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United Nations of Association of Australia National Conference

Rights and Freedoms

United Nations of Association of Australia National Conference

Great Hall, University House
Australian National University, Canberra

10 August 2013
9.40am

Professor Gillian Triggs
President, Australian Human Rights Commission

Australia and the Universal Declaration of Human Rights

I would like to acknowledge the Ngunnawal People, the Traditional Owners of the land upon which we gather today. I pay my respects to your elders, past and present.

I also would like to acknowledge the important work of the United Nations Association of Australia, under the leadership of Professor Russel Trood, in seeking to advance the goals of the United Nations in Australia and around the world.

Thank you for inviting me to speak here today; it is truly an honour to be here with friends and colleagues and to have the opportunity to speak on a topic that, as a public international lawyer, has been an inspiration throughout my career.

“All human beings are born free and equal in dignity and rights” –

These are the simple yet powerful words of Article 1 of the Universal Declaration of Human Rights. Often referred to as the Magna Carta of our time, the historic document established, what are now known as the cornerstones of international human rights law, that human rights are universal and inalienable.

The Universal Declaration consists of a preamble and 30 articles that outline the basic civil, political, economic, social and cultural rights to which all humans are entitled, and states that human rights are to be enjoyed by all people, no matter who they are or where they live. Today, I would like to say a little about the influence of the Universal Declaration and then to consider the most pressing challenge for contemporary human rights law and that is to implement the principles of the Declaration in Australian law. The failure by most states to implement the human rights treaties to which they have willingly become party is one of the disappointments of the 20th century and challenges of the 21st.

Background

To begin at the beginning, the Universal Declaration of Human Rights was adopted three years after the end of World War II. It was a time when people were determined to create a rule of law based institutional structure for peace, security and an assurance that they can live their lives free from violence and discrimination. The preamble begins by recognising that ‘the inherent dignity of all members of the human family is the foundation of freedom, justice and peace in the world.’ The linkage between peace and human rights was forged.

The process of debate and dialogue in the lead up to the adoption is significant in its own right. Never before had such a diverse group of sovereign and equal nations come together to articulate the core values and traditions that define the fundamental rights and freedoms of their respective societies. It was a significant achievement for diverse, even conflicting political regimes, religious systems and values to find such common ground.

The entire text of the Universal Declaration was negotiated in less than two years, the drafting committee including Lebanon, Union of Soviet Socialist Republics (USRR), China, France, United States, United Kingdom, Chile, Canada and Australia.

The Universal Declaration is a progressive reform document. For example, article 2 states that Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. By including the category of ‘other status,’ the drafters were anticipating any additional grounds of discrimination not explicitly listed.

Once drafted, the General Assembly debated the document, with the 58 Member States voting a total of 1,400 times on almost every word of every article.[1] The final text was adopted around midnight on December 10 1948.

Australia played a significant role in the formation of the Universal Declaration and the foundation of the post-World War II international order more broadly.

I’m sure you’re all familiar with the brilliant, if ‘testy’, Doc Evatt, who was a prominent, figure in Australia politics during the middle of the 20th century. Prior to his work at the UN, he had been a judge of the High Court, Chief Justice of New South Wales and Attorney-General. Doc Evatt was renowned for being an avid promoter of civil liberties and the rights of economically and socially disadvantaged people. As Minister for External Affairs from 1941 to 1949, he was a champion of the smaller nations, arguing against the veto power in the UN Charter.

Doc Evatt was the powerhouse behind Australia’s support for the Universal Declaration and –importantly- was the President of the UN General Assembly at the time the Universal Declaration was unanimously adopted.

Since its adoption we have seen an extraordinary development of international, regional and bilateral human rights treaties, legal jurisprudence developed by UN monitoring bodies, and national laws. The Declaration has not only had significant legal influence, but extensive moral and political force.

The Universal Declaration has also been successful in establishing a common language around human rights. Remarkably, the document is currently available in 407 different languages, making it the most translated document in the world.[2] The Office of the High Commissioner for Human Rights has been awarded the Guinness World Record for having collected, translated and disseminated the Declaration.

I think Doc Evatt would be very pleased with the influence the Declaration has had over the last 64 years.

This year marks the 20th anniversary of the World Conference on Human Rights, which was held in Vienna. The World Conference played an important role in rejuvenating the human rights work of the UN, and reviving the importance of the Universal Declaration. It was at this conference that 171 countries reiterated the universality, indivisibility and interdependence of human rights, and reaffirmed their commitment to the Universal Declaration. They adopted the Vienna Declaration and Programme of Action, which provided a new framework of planning, dialogue and cooperation and established the UN High Commissioner for the promotion and protection of all human rights.

It was also at this conference that the unique and important role of national human rights institutions was recognised as independent protectors and promoters of human rights. Since 1993 we have witnessed an exponential growth in the number of national human rights intuitions. National human rights institutions can now be found in 103 countries. Of these, 69 are currently accredited with ‘A’ status, including Australia.[3]

I will talk a little bit about the role of national human rights institutions, in particular the Australian Human Rights Commission a little bit later.

Universal Declaration and Customary International Law

A question that has dogged consideration of the Universal Declaration is: what is its legal status? The Declaration was drafted as an expression of the fundamental values and principles shared by all members of the international community. It is not a treaty, so it does not directly create legal obligations for countries.

Eleanor Roosevelt reminded those present at the adoption by stating:

In giving our approval to the declaration today, it is of primary importance that we keep clearly in mind the basic character of the document. It is not a treaty; it is not an international agreement. It is not and does not purport to be a statement of law or of legal obligation.

I do rather wish she had not said that! In my view, many of the articles of the Declaration have achieved the status of customary law, for example, Article 14 dealing with the right to claim asylum, a right that is not explicit in the Refugees Convention itself.

The original aspirational aims of the Universal Declaration have been achieved. It has had a profound effect on the development of international human rights law overt the last 65 years, prompting negotiation of many other international agreements which are legally binding on the countries that ratify them. Among these instruments are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both of which refer to the Universal Declaration explicitly in their preambles. These Covenants are legally binding treaties and, with the Universal Declaration form what is known as the International Bill of Rights.

The Universal Declaration has inspired the development of over 80 international human rights treaties and declarations.[4] Most of these instruments make direct reference to the Universal Declaration, as do numerous resolutions adopted by the Human Rights Council and General Assembly.

Today, all UN member States have ratified at least one of the nine core international human rights treaties, and 80 per cent have ratified four or more.[5] While more work needs to be done to en courage ratification, especially within the Asia Pacific region, this is an unprecedented commitment to the ideals of the Universal Declaration.

At a regional level, references to the declaration have been made in the charters and resolutions of regional intergovernmental organisation. The Universal Declaration has also served directly and indirectly as a model or guiding force for many domestic constitutions, laws, regulations, and policies that protect fundamental human rights.

Many scholars, international lawyers and jurists assert that because the Universal Declaration is so broadly accepted around the world that some if not all of the rights enumerated in the Declaration have become part of customary international law. What the Universal Declaration has therefore shown us is that principles that are initially established as aspirations or goals can be developed into binding norms over a period of time. One that that has contemporary significance in Australia is Art 14:

Everyone has the right to seek and enjoy in other countries asylum from persecution

Customary international law refers to international obligations arising from established state practice, as opposed to obligations arising from formal written international treaties. Customary international law can be established by showing;

  1. State practice
  2. Opinio juris – this is a subjective element that reflects the belief that the particular act or practice must be undertaken.[6]

 

Both of these elements must be present in order to establish a new rule under customary international law. This has been addressed by the International Court of Justice in the Case of the SS Lotus (1927), and the Advisory Opinion on Nuclear Weapons (1996).

As the main judicial organ of the UN, the role of the International Court of Justice in the promotion and protection of rights is well recognised. Although it does not have a specific human rights mandate and individuals have no locus standi to bring cases of human rights violations before it, the ICJ is still seen to have an important role in developing and interpreting international human rights norms.

The legal importance of the Universal Declaration was outlined by the ICJ in the Hostages case (US v. Iran). The ICJ referred directly to the Universal Declaration and found its ‘fundamental principles’ proof of the existence of universal human rights.

Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights[7]

This view suggests that some articles (in this case Article 3 and 5) are considered customary international law and thus binding.

 

Why is the legal status of the Universal Declaration as a matter of customary law an important one?

The answer lies in the continuing and now urgent need to implement the Declaration and the treaties that build upon it through national measures of implementation.

In early 2005, the then Secretary General of the UN, Kofi Annan, released a report that set out his vision for the United Nations of the future. It was called, In larger freedom: towards development, security and human rights for all, and it considered global progress towards achieving the Millennium Development Goals.

In this report, the Secretary-General identified the following major human rights challenge.

He said:

When it comes to laws on the books (at the international level), no generation has inherited the riches that we have. We are blessed with what amounts to an international bill of human rights, among which are impressive norms to protect the weakest among us, including victims of conflict and persecution... But without implementation, our declarations ring hollow. Without action, our promises are meaningless...

The time has come for Governments to be held to account, both to their citizens and to each other, for respect of the dignity of the individual, to which they too often pay only lip service. We must move from an era of legislation to an era of implementation. Our declared principles and our common interests demand no less.[8]

It was on the 10th anniversary of the Universal Declaration where Eleanor Roosevelt famously remarked, ‘human rights begin at home’.

Sadly, many nations are happy to parade on the international stage and to sign human rights agreements surrounded by flashing cameras and global celebrities, but when their diplomats return home they face the long-term impediment that, under most constitutional systems, treaties have no national impact unless they have been implemented by legislation duly passed by parliament. This principle, of course, reflects the democratic principle of parliamentary sovereignty.

What has been the situation in Australia?

Australia is unique among comparable legal systems in that it has no explicit constitutional protections for most human rights and has no human rights act, as such. The Australian Constitution deals with human rights in what has been described as an ‘incoherent patchwork’. The Executive and Parliament, rather than our courts, have a the primary responsibility for restricting or protecting our human rights, the Constitution guarantees some human rights in narrow respects only and most of our judges see themselves as largely restricted to statutory interpretation when applying common law protections.

It is paradoxical, however, that while the Australian constitution and laws do not explicitly protect the right to freedom of speech, we have a robust culture that demands this fundamental freedom be protected and respected.

Australian courts have adopted the principle that any treaty to which we become a party has no direct or binding effect on Australian law until it has been the subject of legislation. Moreover, where an international rule has become custom, our courts have generally argued customary international law cannot be incorporated automatically into domestic law without legislative transformation. In Chow Hung Ching v The King, the High Court found that customary international law while a source of domestic law is not automatically part of domestic law and must be transformed through legislation or a judicial decision.[9]

More recently, in Mabo v Queensand (No 2), Justice Brennan stated that international customary law can inform the common law. Moreover, the High Court in Minister for Immigration and ethnic Affairs v Teoh decided that Australians have a ‘legitimate expectation’ that government officials will take account of the treaties to which Australia is a party, even where they have not been implemented in domestic law. A primary example is the Convention on the rights of the Child.

What then is the role of the Australian Human Rights Commission?

It is the role of the Australian Human Rights Commission in implementation of human rights in Australian law and practice that I would like to briefly highlight.

The Commission is Australia’s national human rights institution accredited with an ‘A status’ under the Paris Principles. The Paris Principles set out the international minimum standards for the status and functioning of national human rights institutions. They provide that national institutions should have a broad mandate based on universal human rights standards, be autonomous and independent from government, have a pluralistic structure and operate in a pluralistic manner, have adequate resources, and have adequate powers of investigation.

The Australian Human Rights Commission was established as an independent statutory authority in 1986 through legislation that is now called the Australian Human Rights Commission Act 1986 (Cth). The legislation provides for a Commission constituted by a President, and six Commissioners that broadly reflect those human rights that have been the subject of federal legislation:

  • Australian Human Rights Commission Act 1986
  • Racial Discrimination Act 1975: Dr Tim Soutphomesane
  • Social Justice; Aboriginal and Torres Strait Islanders : Mick Gooda
  • Sex Discrimination Act 1984: Liz Broderick
  • Disability Discrimination Act 1992: Graeme Innes
  • Age Discrimination Act 2004: Susan Ryan
  • Children’s Commissioner Megan Mitchell

We also have more general human rights responsibilities to protect and promote the rights and freedoms contained in certain international human rights treaties, including the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

Now we co;me to the core legal problem that dogs our efforst to implement and monitor human rights in Australia- these treaies are not implemented in Australian law. In particular, the failure to implement the ICCPR presents a sigificant practical impediment. For example, when I advise the government that mandatory detenion of asylum seekers might breach the obligation under Article 9 that prohibits arbitrary detention, the DIAC responds that the policy conforms to the Migration Act as amended.

Compounding the problem is the fact that we do not have jurisdiction in respect of the International Covenant on Economic and Social Rights, nor under the Convention Against Torture.

More positively, we have several statutory functions:

  1. We accept and try to resolve by conciliation individual complaints of discrimination and human rights; (over 17,000 inquiries and complaints a year, 65% conciliated, major contribution to principle of equal access to justice, costs nothing to complainant or respondent, very few cases ever go on to the federal courts.)
  2. We intervene in court proceedings that involve human rights issues; we examine laws relating to certain rights and often propose improvements to those laws; (eg: keeping children in adult prison facilities in WA for many months after riots; Maloney case re Queensland liquor laws on Palm Island;)
  3. We conduct research and propose new policy and standards which would promote the enjoyment of human rights; eg: Age discrimination research reports; sexual abuse in the military)
  4. We conduct national inquiries to bring special attention to issues of concern; (Wrist X rays to determine the age of Indonesian children as asylum seekers)
  5. We provide education about human rights to improve awareness, understanding and respect for rights in our community, hip-hop video with Brother Black from James Mitchell school in Western Sydney.

We also work to keep the Australian Government accountable to national and international human rights standards. The Commission works with a number of UN institutions like the Treaty Bodies, Commission on the Status of Women, the UN Permanent Forum on Indigenous People and the Universal Periodic Review process in the UN Human Rights Council. Through these processes we often submit reports both with the Australian Government, and also separately as an independent institution.

Our experience has been that these UN bodies and agencies have put considerable weight on our views. In fact we have found that some treaty bodies have adopted, almost word for word the recommendations we have made. This is a demonstration of the value independent national human rights institutions can bring to the UN system and the role in can play in the implementation of the rights and values enshrined in the Universal Declaration.

The Commission uses every pathway available to promote the recognition and realisation of human rights in Australia. We know that there is no single route to the better enjoyment of human rights by the community and, certainly, in our experience it is sometimes the less formal mechanisms that have particularly valuable effect. An example is the role that the Commission plays in propelling a national conversation about human rights – building a foundation on which international obligations may stand.

Australia’s National Human Rights Framework

In December 2008, on the 60th anniversary of the Universal Declaration, the Australian Government launched a comprehensive consultation that found that human rights mattered significantly to ordinary Australians, identifying strong support for their protection. The Committee found that human rights were not enjoyed equally by all Australians and that there was a need for a wider public education. The Committee recommended the enactment of a national Human Rights Act.

Rather than establishing such an Act the Government developed a human rights framework that, amongst other things, put emphasis on education and on greater Parliamentary scrutiny.

In 2012, the Parliamentary Joint Committee on Human Rights was created to provide greater scrutiny of legislation. Each new Bill introduced into Parliament must now be accompanied by a statement of compatibility with Australia’s international human rights obligations.

The Committee’s process is to look to the statement of compatibility, examine how the legislation operates, and attempt to determine whether any limitation of rights has been justified. If the Committee believes there is insufficient justification, it writes to the Minister responsible for the Bill or legislative instrument and seeks further information about why the Bill limits human rights.

Interestingly, the Committees’ mandate includes examining the promotion and protection of economic, social and cultural rights, however, as previously mentioned, the Commission’s mandate does not explicitly cover this. The Parliamentary committee has therefore been quite active in examining how laws impact economic, social and cultural rights.

The Parliamentary scrutiny process has been successful in facilitating a dialogue within Parliament on human rights, between the parliamentary committee members and the minister responsible for the Bill. This process has also created greater transparency and accountability in the development of policy and legislation in Australia.

The great value of the Committee is that it fosters discussion about human rights within Parliament, on the peer to peer level, and has initiated a ‘culture’ of human rights in law-making.

Universal Periodic Review

Having looked at the varied means of promoting human rights in Australia- some legislation, common law and the courts, the Parliamentary Scrutiny Committee, role of NGS and the independent statutory body, the AHRC, we should return briefly to the international area. As a matter of international law, even though we have a mixed record of human rights implementation in national laws and practices, Australia remains internationally legally responsible for any breach of its treaty obligations if it fails to implement them. The result is that two systems of law exist in parallel. The body that has provided an effective monitoring of Australia’s compliance with its human rights treaties is the UN HR Council’s Universal Periodic Review. The UPR is a unique instrument to advance the standards and core values enshrined in the Universal Declaration. Its establishment can be seen as one of the key efforts to strengthen the human rights machinery of the UN.

The UPR is a process that involves a review of the human rights records of all 193 UN Member States once every four years.

The UPR aims to improve the human rights situation in all countries, by creating a process where governments are held to account by the international community for their human rights situation. It is a tool to ensuring the practical realisation of human rights norms on the ground.

The UPR will assess the extent to which States respect their human rights obligations set out in: (1) the UN Charter; (2) the Universal Declaration of Human Rights; (3) human rights instruments to which the State is party (4) voluntary pledges and commitments made by the State (such as national human rights policies and/or programmes implemented); and, (5) applicable international humanitarian law.

The UPR provides two major opportunities for Australia:

  1. It allows the Australian community and Government to take stock of how well we are protecting the human rights of all people in Australia; and
  2. It permits the Australian Government to inform the international community of the human rights situation in Australia and to engage with other countries about specified steps it will take to improve the enjoyment of human rights in Australia.

Australia participated in the first cycle of the UPR at the UN Human Rights Council in January 2011. During Australia’s review, 52 countries asked questions in regards to Australia’s human rights record. One hundred and forty five recommendations were made covering a wide range of human rights issues including the ratification of international human rights treaties, domestic implementation of human rights obligations, the rights of Aboriginal and Torres Strait Islander peoples, the rights of asylum seekers, refugees and migrants, counter-terrorism laws, the rights of persons with disabilities and the rights of women and children.

The Australian Government appeared before the Human Rights Council to deliver its formal response to the recommendations in June 2011. The Australian Government accepted in full or in part over 90 per cent of the recommendations; these accepted recommendations have since been used to inform the development of Australia's National Human Rights Action Plan.

Australia's second UPR appearance is scheduled for July 2015. This will involve review of implementation of existing commitments together with any additional issues that other countries participating in the process decide to raise.

Conclusion

As we look back over the last 65 years, it is manifest that the Universal Declaration has had significant influence since its creation. It has become a benchmark for which all standards are now measured. Though its original intention was not to create legal duties it has provided a common understanding of human dignity and values, and has had a profound influence on human rights law, policy and practice.

We now have an array of instruments and mechanisms available to progress the realisation of human rights in Australia and across the globe. The current body of law offers a comprehensive articulation of a broad range of rights, and how they are experienced and breached in different ways by different groups and individuals.

I am however well aware of the limitations of international law, and that the mere existence of formal instruments, binding or non-binding, does not always guarantee the recognition of human rights in everyday life. Rather, the meaningful realisation of human rights must be based in the support and belief of a community – this is the spark that propels the political will for a nation to keep striving to do better.

The Universal Declaration has played a pivotal role in fostering a common language and understanding about human rights and how they apply to everyday life. This, I believe is its greatest achievement.

[1] The United Nations. A United Nations Priority. Accessed at: http://www.un.org/rights/HRToday/declar.htm (retrieved 5 August 2013).
[2] The United Nations Office of the High Commissioner for Human Rights. Universal Declaration of Human Rights. Accessed at: http://www.ohchr.org/EN/UDHR/Pages/Introduction.aspx (retrieved 2 August).
[3] Accreditation status as of 11 February 2013.
[4] The United Nations. The Universal Declaration of Human Rights; The Foundation of International Human Rights Law. Accessed at: http://www.un.org/en/documents/udhr/hr_law.shtml (retrieved 5 August 2013).
[5] Ibid.
[6] ICJ in the North Sea Continental Shelf Cases, 1969 I.C.J. 3 44 (Judgment of Feb. 20): “ .......not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinion juris sive necessitates.”
[7] Tehran Hostages Case, judgement of 24 May 1980, ICJ Reports 1980, p. 42, para 91.
[8] In larger freedom: towards development, security and human rights for all, Report of the Secretary-General, UN Doc: A/59/2005, 21 March 2005, paras 113, 129-130. Accessed at: www.un.org/largerfreedom/ (retrieved 5 August 2013).
[9] Chow Hung Ching v The King (1948) 77 CLR 449 at 462 (Latham CJ), 477 (Dixon J).

Professor Gillian Triggs, President