The Human Rights Commission’s selective agenda does not include the protection of fundamental human rights like freedom of speech. For that reason alone, it must be abolished. But while the Commission does exist, it is entirely reasonable to expect that a Coalition government should appoint to the Commission individuals who do believe in individual liberties. With the government considering who to appoint president of the HRC this month, there is an opportunity for the Coalition to live up to the expectations of how a centre-right government should act. Until now, one of the significant failures of the Abbott and Turnbull governments has been the refusal to make reliably conservative appointments to key positions in the bureaucracy.
Until now, their High Court appointments could just as easily have been made by a Labor government – which isn’t a problem unless you consider the progressive interpretation of the Australian Constitution that has made centralised government the norm a disaster. It’s a similar story at the AHRC: Ed Santow, who was appointed the Human Rights Commissioner in May 2016, has said nothing of the QUT case or the Commission’s pursuit of Bill Leak last year. The very least the government could do is to save the country from another Gillian Triggs. Instead, the government has the opportunity to appoint a president who actually believes in human rights; and make an important symbolic choice by appointing someone who prioritises mainstream values like freedom of speech and of religion.
The very least the government can do is to assist the government, we’ve compiled a brief list of candidates (in no particular order) it might consider to be the next HRC president. If it doesn’t pick one of these outstanding individuals, or someone of a similar calibre, it will have revealed what a joke the bureaucratic appointment process has become.
James Allan is Australia’s leading natural rights philosopher, and is the Garrick Professor in Law at the TC Bierne School of Law at the University of Queensland. Allan is the perfect choice to begin the process of dismantling the HRC: not only is there no risk that Prof. Allan would ‘go native’, there is perhaps no other candidate who would cause more headaches for the other commissioners.
Augusto Zimmermann is the senior lecturer in law at Murdoch University, a commissioner with the Law Reform Commission of Western Australia and president of the Western Australian Legal Theory Association. He was the co-author of No Offence Intended, an important book published in 2016 that explains how section 18C is incompatible with the Australian Constitution on several grounds.
Lorraine Finlay is a lecturer in law at Murdoch University whose expertise covers constitutional law, freedom of speech and property rights. Finlay was a co-author of No Offence Intended.
Suri Ratnapala, former law professor at the University of Queensland and expert in the rule of law, constitutional law and legal theory, joined the Law Reform Commission in 2015 part-time to help conduct its inquiry into traditional rights, freedoms and privileges.
Bob Day is a former Family First SA senator and a leader in the fight to reform 18C. Day was previously the secretary of the Samuel Griffith Society. As secretary of the H.R. Nicholls Society, he argued for the rights of the unemployed to get a job.
Ramesh Thakur is the director of the Centre for Nuclear Non-Proliferation and Disarmament in the Crawford School at the Australian National University. His criticisms of Triggs’ tenure indicate he would rein in the excesses of the Commission, and have a clearer view of what kinds of complaints are clearly trivial, vexatious or frivolous.
Neil Brown was the deputy leader of the federal Liberal Party from 1985 to 1987, is a distinguished barrister in the relevant field of mediation and arbitration, and writes a regular column in these pages.
Ian Callinan is a barrister and was a Justice of the High Court. In 2012, Callinan spoke out strongly against the Gillard Government’s attempted press censorship laws, saying ‘The struggle for free speech has been long and painfully achieved and I wouldn’t want to go back on it.’
Louise Clegg is an accomplished barrister, author and lecturer. Since being called to the Bar in 2001, Clegg has conducted more than 100 Federal Court appeals, mostly in the areas of public law and workplace relations. Clegg has criticised the Commission in the past for for going rogue and seeing itself as the ‘vanguard of identity politics’.
Graeme Watson, a former vice president of the Fair Work Commission, recently spoke to the Centre for Independent Studies on the threat to democracy posed by quasi-judicial government agencies. Of the HRC, Watson said: ‘Overreach, looseness with the truth, low commitment to accountability and excessive zeal are not appropriate attributes.”
There is another reason the government must make a solid appointment to the HRC; it completely failed to enforce accountability following a series of recent Commission missteps. Buried in the budget was a sad statistic. Despite giving every reason for its abolition, the HRC’s allocated budget is unchanged from last year.
The lesson is obscene: if you’re a government agency, you can completely fail to live up to community expectations and face no consequences. For the HRC specifically, the lesson is it can deprive respondents to complaints of natural justice or procedural fairness (as in the QUT case, which turned into a three-and-a-half-year legal drama) or pursue obviously vexatious complaints against cartoonists (as happened with the late Bill Leak) without even the consequence of budget cuts. A failure to rein in the organisation, let alone abolish it entirely, is a serious failure to enforce accountability on an agency that has a track record of over-reach and stifling debate. But there is an easy way for the government to begin to make up for its failure. It is time to appoint to the Commission someone that is committed to the ideas of freedom and to the rule of law.
Our political system gives the government of the day an untrammelled power to appoint anyone it likes to positions in the bureaucracy. Why not use it?