Friday, 20 December 2013

Legal Affairs: Rights commission's odd man out...20/12

Rights commission's odd man out must fix an orthodoxy of selective silence


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Tim Wilson has been appointed to the Human Rights Commission.
Tim Wilson has been appointed to the Human Rights Commission. Source: Supplied
TIM Wilson's appointment to the Human Rights Commission will be judged by one test: is he tough enough to pick fights with his new colleagues and force real change at an institution that has dropped the ball?
To succeed, Wilson needs to muscle up and disrupt the orthodoxy that has produced a very unusual human rights watchdog.
This is the organisation that remained relatively silent as freedom of speech faced some of its greatest challenges.
It also needs to be remembered that the commission, publicly at least, supported disability commissioner Graeme Innes when he ran an online campaign against Myer because Innes did not agree with remarks by chief executive Bernie Brookes.
Wilson's appointment is unusual - but not because of his past political affiliation or his involvement with a think tank. That is now par for the course.
The real difference is that the other commissioners administer federal anti-discrimination statutes while Wilson has a much bigger, far more important job.
He is responsible for protecting common law rights and freedoms. The real significance of the appointment is that these rights and freedoms frequently conflict with rights overseen by his new colleagues. This is why institutional tension is inevitable and welcome. And if those disagreements erupt in public, so much the better. It will reassure the community that the commission truly understands that no rights are absolute.
Wilson's role is to be a one-man ginger group. But even before he gets his feet under the desk, he faces a serious challenge. If the commission adopts a collegiate approach, as favoured by its president Gillian Triggs, Wilson's views will be overwhelmed.
If that collegiate approach requires the commission to speak with one voice, Wilson inevitably would be silenced on contentious issues. A collegiate approach also would mark a change since May when Triggs did not know in advance when Innes launched his online campaign against Myer. Brooks had told a Macquarie Securities conference that a levy to fund the National Disability Insurance Scheme was not good for Myer's customers. Commission emails, obtained by The Australian's Hedley Thomas, show that Triggs disagreed with the actions of Innes.
Wilson's posting is important in another way: it recognises that the source of the rights and freedoms enjoyed by most Australians is the common law - not federal and state statutes.
It is important to protect particular groups with statutes.
But the common law, which protects everyone, remains the bedrock of the nation's liberties and is a birthright, not a gift from politicians.
The problem is that it has been increasingly overlooked - and hollowed out - in the mistaken belief that rights bestowed by governments on particular groups are more important.
This can be seen by the overwhelming silence of the publicly funded human rights industry when freedom of speech is at stake.
While dreaming of an imaginary world governed by charters, they have neglected the real world of the common law.
There have been honourable exceptions. The Human Rights Law Centre, for example, courageously intervened as amicus curiae to support freedom of speech in the High Court case over the homophobic street preaching of Adelaide's Corneloup brothers.
But where was the Human Rights Commission? Unpopular causes that rely on common law freedoms are the real test for rights advocates.
The commission, rather late in the piece, did speak up about the adverse impact of section 18C of the Racial Discrimination Act - the Andrew Bolt provisions.
But Wilson, in his former role at the Institute of Public Affairs, was a far more effective advocate on that subject.
The commission was also less than voluble when the former government proposed a system of statutory regulation of the content of newspapers - another sharp
contrast with the approach taken by Wilson and the IPA.
When Attorney-General George Brandis said this appointment would restore balance to the commission, many people mistakenly viewed that as a reference to political balance. Instead, it will go a long way to restoring the structural balance of the commission's work.
But it will do so only if Wilson is not required to fall into line with the orthodoxy. He should not be required to hide the fact he is - and should remain - the odd man out.
Instead, the commission should be embracing its future as a broader institution. This is, after all, just the beginning of the Brandis agenda on human rights reform. He has already called an inquiry into statutory encroachments on common law rights and liberties, and next year he plans to make more changes to the commission.
What we are witnessing is the inevitable and very welcome backlash against the erosion of common law freedoms - the freedoms of the majority - that have been a feature of public life in the past few years.

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