[music] I'm Alexander Heffner, your host on The Open Mind.

I'm delighted to welcome our guest today, David Kinley, the inaugural chair of human rights at the University of Sydney an honored to be with you today, sir.

My pleasure.

Thank you for interviewing me.

Thank you.

David.

Let me start with this question.

At the beginning of the book, you distinguish between liberty and freedom.

What is the difference between liberty and freedom, David?

Well, indeed that's the reason why I wrote the book.

Liberty in short form is freedom with limitations.

Freedom in its normal sense would mean freedom simpliciter freedom in extremis.

You have no limitations on what you do.

In fact, the way in which many in politics and law understand freedom is more in a limited form.

But there has been a tendency, certainly in the last ten years or so, to understand freedom in extremis.

I have the freedom to do whatever I want without limits, which I think is creating social, political and legal problems.

Whereas liberty has always been traditionally right back to its forebears in the enlightenment era, a notion that has, a two part to it, a freedom and a responsibility.

And it's not that one necessarily just limits the other.

The responsibility is there to ensure that others have freedom somewhat commensurate to the freedom that you have.

Why are we associating patriotism more with freedom than liberty today?

I think it's parochialism, rather than perhaps patriotism.

I think the notion that we are somehow special, an individual country, I think a lot of people in a lot of countries are led to believe that and maybe indeed do believe it.

But I think the idea of freedom is something that is instilled in many Western nations and beyond, but certainly in Western.

And therefore individuals believe that, their policy, their constitution, their social order is one in which they can exercise that freedom as they wish.

But I think to do so without a recognition that others have exactly the same claim, and that that claim may then butt up against your right.

Without that recognition, you end up with war amongst all, as Hobbes would have it.

So that is something I think one has to appreciate, accept, understand in order to exercise your own freedom.

It cannot be and is not limitless.

There is amazing history sprinkled throughout this book.

I want to ask you about three seminal, pivotal moments that I think have impacted the psyche of our world.

9/11, the financial meltdown, and the pandemic.

Tell us why and how those events have shaped us, in your mind.

How freedom applies to each one is different.

I think, freedom in a way, would be considered the cause of, perhaps 9/11, but most particularly of the global financial crisis, the removing of regulations, the deregulation during the 1980s and early 90s led to what we now have as a sort of overheat or did have an overheated financial system.

So freedom there was one of the precursors of the problem, perhaps also with respect to 9/11, in the sense that people's freedom to move, travel, carry whatever they want onto an airplane, led to what we saw in those catastrophic hours on 9/11.

Whereas Covid, of course, I think was perhaps freedom as a consequence, limited as a consequence of Covid, so that everyone felt that their freedoms, were going to be limited.

Some considered that to be an aberration.

And indeed more than that, abhorrent.

Others considered it a fair, result of needing to deal with a social problem that couldn't simply be reduced to one's individual freedom to move or to have a vaccine or not have a vaccine.

So I think freedom clearly is a part and parcel of all three of those, but in different ways.

Here's why I ask you, They were, like you said, caused by freedom.

They were a consequence of freedom.

But if you think of the postwar era in which we were redefining liberty or freedom in the Nuremberg trials and the Marshall Plan, and how countries were developing and modernizing their sensitivity to human rights in the wake of the Holocaust and the atrocities of World War II.

Things happened.

There were consequences of those events.

And it just strikes me that we have not really as a collection of nations, despite being a globalized world now with high speed internet and modern transit.

We have not collected those notions of freedom or liberty in the way you do in this book and in any sort of structured definition to establish guardrails for artificial intelligence, for geopolitics.

We're sitting here today when the freedoms of Ukrainians and Russians are being violated.

The freedom of those who live in Gaza and Israel are being violated on a second by second basis.

And it strikes me as deeply problematic that we had those three events, and we're not left with any kind of infrastructure to establish human rights for the 21st century.

But tell me I'm wrong, and we have the beginnings of some infrastructure to do that.

Well, I think I would disagree in the sense that we have no infrastructure.

I mean, one of the great legacies of the Second World War was that the international community did come together and where it failed after the First World War with the League of Nations, it succeeded in a limited sense, but it succeeded with the UN.

And what has come out of the UN, perhaps surprisingly, given that, peace and international relations were its main concerns, human rights was a sort of distant third is that human rights have become a very key part of the way in which global affairs are now constructed, almost immediately, three years after 1945 in the UN's establishment, we have the Universal Declaration of Human Rights.

And then after that, a whole raft of international legal, human rights legal treaties.

Now, I think they are a symptom of their time, a representation of their time and their time.

Was that the cataclysm of the Second World War, coming so soon after the First World War, was such that people wanted to extoll the virtues of freedom, the clear, problems of fascism.

And then almost immediately after communism in Russia, in Stalin's Russia, meant that people felt they had to shout loudly their freedom.

And this was not, something ignored or not foreseen by those who drafted the international instruments such that all of those international instruments stress freedom way above liberty.

Liberty hardly appears in those instruments.

It's all about freedom, which one can understand for the reasons I mentioned.

And yet, just 30, 40 years before, Liberty had been a much more common phrase.

In fact, in international instruments and in international relations parlance, it had been on the same level as freedom.

The two words were used somewhat similarly.

Freedom had become the word that people latched on to.

And I think that's a good thing.

I'm not saying it's a bad thing, but of course, with it comes the potential expectation that it is freedom without limit.

And so in a way, human rights, I hasten to, limit this statement being a professor of human rights, but human rights law was part of the problem because in this promise of freedom, it perhaps didn't do enough to recognize the limitations that would be there.

Now, having said that, I continue with my professorial hat on the actual texts of these international human rights instruments are clear that those limitations must be there.

They are written in.

But many people who don't study international human rights don't know that those limitations are there.

They assume that I have the human right to not be, harassed.

The human right to go wherever I want to say whatever I want.

And yet within those instruments and indeed within most of the constitutions of the world, those rights are limited for classic reasons like public security, public order, national security, public health, morals, even.

Those are limitations written into the texts of the international instruments.

But that subtlety sometimes isn't appreciated until you dig deep.

And many people are not digging deep enough.

Especially our politicians.

Quite so.

So when was the last time you heard a politician talk about both freedom and liberty in a consequential way that made you think, wow, they understand the stakes.

Politicians can stand back.

They may not be often doing this, but stand back and recognize not so much that liberty and freedom are used in the same sentence, but that freedom and responsibility are used in the same sentence.

Or more to the point, they understand what the nature of liberty is.

I mean, I wouldn't suggest this is the only time in the last ten years, but certainly one that stands out to me.

And indeed, I quoted in the book, was President Obama in one of his inaugural addresses in which he emphasizes the fact that liberty does contain these two elements and that freedom can never be complete for an individual.

Liberty recognizes the need to appreciate a society of individuals, and therefore there must be responsibilities that come with an individual's freedom for the next individual to enjoy that freedom.

Its a perfect example of how one perhaps has got the authority of the confidence to be able to say that without committing political suicide, for not recognizing that we all have freedoms, which I think is a tendency for many politicians, perhaps at the moment, to stress without recognizing the responsibility.

Responsibilities will not be seen as a good thing to tell your citizenry, to tell your population people dont want responsibilities, they just want freedoms.

What do we say about the people who purport to believe in freedom but are unconcerned with the common good?

They believe in freedom in a selfish, egotistical, self-centered way, and should we call them out on that?

Is it important to do that?

Oh, absolutely.

And indeed, that is where the end of the book, the last two chapters on trust and respect, that's where I go.

Karl Popper, the, philosopher, famously put the idea of liberty, although he wasn't talking about liberty in this sense, but he is in the way in which I portray it by saying that, one's limits to swinging one's fists depends on the position of one's neighbors nose.

And I think that's exactly what we need to instill in our young, in our middle age, in our old, about what it is to live in a society of others.

We always live in the community of others.

And if we don't respect that there may be times in which we have to limit our freedom in order for others to limit their freedom.

Then we're in a situation where it is just war against war.

They may feel, well, well win in that circumstance.

Well, that leads to the end of a civilization, even if it's just an epoch and you recover from it.

But there are times in our current political climate with polarization in the West being so dramatic that there's something I think we have to seriously consider that people simply don't care about the consequences of them saying, I want to do what I want, and I'm not going to be limited by it.

Let's start with Australia and then broaden the conversation.

So one of the unique things here is access to medical care.

It's not by zip code.

It's not by your professional accolades, how important a job you have.

It's available to citizens.

My Uber driver just a moment ago said if I was run over by a car just now, Australia would not send me a bill for ten million dollars three months from now.

There is an idea of freedom and liberty in Australia and other countries in the world, but not the United States.

That is, you have the human right and are entitled to the dignity of health care and you have that arguably because of scale, according to conservatives in the United States who allege that could never be feasible in a country like the United States, access to, affordable healthcare and access to a place to live are the things that people struggle with the most that denies them a sense that they can achieve freedom.

I just wondered if you could reflect on that in Australia and how you see it more globally.

You brought in housing, which at the moment I think most of the people in the audience here would accept is not an issue that would necessarily fall into that same category as healthcare, in Australia at the moment, certainly not in this city.

But with respect to health care and more generally, your comment about social welfare, tax and taxes are a human rights issue.

If you tax, you are hopefully taxing in a way that allows the states to have sufficient largesse to distribute it amongst those who need it.

They need it perhaps more than others, 1 to 1, or it is done on a more general basis, a more equitable basis with respect to health care.

I've got to say that I think in Europe to an extent, the United Kingdom, which I suppose is still part of Europe, and Australia, we do look somewhat aghast at what pertains in the United States.

Because arguments that are forcefully made, in a way that seems so unabashed without any shame, that we should not spend more money on helping those who are not able to help themselves with healthcare seem so unbelievably cruel, as well as selfish, that it beggars belief that.

Does one not understand what the consequences of that are?

I think many people in the audience here, are prepared to pay taxes, high, though they relatively are in this country, because we want to have a health care that is extolled in the way that you and the Uber driver just mentioned, rather than to live in a country in which you have such little concern, perhaps little empathy for those who are not as fortunate as perhaps most of the people, if not all the people in this audience, to look after their health.

It seems to me, a poor policy.

And what is driving that in the United States, is the corporate interests, in effect, diminishing, mitigating, eliminating the opportunity to be free?

There's a commercial element in this, not just in the United States, but in many parts of the country.

In this book, you highlight episodes of human rights abuses in your career.

How have you seen the commercial malfeasance evolve over time, how has commerce in the new millennium, changed and injured the quality of freedom?

Capitalism as a system, based, of course, on rewarding those with capital who invest it in productive goods, has led societies, including former communist societies, into positions of relative wealth and indeed a country like Australia or many European countries, to a position where they are able to have a health care system and a welfare system based on taxes, which of course is crimping, you would say, the freedom of the individual who's earning the money that the taxes have come from, but they have done that in a way that, as it dulls the sharp edges of capitalism.

So it's an engine, an engine that was recognized indeed by Adam Smith as being perhaps the best way in which to produce a bigger pie.

And then that bigger pie would allow better distribution to those in the margins.

And in fact, I think it's an interesting point, which I investigate on the wealth chapter in the book that the reason why, Adam Smith pursued this in The Wealth of Nations and The Invisible Hand was not an end in itself, but as a means by which he could achieve what he saw was the scandalous nature of so many people in society not being able to look after themselves.

So, in fact, for him, it was a means by which to achieve, greater welfare and greater equity.

So I think capitalism can be seen as a process that can do good.

But equally, it clearly can be used in a way that is oppressive and has destroyed people's lives and livelihoods.

What I think has changed over the last 20 years, maybe over the last ten in particular, is that that is now more visible.

I think it's always been happening.

Simply the internet and the social media is such that we now are able to understand, and visually see or read about what atrocities or what discrimination is occurring.

At the same time, the development within the international human rights world has been to recognize that the human rights that are owed to us by our states include our states, our governments regulating the corporations that, operate inside our nations and outside our nations.

To me, it's still quite extraordinary, in the last 10 or 15 years, corporations readily proclaim their adherence to human rights.

They proclaim some of them even to the adherence to the Universal Declaration of Human Rights, which is quite an odd thing for a corporation to adhere to.

But the whole corporations to human rights movement, which is now really been a force for 15 years or so, has led to those corporations recognizing that that is part and parcel of what they do, rather than no, this has nothing to do with us.

That's the state's problem.

Now, whether that has led to better human rights outcomes, I think the jury is still out on that, but it's certainly led to more consciousness within the corporations themselves.

And I would like to think that many of the students that are sitting in this room here, particularly the ones who are doing my courses, of course, that they are going to leave the university, go into these sorts of organizations.

If the reform is needed from within, they're doing it from within, conscience of this movement that we've seen in the outside world over the last 15 years.

But they can't do trust busting from within, can they?

When we talk about the massive monopolies of multinational organizations, you say it's correlated with the increasing visibility and the democratization of information.

But at least from the American perspective, I don't think President Roosevelt, Theodore Roosevelt, Nor would former presidents, Republicans Richard Nixon and Dwight David Eisenhower see what's happening not just in America, but really born out of tech monopolies in America and think, wow, this is consistent with the patchwork of our history, when in effect, you have an Andrew Carnegie owning the trains, owning the internet, Starlink, Tesla.

Is that an aspect of this too, that is more visible and alarming to you of of the acceleration of monopolies in commerce?

That would dictate, more violative, results or outcomes in human rights.

Well, I mean, I don't think it may be different in form, but I think it's not different in nature.

Those monopolies have existed from the very time that you've mentioned.

The state has to step in ultimately, or maybe even earlier than that.

But ultimately, as the arbiter or the regulator of how far freedom goes, including in how far freedom goes in making wealth.

When you say that the those individuals that are sitting here can't do that, I disagree.

I think they come first of all, they are voters.

They are citizens, they have voice.

They're well-educated.

But also they have the capacity to be able to lobby from within powerful organizations inside the organization, or to the outside to the state to say this needs to be done.

One may be cynical about corporations in human rights, I certainly have been guilty of that.

But there are signs of hope there.

And there are ways in which you can see that being changed, can be accelerated by the sorts of people that are, in this law school and elsewhere.

No, I don't mean to be too cynical or pessimistic, only to reflect the currents of the age, in understanding.

Yes, you had Carnegie, you know, you had a tycoon of oil, you had a tycoon of the railroads, but you didn't have a tycoon, allá Bezos or Musk, of so many industries simultaneously.

I'm heartened to hear what you're saying about the idea of reform from within.

Not that you require whistleblowers from the outside to expose a company like a Tesla or an Uber to demonstrate what human rights are being violated.

I hear you for sure on that question.

I said we're going to start with Australia.

I want to zoom in to the United States for a moment and then go more broadly.

I can speak and testify to, the scourge of violence in the United States, as a result of guns, as a result of mental illness, economic disenfranchisement of populations, whether it's rural or urban.

It's occurred to me, watching the recent Supreme Court decision about freedom of encampments.

So that is, the unhoused to be able to live in cities under, you know, beside railways or under bridges.

So the United States Supreme Court recently ruled that is not legal.

Jurisdictions can enforce penalties on those people.

They can theoretically imprison those people.

They can punish the municipalities that condone that activity.

And when you think of improving the condition of the unhoused or homelessness, that is such a question of freedom and liberty and the extent to which you want to help transition or rehabilitate the individual.

My fear is that the United States Constitution, really doesn't allow enough innovative policy making when it comes to a question like poverty, because we're afraid of violating the rights of the unhoused.

And I wanted you to reflect on that.

Well, it doesn't have to be the case, does it?

I mean, it comes down to how one interprets the Constitution and to be brutally frank, that comes down to the nine men and women who sit in the Supreme Court.

And if you've got a position where the Supreme Court, as its always been the case in the United States, is politicized.

And indeed, all courts to an extent are politicized.

But when it's politicized, to the extent that it is now, then that means you really can be looking at that as a serious prospect.

In other words, those who are elected to govern are afraid to take on responsibilities.

That surely should be the very reason they've been elected, because they fear that it will be struck down by an unsympathetic court.

I don't know whether we really fully appreciate how big a problem that is.

I think that when the students here are my age will be looking back at that era, this era and seeing it as a certain degree of horror, because in a way, the response to this will be, presumably, that Democratic presidents will seek to stack the court as well.

But if the court is so minded, then that strikes a chilling fear into our policymakers or your policymakers.

What is the most efficacious way, in your mind, to secure economic liberty, economic freedom?

Is there a case study in your book, or your career where you have come to the conclusion that you are most effective in securing economic freedom in this fashion?

If you go about it in this way?

Honestly, Alexander, it comes back to the notion of how we deal with the freedom to make money and then to spend it.

That comes down to the question of taxation.

Now taxation on its own, can of course, not be sufficient.

It always depends then how the tax dollars are used.

Certainly, one of the countries that I spend time in was Myanmar, and although it may not have a tax system as sufficient, as sophisticated as is in the West, it was putting all of its money into the military because that's who was ruling the country.

That clearly is not what you want your tax dollars to go to.

And there are many dysfunctional or badly functioning governments that use their tax dollars in ways that are nefarious or not for the benefit of the people that elected them.

Putatively or otherwise.

But ultimately, that is where you get that financial or economic freedom, that economic equity, the idea that people will not just be left to fall off the edge of the cliff because of what has befallen them by virtue of their birth or by an accident, or by their race, or by their gender or sexuality, or anything else.

That seems to me an extraordinarily uncivilized way in which to view the way in which we, associate with our, fellow human beings.

Where do you think there is the most promise when it comes to, an economic or financial bill of rights?

For countries to establish them in the wake of, regimes that had been installed and now replaced by more pro liberty, pro freedom regimes, is that something that you've seen in real time?

Yeah, and I think that's right.

There's a huge schism post-Second World War between the two types of rights and international law, civil and political rights, on the one hand, which were favored by the West.

Economic, social and cultural rights, like the ones you've been talking about, the right to access to healthcare, to housing, to education, on the other side, favored mostly by the communist and socialist countries.

So there was a split during the Cold War era.

However, in more recent times, or actually even from the 1940s onwards, but certainly in more recent times, constitutions and bills of rights, have incorporated both.

They're not seen as necessarily separate at all.

In fact, one builds upon the other, so I think the two can be brought together.

And in fact, a number of the more modern constitutions, which exclude ours, Australia and the United States, do include both.

India and South Africa, for instance, two large nations, with one a new constitution, ‘96 for South Africa, in the 40s for India, expressly recognized the nature of one's dignity as an individual in a civil and political sense, but also that they must have a dignified life in the sense of having basic levels of healthcare, of housing, and of education.

Thank you for your time today, David.

My pleasure.

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