The promise to repeal or reform Section 18C of the Racial Discrimination Act may have been shelved, but it is not too late for the Government to revive its “freedom agenda”.
In opposition Tony Abbott and George Brandis made much of their commitment to freedom, arguing that the Liberal Party was “freedom’s bulwark”.
Unfortunately, this agenda is looking a little sad after they dropped the 18C promise, not to mention all the other stuff that’s happened in the last six months.
Yet one of the less heralded parts of the freedom agenda could set up a program of serious liberty-focused reform.
Sometimes the most important reforms are those that are done slowly and quietly.
In the first few months of the Abbott Government, Brandis asked the Australian Law Reform Commission to inquire into Commonwealth laws that encroach on what he described as “traditional rights and freedoms”. The ALRC produced an issues paper and a request for submissions in December.
The genesis of this inquiry is significant.
It was born in the contest over the Gillard government’s Human Rights and Anti-Discrimination Bill 2012. Remember that? This was the bill that would have made it unlawful to offend someone on the basis of their political opinion in the workplace.
The 2012 bill wasn’t really a “human rights” bill at all, as I argued on The Drum at the time – it was a consolidation of existing anti-discrimination law, symbolic of the capture of almost all human rights discourse by anti-discrimination.
The irony was that the bill was itself the remnant of Kevin Rudd’s grandiose dreams of a statutory bill of rights for Australia, yet it restricted human rights in some very important ways. For instance, it placed the burden of proof on the person accused of discrimination, and restricted the right to legal representation.
This correctly got Brandis and the Coalition fired up about Labor’s hostility to traditional legal protections.
For Brandis, and consequently for the ALRC, what constitutes “traditional rights and freedoms” is extraordinarily broad.
It includes things like freedom of speech, religion, association, and movement. Property rights are in there for good measure.
Then there are rights we exercise in the course of legal proceedings: the right to a fair trial, the right to appeal, the privilege against self-incrimination, and procedural fairness.
To top it off the ALRC is looking at broader governance principles like limiting the delegation of executive power to bureaucracies or regulators and maintaining judicial review of legislation.
This is a pretty comprehensive set of the tenets of liberal governance. The ALRC is going to find it very hard to do justice to just a small fraction of its inquiry.
But, on the other hand, it’s hard to imagine a more important inquiry for this Government, or any government, to pursue: a serious audit of the state of Australian law.
Debates like those over section 18C and the Human Rights and Anti-Discrimination Bill come and go, but Australia’s legal framework is the accumulation of decades of legislative busy-work. We look at laws individually as they are introduced or reformed but rarely do we step back to survey the full legal landscape.
We’re all familiar with commissions of audit for government spending. Wouldn’t it be nice to have periodic audits of our liberties?
In December my Institute of Public Affairs colleagues Simon Breheny and Morgan Begg released a report into just one facet of the ALRC’s traditional rights and freedoms: the rights that protect us while interacting with the legal system.
Breheny and Begg looked specifically at the right to silence, the presumption of innocence, the privilege against self-incrimination and what’s called “natural justice” – which constitutes things like the right to a trial, to appeal, to know what is alleged against us.
They found an astounding 262 provisions in Commonwealth law alone that breach these legal rights. Everything from the Telecommunications Act to the Agricultural and Veterinary Chemicals Code Act in one way or another abrogates these basic legal principles. The labyrinth Fair Work Act violates all four. So does the Competition and Consumer Act.
Breheny and Begg suggest these breaches of principle have been increasing in recent decades. If so, they’ve been increasing alongside the more general increase in legislative activity since the 1970s – governments are passing more, and longer, legislation than ever before.
Brandis asked the ALRC to look particularly into rights breaches within commercial and corporate regulation, environmental regulation and workplace relations law.
Breaches of fundamental legal rights in these sorts of acts tend to be ignored by Australia’s human rights community.
Indeed, the scope of the ALRC inquiry reveals how myopic and narrow the Australian Human Rights Commission has been, which appears to focus almost exclusively on anti-discrimination.
Things like the extraordinary powers granted to the Australian Securities and Investments Commission seem to be outside their frame of reference.
The people whose rights are violated by ASIC tend to be business types: managers, board members and executives.
That is, unsympathetic capitalists.
But, as the ALRC will hopefully conclude, even capitalists deserve attention for their traditional rights and freedoms too.