The Ongoing Legacy of the Universal Declaration of Human Rights

9th International Conference on Human Rights Education—Unleashing the Full Potential of Civil Society
Emeritus Professor Rosalind Croucher AM 
President, Australian Human Rights Commission
27 November 2018

[Professor Croucher spoke to this paper. Some sections were not addressed fully, given the coverage of some matters by earlier speakers in the program.]

Introduction

Thank you Professor Steven Freeland, Dean School of Law, Western Sydney University. Thank you also to Dr Sev Ozdowski AM for inviting me to speak. The conference program is incredibly diverse and offers a wide range of perspectives on the topic that unites us all: human rights education.

I would like to begin my presentation by acknowledging the ancestral owners of this land, the Darug peoples of the Eora, and to pay my respect to elders, past, present and emerging. I also extend my respect to all Aboriginal and Torres Strait Islander participants here today.

I see my role as President of the Australian Human Rights Commission as an ambassador, or champion, spreading the word about rights and freedoms, so the opportunity to speak at a conference on human rights education was an ideal fit.

The theme of ‘intergenerational transfer’ of human rights has been a powerful one in the speeches so far. As Dr Marope said in her opening address, ‘If you don’t know your human rights, how can you exercise them?’ This is where education comes in: to foster that intergenerational transfer to our young people through education.

A year of anniversaries

This is a year of significant anniversaries in the human rights firmament:

• the 70th birthday of the Universal Declaration of Human Rights
• the 25th anniversary of the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993
• the 25th anniversary of the Principles relating to the Status of National Institutions—the Paris Principles, adopted by the UN General Assembly on 20 December 1993
• the marking of Australia’s first year on the UN Human Rights Council.

In using the idea of the ‘ongoing legacy’, I want to use the moments of noting anniversaries not just as a nostalgic retrospective, but to ask what it means for us now. What is the ongoing legacy of the Universal Declaration of Human Rights? What are the domestic implications of the ‘International Bill of Human Rights’, comprising the UDHR and the two international covenants that were passed two decades later: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESR).

Central to the onoing legacy is the role of human rights education. Here I will speak to the idea of expanding ‘rights-mindedness’ and the role of the Australian Human Rights Commission in contributing to human rights understanding and promoting the idea that human rights are not a ‘foreign language’.

Universal Declaration of Human Rights

The Universal Declaration of Human Rights is the benchmark document in the human rights world.  One may even call it the ‘grand old lady’ as a deferential nod to one of its driving forces, Eleanor Roosevelt: who devoted herself to the negotiations of the Declaration. She was a remarkable woman indeed—and the Chair of the United Nations Commission on Human Rights, given the task of framing an ‘international bill of human rights’. It was accomplished in three stages: the Universal Declaration, in 1948, followed nearly twenty years later, after the interruptions of the Cold War, by the two binding covenants.

The story of the making of the UDHR is a fascinating one and it has peppered my speeches this year. It was a considerable achievement to bring together the different philosophical traditions of the members of the Commission on Human Rights into a final draft—and one that was acceptable to the General Assembly—in a universal language of human rights. The 18 members of the Commission were ‘a remarkable group of people with strong convictions and strong personalities’, including ‘some of the most able and colorful public figures of their time’.

The combination of rights guaranteed in the two covenants ‘represent the most authoritative universal minimum standard of present international human rights law’.

Perhaps no other document in history has so beautifully encapsulated the aspiration of what we can all achieve as human beings as has the UDHR. Let me quote a paragraph from the preamble and the famous first Article:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world …

Article 1.

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

We would do well in the twenty first century faithfully to implement the Declaration—in intent and spirit—as the ongoing legacy of the document. Fundamentally, it is grounded in dignity and in respect.

Australia, as many of you will know, played a critical role in the development of the UDHR. Most well known is the role of Doc Evatt as the President of the General Assembly at the time that the Declaration was overwhelmingly supported by the nations of the world.

We earned ourselves a reputation as an international good citizen for our commitment to human rights and multilateralism. We should not forget this. It is something we should reflect on as we celebrate the 70th anniversary of the UDHR. It should be remembered as part of our ongoing legacy.

Just as we played an important role in the UDHR, we played an equally important one at the Vienna World Conference on Human Rights 25 years ago in June this year.

The Vienna Conference and its Programme of Action focused on turning the commitments of the UDHR into action. Its preamble ‘recalled’ (in UN language of such documents):

the determination expressed in the Preamble of the Charter of the United Nations to save succeeding generations from the scourge of war, to establish conditions under which justice and respect for obligations arising from treaties and other sources of international law can be maintained, to promote social progress and better standards of life in larger freedom, to practice tolerance and good neighbourliness, and to employ international machinery for the promotion of the economic and social advancement of all peoples.

This is enduring and timeless language.

Australia was a critical supporter of the important role of national human rights institutions to promote and protect human rights at the domestic level and, in particular, as stated in the Vienna Declaration, ‘in their advisory capacity to the competent authorities, their role in remedying human rights violations, in the dissemination of human rights information, and education in human rights’.

The Vienna Declaration also encouraged the establishment and strengthening of national institutions that complied with what are known as the ‘Paris Principles’—again, in UN style, referencing the place where they were formulated. A workshop in Paris in 1991 had defined what a robust, genuine national human rights institution would look like. These principles were adopted by the UN General Assembly in 1993 and are also celebrating their 25th anniversary.

Australia has, over the past 25 years, been one of the key champions of NHRIs globally. This commitment has been unwavering, regardless of what political party is in power. It has been a key feature of development and diplomacy efforts; and technical cooperation to establish NHRIs has received significant support over this period. For 20 years, the Commission has been supported in Human Rights Dialogues with China, for example.

It is indeed a ‘signature’ policy of Australia: one of five pillars of our recent bid for election to the UN Human Rights Council, representing ‘areas where Australia can advance human rights in practical, sensible ways that will have far-reaching systemic effects over time’.

In its Note verbale to the UN General Assembly, Australia said:

Independent national human rights institutions and a strong and robust civil society play a crucial role in preserving and advancing human rights. Australia is a strong advocate for strengthening the capacity of national human rights institutions to promote and protect human rights.

Here the Australian Government acknowledged to the world the important role that bodies like the Australian Human Rights Commission play in promoting, protecting, and, indeed, advancing human rights.

This commitment of the Australian governments leads to one of the more unusual dynamics in the relationship between the Australian Human Rights Commission and the government of the day. For the Commission is critical to the good reputation of Australia in the UN system, and is constantly referred to by the government in international processes, like treaty reporting moments, as a marker of the health of our democratic traditions. This is even at times when domestically our ‘plain speaking’ may be less welcomed.

We are in a delicate position as the national human rights institution. We are in the middle: between government on the one hand, and civil society, on the other. We're neither one nor the other—and are independent of both. We are not the government’s lackey nor the nation’s soapbox, in other words. What keeps us balanced in the middle is our statutory mandate.

How are we now placed in terms of the ongoing legacy of the UDHR, and its companion covenants, in Australia?

In the next part of this talk, I will comment on the hugely important role of the Australian Human Rights Commission in human rights education. I will also look forward to things on the radar for improving human rights protections in Australia.

Human rights education

Human rights education and understanding was front and centre in the UDHR. The preamble proclaimed the Declaration as

a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, … shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance …

The Commission contributes to the promotion of human rights through education, advocacy and advice—to the Government, to Parliament and to the broader community—to make human rights about ‘everyone, everywhere, everyday’.

There is a formal pathway through the making of submissions to parliament in relation to inquiries—on average we contribute one a week. These are measured, authoritative statements in relation to the compatibility of instruments with human rights standards. These provide a powerful contribution to ‘good governance’—the first of the ‘enablers’ identified by Dr Marope in her speech last night.

There is also the inquiry work that the Commission undertakes, leading to reports on significant human rights issues. Examples from the current work of the Commission include:

• Wiyi Yani U Thangani (Women’s Voices), building on the legacy of the 1986 Women’s Business Report. This inquiry is being led by June Oscar, AO, the Aboriginal and Torres Strait Islander Social Justice Commissioner, and funded by the Department of Prime Minister and Cabinet. The Commission is asking Aboriginal Torres Strait Islander women and girls to share their experiences about what the key challenges, priorities and aspirations are for themselves and their communities.
• Human Rights and Technology—the Commission is undertaking a major project on the relationship between human rights and technology. The project is being led by the Human Rights Commissioner, Edward Santow.
• Everyone’s Business—on 20 June 2018 Australia’s Sex Discrimination Commissioner, Kate Jenkins, announced a national inquiry into sexual harassment in Australian workplaces.
• Child Safe Organisations—the National Children’s Commissioner, Megan Mitchell, is leading the development of National Principles for Child Safe Organisations.

Another of the audiences to address in human rights education is the community at large. How do we build a proactive culture that thinks of human rights, and related concepts like respect and dignity, upfront, and uses this thinking to guide our actions and our relationships? To make human rights part of the vernacular.

Part of the challenge of building a community culture of rights-mindedness is the way that human rights are framed in Australia.

In Australia, our discussion of human rights most frequently occurs in a ‘negative space’. Human rights are invoked in public debate as inhibitors—reasons why you can’t do certain things. ‘You can’t do that because you are breaching my rights’ is an example of this. The formal limitations are expressed in statutory form in the suite of anti-discrimination laws, although often when people identify ‘rights’ that are being breached they are not legally protected.

The work of the Commission regarding complaints handling reflects this negative space, but also in a way that is concerned with the dignity of individuals. To give you a sense of this work, complaints usually start with just a phone call or email—some form of contact—by, on average, 15,000 people a year who consider that they have been badly done by in one way or another, and businesses just trying to understand their obligations. They are assisted or referred. About 2,000 people pursue our formal complaints process, one that is based on conciliation. Only a tiny number of these ever end up in court; and most participants, both those who complain and those who are complained against, are very satisfied with the professionalism of the process and its outcomes.

In the now almost 37 years of the Commission’s operation this is an enormous number of individuals who have been assisted. (Plus the earlier complaint handling work of the Commissioner for Community Relations under the Racial Discrimination Act 1975 (Cth)). In each case the individuals involved, including many employers, have learned more about human rights and their protections in Australia than they knew before. The process itself contributes to human rights education.

Another key contribution of the Australian Human Rights Commission concerns building understanding of rights and freedoms across all levels of the school curriculum. Most recently the Commission released resources for years 7–10, including a number of animated videos. They articulate with the school curriculum in the subjects History, Civics and Citizenship. The resources are designed to teach students about the key role that rights and freedoms, and the responsibilities that sit alongside them, play in Australian democracy. They do this in a way that is engaging, inclusive, participatory and, we hope, empowers students and teachers to act in ways that promote and protect their own human rights, and the rights of others. In the video, ‘What is Democracy’, Australia is a character as well.

One example is the video on the Magna Carta, prepared in 2015 to mark the 800th anniversary of the sealing of the Magna Carta in 1215. In 2016–17, it was downloaded around 50,000 times—an extraordinary outreach.

We also lead significant dialogues around major human rights themes, both domestically and within our region. For example, this year marks the 20th anniversary of the Australia-China Human Rights Technical Cooperation Program; and, earlier this month we held the 5th Dialogue on Business and Human Rights—an event that grows significantly each year.

One of the legacy questions of the UDHR and its ‘daughter’ instruments is the strength and extent of domestic implementation. On some levels we have done well; on others there are bits ‘missing’. First, the entire Commonwealth of Nations has moved forward by introducing comprehensive human rights protections in legislation: commonly referred to as a Charter of Rights or a Human Rights Act. We stand alone in the Commonwealth for not having introduced such protection at the federal level. Whether we introduce one; what it would look like; and what role the Australian Human Rights Commission will play, are all key questions.

A Human Rights Act builds a dialogue model for the protection of human rights—as the Victorian experience has shown. It requires parliaments to grapple with the issue of protection of human rights: and particularly to identify where the parliament intends to deviate from such protection or breach the human rights of people or a sub-group in the community. Where such an intention exists, they then require a process of justification to ensure that breaches of rights are as narrowly framed as are strictly necessary. Human Rights Acts do not trump the will of Parliament—they require a dialogue and a consideration of human rights.

While we don’t have a Human Rights Act, we do have one kind of institutional rights reflective mechanism in that there is a need to produce ‘compatibility statements’ with human rights, required since 2011 and their consideration by the Parliamentary Joint Committee on Human Rights (PJCHR).

Second, and related to this, while we have an incomplete framework for protecting human rights in Australia, we have not been without some mechanism for handing human rights complaints. It is instructive to point out here the role that the Commission has in this regard.

Australia’s ratification of the ICCPR on 13 August 1980 provided the catalyst to the passage of the legislation that established the first iteration of the Commission in 1981—as the ‘Human Rights Commission’. The functions of the new Commission included machinery for complaints of breaches of human rights by or on behalf of the Commonwealth. ‘Human rights’ were defined as meaning the rights and freedoms recognised in the ICCPR, declared by the three listed Declarations—the Declaration on the Rights of the Child (1959); the Declaration on the Rights of Mentally Retarded Persons (1971); and the Declaration on the Rights of Disabled Persons (1975)—or ‘declared by any relevant international instrument’.

With the sunsetting of the first Commission, the new Human Rights and Equal Opportunity Commission, or HREOC as it was known, was established as a permanent body. It was renamed as the ‘Australian Human Rights Commission’ in 2008. Part of the architectural design of this second iteration of the Commission was an accompanying Australian Bill of Rights Act. The functions that the 1981 Commission had in relation to the ICCPR and other international instruments were to be continued by HREOC, but with the Australian Bill of Rights Act, the functions were to be exercised under that Act rather than the Covenant. The Bill was passed in the House of Representatives, but did not survive the Senate. So the functions under the ICCPR for Australia continued to sit with the Australian Human Rights Commission—even without a formal enactment of the covenant as a ‘Bill of Rights Act’. But the human rights complaints mechanisms are rather invisible—at least in the eyes of the public. They are based on conciliation and there is no judicial pathway, unlike the complaints under the federal Discrimination Acts.

Human rights complaints, as well as ILO 111 discrimination, introduced in 1986, ‘run out’ in terms of remedies. If the complaints cannot be resolved then the complainant has no legal access to the courts. Such complaints have no pathway to eventual judicial consideration, enforceable orders and binding precedent—only unenforceable recommendations contained in a report to the Attorney-General, after the matter was unable to be resolved through conciliation. Although additional powers were given to the Commission in 1986, to include a power to recommend compensation, the recommendations remained unenforceable.

There is also inconsistency between the meaning of unlawful discrimination in the four federal Discrimination Acts and extremely complex differences in legal standards, which can really only be understood in terms of the different point in time at which each piece of legislation was introduced.

The analogy I would use is that the legal framework under which the Commission operates is like a house, designed around a central room, that was never built, and has had several rooms added over a 30+ year period without any thought as to the overall design or architecture of the place.

So there is much that can be done to improve the effectiveness of the domestic human rights architecture. Part of the ongoing legacy of the UDHR is to finish that design.

In the final moments of my presentation, I would like to return to the UDHR.

Article 1 reminds us that, beneath our clothes, despite our geographic location or where we are born, we are all born free and equal in dignity and rights.

The Declaration also concludes, in article 29, with the corollary of this: that everyone is also responsible for human rights.

How do we enliven this idea that human rights are everyone’s responsibility? To me it is about increasing the ‘rights-mindedness’ of people across the nation, across generations, and across all aspects of government. Or in terms of the Australian Human Rights Commission’s motif, making human rights about ‘everyone, everywhere, everyday’, not just for government to deal with, or that is solely a matter for legal processes.

My hope is that government, civil society, NGOs, the Commission will all work together to articulate what needs to be done and to commit to partnership to achieve it.

Endnotes