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Wednesday, September 04, 2013

Looming freedoms and rights wars

While the Coalition hasn't put on the record its intended approach in office to transparency and integrity issues,Tony Abbott and Senator Brandis have made it clear in speeches (both entitled 'Freedom Wars') over the last year, that 'freedom' and 'rights' will get the attention of an Abbott government.

Recently in an interview with The Australian, George Brandis to reclaim rights agenda (paywall), the Shadow Attorney General indicated one change would be a new 'rights' emphasis - protecting common law freedoms from legislative encroachment:
(Brandis) plans to refocus the human rights debate on traditional common law rights and freedoms which he believes can be a more effective guardian of liberty than any statutory charter of rights. He announced this week that a national audit will be conducted of federal statutes that infringe common law rights as a first step to restoring these freedoms, "when appropriate". One or more "freedom commissioners" will be appointed to the Australian Human Rights Commission with the goal of applying a balanced approach to all rights and freedoms. Instead of concentrating primarily on the administration of federal anti-discrimination law, Senator Brandis said the commission would also be required to become a national advocate for freedom of religion, freedom of expression and freedom of the press. "I don't want to see the human rights bureaucracy expanded but if we are going to have a human rights agency of the commonwealth, it ought to be an agency that protects human rights, not an agency that protects some human rights and makes excuses for the violation of others," he said. "The rights we enjoy in Australia are much better protected by the common law - as long as we don't allow that to be repealed or attenuated by statutory intervention - than they would ever be by a charter of rights.

The Senator's concerns had been flagged previously in a speech to the Sydney Institute Freedom Wars (members only access in May. The catalyst then was what the Senator described as Labor's unprecedented war on freedom of the press and freedom of expression, with aspects of the Racial Discrimination Act and 'elites' also in the sights.

In 2012 Tony Abbott delivered his Freedom Wars speech to the Institute of Public Affairs,
claiming this position for the Liberal Party:

"Essentially, we are the freedom party. We stand for the freedoms which Australians have a right to expect and which governments have a duty to uphold. We stand for freedom and will be freedom’s bulwark against the encroachments of an unworthy and dishonourable government."

Whether that claim stands up after a spell in office, and if any Freedom Wars battleground is to be narrow or broad scale remain to be seen.
(Update- The Australian 5 September 'Tony Abbott to champion free speech.')

(Real freedom of information, not mentioned in any of these texts, would be a great centrepiece, but I digress.)

In any event the issues raised about common law rights and protection from legislative encroachment are far from straightforward.

Former NSW Chief Justice Spigelman and others such as Chief Justice French of the High Court have pointed out that common law rights and freedoms are limited. Spigelman helpfully listed in this speech 'the common law bill of rights'.

Judges, rarely, 'find' new rights not previously uncovered. Other rights (the FOI right to access government information for example) find their way into law through statute and international instruments. Not all are absolute, some are qualified, others in tension to a degree with competing rights.

Rights reflected in international instruments and agreed to by Australian governments such as the Universal Declaration, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights only become an undisputed source of individual rights and obligations when directly incorporated into domestic law by legislation. There are many gaps in Australian law.

Unless constitutionally protected, hardly the case at all in Australia and Senator Brandis, News Corp and The Australian won't have a bar of a bill or charter, rights, common law or statutory can be modified by legislation. Parliament is supreme. However as the Chief Justice noted, courts take the view that rights that are well entrenched in the common law including freedom of speech and freedom of movement are only abrogated where there is clear legislative intent- by plain words or necessary implication. (The Coalition last time in office came unstuck on this in the Haneef case.)

Freedom of speech or expression - the freedom to say what you like - is not the same as freedom of the press - the freedom to publish or broadcast whatever and whenever you like. There are limitations imposed (national security, the right to reputation reflected in defamation law, and less clear cut the right to privacy) and standards expected of media publications and broadcasters because of the power and privileges they enjoy. Media organisations generally accept this and argue for self regulation. Others argue self regulation will always be unsatisfactory in some respects.

This debate about how and where to strike the balance between freedom and other interests is ongoing not only here but elsewhere.

If and when the freedom wars unfold the Liberal Party stance on privacy law reform will be an element in some of the battles.

There are currently questions floating out there about the legislated reforms to take effect in 2014: do the changes go far enough, is the law adequate in light of emerging issues, are the changes to commence too soon?

A whole range of recommendations from the ALRC report in 2007 were not dealt with in Stage 1 of the reforms. These include the terms of the exemption from the Privacy Act for media organisations in the conduct of journalism, and the removal of the exemption for political parties and small business. The ALRC has a current reference on privacy protection in the digital age and a statutory cause of action- before it was announced Senator Brandis seemed highly sceptical.
The Opposition did not enthusiastically embrace the mandatory privacy breach notification legislation introduced but not passed in the last Parliament.

And there are ongoing issues concerning privacy and surveillance and telecommunication interception.

More than a whiff of grapeshot is likely should the guard change after 7 September.

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