Human Rights, Abbott style.
by Ben Saul, From The Age 19 December 2013

The Attorney-General George Brandis is waging an ideological war on human rights while pretending to defend them. His view that human rights have blown off course in Australia is not based on evidence or a coherent understanding of rights. It is also an attempt to divert attention from the government’s own serious rights violations.

Brandis wishes to ”restore the balance” because ”traditional rights, freedoms and privileges” have been ”unnecessarily compromised”. Already he has announced a law reform inquiry and made an unusual appointment as Human Rights Commissioner, by installing Tim Wilson, a former policy director of the free market think tank, the Institute of Public Affairs.

Among Brandis’ highest priorities are defending an absolutist idea of free speech (so as even to protect hate speech against minorities) and loosening corporate, environmental and industrial regulations that impair rights.

It is inevitable, and right, that those concerned about human rights should focus on the most harmful abuses. Usually this means speaking out for the poor, the vulnerable, the marginalised, and the powerless. This is why Brandis shows exceptionally poor judgment, and little grasp of the real world of human rights abuses, when he prioritises the right of powerful commentators to be able to say hurtful things about indigenous people, or attacks regulations that impinge on corporate interests. If the government is serious about improving rights, it should focus on eliminating many violations of classic civil and political rights that it created or perpetuates.

Since the Magna Carta 800 years ago, the most important civil right has been freedom from arbitrary executive detention, without charge or effective judicial control. For 20 years, Australian governments have violated this freedom tens of thousands of times. Mandatory immigration detention is a grave human rights abuse, all the more so when it is inflicted on refugees seeking our protection.

It is worse still when detention is indefinite, as for more than 50 refugees detained for four years because of ASIO security assessments. Just a few months ago, the United Nations found that this violates Australia’s civil and political rights treaty obligations.

If the Attorney-General was genuinely concerned about civil rights, he would phone the Immigration Minister Scott Morrison to release all asylum seekers detained for, say, more than 30 days. In seconds, he could stop thousands of serious rights violations.

But the Attorney-General allows them to languish. He is more worried about the suffering of columnist Andrew Bolt, who was found guilty of breaching the Racial Discrimination Act over two articles he wrote in 2009.

Brandis is wrong to suggest that civil and political rights have been neglected. They have been deliberately violated. Australia periodically reports to the UN about its implementation of the Covenant on Civil and Political Rights. Australia is often criticised by the UN experts for many violations, yet perpetually complains that it should not have to follow a treaty to which it agreed.

If Brandis is serious about protecting rights, he could start by immediately implementing the UN’s recommendations. He could also listen to his own Human Rights Commission.

For example, the government could wind back the counter-terrorism laws that the Howard government adopted. It could guarantee civil and political rights to marginalised indigenous people, including those who were racially discriminated against by Howard’s intervention and whose representative bodies were abolished.

It could stop violating the right to life, and freedom from torture, by summarily returning Tamil asylum seekers to Sri Lanka. It could refrain from abolishing the ”complementary protection” laws. It could stop disappearing refugees into squalor offshore, dehumanising them.

It could stop driving refugees in indefinite detention to suicide, treatment that the UN has found to be unlawfully cruel, inhuman or degrading. In a century’s time, our refugee gulags will be looked upon like we now look on the Stolen Generations: with disbelief at our cruelty.

If Brandis were serious about rights, his government could adopt a bill of rights. Why allow your rights-trampling colleagues, or future Labor governments, to abuse rights if you can entrust the independent courts to safeguard them?

The government has done none of these things. These are human rights abuses in the real world, not the terrifying perils of regulation in the corporate boardroom. ”Restoring the balance” is another way of saying the government wants to pick and choose whose rights it respects and whose it violates with impunity. This is not a democratic ”rebalancing”. It just gives more power to the powerful, and leaves the powerless with even less. It is perverse, facile and fanatical.

Brandis’ ideological war on human rights is also corroding the institutions set up to protect them. The Human Rights Commission is being shamelessly attacked and politicised. The point of creating a statutory body is to guarantee its independence from politics. This is all the more important where governments threaten rights but there is no bill of rights, the courts lack jurisdiction, the UN is pilloried, and international law is ignored.

It is an obvious point, but the Human Rights Commissioner should be a human rights expert, not an ideological appointee. Why not appoint one of the many Australians who have spent their careers working at the coalface, with victims of violations, in human rights organisations? Or a world-renowned human rights specialist like Professor Hilary Charlesworth or Professor Sarah Joseph? Why wasn’t the position publicly advertised and competitively selected based on merit?

The commission should also be free to expose rights violations and hold governments accountable without constantly fearing political interference. It should not be tamed as the lapdog of an ideologically obsessed government determined to protect its privileged mates, and stamp out criticism of its own extreme policies.

Ben Saul is Professor of International Law at the University of Sydney, an international human rights barrister, and an author of the Oxford Commentary on the International Covenant on Economic, Social and Cultural Rights.