We have been very critical of George Brandis over his equivocation on free speech. While he is not yet where he should be on this issue – he did take the fight up the Human Rights Commission. The whole exchange is well worth reading – it gets better. I especially enjoyed the comments about the Magna Carta.
The extract begins below.
Senator BRANDIS: Professor Triggs, I want to focus my questions on a broad issue about the commission’s priorities. I do not know whether you have a copy of your act to hand, but I am sure you are very familiar with it. Can I remind you—not that you need reminding, but can I put it on the record, as it were—that the act defines the duties of the commission in section 10A in these terms:
(1) It is the duty of the Commission to ensure that the functions of the Commission under this or any other Act are performed:
(a) with regard for:
(i) the indivisibility and universality of human rights; and
(ii) the principle that every person is free and equal in dignity and rights …
And then in section 11, the functions of the commission are set out at some length in 16 subparagraphs. It talks about promoting public understanding and acceptance of human rights in Australia and so on. Human rights themselves are defined in the definition section, section 3, in these terms:
human rights means the rights and freedoms recognised in the Covenant—
that is, the International Covenant on Civil and Political Rights—
declared by the Declarations or recognised or declared by any relevant international instrument.
If we go back to section 11 and the specific functions of the commission, as you know, those functions are expressed, in the first instance, by reference to rights arising under the Covenant and also declarations or other relevant international instruments.
Professor Triggs, what has the commission done in the last year to promote Article 19 of the Covenant—that is the article which says:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
What has the commission done to promote freedom of speech and expression in the last year?
Prof. Triggs : Thank you, Senator. As you are aware, we have a comprehensive complaints system and we receive about 17½ thousand inquiries, 2,600 of which gel into formal complaints. Approximately, I believe, three a year concern political opinion. So it is a very tiny part, in answer to your question, of the complaints function of the commission.
Senator BRANDIS: But you are not purely a complaints driven organisation—
Prof. Triggs : No, so if I could go on to complete my answer to your question. We inevitably take some lead from the kinds of complaints we receive, because we obviously want to reach as wide a range of Australians with concerns about human rights as we possibly can; so the emphases tend to lie in the very questions that Senator Fifield has raised in relation to disabilities or sex and race discrimination.
We promote the right to freedom of expression in our speeches and our media work where appropriate, and it has become particularly important in the area concerning the public discussion—that we have certainly welcomed—in relation to the current section 18C; in other words, what are the limits on the right to freedom of expression? This has been a matter—that we have debated, and I have discussed a little in the media—of trying to find a balance between the well-recognised importance of freedom of expression and political opinion and the limits that currently exist in the legislation, at least in relation to racial vilification.
I think perhaps I have two answers to your question. One is the role we can play in complaints, which has been small, but, in the public arena and in the educational context and the programs that we have for education, we very much support and talk about the right to freedom of expression, but we do so in the context of attempting to understand what the limits are in relation to racial vilification, particularly in the context of media, the internet and Facebook.
There is a third point I might make, and then I will finish this rather long answer. You might recall that, at our Human Rights Awards in December last year, we invited the Hon. Jim Spigelman to be our guest speaker, and he took up the question of what the proper limits are and how the balance is to be established between freedom of expression and the current racial vilification provision in section 18C of the Racial Discrimination Act. That sparked, through our Human Rights Awards, a very significant public debate, which you have been actively engaged in, Senator. We take some credit at least for having promoted public discussion in this area through our Human Rights Awards, although we would not want to take too much credit for that.
Senator BRANDIS: Mr Spigelman might have said what he said—and I agree with what he said—but what has the Human Rights Commission done? It provided a platform to a man who gave a speech—and I presume you did not know what he was going to talk about at the time you decided to invite him. That is right, isn’t it?
Prof. Triggs : When I invited him, I did not, but, as the weeks went by, he advised me.
Senator BRANDIS: That is fine. I hear your answer, but what steps, what outlays from your budget, what staff deployments, what public education programs and what other activities have you had to promote, to evangelise, the message to the Australian people that freedom of speech and expression is a very, very important right in our democracy, which ought to be jealously defended?
Prof. Triggs : I think that the primary answer to your question, particularly in terms of the expenditure of our resources, lies in the work that we do in human rights education and the work that the team at the commission does in developing curriculum with the Australian curriculum board—I think that is not exactly their right title, but I can perhaps take this question on notice in part. Certainly that is where a very strong focus of the commission lies, in public education and working and developing human rights education as an integral part of the curriculum. In that context, I understand that we place quite a significant emphasis on the right to freedom of expression and political opinion.
Senator BRANDIS: Again, I hear what you say, Professor Triggs, but I have looked through the annual report—and, in fairness to you, the reporting period precedes your coming into office as the president of the commission—but I can find nary a word about freedom of speech or freedom of expression. It is all about antidiscrimination law and kindred values. I have no problem at all with the Human Rights Commission promoting antidiscrimination principles and conducting public education campaigns about the importance of equal treatment and the importance of discouraging racial discrimination, disability discrimination and so on, but, frankly, Professor Triggs, it seems to me from your most recent report that that is largely all you do.
By ‘you’, of course, I mean the commission. It is as if your agency is not really a human rights commission at all but an anti-discrimination commission.
You used the word ‘balance’, not me, and I am looking for the balance, I am looking for the programs that you run to promote freedom, liberty, freedom of expression, freedom of association—the very values that article 19 of the covenant enshrines and which, under your act, you have as much responsibility to promote as you do other articles of the covenant which the commission so zealously does promote and foster.
Prof. Triggs : I quite agree with you that of course our mandate is to promote human rights, and that concept—
Senator BRANDIS: Sure—as defined by your act.
Prof. Triggs : As defined by the act, which, in fact—as you point out—is the International Covenant on Civil and Political Rights, and those declarations that have been declared and others that have been recognised over time. We do that work without question. One area that perhaps we need to make clearer to the public is the very important international work that we do in the region. We are a leading ‘A status’ national human rights institution—and I can say this because I have only recently arrived; it is not something that reflects anything I have done. This institution is one of the leading human rights institutions, not just in the region but globally. I have seen that from my own experience. I think that we make a very significant contribution in that area. I believe we make a contribution in the field of education, and I would like to take it on notice and give you rather more information in regard to that. We play a media role whenever we can. However, I do come back to where I started: inevitably, some of our work—or the direction and focus of our work—is informed by the very significant level of complaints we have in some areas rather than in others.
Senator BRANDIS: I understand that, but it is a bit of an asymmetric comparison isn’t it, because if a person feels discriminated against, for good or bad reasons, then that is the kind of grievance which will naturally provoke a complaint. But to suppress or discourage freedom of opinion or freedom of expression is something less immediate, because it is something that changes the culture of the entire country. There are, I suggest to you, few people who would feel it as immediately as a person who is the subject of unlawful discrimination in a particular case, because in a sense it affects all of us. So I think it is an asymmetric comparison
Prof. Triggs : Maybe, but it is a very powerful statistic that, while we have thousands of complaints in certain areas across the community, we have only three that relate to political opinion. So I do believe that, in fact, the freedom of expression is very strongly protected in Australia by numerous groups, by government and by our courts. That is a very strong right. The great difficulty in the public debate—and the extremely interesting public debate—is how do you achieve a balance that is acceptable to the public and that the public can understand. How do you legislate to prevent the intimidatory acts or acts of harassment that we have all been witnessing in the last few weeks and months? It is a very difficult question of legislative balance and we hope we have played a role with regard to achieving that balance.
Senator BRANDIS: It might be a difficult question of balance, Professor Triggs—and I know you are a very distinguished lawyer in this field with an international reputation, if I may say so, as a scholar of human rights law—but it seems to me that we are not wanting for the appropriate legislative foundation for your commission to undertake both the work that it does in relation to antidiscrimination law and kindred rights and the promotion of liberal rights, such as freedom of expression, freedom of association, freedom of religious worship and so on.
So I would suggest to you, Professor Triggs, that it is not the difficulty of the legislative balance. The legislative balance is already there in the act. You are directed to protect both categories of rights, what we might loosely or perhaps at the risk of overgeneralising call both libertarian rights and egalitarian rights. You are not wanting for the legislative basis to do that, nor is the ICCPR wanting for sufficient protection of both of those broad categories of rights. But all the emphasis as disclosed by the most recent annual report and, if I may say so, by your answers seems to focus the commission on the protection and championing of the egalitarian rights and the neglect of the liberal or libertarian rights.
Prof. Triggs : Senator Brandis, I think that is a very important question to ask us. I would like to go back to the commission and have this discussed within the commission to see whether perhaps—
Senator BRANDIS: I think that would be a great idea.
Prof. Triggs : But I do have another answer, firstly to recognise the importance of your question but secondly to say that in many respects the commission does have one hand tied behind its back, because the legislation that applies here is legislation that, over the years, growing a bit like Topsy, has reflected international conventions to which Australia has become a party. We have, in the area of sex and disability and so on, given domestic implementing legislative effect to those conventions, and they have informed, of course, the work of the commission. However, the major international treaties, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and so on, have not been given domestic implementation. So it is not entirely surprising that the emphasis of our work has been on those areas where we have a clear legislative tool. As you know, one can go to the court holding that as a sword. You cannot go to any court holding up the International Covenant on Civil and Political Rights.
Senator BRANDIS: Correct. I agree.
Prof. Triggs : If I may suggest, that is one reason why our emphasis has lain with working with the legislative tools that we have rather than perhaps emphasising the wider liberal values that you are describing that emerged from the early sixties with those major covenants. It is an important question, but I think in fact the question is now very much in the public arena, partly stimulated by this Human Rights and Anti-Discrimination Bill. It has shone a beam of light in an area of law where most Australians have not seen before, as we saw—if I may refer to Q&A last night—in the extraordinary level of public knowledge about specific provisions of this bill. It is being debated in a way that it has never been debated before in relation to issues that have been good law for 30 years but not generally understood. So I think that we are seeing a public discussion in an unprecedented fashion, particularly over the last two months, of the issues that you have raised.
Senator BRANDIS: That may very well be so, Professor Triggs, but why has it taken people other than the Human Rights Commission to elevate this debate? Why has it taken people like my friends at the Institute of Public Affairs, some of my colleagues in the coalition, columnists, editorial writers and writers of letters to the editors of the newspapers to get a debate up and going in Australia about limitations on freedom, when we have an agency, your agency, whose explicit statutory charter is to promote and advance those rights?
Prof. Triggs : I wonder if I could take another point here. I accept your question. I think it is a valuable one, as I have said. But let us look at another element of this—that is, a great deal of my time as president and that of many members of our human rights law and policy group has been responding to our profound concerns about the mandatory detention of asylum seekers. I understand that at the moment we have many thousands—and I do not know the exact number, but let us say 6,000 people—in mandatory detention in Australia, including children. Many have been there for years. Babies have been born within that environment. They have been charged with no offence, and they have not yet had their claims to refugee status assessed. That is an area that I think is of fundamental importance to human rights.
Senator BRANDIS: Well, it is.
Prof. Triggs : It concerns arbitrary detention without trial. If I may say so, I went to an interesting lecture by the foreign minister the other day to celebrate the Magna Carta, quoting the fundamental principles of the Magna Carta that no man—or presumably woman—can be charged or held without a trial of their peers. It seems extraordinary—
Senator BRANDIS: I do not think the barons at Runnymede had friends like Mr Eddie Obeid and Mr Ian Macdonald, unlike our foreign minister, who speaks with eloquence about the Magna Carta, at least.
CHAIR: Senator Brandis, I am going to ask you now to concentrate on the additional estimates.
Senator BRANDIS: I am sorry, Madam Chair.
CHAIR: That is why we are here. This is not the Boston Tea Party—
Senator BRANDIS: Forgive me.
CHAIR: friendship society, so let us focus.
Senator BRANDIS: Thanks, Madam Chair, I take your admonition as I always do. Professor Triggs, I am not just making an academic point. I want to emphasise that. I understand your point about the claims on your resources, but it cannot have escaped you or the members of the commission that in the last 12 or 18 months or so in Australia we have had a very, very vigorous debate about freedom of speech. We could probably trace its origins, at least in the recent past, to the decision in the Bolt case, and then we had the Finkelstein report, which took—in my view—an expressly illiberal view of freedom of the press. It mounted a very specific and direct critique of classical liberal values and favoured a collectivist view of values. Then we had the draft of the Human Rights and Anti-Discrimination Bill. We have had the two national newspapers, the Australian and the Financial Review, in their editorial columns and in their opinion pages, agitating this issue on an almost weekly basis. Frankly—and this is not a personal criticism of you, Professor Triggs—the Human Rights Commission, as far as I can see, has been largely missing in action from this profoundly important national debate about one of the most important human rights: freedom of speech and expression.
Prof. Triggs : Senator Brandis, I think that you are looking at only one side of this coin, if I may put it that way. In other words, the other side of the coin is: how do the rules on racial vilification and limitations of freedom of speech impact on that right? Because the public debate has focused, as you say, stimulated by the Bolt case and by the Human Rights and Anti-Discrimination Bill and the Hon. Mr Spigelman’s speech—
Senator BRANDIS: And the Finkelstein report.
Prof. Triggs : we have had an emphasis on the proper limitations of freedom of speech. I think it would be fair to say that we have been very much in action over the last few months on this question, but we have not been emphasising the right to freedom of speech; we have been emphasising the way in which the balance in relation to it is established either under the current legislation or under the bill that is now proposed for the future.
Senator BRANDIS: But Professor Triggs—
CHAIR: Senator Brandis, lots of senators want to ask questions here.
Senator BRANDIS: I will just be a few more minutes, Madam Chair. But, Professor Triggs, that is the problem. You are not meant to be the agency that warns about the limitations of freedom. You are meant to be the agency that advocates for freedom.
Senator PRATT: Balance, Senator Brandis.
Senator BRANDIS: No! There is nothing in the act or the covenant that talks about balance. You are meant to be the agency that advocates for freedom, just as you are meant to be the agency that advocates for egalitarian rights as well. Let the political process and public discussion find where the balance is, but it seems to me, with respect, that you go into this discussion with one hand willingly tied behind your back, not as the advocates of freedom but as the discussants of freedom.
You are not meant to be the discussants. You are meant to be the advocates. That is your statutory charter.
Whereas your commission is a dedicated and committed advocate of antidiscrimination principles, I do not see the commission being a dedicated and committed advocate of freedom principles. You have think tanks, like in the Institute of Public Affairs, which has something called a ‘freedom project’. I do not see a freedom project in the Human Rights Commission.
CHAIR: Senator Brandis—
Senator BRANDIS: Can I have an answer to my question, please, because I am inviting the witness to respond.
CHAIR: I was not sure whether it was a question or the opening paragraph of your next speech. If that is the case—
Senator BRANDIS: We are entitled to put observations to the witnesses and invite their response.
CHAIR: I am not sure about observations. We have a Senate chamber where you can do that. We are really pressed for time today so I am going to move to the next senator in minute.
Senator BRANDIS: Thanks, Madam Chair—
Prof. Triggs : I wonder if I could have a very brief attempt to answer this question.
Senator BRANDIS: Sure.
Prof. Triggs : The right to freedom of speech is not an absolute right.
Senator BRANDIS: Neither is the right to be free of discrimination.
Prof. Triggs : Exactly. Our role—and my role as president of the commission—is to state the law as accurately as we can, and as we can understand it. I am talking about human rights law as defined by the act. We attempt to do that. I think in the main we get it right. We have a obligation not only to state the right to freedom of expression but also to state the law that exists, in legislation and in the treaties, that prohibits racial vilification.
Senator BRANDIS: Sure.
Prof. Triggs : So, when we present these arguments we are attempting to understand that we have rights that must be balanced against each other. And we have to, perhaps, advocate for ways in which we think that balance can be achieved. You are not happy about the way in which we are finding that balance, and I will certainly take your question back to the commission and ask for some discussion about it. But I think it is wrong to say that we have not been out in the public arena playing a role in this discussion. Indeed, if I may say so, I think we stimulated it in early December.
Senator BRANDIS: My last question. Your commission does seem to have a superabundance of discrimination commissioners in various areas. Should the Human Rights Commission have a freedom commissioner whose particular brief is to promote the kind of balance of which you speak so that within the commission there is a person whose particular job is to promote freedom, just as, within the commission at the moment, there are, I think, five commissioners whose particular job is to promote antidiscrimination? Would that not be a desirable balance—one freedom person versus five anti-discrimination people?
Prof. Triggs : We would be delighted to have a new commissioner to deal with notions of freedom. It is highly unlikely in the current climate. As I said, in all good faith we will take your question and look at it back in the commission to see if, maybe, we can put some more thought and resources into the liberal concepts or principles that lie behind the freedoms that you have been describing.
Senator PRATT: Small ‘l’ liberal.