There is a growing trend of the selective use of human rights language by those who are opposed to stronger human rights protections.
The current debate around the Human Rights and Anti-Discrimination Bill is emblematic of this trend and the credibility of those invoking rights should be judged on their actions.
The Bill, which aims to consolidate and strengthen five separate Federal anti-discrimination laws, has been described as “an attack on our fundamental freedoms” by the Institute of Public Affairs. Cardinal George Pell said it would undermine “cherished foundations of the Australian way of life… freedom of speech and presumption of innocence.” Coalition members of the Senate Committee which reviewed the Bill quoted from key international human rights instruments and colourfully argued that the effect of the Bill would be “a nightmarish dystopia which only Kafka could have imagined.”
Most of the criticism focused on a poorly drafted sub-clause which provided that discrimination included conduct that offended or insulted someone because of their race, sex or other prohibited attribute. Along with many others, the Human Rights Law Centre recommended that the clause be substantially amended or removed and the Government has announced its intention to do so. This is exactly what the enhanced consultation and review process for this Bill was intended to do – identify problems with draft legislation and address them.
Having addressed the concerns, the Government should now press ahead with the legislation which will simplify Australia’s anti-discrimination laws and make them more accessible, helping to ensure that ordinary Australians are not unfairly excluded from education, employment, goods and services and other areas due to prejudice.
The broader issue highlighted by these criticisms is the selective co-opting of the language of human rights.
The IPA’s Senate testimony on the Bill revealed their peculiar views on discrimination laws. It seems the IPA believes discrimination laws shouldn’t apply to the private sector and consequently it should be perfectly lawful for a private sector employer to refuse to employ someone because of a disability or for a pub to refuse service to someone because of their race.
The IPA’s concerns for freedom of speech and personal liberty mask an ideology which undermines the protection of freedom from discrimination. Rights are rarely absolute and need to be carefully balanced against one another. This important balance is absent from the IPA’s approach.
Cardinal Pell’s concerns about free speech and the presumption of innocence are difficult to reconcile with his strong opposition to an Australian Human Rights Charter that would have strengthened the protection of these rights. His opposition to a Charter was founded on his belief that rights questions should be “decided politically” and not in “the courts”. Yet, in another example of selectivity, he was quick to invoke the protection of freedom of religion in the Australian Constitution to argue against proposals for legislation to compel priests to report child sexual abuse revealed to them in confession.
The Coalition’s position is thankfully more nuanced. At the Senate inquiry into the Bill, Shadow Attorney-General George Brandis reaffirmed his strong support for anti-discrimination laws and the Coalition report on the Bill called for better protection against discrimination on the grounds of sexuality. Nevertheless, the Coalition disappointingly maintains that the Bill should be scrapped.
Aside from the freedom of speech issue, the Coalition said (incorrectly) that the presumption of innocence is “arguably inconsistent” with the shared burden of proof in the Bill, which requires that when an initial allegation of discrimination is established against a person, they have the onus of proving they did not engage in the conduct for a discriminatory reason.
The presumption of innocence applies in the criminal law, not in a civil context like discrimination law. The Bill’s approach on proof of discrimination is consistent with international best practice and has been an unremarkable feature of Australia’s workplace laws, including laws introduced by the Coalition, for over 100 years.
On one hand, it’s encouraging to see an Australian policy debate drawing on the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. On the other, it would be more credible if those drawing on these rights had a consistent, principled approach to rights protection.
The Coalition report on the Bill says “if freedom of speech means anything, then that freedom cannot depend upon the popularity of those views. Indeed, it is the unpopular, unfashionable or eccentric view which is in most need of protection.”
It was concerns about excessive restrictions on freedom of expression that motivated the Human Rights Law Centre to recently intervene in support of a High Court case brought by two Adelaide street preachers. We don’t support the homophobic and offensive content of the Corneloup brothers’ street sermons, but we recognised the problems with the particular by-laws in question and the broader implications the case would have on the ability of all Australians to express their view in public spaces.
True human rights protection requires a principled, universal approach to rights that focuses on those issues most in need of protection. Those who use the language of human rights should walk the talk. A good start would be supporting stronger constitutional and legislative protection of rights.
Hugh de Kretser is Executive Director of the Human Rights Law Centre