16. Conclusions
From Human Rights In Australia by LJM Cooray (1985)

The operation of basic concepts regarding human rights is critically examined in this publication in relation to specific situations. The treatment of the subject has by no means been exhaustive. Special emphasis has been placed on aspects of human rights which have tended to be neglected in current trendy and political academic writings.

There is an important difference between the approach adopted in this publication and that of a majority of recent academic works. The difference is that human rights are here regarded as essentially individual rights as opposed to collective social rights. The philosophical foundation of this publication is the premise that the interests of all persons can be promoted only by securing to each 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. 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 are determined by transient majorities in elected legislatures subject to pressure from non-representative pressure groups and ideologically committed bureaucrats. They pursue ideological goals which rarely coincide with popular wishes.

The commitment to individual as opposed to social rights does not mean a commitment to absolute individual freedom. Such a commitment is impossible by the very nature of human rights. If human rights are to subsist in each individual, the freedom of each has to be respected by others. For this reason the freedom of each must be restrained to the extent necessary to enable the exercise of the freedom by others. It is important that if individual freedom is to be effectively maintained, the necessary restraints should emanate as far as possible from individual moral responsibility rather than from legal sanction. Where the concern for the freedom of others declines the need for legal intrusion increases. Therefore greater self-restraint will provide greater individual freedom.

In complex modern societies, limited legislative restrictions on freedom are unavoidable. What is avoidable are the subjective or arbitrary determinations and enforcement of restrictions. In this respect an impartial and independent judiciary becomes indispensable to the maintenance of human rights. In the absence of constitutional protections the task of determining restrictions is left to legislators and unfortunately, in recent times, the gravest threat to human rights has arisen from democratically elected legislative bodies conferring wide powers on bureaucrats and individuals. Legislators (assisted by academics and bureaucrats) have misconceived their role by assuming the task of deciding for the people what is best in their interests. Instead of endeavouring to give expression to popular opinion, they have arrogated to themselves the role of moral tutors to the public. Consequently they have begun to impose their ideological preferences on the public in the guise of protective measures.

The only legitimate basis for the legislative restriction of fundamental rights is the popularly perceived immediacy of danger to the society. Restrictions based on ideological conviction or intellectually comprehended needs of society are totally incompatible with respect for human rights.

To avert the growing threat to human rights, it is necessary to resist the paternalistic measures of government engineered by professed guardians of public interests and public morality. The right to determine what is in the public interest has to be restored to the members of the public. This can be done only by widening the scope for individual choice and individual action. To do so however requires greater public awareness of human rights and greater public vigilance against governmental invasion of those rights.