Senator Brandis indicates that
the review will be one of the most comprehensive and important ever undertaken by the ALRC.
“This is a major instalment towards the commitment I made to restore the balance around the issue of human rights in Australia,” said Senator Brandis.
“I have asked the Commission to identify where traditional rights, freedoms and privileges are unnecessarily compromised within the legal structure of the Commonwealth. Where encroachments exist, the Commission will determine whether they are justified.
“For too long we have seen freedoms of the individual diminish and become devalued. The Coalition Government will strive to protect and restore them.”
“Freedoms are some of the most fundamental of all human rights. They underpin the principles of democracy and we cannot take them for granted.
“The Commission will focus in particular upon commercial and corporate regulation; environmental regulation; and workplace relations.”A legal realist might be forgiven that the review is intended to reinforce the freedoms of the privileged. As I commented earlier today, both rich and poor alike enjoy a traditional freedom to sleep under bridges but the rich rarely choose to exercise that freedom (no doubt sensibly, because identification as a person of no fixed address can attract unwelcome attention by law enforcement personnel).
The ALRC is to undertake an "identification of Commonwealth laws that encroach upon traditional rights, freedoms and privileges; and a critical examination of those laws to determine whether the encroachment upon those traditional rights, freedoms and privileges is appropriately justified".
What are those laws? They are to be "understood as laws" that:
- reverse or shift the burden of proof;
- deny procedural fairness to persons affected by the exercise of public power;
- exclude the right to claim the privilege of self-incrimination;
- abrogate legal professional privilege;
- apply strict or absolute liability to all physical elements of a criminal offence;
- interfere with freedom of speech;
- interfere with freedom of religion;
- interfere with vested property rights;
- interfere with freedom of association;
- interfere with freedom of movement;
- disregard common law protection of personal reputation;
- authorise the commission of a tort;
- inappropriately delegate legislative power to the Executive;
- give executive immunities a wide application;
- retrospectively change rights and obligations;
- retrospectively extend criminal law;
- alter criminal law practices based on the principle of a fair trial;
- permit an appeal from an acquittal; and
- restrict access to the courts.
Although all persons are equal before the law some are more equal than others. The Commission is to focus on commercial and corporate regulation; environmental regulation; and workplace relations.
The Rule of Law Foundation - fine folk horrified by the prospect of a privacy tort - has hailed the Brandis announcement, presumably as restoring the traditional freedom of the press. Elsewhere I've commented that freedom of the press is often most enjoyed by people who own a press and can afford the silks that give effect to that freedom. We should all be so lucky.
The Centre for Independent Studies has meanwhile published 'Multiculturalism and the fetish of diversity' by Peter Kurti, a report [PDF] arguing that "a narrow focus on promoting diversity threatens individual liberty by promoting the interests of particular groups over those of the individual".
When it first emerged as an official policy in the 1970s, multiculturalism was a response to the legacy of the White Australia policy. Multiculturalism continues to enjoy broad popular support, with Australians broadly accepting of reasonably high levels of immigration and the benefits of cultural diversity in society.
For example, the 2012 Scanlon Foundation’s Mapping Social Cohesion report showed a steady support of between 67% (2007) and 65% (2012) for immigration in Australia. The 2013 report showed that our support for multiculturalism, and appreciation of its benefits, remains high (84%).
But there are disturbing trends in this success story. Multiculturalism is raising important questions about the way public policy promotes the peaceful coexistence of diverse people in a single polity.
In its ‘soft’ form, multiculturalism simply named that traditional willingness of Australians to tolerate cultural and ethnic diversity and make newcomers reasonably welcome.
But then it began to give way to a new, ‘hard’ form of multiculturalism. This form was fuelled by a determination to eliminate racism and a fear that unless carefully managed, diversity would cause intolerance and racist prejudice to flourish among Anglo-Celtic Australians.
‘Hard’ multiculturalism may have been well intentioned to begin with. However, over time, concern about protecting diversity has turned into a determined drive to promote it as both a moral and political end. The proponents of ‘hard’ multiculturalism argued that unless diversity was managed by the state, the ‘fair go’ would not be extended equally to all Australians.
This determination to promote diversity has become an obsession that has driven ‘hard’ multiculturalism beyond a concern to eradicate racial discrimination; it has begun to cast doubt on the very legitimacy of the notion of a core national culture.
Diversity has come to be seen as not just a policy outcome but a moral objective that must be promoted as an end in itself.
This narrow focus on promoting diversity threatens individual liberty by promoting the interests of particular groups over those of the individual. In doing so, it diminishes the liberty of every citizen.
It is time for the fetish of diversity to end, and the advance of hard multiculturalism checked. In pursuing a vested notion of social justice, the demand for equal recognition should not trump the demand for liberty.
The fairest way to accommodate differences is not by eradicating perceived inequality as a matter of public policy. Freedom of the individual is the only acceptable basis for a healthy, descriptively multicultural society.
Once the rule of law determines the extent of permissible behaviours, the state should get out of the business of supporting or maintaining the cultural, ethnic or religious components of identity.