a national consultation ... between August and December 2014 [that] examined how well people think their human rights and freedoms are protected in Australia".The report - largely anodyne - quotes the submission by Dr Susan Priest and myself and moves beyond the initial discussion paper to recognise concerns regarding poverty.
The Commissioner states
Based on the outcomes of Rights & Responsibilities 2014, the Human Rights Commissioner will prioritise the following areas of work in relation to human rights over the next four years:
- Freedom of expression: the Commissioner will continue to explore potential reforms in relation to current laws that restrict the right to freedom of expression.
- Religious freedom: the Commissioner will form a religious freedom roundtable to bring together representatives of different faiths to facilitate how to advance religious freedom in Australia.
- Property rights: the Commissioner will jointly facilitate a high-level forum with the Aboriginal and Torres Strait Islander Social Justice Commissioner to discuss reforms that remove legal and regulatory barriers faced by native title holders seeking economic development.
- Property rights: the Commissioner will undertake further work that examines the right to access affordable housing in Australia.
- Freedom from arbitrary detention: the Commissioner will seek to work with relevant organisations to examine the denial of liberty for people with mental health issues.
He goes on to state
- Human rights education: the Commissioner will develop educational resources for the 800th anniversary of the Magna Carta on 15 June 2015.
Key issues emerging from the consultation
The objective of Rights & Responsibilities 2014 was to actively seek and listen to people’s views across the country about how well their rights and freedoms are protected in Australia. This process provided an opportunity to identify systemic human rights issues and to consider possible ways to address these issues. The key human rights issues outlined in this report reflect recurrent themes discussed at public events and meetings, and described in the online survey results and submissions. Data collected from meetings, survey responses and submissions was cross-referenced to ensure the information was valid and reliable. This triangulation of data sources supports the relevance and significance of these human rights issues. It is also notable that many of these human rights issues were consistent across the country.
Rights & Responsibilities 2014 focused on key common law rights and freedoms that traditionally underpin the framework of Australia’s liberal democracy and market economy, including the rights to freedom of expression, religion and association, and property rights. The importance of these rights and freedoms is also acknowledged in international human rights instruments.
The following sections of the report highlight
- the issues emerging from the consultation in relation to each of these rights and freedoms
- the views of survey respondents about how well these rights are protected in Australia
- examples of people and organisations seeking to promote and exercise these rights and freedoms.
While freedom of expression, religion and association, and property rights are discussed separately in this report, the exercise of these rights is often interconnected. The interdependence of human rights means that the enjoyment of any individual right is contingent on the enjoyment of other rights. As Freedom 4 Faith note in their submission:
Religious freedom can only operate in a society that embraces the principle of mutual tolerance and respect. Further, it goes hand-in-hand with freedom of conscience, speech and association, which serve as the means by which people can consider, discuss and debate important questions about human existence. These “four freedoms” are essentially indivisible, and are each deserving of protection.
During Rights & Responsibilities 2014, additional issues and themes were raised that were outside the scope of the discussion paper. These recurring issues included concerns about:
- the right to freedom from arbitrary detention and the criminal justice system
- the denial of liberty for individuals in the mental health system
- the potential to give effect to a bill or charter of human rights in Australia.
A criticism of the consultation outlined in a number of submissions and raised at several public meetings was why the national consultation focused only on the rights to freedom of expression, religion, association and property rights.
There was particular concern that the Rights & Responsibilities 2014 discussion paper did not seek to consult on the right to freedom from arbitrary detention as it relates to people seeking asylum in Australia. The consultation deliberately did not focus on the right to arbitrary detention for the following reasons:
- The Commission has an extensive work program relating to asylum seekers, under the leadership of the President. This includes a complaints process.
- The consultation did not want to interfere with the National Inquiry into Children in Immigration Detention being undertaken concurrently by the President during 2014.
Issues raised about human rights and freedoms within the criminal justice and mental health systems – and potential implications for the right to arbitrary detention – are set out in this report.
Other issues emerging during the consultation included the need for further education about human rights. This was particularly highlighted because of the upcoming 800th anniversary of the Magna Carta on 15 June 2015. This is discussed in section 4 of this report.Our submission commented in part
In summary, the freedoms highlighted by the Commission in [its discussion] paper are some but not all of the freedoms recognised in international law over the past 60 years.
The Commission should be cautious about decontextualising specific freedoms or, in enshrining laissez-faire values, assuming that the right to enjoy property necessarily trumps both freedoms and the responsibility of Australian governments to foster individual and social flourishing.
It should also be wary of assumptions that corporations necessarily have the same rights as humans or that restriction on real, intangible and chattel property (such as that relating to advertising of deleterious products such as tobacco) is impermissible.
Australians enjoy a long-standing and legitimate recognition that freedom involves more than protection from an oppressive state. Both the national and state/territory governments thus properly engage in activities intended to provide a freedom from want and fear, activities that foster individual and social flourishing by underpinning the exercise of the rights and responsibilities highlighted in the Rights and Responsibilities 2014 discussion paper.
That flourishing can be facilitated through a justiciable Bill or Charter of Rights and Freedoms, enshrined through referendum in the national Constitution and thus protected from political opportunism. ... Australia is a liberal democratic state that manifests a recognition that governments are representative, are accountable and exist to foster the flourishing of all Australians.
As such, governments have legitimately intervened in markets to protect people from harm (for example to restrict the promotion and distribution of products that do not meet safety standards or, as in the case of tobacco products, result in injury to individuals and burden the national economy) and to address market failures (for example anti-competitive behaviour in the form of monopolies and oligopolies or deceptive practice).
They have shaped behaviour and restricted freedoms (through for example a requirement to use seat belts, wear motorcycle helmets and not drive while intoxicated or zoning schemes that affect the use of real property).
On a bipartisan basis they have also provided a social safety net (income support for people who are unable to work, public heath services for those unable to afford private health services or who because of location are unable to readily access private health services), along with public funding for education at the junior, secondary and tertiary levels (including substantial support for education delivered by private institutions).
In doing so governments have given effect to four freedoms identified in the Preamble to the Universal Declaration of Human Rights (UDHR), a foundational global human rights agreement that has been reflected in several conventions and in Australian statute law.
Those freedoms include freedom from want (poverty and discrimination that prevents people from full participation in society and from personal flourishing) and freedom from fear (fear of violence and discrimination that prevents social participation and flourishing).
As the preceding paragraphs have indicated, rights are not absolute. They can be restricted on a non-arbitrary basis in circumstances where restriction fosters personal and social flourishing. In terms of legitimacy such restriction must be lawful (that is, authorised under statute/common law, readily identifiable, appellable where there has been legal error, and without bias). It must also be proportionate, namely fitted to reach a proper outcome but no more. The absence of proportionality is of particular concern in relation to the ongoing erosion of freedoms through passage of migration and national security statutes that privilege bureaucratic convenience over what is necessary, that are open to abuse by politicians and weakly-accountable officials, that foster fear rather than security, and that are not restricted by a constitutional protection of freedoms.
It is axiomatic that human rights are inalienable. Under Australian law they are to be enjoyed by all people, rather than merely Australian citizens. We suggest that the Commission should note concerns about statutory measures that seek to deny non-citizens those rights that are held by all people, a denial that for example the Department of Immigration & Border Protection has obfuscated through a policy of secrecy in dealing with such matters as a large-scale data breach and non-accountability regarding systemic sexual and other abuses in facilities at Manus and Nauru. That denial sends an inappropriate message to Australia’s peers, such as China and Indonesia, and is inconsistent with the Government’s statements regarding human rights in Iran and Syria.
The Commission should also note community concerns about measures that are promoted as imperative and appropriate responses to existential threats regarding national security and law enforcement. Some of those measures serve to criminalise association, provide for preventive detention, purport to fetter the judiciary or authorise large-scale warrantless access to personal information by local government and non-government entities without regard for community expectations of non-interference in the personal sphere (for example, privacy). Concerns regarding those measures are particularly salient where governments have disregarded the independent review of the courts, have engaged in problematical judicial appointment or have prevented substantive community consideration of Bills – as in the 2014 ‘Foreign Fighters’ Bill – through a ‘consultation’ that is so speedy as to be purely formal and going well beyond that which is required.
We commend the Commission for engaging with the community in discussion about rights, responsibilities and liberties. However, two things are fundamentally important if that consultation is to be more than a gesture.
The first is that the Commission must – and we respectfully use the term ‘must’ rather than ‘may’ or ‘should’ – recognise that freedoms exist within a political, economic and social context. In construing freedoms the Commission should acknowledge that the national, state and territory governments have a fundamental role in protecting freedoms and in signalling responsibilities.
One example is that of free speech. An old but pertinent legal aphorism is that freedom of the press is enjoyed by entities that own a press, can afford the litigation associated with such ownership and are prepared to actively influence politicians. Egregious abuses of privacy in Australia and overseas, for example by Australia’s largest commercial media group, are not justified through self-interested reference to ‘public goods’. The resistance of News and SevenWest to meaningful external regulation is disturbing and, given a history of abuses, is not justified through claims that the groups behave responsibly and have a disinterested effective self-regulatory regime. In thinking about freedoms it is accordingly important to acknowledge that in a free market not all actors are equal; actors such as the largest corporations can and do exploit freedoms at the expense of individuals, families and small enterprises.
The freedom espoused by the Commission should not be a freedom from responsibility and a freedom from meaningful regulation. In that respect ‘meaningful’ includes regulators that have not been captured by those they seek to regulate, that have pertinent statutory authority and – importantly – have both the resources and will to engage in regulation. There is substantive community concern regarding regulators and other entities, such as the Therapeutic Goods Administration, Privacy Commissioner and Commonwealth Ombudsman that lack the number of staff, the expert staff and the will to deal with problems involving government agencies and large enterprises. The absence of vigour in those agencies erodes the legitimacy of regulation and renders it a potemkin village, a hollow facade.
The second matter for note by the Commission is that freedoms – as human rights –are properly enjoyed by humans, namely, natural persons. Corporate entities, including for-profit enterprises and religious institutions, have a legal personhood on behalf of people and their freedoms do not trump those of the people whom they represent/serve.
Recent years have seen claims that restrictions on marketing by corporations (for example in relation to the packaging of cigarette products) are impermissible. Those claims are legally invalid, have not been endorsed by the High Court of Australia and are not substantiated through reference to keystone human rights or international trade conventions. Corporations do not have a freedom to engage in unrestricted activity, particularly in markets where self-regulation is absent or otherwise ineffective and where there is substantial harm to both individuals and the broader community (eg a burden on the public/private health system attributable to harms associated with particular products).
The example of religious institutions is apposite, given that several inquiries, including the current national Royal Commission, have demonstrated systemic problems regarding the mistreatment of vulnerable people and have demonstrated that those institutions have resisted accountability. A freedom of religious expression and respect for ethno-religious or religious affinity does not mean a freedom from scrutiny and freedom from responsibility. Advocacy by adherents of particular faiths or on behalf of particular institutions should be construed in context, with the Commission recognising that in a diverse society that does not have an established church (and in which a specific faith is not constitutionally enshrined, contrary to the belief of some advocates) a balance both should and can be struck. Religious institutions in Australia enjoy an advantageous position, for example under taxation law, and should not use calls for freedom to evade responsibility in dealing with serious harms or in promotion of a political agenda that directly against people on the basis of sexuality, ethnicity or other affinity.
The Commission’s paper refers to claims of a “gradual, but significant, erosion of traditional protections for private property rights”, with the rights of individuals – and presumably corporate entities – being “compromised, removed or damaged by government regulations and actions”. We offer two comments in relation to those claims.
The first is that property rights in no country are absolute. Limitations on the ownership and use of real, intellectual and chattel property are recognised in international law. They are also recognised in Australian statute and common law over the past century. The Commission should be concerned with inappropriate restrictions rather than with restrictions per se.
The second comment is that the paper appears to envisage that restrictions relate to abuse by the state. That is not necessarily so. A salient example is provided by submissions to the Victorian Law Reform Commission as part of that body’s review of law regarding the rights of people – wealthy or otherwise – who rent residential property. Australian should consistently and clearly recognise that people in private and public housing have a right to quiet enjoyment of their residence in the absence of illegal activity. They should not be placed at serious risk or harm or commodified through unauthorised making/dissemination of still/video images by landlords and real estate agents. The traditional notion that someone’s home is their castle, a private sphere free from illicit interference, is as relevant in 2014 as it was at the time of Entick v Carrington. Law has a role in ensuring an appropriate balance that respects the freedom of people who rent.
A justiciable Bill or Charter of Rights
Australia remains the only common law country in the world without a Bill or Charter of Rights. The Commission notes that human rights are protected in Australia through a myriad of federal, state and territory laws, policies and practice as well as through the common law and culture.
We strongly encourage the Commission to use the consultation process as an opportunity to review steps already taken towards enacting a Bill or Charter of Rights for Australia and other options such as the limited nature of judicial review, which in turn will inform a broader debate concerning the efficacy of human rights protection in Australia.
The discussion paper comments that the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) provides a mechanism to consider whether any new legislation is compatible with human rights. In practice that committee – and the work of entities such as the Ombudsman – provides weak protection for freedoms. It can be – and in areas such as ‘national security’ (a rubric that increasingly covers a wide range of activities, including relationships with refugees) – is frequently disregarded by Ministers and officials.
Earlier in this submission we noted substantive community concerns regarding the egregious fast-tracked ‘consultation’ by the Government regarding the ‘Foreign Fighters’ Bill. It is of deep concern that the period for community scrutiny of such a long and complicated Bill, which reshapes Australian civil liberties and amends over 25 statutes, was less than a fortnight.
Freedom should not mean a freedom from community scrutiny of significant legislation and, as indicated by the Independent National Security Legislation Monitor, the enshrinement of mechanisms that provide national security officials with what in practice will be a freedom from accountability because of criminalisation of reporting by the Australian media about national security matters. The lack of engagement by the two major political parties with questions about civil liberties in relation to the national security legislation mean that scope for reporting and for fully informed community debate is particularly important.
As things stand, Governments have recurrently privileged bureaucratic and political convenience over rights. With enough votes in the national legislature they can and do override statutory protections for civil liberties. They can and do disregard cogent and substantive dissents by minority members on parliamentary committees. An effective response to that systemic problem is enshrinement in the national Constitution – ie outside political opportunism of the Government of the day and outside moral panics – of a rights Bill that articulates and protects the freedoms and responsibilities that differentiate Australia from totalitarian states such as North Korea and from terrorist regimes such as ISIS.
In a speech delivered by Chief Justice French of the Australian High Court in London in 2012, a quote from the ‘The Spirit of Liberty’ was referred to. In part this stated:
Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court, can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.
In short, through these words originally penned in 194
the importance of a culture of a respect for human rights and freedoms within society [is underlined] … [t]he debate is to what extent such a culture may be supported, nurtured and protected by law’.