Brandis’ vision for human rights in Australia

This post was originally published on Larvatus Prodeo.

Before the election, the Human Rights Law Centre asked Mark Dreyfus, Penny Wright and George Brandis to each write a short article outlining their visions and priorities for human rights and justice in Australia. Now that Brandis has become our Attorney-General, it’s worth examining what he said in his piece.

The title of Brandis’ article, ‘Reclaiming human rights from the fury of ideologues‘, tells us a lot about his approach to the issue of human rights. He sees it as an explicitly ideological contest. Brandis starts off by complaining that, ‘the [current] discussion of human rights issues has been both narrow and one sided. The very term “human rights” has been appropriated by the Left, as if human rights advocacy were a left-wing cause.’ Then he proceeds to outline a frighteningly ‘narrow, one sided’ and conservative vision for human rights under his watch.

First he argues that ‘human rights and individual rights are synonymous. No debate about human rights makes any sense unless we first recognize that rights are moral claims inhering in individual men and women (and, in certain circumstances, in corporations as well).’ Then he laments that ‘[t] he current state of the human rights debate in Australia would have been unrecognizable to the scholars of the Enlightenment, or the signatories to the Declaration of Independence.’

We’ve moved on since the 18th Century. For shame.

Brandis then argues that his concept of human rights is grounded on the promotion of ‘freedom,’ but you need to dig a little deeper in order to get a clear picture of what he means by ‘freedom’ – or, rather, whose freedom he would like to protect (the reference to corporations earlier in the piece is a useful early clue).

The first example of an unpardonable infringement on ‘freedom’ is the recommendations of the Finkelstein Report, because it canvassed restrictions on freedom of the press through more effective regulation. Of course, this example completely ignores the fact that the press does not actually enjoy complete freedom absent this new regulation. The law of defamation, for example, already applies to the press and limits what they can publish about both individuals and corporations. But Brandis doesn’t mention this, no doubt because the law of defamation operates effectively to protect the reputation of the wealthy and powerful in our society, while being of little practical value to ordinary people and of even less value to marginalised groups. So a hierarchy of rights is starting to emerge – speech is paramount, unless it infringes on the reputation of the wealthy or powerful, then it can legitimately be restricted. Okay then.

Brandis then argues against the draft Human Rights and Anti-Discrimination Bill because he claims that it sought to limit freedom of expression in cases where it offends or insults others. First, I should acknowledge that I am sympathetic to Brandis’ concerns around this issue, but he doesn’t bother to engage at all with the reasons why it was proposed. He doesn’t stop to acknowledge that it is a clumsy attempt to limit discrimination against the least powerful groups in society – people who are discriminated against because of breastfeeding; disability; family responsibilities; gender identity; immigrant status, etc… His description of the issue doesn’t raise the need for balance. It is one-sided.

And then, tucked away in the middle of the next paragraph, we come to Brandis’ real concern: his mate Andrew.

We will remove from the Racial Discrimination Act the provisions under which the broadcaster Andrew Bolt was successfully prosecuted merely because he expressed a controversial opinion.

‘Merely because he expressed a controversial opinion’? Please. He lied. Andrew Bolt was successfully prosecuted under s 18C of the Racial Discrimination Act 1975 because Justice Bromberg found that he made up facts in order to be deliberately ‘destructive of racial tolerance.’ In the judge’s own words, Bolt’s articles ‘contained errors of fact, distortions of the truth and inflammatory and provocative language.’ The judge also found that the articles in question vilified fair-skinned aboriginal people.

It’s not that there are not valid debates to be had around the appropriate boundaries between free speech and hate speech (or other kinds of discrimination). There are many important questions to be asked around how to best manage competing rights and the institutional competence of the judiciary to make the most appropriate assessment of this balance and on what can rightfully be considered ‘offensive’ or ‘insulting’ in our society. But Brandis didn’t choose to engage with the nuances of this debate at all.

Despite his claim that ‘The Left’ have supported only a ‘narrow, one sided’ vision of human rights in Australia, Brandis’ article sets out one of the most narrow visions imaginable. Brandis only seems to identify one kind of freedom – that of the wealthy and powerful. By opposing restrictions Racial Vilification and on a certain kind of Freedom of the Press, while completely ignoring the existence of the law of defamation, the silencing effect of racial discrimination, and the capacity of the press to distort our public debate due to the power of media conglomerates, he appears singularly unconcerned with the rights or freedoms of less powerful groups. This impression is further reinforced by the LNP’s commitment to slashing the funding of Community Legal Organisations and Legal Aid. Cutting these funds will serve to restrict these organisations to case work, leaving them without the flexibility to engage in advocacy on behave of poor and marginalised groups.

The fundamental problem with Brandis’ perspective on rights is that it is the perspective of the privileged. For white, wealthy, powerful men, ‘freedom’ does tend to mean ‘the absence of government restriction’ and this is the only freedom that Brandis seems to want to promote. Unfortunately, for the rest of us, ‘freedom’ has a more nuanced meaning, because we experience impediments from both public and private actors (particularly because the government is so often in the business of propping up those powerful private actors). This more nuanced (dare I say, intersectional) understanding of freedom often requires government action. In order to have their voices heard, many people need support – protection from racial vilification, access to funded advocacy services, a genuinely free press, etc. But that isn’t the kind of vision that Brandis has for Australia.

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