Attorney-General George Brandis cannot be a champion of human rights if he ignores prominent areas – such as anti-terrorism laws – where such rights have been breached, writes George Williams.
Federal Attorney-General George Brandis has embarked on a surprising mission. Rather than following the antagonistic path of his Coalition predecessors, he is seeking to champion the cause of human rights. His goal is to reshape and lead the debate.
Brandis' intentions have been signalled with two announcements.
He has directed the Australian Law Reform Commission to identify where Commonwealth laws encroach upon traditional rights, freedoms and privileges and to determine whether such encroachments are justified. This audit will show how the extension of laws and regulations into almost every facet of Australian life, unconstrained by anything like a bill of rights, has come at significant cost.
His most prominent announcement was the appointment of Institute of Public Affairs policy analyst Tim Wilson as a ''freedom commissioner'' at the Australian Human Rights Commission. Wilson's brief is unashamedly to promote rights such as freedom of speech, which Brandis argues has been neglected by the commission.
The commission has a strong record of combating deep-seated discrimination on the basis of a person's race, sex or age. On the other hand, it has been conspicuously absent from debates on other rights, including freedom of speech, because no commissioner has had responsibility for the area. The commission will be a stronger and more effective body for addressing democratic rights of this kind.
Australian law provides only weak protection for freedom of speech and it shows. The freedom has been eroded by a myriad of state and federal laws. This needs to be tackled and it can only be hoped that this will not be overtaken by the battle over racial vilification and section 18C of the Racial Discrimination Act. That section could sensibly be pared back but repealing it would be excessive and counterproductive.
Brandis' commitment to human rights will be tested in the coming year. Some challenges will stem from Coalition policies, including those on asylum seekers. Governments have become used to trampling upon the rights and freedoms Brandis hopes to protect and so he will quickly run up against the plans of his colleagues. It will be interesting to see whether he has the will and the clout to get his way.
The biggest challenge may arise from Brandis' own portfolio. His responsibilities include unresolved problems stemming from the numerous anti-terrorism laws passed since September 11, 2001.
These problems have been brought to light by several inquiries and reports, most notably by the government's own adviser on such matters. Two reports released this year by Bret Walker, SC, the independent monitor of Australia's anti-terrorism laws, reveal how key parts of these laws are ineffective or unnecessary.
Walker's reports, along with the report of another committee convened by the Council of Australian Governments and led by retired judge Anthony Whealy, QC, identify a long list of laws that need to be fixed. Many trespass on the freedoms Brandis seeks to protect.
The list of changes includes abolishing preventative detention orders, under which a person can be held without charge for up to 14 days. Walker also argues that the Australian Security Intelligence Organisation should no longer have an extraordinary power that enables it to detain in secret for up to a week Australian citizens not suspected of any crime.
Some of these laws have an invidious effect on freedom of speech. One bans any book, film or computer game that praises a terrorist act where this might lead a person, including a person suffering from mental illness, to engage in terrorism. Given that Australia's definition of terrorism encompasses the acts of people such as Nelson Mandela, there is real possibility that a book on his life could be censored.
Another law makes it an offence to disclose ''operational information'' about a person's detention by ASIO within two years of that person being detained. A journalist revealing such information, including the mere fact that someone was detained, can be imprisoned for up to five years. There are no exceptions for fair reporting or if a media story reveals ASIO has misused its powers or mistreated detainees.
A strong commitment to freedom of speech is not consistent with laws of this kind. Brandis has yet to make his position known but the early signs are not promising. When asked for his response to Walker's recommendations, he merely said that he would ''carefully consider'' them but that he otherwise had ''no plans to make material alterations to the anti-terrorism legislation''.
The Attorney-General cannot be a champion of human rights if he ignores prominent areas where such rights have been breached. He has made a positive start by engaging constructively in the debate but the real test will lie with his actions. His commitment to liberty and freedom will be compromised unless he tackles the hard cases, in addition to controversies such as section 18C.
This piece first appeared in the Sydney Morning Herald
George Williams is the Anthony Mason professor of law at the University of NSW.