by Sarah Joseph (this post was originally published by The Drum on 19 December)

Tim Wilson, former policy director for right-wing think-tank the Institute of Public Affairs (IPA), has been appointed as the human rights commissioner. His remit will be in the area of “freedom”, focusing particularly on freedom of speech. Attorney-General George Brandis explained that Wilson’s appointment would bring “balance” to the Australian Human Rights Commission (AHRC).

Regarding balance, the AHRC has been criticised, by the IPA amongst others, for focusing too much on the right to be free from discrimination – the AHRC has commissioners covering discrimination on the grounds of race, sex, disability and age as well as commissioners for children and Aboriginal and Torres Strait Islanders.

However, such a focus is hardly surprising given that Australia’s federal human rights legislation covers anti-discrimination. Otherwise, we lack explicit human rights protection at the national level (and in most states), including a general law protecting free speech. An increase in such protection would be warmly welcomed by human rights advocates across the country.

“Freedom” is certainly an important component of human rights, generally denoting freedom from government action and regulation. This aspect of human rights is often referred to as “negative rights”, where governments must refrain from interfering with people. These rights accord well with the “small government” ethos of the IPA, which has long campaigned against perceived government threats to freedom, such as greater regulation of newspapers and even plain packaging for tobacco products.

Wilson and the IPA believe that human activity is best “regulated” by voluntary interactions in the free market rather than by governments, which they seem to believe are inherently oppressive, inefficient, or at the very least expensive (interfering with us by taxing us). This “free market approach” to human rights, however, takes no account of existing power relations. Such an approach, if adopted exclusively, protects human rights for the strong but offers far less to the disadvantaged.

A sole focus on negative rights fails to encompass the complexity and nuances of the full corpus of human rights. Free speech is a vitally important right, but it is not an unlimited one. This is made clear in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Brandis referred in announcing Wilson’s appointment.

Indeed, the ICCPR and other international human rights instruments also set out “positive rights”, according to which governments must perform certain acts in order to fulfil human rights. Sometimes, it’s necessary to balance rights against each other, including “positive rights” against “negative” ones.

For example, in the free speech arena, governments must not interfere arbitrarily with what we express, say and read. However, certain viewpoints simply do not capture the attention of the commercial media. For example, commercial broadcasters have a tendency to be conservative and mainstream in choosing content, so as not to scare off advertisers and viewers. There is a need for government broadcasters such as the ABC and SBS to cater for non-commercial tastes to ensure access to a wide variety of views and ideas.* Yet the IPA is a vigorous supporter of the privatisation of these institutions.

Wilson is already at odds with his fellow human rights commissioners on the issue of section 18C of the Race Discrimination Act. That section renders it unlawful for a person to offend, insult, humiliate or intimidate another person on the basis of race, though certain defences are contained in section 18D. Andrew Bolt was famously found to have breached this provision in 2011, and the IPA has been amongst the most prominent in bemoaning the “silencing” of the prominent commentator.

Wilson advocates a repeal of section 18C in its entirety. While I am inclined to agree with him regarding speech which is offensive or insulting, I cannot agree regarding speech which is intimidating. The prohibition on racially intimidatory speech in section 18C is designed to prevent the silencing of members of the target group, normally (but not always) a historically oppressed minority. At worst, such speech can provoke violence and hatred against racial groups. Words can in fact hurt.

Anti-discrimination laws are the classical response to the need to protect vulnerable groups. Yet Wilson stated before a parliamentary committee earlier this year that he was not convinced that there was a human right against discrimination. There is in fact no doubt that such a right exists from the perspective of domestic and international law. Wilson’s statement may be a classic example of the IPA’s focus on individual liberty (in this case, the liberty to discriminate), concealing the reality that not all individuals have equal opportunities.

The “free market” approach to human rights certainly upholds freedom. However, it obscures two other key components of human rights, dignity and especially equality. It is to be hoped that Commissioner Wilson takes into account and embraces the full spectrum of human rights, including an appropriate balance between them, while performing his new role. I wish him well.

* It may be a stretch to say that there is a human right to a publicly funded broadcaster. However, governments are required under Article 19 to ensure diversity and plurality in the media. One way of doing that, deployed to an extent in all liberal democracies, is to provide for a public broadcaster to help cater for non-commercial and minority viewpoints. Another way is to impose appropriate caps on private ownership to prevent monopolistic control of the media. (thanks to Michael Brull for raising this point with me)