As the Australian parliament adopts more stringent laws on terrorism and refugees, it is timely to ask how well the government is fulfilling its traditional “freedom” agenda. It famously retreated from its battle to maximise free speech by minimising racial hatred protections. It lost that battle but its ideological war for freedom continues.

Recall that George Brandis, the attorney general, announced a law reform inquiry into traditional civil and political freedom. Brandis is especially concerned about corporate, environmental and industrial regulations which restrict rights.



Brandis also appointed a “freedom commissioner”, Tim Wilson, who is conducting his own inquiry and is concerned, for instance, that native vegetation laws impinge on land rights, and that councils prevent those with ocean front land from developing it in the face of rising seas.

Nelson Mandela’s freedom agenda pales next to this. The suffering of News Ltd columnist Andrew Bolt, who breached racial discrimination laws, is especially incomparable.

The attorney general’s “freedom” agenda is really an ideological war on human rights that pretends to defend them. The freedom agenda is ridiculous for so many reasons. It is an attempt to co-opt the language of rights to protect business interests. Corporations are not generally downtrodden, and by the way, are not entitled to “human” rights.

It attempts to silence, diminish or deflect the human rights violations suffered by those who are most vulnerable, disadvantaged, or powerless. It denigrates the rights that most Australians think important, such as freedom from discrimination or being sacked for being pregnant. It fails to understand that the state is not just a threat to rights, but a necessary guarantor of them from intrusion or predation by private interests.

It is obsessed with boutique concerns, like defending bigotry, which most Australians believe to be cruel and unreasonable. It naively believes that law has no place in dealing with racism, and that victims of abuse on a bus can somehow engage a racist thug in a reasoned conversation and persuade them they are wrong.

The freedom agenda also cherry-picks some rights as indispensable to democracy when others are equally important. We can hardly participate fully in democracy if we are starving, homeless, illiterate, jobless, deprived of healthcare or social support. Social and economic rights matter as much as civil and political ones. Our social democracy is one of the most stable and prosperous in the world precisely because it takes care of those in need, and we have avoided the dysfunction and poverty that dogs free-enterprise America.

The freedom agenda is also philosophically incoherent. The attorney general’s idol, John Stuart Mill, would be turning in his grave at how he is being verballed. Mill was not a liberal extremist, and accepted social limits on rights. The musings of a 19th century Englishman are also hardly the last word on how multicultural modern Australia should be governed. Mill, after all, defended despotic rule over barbarians, plundered for the British East India Company, and wound up as a virtual socialist. Some liberal hero.

But let’s take seriously for a moment the government’s claim that it is really concerned about the erosion of traditional rights – and assess how well it is protecting them.

Freedom from arbitrary or illegal detention is one of the oldest and most cherished classic liberal rights, going back at least 800 years to the Magna Carta. Why then is the government arbitrarily detaining thousands of refugees for protracted or indefinite periods? Or preventively detaining suspected terrorists while bypassing criminal law safeguards? Or locking away the mentally ill, even in police stations? Or not dealing with the extraordinary over-incarceration of Indigenous Australians?

I’m thinking here of the 22-year-old Indigenous woman from Western Australia who died recently in custody after being detained for unpaid fines; or the man scorched alive in the back of a paddy wagon in the outback heat not long ago.

If the government is so concerned about free speech, why is it now criminalising the vague notions of encouraging, promoting or advocating terrorism? Or criminalising intelligence whistleblowers and journalists who expose illegality or impropriety? Or permitting excessive defamation laws to shield the powerful? Or retaining nanny state classification standards which unduly restrict what grown-ups may read or watch?

If the government is concerned about the classic freedom of association, why does it permit restrictions on the right to strike and freedom of association, including collective bargaining, in breach of International Labour Organisations standards? Or criminalise vague associations with terrorist organisations? Or allow draconian anti-bikie laws to mushroom around the country?

Why does the government undermine freedom of religion by persisting with a school chaplaincy program that, in practice, makes Christianity the default religious presence in schools, dangerously blurring the separation between church and state, and making taxpayers subsidise Christianity?

Why does the government restrict freedom of movement by criminalising visits to a foreign place that the foreign minister does not want you to go, without the state having to prove that you did anything wrong? Or by coercing refugees to live in rural areas? Or by mandating house arrest under anti-terrorism control orders?

Why does the government disenfranchise many prisoners by denying them the right to vote – and thus undermine the very foundation of democracy, namely universal and equal suffrage?

Why does the government interfere in the private sphere of personal autonomy by prohibiting same-sex marriage; enabling mass surveillance of the innocent through deceptive warrants that access whole computer networks; allowing police to taser us on a whim; or not introducing a new cause of action to protect privacy? Why does it interfere in families by preventing refugees on temporary visas from reuniting with family members? Why does it infantilise and demean refugees by making them sign codes of conduct?

Why doesn’t the government do more to protect equality and equal treatment, in a country where female workers lag behind in every indicator, from equal pay, to workforce participation, to representation among CEOs, on corporate boards, and in parliament? And where sexual harassment is endemic in our military? And where a female prime minister is misogynistically pilloried by some in the attorney general’s own party?

Why is the government destroying traditional liberal ideas about the rule of law, such as by the near-total denial of procedural fairness to more than 50 refugees given adverse security assessments by Asio – which serves as judge, jury and executioner? Or through the current migration bill which eliminates natural justice; or the new terrorism law which confers near blanket immunity on intelligence officials?

What about the chronic underfunding of legal aid, which prevents the most marginal from vindicating their “traditional” rights? Why is the government eroding the already weak institutions we have for safeguarding rights, by reducing funding to the Australian Human Rights Commission and politicising it with an ideological appointee?

And these are just traditional civil and political rights that the government is failing to defend. It is also undermining economic and social rights. Equality of opportunity in education is at risk from the deregulation of universities. The quality of education in schools is under attack from the politicisation of the curriculum, with a renewed emphasis on Judeo-Christian and British heritage, and an obsessive focus on imperial British military campaigns like Gallipoli – as if Gallipoli is not already our most heavily remembered historical event.

Accessible and affordable healthcare will be compromised by new upfront fees. Vulnerable young people are having their welfare cut and are being punished for the government’s failure to generate enough jobs for them – violating the rights to social security, an adequate standard of living, and non-discrimination on the basis of age.

Private property rights are increasingly trumping collective Indigenous land rights. Indigenous peoples are being denied control over their communities and customary laws, and deprived of representative political institutions, and remain under the reign of a paternalistic, racially interventionist, centrist white state. It is little wonder that people deprived of control over their own future suffer across the spectrum of disadvantage.

These are just some examples of 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.

The point is that if the government were genuinely serious about addressing human rights problems, it would not shunt them off to distant inquiries. It would act now by repealing or amending bad laws, and refraining from passing new ones.

The government could even show its heartfelt concern for freedoms by adopting a bill of rights. Why dabble at the edges when a systemic fix is available? Why allow your colleagues, or future governments, to violate rights if you can entrust the independent courts to safeguard them for all time?

The government’s freedom agenda is breathtakingly hypocritical, incoherent and insincere. We already know the gamut of rights violations in Australia. There are no surprises. There is just no political will to fix them.

Ben Saul is professor of international law at the University of Sydney. This is an extract of a speech delivered at the NSW Council for Civil Liberties annual dinner on Sydney on 26 September. The full speech is available here.