EMMA ALBERICI, PRESENTER: When Australia's new Human Rights Commissioner Tim Wilson takes up his post tomorrow as the second most senior member of the Australian Human Rights Commission, it could either be the dawn of a new era in individual freedom or the erosion of hard-fought anti-discrimination laws protecting women, gays, the disabled and Aboriginal Australians among others. Views are definitely divided on Mr Wilson's appointment. He's here with me in the studio, but first, this report from Margot O'Neill.

MARGOT O'NEILL, REPORTER: The newest Human Rights Commissioner, Tim Wilson, is unlike most others who've come before him. A former media commentator specialising in trade and climate change for the free market think tank the Institute of Public Affairs, he has no conventional professional human rights experience.

TIM WILSON, INSTITUTE OF PUBLIC AFFAIRS (On ABC's The Drum): Is it actually going to be effective policy? I mean, if your objective is to introduce this clean energy future ...

MARGOT O'NEILL: But perhaps most unusually of all, the newest Human Rights Commissioner isn't sure that protection from discrimination even qualifies as a human right. In fact he questions the value of laws promoting equality.

TIM WILSON (Nov. 12, 2011): We all believe in a fairer society, but define fair. It's a grab-bag of things based on what you think matters at any given time. You look at the world as though it's a dashboard of dials that can be tweaked to come up with the perfect equilibrium. It's crap.

MARGOT O'NEILL: Anti-discrimination is core work for the Human Rights Commission and many human rights advocates are upset with Tim Wilson's appointment.

BEN SAUL, UNIVERSITY OF SYDNEY: I think the process for his appointment was not fair or open or transparent. ... You can't just have opinions about human rights, in the same way that I wouldn't be appointed Chief Medical Officer of the Commonwealth just because I've got opinions about hospitals.

MARGOT O'NEILL: Attorney-General Senator George Brandis, who appointed Tim Wilson, has been critical of the Human Rights Commission and its advocates for focusing too narrowly on anti-discrimination rather than traditional human rights like freedom of speech.

For instance, Senator Brandis wants to amend the Racial Discrimination Act, which presently outlaws some speech that may offend, insult, humiliate or intimidate.

Just where the line should be drawn on free speech is a hot issue.

BEN SAUL: There are many groups in Australia who are arguing to retain the existing law and relatively few people who are arguing for its abolition. I mean, yes, Andrew Bolt, Tim Wilson, George Brandis, but there isn't - there really isn't a groundswell of support in society for its abolition. ... It's really, I think, the most vulnerable in our community that we should be looking after the most.

MARGOT O'NEILL: Tim Wilson is an openly gay man who says he abhors discrimination. But he believes freedom of speech is an indivisible right, even when it's offensive or intimidating. He says an active citizenry and the free market are better protection of individual rights than legislation.

So if an Aboriginal man is refused service in a rural pub, Tim Wilson believes publicly naming and shaming the publican and boycotting the hotel is more effective than anti-discrimination laws.

HUGH DE KRETSER, HUMAN RIGHTS LAW CENTRE: Well the logic isn't supported by human rights law and nor is it supported by common sense. So, typically the people experiencing prejudice and discrimination lack the ability to effectively advance their interests in public debate.

MARGOT O'NEILL: Human rights advocates say there's some common ground with the new commissioner, such as opposing Queensland's anti-biker laws and supporting gay marriage. But if freedom from government interference is really Tim Wilson's guiding principle, they say he faces some tough policy questions.

Margot O'Neill, Lateline.

EMMA ALBERICI, PRESENTER: The new Human Rights Commissioner Tim Wilson is with us now in the studio.

Congratulations on your new role.

TIM WILSON, INCOMING HUMAN RIGHTS COMMISSIONER: Thank you. Subtlety is never my strong point, as that video shows.

EMMA ALBERICI: So don't hold back now.

TIM WILSON: (Laughs)

EMMA ALBERICI: Do the other commissioners have any reason to fear your appointment, given that 12 months ago the IPA was actually calling for the abolition of the Human Rights Commission?

TIM WILSON: Well the Institute of Public Affairs and some staff who worked there did call for the abolition of the Human Rights Commission ...

EMMA ALBERICI: You were policy director there ...

TIM WILSON: I was a policy director, but let's make it crystal clear I never said that at all. In fact I had criticisms of the commission and most of it was around it not focusing enough on traditional civil and political rights and human rights and I've outlined that in the past and in many ways, I guess, my appointment is the solution to some of the problems that I've identified. But by accepting this appointment I've also made it clear that I think there is opportunity to work with the commission and I've been really impressed and encouraged by the feedback and support I've received from the commission already, but they realise there are a lot of areas where there's common ground between them and I and there are opportunities to really inject fresh ideas and debates around human rights.

EMMA ALBERICI: Well you've spoken about bringing a new focus to the commission. What exactly is it that you want to achieve there?

TIM WILSON: Well I want to really drive through the commission and work successfully with the commission to drive a culture of rights and responsibilities in Australia. As you know, we don't have anything like a Bill of Rights or even necessarily some of the traditional human rights acts that exist for instance in parts - in Britain. And I think the only thing that's really going to make sure that human rights are at the centre of public life and at the foundations of our society is if we have an active citizenry that stands up - understands what their human rights are, stands up for them and defends them against government when they come and try and attack them.

EMMA ALBERICI: Well let's talk about some specifics to gauge your position on various human rights issues. First, racial discrimination. How do you best protect a person who, because of the colour of their skin, has been refused a job, a room at a hotel or service in a pub?

TIM WILSON: Well there are multiple ways of looking at human rights from the outset. I come from a classical liberal tradition. It isn't the only way to approach them. Some people approach it from a much more legalistic perspective.

EMMA ALBERICI: We want to know about your perspective.

TIM WILSON: Sure, yeah, but I think it's important for people to understand there are different perspectives and that by their nature human rights are a political construct and that there are differences of opinion. Some people look at it from a social justice perspective, which is about how to drive equality. From a classical liberal perspective I believe very strongly that the role of human rights is to protect individuals from the encroachment and abuse of power by government. And so when you have a situation like discrimination - and I abhor discrimination and I know the package at the start made that clear - there are different ways. If you take the legalistic approach, as we do now, which is to basically just try and make it illegal, but if you take it from a classical liberal perspective ...

EMMA ALBERICI: Well, can we just talk about - just so that we can really understand your position here, ...

TIM WILSON: Sure.

EMMA ALBERICI: ... in this particular circumstance, how do you protect the individual? Because at the moment, the law intervenes to say that a person can't be discriminated against on the basis of the colour of their skin when it comes to applying for a job or service in a pub or being granted a hotel room.

TIM WILSON: Well you're giving too much deference to the law because the law does do that when it's invoked, but it doesn't mean that people don't go about discriminating and hiding it in different ways and that's partly because the incentive under these sorts of laws if people want to discriminate against somebody on the basis of their skin is they find some other reason to do it and they keep their prejudice to themselves. What I'd rather have is to - is to have people be open about their prejudice, so that people can shine a bright light into dark corners and to expose people for their discrimination, their prejudice and why it exists and also for it to be challenged, because when you look at people who have prejudice deep in their heart, if you tell them they can't exercise that, all they do is go off into the corner and maintain their prejudice in their heart, rather than interacting, learning and growing and having it challenged by people who outline why it's so foolhardy.

EMMA ALBERICI: How does someone who's marginalised, poor, vulnerable, perhaps doesn't speak the language, isn't educated, doesn't have the money, how does that person fight back? Isn't that an abuse of power, because the person has - there's an imbalance in that power relationship if they're an employer, for instance, a large employer?

TIM WILSON: Well it depends on who the discriminator is. If it's government, it's a very different situation than if it's a private individual. Governments should never discriminate on (inaudible) and in fact I think it should be made illegal quite clearly. There's a very big difference when private citizens do that, because coming from a human rights approach, the very nature of, for instance, rights of free association is discrimination, that people can make a decision about who they want to associate or not associate with as they see fit. How do people in weak positions do this? This is why I talk about the importance of having an active citizenry, so it isn't just about one individual saying, "I have been discriminated against," and everybody moving onto the side. People have to see prejudice within society and challenge it directly and we all have a responsibility with that.

And I'll just give a classic example from personal experience. A few years ago I was in a pub in Melbourne - so we're not even talking about remote communities - with two woman who were obviously in a loving relationship, were being intimate, but not in a way which would have unreasonably offended anybody in the room, and yet the publican who was responsible for the bar asked them to leave. And on my personal effort, initiative, I guess, I stood up and said, "No, I'm sorry; there is no grounds to do this," and least of all because there are other people who are heterosexual couples doing exactly the same thing over there, over there, over there and eventually saw the manager and addressed it. But it takes, sometimes, people to stand up, because even in that situation, sadly, the individuals concerned were more prepared to accept the discrimination rather than challenge it.

EMMA ALBERICI: Well precisely and there's not always going to be a Tim Wilson sitting in the corner helping them out.

TIM WILSON: (Laughs) Well - and that's true and that's why I want to change and drive a culture of rights and responsibilities so that people know that they can do it and they can stand up for their rights as individuals and that other people will also support them. It's not going to be an easy solution. These things are complicated. But if you respect traditional human rights, you want to preserve and protect them and defend them, you have to recognise that there's tension between objectives around anti-discrimination and traditional human rights. And what I don't want to see is what we saw last year where there was an omnibus bill put before the Parliament where basically human rights were completely dismissed around freedom of association, freedom of speech, purely to promote anti-discrimination objectives.

EMMA ALBERICI: But that's - and we'll speak about freedom of speech in a moment.

TIM WILSON: Sure.

EMMA ALBERICI: But specifically, doesn't legislation need to extend a hand to minorities to people who aren't empowered in the way someone like you who is educated and understands rights and responsibilities is?

TIM WILSON: Well, there's a difference between sort of a philosophical approach and pragmatic. I understand why we've gone down the pragmatic approach. But I guess I would say that it's better for those legislation to focus on limiting the power of government and the abuse of power of government and helping other people - citizens taking an active role in helping other people, because it's not just about one individual, it's about a whole societal approach and a culture of rights and responsibilities and making sure that people stand up for other people as well as themselves.

EMMA ALBERICI: Now you recently told a Senate committee that your own partner, who's a school teacher, resigned from the Catholic education system because as a gay man he didn't see any opportunity for career advancement. Now you've defended the rights of the Catholic education system to discriminate against someone on the basis of their sexual orientation.

TIM WILSON: Well, I - both my partner and I have defended the right of the Catholic Church to have an education system where they decide that they think only people who can work for them want to uphold their version of moral values. I disagree with their approach. I think they end up selling out the future of their children as well as making sure they don't get the most talented staff. But if you believe in human rights and you understand the principles of why they're important and preserving the integrity of the individual and their rights to go out living their lives, including when they operate collectively as religious faiths do, you have to be consistent. You can't just pick and choose when suddenly things decide to work for your interests or otherwise. But I know that my partner's very hopeful that the Catholic Church will change its views particularly in relation to teachers and that that will give him an opportunity to go and work in the system in the future.

EMMA ALBERICI: But your view presupposes a level playing field, where in fact it becomes survival of the fittest, doesn't it?

TIM WILSON: No, no at all. And I don't think it presupposes a level playing field at all, nor does it presuppose the outcome you have identified. What it says is we all start from different positions in life and I'm under no illusion about that. But surely our focus must be: how do we unleash the maximum potential of individuals? And how do we create a societal framework and have government create a societal framework to unleash the maximum potential? And I believe that's through a culture of rights and responsibilities where people feel confident to stand up and defend themselves as appropriate and to make sure that the role of government doesn't encroach too much. And yes, there'll be conflicts, yes, there'll be differences of opinion. It doesn't mean we're all going to have this perfect solution where everybody feels loved all of the time. But it's about: how do we govern society from the individual up, rather than from politicians and bureaucrats down?

EMMA ALBERICI: Should the Federal Government have a right to deny you and your partner the right to marry, as it currently does?

TIM WILSON: Well this is a very interesting question, because as I've already said, I don't think governments should discriminate, and in fact that that's where most of the focus around anti-discrimination efforts should be going to and I think there is a very serious equality-before-the-law proposition in front of us.

EMMA ALBERICI: But can I just get you to clarify that? Does that mean they should be able to discriminate in a private school, for instance, but not in a government school?

TIM WILSON: Yes, that's exactly what I mean. I think private schools and private institutions that are established and operate independently have a right to go about their organisation as they see fit and they do that ...

EMMA ALBERICI: So is the Federal Government - sorry. Is the Federal Government discriminating then on its - in its attitudes to same-sex marriage?

TIM WILSON: Well that's precisely what I'm saying. I think there's a very good argument that you can say there is not an equality-before-the-law proposition. But remember that issues around marriage for same-sex couples are fused very much with religious views and this is part of the tension. We've actually taken essentially a private religious institution of marriage and the public civil institution of marriage and in one sense married the two of them into one institution. This is why in the past I've argued that what we should do is actually separate them out again and have some form of civil union which is open to pretty much any couple, but ...

EMMA ALBERICI: But if I could just get - that's all hypothetical. But as the law currently stands, I just want to pin you on this matter, particularly: is it discriminatory, in your view?

TIM WILSON: As I've already answered, I do think it's discriminatory and I think that there are - I that's why there's increasing questions being raised by Australians about whether it should continue going forward. But I'm not saying that just simply changing two words in the act is the first world-best solution. What I think is a more human rights-based solution is to get government out of marriage, hand it back to religious faith if they want to have a religious institution, then have a civil tradition which is different. That's a first world-best solution. The second best is to just change the current act as it is and maintain that fusion.

EMMA ALBERICI: Let's talk about free speech because your view is that free speech should be pretty much absolute. Would you put any caveats on it?

TIM WILSON: Of course I would put caveats on it. It's when free speech runs into conflict with other human rights. And so what I've already outlined previously is when free speech comes into conflict with people's physical property and owning of themselves, there is a justification to limit free speech.

EMMA ALBERICI: Can you give us an example?

TIM WILSON: Well when people directly incite violence against another person, that is clearly an example where speech goes too far. I think sometimes intimidating people to the extent and particularly with relation to harassment, which most people refer to as bullying, can be an example of that. Similarly I think defamation law - very constrained - I think it's too broad at the moment, but very constrained where you're basically undermining people's right to earn reputation, which has sort of formed its own property right and their opportunity to make a future for themselves, are legitimate restraints, but things like "offend, insult and humiliate" I don't think in any way are legitimate justifications.

EMMA ALBERICI: OK. Well this is the Attorney-General's view. He wants to abolish Section 18C of the ...

TIM WILSON: Well he's actually said he's going to - looking to change it.

EMMA ALBERICI: Changing it.

TIM WILSON: I want full repeal.

EMMA ALBERICI: Pardon?

TIM WILSON: He's keeping his options open.

EMMA ALBERICI: And as you say, as it currently states, it forbids speech that may, "offend, insult, humiliate or intimidate". So you're saying: what's wrong with the status quo at the moment? Is that someone should be able to do all of those things as long as no-one comes to physical harm?

TIM WILSON: Well there should be a difference between where the law sits and where acceptable conduct sits, least because there has to be a gap so that people can challenge ideas and personal morality and what acceptable conduct is. And what Section 18C does at the moment is say, "This is where acceptable conduct is, so this is where the law should the sit." I think they should separate themselves. In no way - and let me make this clear: in no way do I think people should be going around and racially vilifying people or anything else. But people have a right to free speech and to exercise their expressions and their thoughts because we need that to have a robust discussion in a free society and Section 18C at the moment doesn't achieve that.

EMMA ALBERICI: Edward Snowden: hero or traitor?

TIM WILSON: Well I think there are different parts to Edward Snowden. If you look at him as just one man and all of his conduct in one pot, I think it's very hard to make an assessment of him. I think when he was talking about things like the spying of the National Security Agency in the United States on average citizens, clearly the Government had completely stepped out of line and there was a need to draw attention to that and to whistleblow on the conduct of the Government. But when you get involved in taking documents which undermine national security and then essentially wholesale dump them onto other agencies and newspapers and whatnot for them to do what they reasonably want to do fit, I think that's a different proposition. So I think on some terms, he probably is a hero, and I think on other things, he's not so much of a hero.

EMMA ALBERICI: And very quickly 'cause we're running out of time, on freedom of the press: is that principle being challenged by the Prime Minister's view that the ABC should be a cheerleader for the country and for its government?

TIM WILSON: Well, freedom of speech and freedom of the press are essentially interchangeable concepts. And I don't think it's coming under attack. The Prime Minister has exercised his view. He's welcome to his view. If you disagree with him, you're welcome to exercise the alternate view. But, there is a challenge with the ABC because it's a very large public sector institution which is making it increasingly hard for private media outlets to operate and for there to be a diversity in public debate. That's a secondary issue - or a different issue from the one you've just asked, but that is also part of the free speech debate we need to have as well.

EMMA ALBERICI: We are out of time. Tim Wilson, thanks very much for coming in.

TIM WILSON: A pleasure. Thank you.