To Human Rights In Australia by LJM Cooray (1985)

This publication provides a brief account of human rights and their operation in Australia. It was originally conceived and intended to be a short essay on the subject. Important developments affecting and restricting human rights in Australia and the growing public interest in a range of issues relating to the subject made it necessary to expand the document. Contributions from a number of prominent participants in the current intellectual debate have been included. Nevertheless, the publication is not intended to be a comprehensive survey. It contains an outline of the concept of human rights followed by-more specific treatment of selected areas of special concern.

Although this book was developed without regard to a pre-settled scheme, it is hoped that its major thematic concerns will become sufficiently clear to the reader.

The first of these concerns is the necessity to treat human rights as essentially individual rights as opposed to collective rights. The philosophical foundation of this book is the premise that the interests of all persons can be promoted only by securing to each, sufficient protection against governmental power and an area of individual freedom. Implicit in this premise is the rejection of the notion that there can be a social interest other than the aggregate of individual interests, or a social purpose other than the aggregate of individual purposes.

Opposed to this view is the belief that human rights cannot be secured without active enforcement of rules of conduct for individual members of society, in the larger interest of the society as a whole. It is argued, that the unavoidable consequence of this approach is that the interest of society has to be determined by an authority other than the individual members themselves. At best these interests will be determined by transient majorities in elected legislatures who in any event pursue ideological goals or special interests which often do not coincide with popular wishes. More often these interests are determined by unelected bureaucrats or by tyrannical regimes.

The second major concern is that the area of individual freedom should not be transgressed through moral judgements of ideologically motivated legislatures or bureaucrats. The majoritarian approach to determine human rights is fallacious for two main reasons. Firstly, genuine majorities are hard to ascertain. Second, the moral validity of human rights rests not on majorities but on the worth and dignity of each individual. The traditional civil liberties were evolved and established through the recognition of their indispensability to human liberty and their value transcends the short term interests for which they are sought to be sacrificed by legislative majorities and bureaucratic adjudicators.

The third major concern of the book is to separate the basic human rights, or the human rights properly so-called, from the claims to positive benefits which can be granted only by restricting civil liberties. The elevation of human needs and socio-economic claims to the status of human rights is calculated to undermine individual freedom or at any rate has that unavoidable effect. The contradiction resulting from the simultaneous pursuit of civil liberties and such needs and claims will be demonstrated and a case will be developed for restoring primacy to the traditional civil liberties. This is not an argument against the need to provide welfare for the genuinely needy and the underprivileged. What is sought to be emphasised is that welfare is not a right in the true sense of the term. It is a benefit granted by government, which can be elevated to the status of a right only at the cost of the traditional liberties.

Apart from the above concerns, the book will identify and discuss the particular sources of danger to human rights in Australia. These will include the philosophy and practices of the Human Rights Commission, the proliferation of bureaucratic-adjudicative bodies, the single-issue-group actions, the bias against individual wealth and achievement, affirmative action, and the organised and deliberate abuse of rights.

The basic concepts concerning human rights are outlined in chapter 2. It focuses on the different classifications of human rights and some important issues which affect the proper understanding of the nature of human rights. These relate to the imperfect or non-absolute character of human rights, the necessity for restrictions of rights, the need to satisfactorily resolve inevitable clashes between rights and the indispensable role of the judiciary in the operation of any system of rights

Chapter 3 discusses one of the most important historical sources of human rights, the common law. The nature of human rights can be better understood if their historical evolution is examined. Whilst philosophical thought in Europe has made invaluable contributions to the development of natural rights and fundamental freedoms, the common law system is without parallel for its systematic protection of individual liberty. An awareness of the common law antecedents of human rights is therefore essential to the understanding of the distinctive character of human rights and to appreciate in what respects the traditional liberties differ from the needs based socio-economic "rights" that have gained precedence in some quarters.

The creation of human rights by international treaties stands in sharp contrast to the evolutionary traditions of western philosophy and methods of the common law system. Whilst international conventions have recognised many of the rights traditionally recognised by the common law system, they have diminished their importance by elevating to the status of human rights, a wide range of claims which stand in tension with traditional liberties. chapter 4 analyses the impact of these treaties on the traditional rights and investigates the political and ideological thrust of these instruments. The moral validity of these documents is questioned. The fraudulent designs of many of their authors who in practice show total contempt for the rights proclaimed in the documents are demonstrated.

Chapters 2, 3 and 4 introduce the reader to the traditional and modern approaches to human rights and provide some idea of the tensions and conflicts that have arisen between the two approaches. In chapter 5, an attempt is made to explain these contradictions from both the theoretical and practical viewpoints. In one sense, this chapter carries the most important theme of the book. That theme is: if human liberty is to be preserved, it is essential to draw a distinction between rights that serve as pre-conditions to liberty and claims based purely on economic needs which, however laudable, can be fully realized only at the cost of damage to overall freedom, involving big government and counter-productive bureaucratic activity. In other words, it is of utmost importance and urgency to restore precedence to the fundamental civil liberties when they come in conflict with perceived needs based claims that require coercive measures which infringe on those liberties.

Chapters 6, 7 and 8 respectively contain analyses on the freedom of speech, personal liberty and the freedom of the individual to hold and enjoy private property. The freedoms of speech and property (for reasons stated) are among the rights most vulnerable to interference as a consequence of coercive utopianism and moral tutelage practised by elected governments in recent times. Yet these rights together with personal liberty constitute the basis of all other liberties.

Equality of opportunity is a fundamental principle of the civil liberties tradition. Discrimination and the question of equality are the subjects of chapter 9. This is another area of importance to the future direction of personal freedom. There is a movement to convert the right to equality of opportunity into a right to equal material conditions of life. This trend reflects a demand for a gradual transformation of society on totalitarian-socialist lines. The claims of equality however are never presented in these terms. They take the form of demands for coercive measures to equalise opportunities allegedly denied to some groups in the course of social and political evolution. Yet when the implications of these demands are examined they logically lead to a radical re-ordering of society in a manner in which personal attributes and effort will have diminishing relevance. In this chapter, the difference between non-discriminatory treatment and the provision of equal material outcomes is discussed.

Chapters 10 and 11 examine the coercive measures aimed at curbing commercial advertising. The measures have serious implications for both the freedom of expression and proprietary rights. These measures are discussed as they illustrate the coercive utopianism and paternal regimentation being imposed on the community with far-reaching consequences for personal liberty. Resistance to these measures is necessary for the purpose of reversing the steady erosion of liberty that is taking place to impose ideologically motivated and elitist reforms in the name of the public interest.

Chapter 12 deals with some specific problems affecting due process and natural justice. The problems arise out of the increasingly frequent resort to non-judicial tribunals for the purpose of determining rights and duties of citizens. The chapter deals more specifically with the assertions made in other parts of the publication that the judiciary performs an indispensable role in the protection of fundamental rights.

Chapter 13 is devoted to an examination of the nature, the functions and the actual conduct of the bureaucratic mechanism that has been set up for the promotion of human rights in Australia. The Human Rights Commission epitomises the philosophy that human rights are not matters to be settled by individual assertion of rights and impartial adjudication. They are regarded as the responsibility of the government which must determine the content of rights and regulate society accordingly. The Commission not only defines the citizen's fundamental rights and duties, but also engages in their active propagation and enforcement. Lacking in impartiality, independence and training, but equipped with substantial coercive powers, the Commission has become an instrument of ideological propagation and an active agency for the subversion of the more important and fundamental rights.

Chapter 14 discusses the pros and cons of the enactment of a Bill of Rights in Australia, with particular reference to the "Evans Bill of Rights". Whilst not rejecting the value of such an instrument, the methods and the objects implicit in the "Evans Bill" are subjected to searching analysis.

Chapter 15 focuses on the often neglected subject of the abuse of human rights. In this analysis, attention is turned from legislative and executive threats to the dangers posed by individuals and groups who cynically exploit liberty for the purpose of subverting the very foundations of the free society. These groups include unscrupulous trade union leaders and other political groupings which are bent on purposeful destabilisation of society with a view to gaining short term benefits or long term radical objectives. The problems which face society in maintaining the conditions of peace and stability necessary for the enjoyment of liberty, without resorting to measures which themselves undermine liberty, are also analysed.

The work of State so-called anti-discrimination and equal opportunity institutions have not received analysis in this publication. This is not to say that these organisations are any less guilty than the Human Rights Commission of undermining fundamental rights. However problems of time and space have prevented evaluation of the work of these often anti-freedom and basic rights restricting organisations.

A companion volume to this is under preparation. It will focus on institutions referred to in the above paragraph, as well as topics not or inadequately dealt with in this publication. These include racial discrimination, the right of association (including withdrawal of labour) and ASIO. The appendices contain some perspectives on these issues.