commission expressly recommended against such a low threshold as would allow complaints for “hurt feelings” and “injured sensibilities”.[21]

Not that the Commission was alone. In its submission the Australian Press Council clearly explained that while the intentions behind racial vilification laws may be good, the reality is that legislation is not the correct method for tackling racism. Instead it expressed ‘reservations’[22] concerning the proposed legislation and recommended ‘at this stage [1994], there is no need to introduce separate civil provisions’,[23] including because it would impose a ‘chilling effect’[24] on free speech.

In an article on 21 November 1994 for The Australian, Sir Maurice Byers QC argued against the introduction of these provisions. Byers’ voice is particularly noteworthy. He was one of the lawyers that presented to the High Court in cases that established the implied right to political communication in the Constitution. According to Byers:

if speech is to remain free, offence, insult or humiliation cannot be banished. A certain force of expression and intensity of feeling are the inevitable characteristics of many forms of free expression and especially where political questions or historical antagonisms are being discussed or lie behind what is discussed.[25]

Similar sentiments were echoed by the Victorian Council for Civil Liberties, the predecessor to the current Liberty Victoria. On 24 February 1994 their representative, Michael Pearce, told a Senate Inquiry:

We reject the notion that this legislation does not impinge on free speech: by definition, it must.[26]

To its credit, Liberty Victoria has broadly maintained its resistance against the current law.

Defending human rights and wanting amendments to 18C is entirely consistent. The real question that must be asked is where have the defenders of free speech gone?

Fourth, international law has been invoked to argue that the current laws need to be kept in place. There are two relevant international treaties that relate to freedom of expression. The first is the International Covenant on Civil and Political Rights. Under Article 20, the ICCPR requires:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

The other treaty is the International Convention on the Elimination of all forms of Racial Discrimination (ICERD). Article 4 of ICERD requires that countries:

(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

As alluded to in the earlier quoted statements of the Parliamentary Library, ‘offend’, ‘insult’ and ‘humiliate’ are not required by either the ICCPR or ICERD. Arguably, the Attorney-General’s exposure draft is more consistent with both the ICCPR and ICERD.

Fifth, the larger number of complaints made to the Australian Human Rights Commission about racism, in comparison to free speech, suggests the laws are necessary.

But such an argument is like comparing apples with fruit bowls. They only have a loose relationship.

Unlike the Racial Discrimination Act which provides an avenue for conciliation for complaints, there is no legislation that provides avenues for the Australian Human Rights Commission to conciliate complaints for free speech.

I suspect the average Australian recognises the futility of making a complaint about a violation of their free speech to a body that cannot do anything about it. In fact, the current ‘complaints form’ used to register a complaint with the Commission does not even include a box where you can ‘tick’ that your free speech has been violated, but there is one for ‘racial hatred’ and ‘racial discrimination’. The closest there is, is a box that you can tick that ‘my human rights have been breached by a Commonwealth government body’.[27]

Further, racial abuse and freedom of speech violations are not the same thing. Racial abuse can be caused by any one of the 22-odd million Australians against the other 22-odd million.

Freedom of speech violations are primarily imposed by government and are weeded out through democratic processes.

They are normally vetted through public debate, not conciliation.

They are simply not comparable and providing data on both gives no insight into the state of either problem.

The sixth point about the defence used in favour of the existing law has been repeating irrelevant poll data to demonstrate public opposition to change.
 
As some of you may recall, less than a month ago a Fairfax-Nielsen poll asked the question ‘Do you think it should be lawful or unlawful to “offend, insult or humiliate” someone because of their race or ethnicity’?
 
88 per cent said unlawful, 10 per cent said lawful.[28]
 
The question doesn’t capture the essence of the weighted priorities. It would be foolish to rely on such a poll for public sentiment.

Compare that to a Galaxy poll taken three years ago which asked ‘In your opinion, which of these two options is the most important? That the government protect the right to free speech, or that people are protected from being offended?’
 
82 per cent said free speech, 15 per cent said protecting from offence, 3 per cent didn’t know.[29]
 
Commentators are welcome to draw their own conclusions, but it seems obvious to me that Australians are a fair-minded lot who support freer speech when competing principles are proposed.

Equally, using polling data to justify human rights violations is dubious. A central pillar of human rights is to protect the individual from the tyranny of the majority. Human rights are supposed to be preserved against the tides of popular will.

Seventh, and perhaps most importantly, there has not been a single human rights-based argument invoked to defend the current law. No one has a right to hear words they do not like.

In fact, not a single human rights argument has been put up in defence of the existing laws. Inventing desirable freedoms to be free of certain forms of speech is not the same as a genuine human right.

There are only two human rights issues on the table: freedom of speech and equality before the law. I have said plenty on the former, now for the latter.

The current law allows for the assessment of whether someone has triggered offence, insult, humiliation or intimidation to be assessed based on the attitudes of individuals affected by that speech.

That necessarily leads to interpretations based on the identity of people making the comments.

Subjective attitudes operate regularly within social conventions and norms. For example, it is understood that gay and lesbian people can use the term ‘queer’ to describe themselves, but it is socially unacceptable for others to use this traditionally derogatory term.

The same principles cannot apply in law without undermining equality before the law.

It is unjust that two persons, standing side-by-side can be acting in precisely the same fashion, but because one is part of the group that their actions refer to it is legal, and for others it is not because they come from outside that group.

These problems are exacerbated by the ‘insult’ and ‘offend’ low bar.

It also assumes that censoring discussion on racial matters is the most helpful way to advance understanding. In an article last week senior Indigenous leader, Professor Marcia Langton, argued against changes to assess whether someone had been vilified should be assessed by an ordinary member of the Australian community. She wrote:

This could allow normative racism to be the standard by which allegations of racial or ethnic vilification are judged. Many Australians are simply not aware of when they are being racist.[30]

On both points Langton is correct. That is why I argued in my submission that any test should consider should take “regard to all the circumstances” so the first problem Langton identified can be overcome. But the second point – ‘Many Australians are simply not aware of when they are being racist’[31] – is particularly important.

The solution to unintentional racism is not to make the subject off-limits.

Exercising rights responsibly was a theme touched upon by Dr David Kemp in his recent Alfred Deakin lecture at the University of Melbourne. Invoking the spirit of Adam Smith’s The Theory of Moral Sentiments, Dr Kemp argued:

Liberal thought, with the wisdom of our democratic history behind us, tells us that a good society is created not by pursuing the illiberal with tribunals, punishments and bans, but by the morality that grows out of the desire of people to be validated by the good opinions of others. It is this, not law that has made Australia one of the least racist societies in the world.[32]

To properly exercise responsibility, individuals have to be able to exercise their responsibility [PAUSE]. To properly exercise their free speech, individuals have to be able to exercise their free speech [PAUSE].

In advancing human rights it is entirely reasonable to debate how the law should be changed; but the status quo is not acceptable.

Of course section 18C is not the end of debating free speech in Australia, it is the beginning.

There are many other issues that we also need to discuss – from defamation laws, anti-terrorism laws, media regulation, freedom of information and the competing property rights and free speech interests in intellectual property, to name a few.

The way forward

As I said at the start of this speech, in my role as the Human Rights Commissioner I intend to promote a culture of rights, freedoms and responsibilities.

I will have much more to say about my work program in good time. But from the outset I have set one goal – that no new piece of law will be introduced as a result of my work as Commissioner.

Old laws may be reformed, but I do not want a new human rights law during my term of office. I do not want a new human rights law to hang the hat of my term of office on.

In Australia, human rights are advanced through culture and by ensuring the values and aspirations of rights live in the attitudes of everyone.

In the 18C debate there is no dispute about the importance of tackling racism. The debate is about the extent that we use law to achieve that objective. As I have regularly argued, non-legislative measures, such as codes of conduct and social norms are both more effective and pervasive at normalising respect while avoiding the imposition of censorship.

Instead, I want to strengthen this non-legislative defence of human rights.

To that end, my first step will be to organise a symposium on free speech later this year.

The debate around replacing section 18C of the Racial Discrimination Act has highlighted how important free speech is, but also that there is a desperate need for the importance of this basic human right to be reasserted.

My objective in holding a symposium is to bring together the key interests in academia, civil society, the legal community and business to put all free speech issues on the table, identify where there are encroachments and attempt to build a new alliance on the need for free speech reform.

This symposium will then provide a roadmap for a government that has said it is serious about advancing freer speech.

Similarly, in the second half of the year I will also be commencing a national consultation on human rights issues in Australia, today, with a particular interest on ‘the forgotten freedoms’.

I’ll deliberately be getting outside of the Melbourne-Sydney-Canberra triangle, and going to the suburbs and rural and regional communities to understand the human rights concerns that they have.

I want to hear if farmers feel their property rights are being undermined, whether freedom of association is being violated in suburban factories, and the extent that freedom of worship is being curtailed.

I’ll also be seeking feedback from Australians about how they are advancing human rights outside of legislation.

I want models for advancing a rights-based culture through instruments such as voluntary codes of conduct which promote respect for others, drive cultural change but don’t corrode human rights.

These consultations will help inform me about the state of human rights in our nation, and also how we can most successfully advance a culture of rights and responsibilities.

Thank you.


[1] D Hannan, How We Invented Freedom and Why it Matters, Zeus Publishers (2013).
[2] M Nowak, U.N. Covenant on Civil and Political Rights CCPR Commentary (second edition), N.P. Engel (2005), p 439.
[3] Nowak, above.
[4]Christian Youth Camps Limited and Ors v Cobaw Community Health Service Limited and Ors [2014] VSCA 75.
[5] Human Rights Committee, General Comment No. 34 Article 19: Freedom of opinion and expression International Covenant on Civil and Political Rights, UN Doc CCPR/C/GC/34, paras 2 and 4. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=11 (viewed 25 February 2014).
[6]Lange v Australian Broadcasting Corporation (1997) ALR 96.
[7] Human Rights Committee, note 5, para 3.
[8] Sir R Menzies, The Forgotten People: The Four Freedoms Freedom of Speech and Expression, (Speech broadcast on radio in 1942). At http://www.menziesvirtualmuseum.org.au/transcripts/ForgottenPeople/Forgotten2.html (viewed 13 May 2014).
[9] I Berlin, The Crooked Timber of Humanity (edited by Henry Hardy 1990).
[10] E Johnson QC, Royal Commission into Aboriginal Deaths in Custody National Report Volume 4, para 28.3.49. At http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol4/ (viewed 7 May 2014).
[11] Johnson, above, para 28.3.31.
[12] I Moss and R Castan QC, Racist Violence: Report of the National Inquiry into Racist Violence in Australia, Human Rights and Equal Opportunity Commission, AGPS Canberra (1991). At https://www.humanrights.gov.au/publications/racist-violence-1991 (viewed 7 May 2014).
[13] Moss and Castan, above, p 299.
[14] Moss and Castan, above, p 274.
[15] Moss and Castan, above, p 297.
[16]Moss and Castan, above, p 305.
[17] Australian Law Reform Commission, Multiculturalism and the Law (1992), para 7.47. At http://www.alrc.gov.au/report-57 (viewed 7 May 2014).
[18] Australian Law Reform Commission, above, footnote 87.
[19] Parliamentary Research Service, Racial Hatred Bill 1994 Bills Digest (1994), p 4. At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2FM7Z10%22 (viewed 7 May 2014).
[20] Parliamentary Research Service, above.
[21] Parliamentary Research Service, above, p 11.
[22] Australian Press Council, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Racial Hatred Bill 1994 (24 February 1995), L&C 288.
[23] Australian Press Council, above, L&C 233.
[24] Australian Press Council, above, L&C 232.
[25] Sir M Byers, ‘Free speech certain casualty of race law’, The Australian, 21 November 1994, p 11.
[26] Commonwealth, Parliamentary Debates, Senate, 24 February 1995, 341 (Michael Pearce, Committee Member, Victorian Council for Civil Liberties).
[27] Australian Human Rights Commission, Complaints Form. At https://www.humanrights.gov.au/complaints/make-complaint (viewed 13 May 2014).
[28] M Kenny, ‘Race hate: voters tell Brandis to back off’, Sydney Morning Herald, 13 April 2014. http://www.smh.com.au/federal-politics/political-news/race-hate-voters-tell-brandis-to-back-off-20140413-zqubv.html (viewed 13 May 2014).
[29] Institute of Public Affairs, ‘82 per cent of Australian think freedom of speech is more important than the right not to be offended’, Media Release (28 September 2011). At http://www.ipa.org.au/sectors/ideas-liberty/publication/1928/82-per-cent-of-australians-think-freedom-of-speech-is-more-important-than-the-right-not-to-be-offended (viewed 13 May 2014).
[30] M Langton, ‘Our race act has had a civilising effect: leave it be’, The Australian, 8 May 2014. At http://www.theaustralian.com.au/national-affairs/opinion/our-race-act-has-had-a-civilising-effect-leave-it-be/story-e6frgd0x-1226909389549# (viewed 12 May 2014).
[31] Langton, above.
[32] D Kemp, ‘Good Government and Liberalism’ (Speech delivered at the Alfred Deakin Lecture, Melbourne, 4 May 2014). At http://www.luckyculture.com.au/photo-galleries/good-government-and-liberalism/ (viewed 12 May 2014).