Women’s Club – Foundation Day Club Lunch

Emeritus Professor Rosalind Croucher AM 

Introduction

Thank you Danielle Asciak, for inviting me here today. 

Let me begin by acknowledging the traditional custodians of the land on which we meet, the Gadigal people of the Eora Nation and pay my respect to Elders, past, present and emerging, and also to acknowledge any Indigenous guests attending today.  

I am sorry that as a nation we did not accept the invitation offered in the Uluru Statement from the Heart. There is much healing needed and we must open our ears and listen. 

Given our proximity to Barangaroo, perhaps we should also remember the woman after whom this part of Sydney is now named. Barangaroo was the second wife of Bennelong, and acted as an intermediary between the Aboriginal people and the early British colonists in New South Wales. She was a member of the Cammeraygal clan of the Eora Nation from across the harbour. Although not her traditional land, Barangaroo is named in her honour.  

In January I was delighted to present an address for the National Council of Women event celebrating the recipients of NCW Australia Day awards. My theme then was ‘Reflections on women’s rights – past, present and future’. I enjoyed that immensely! 

Today I want to take the opportunity to talk about the Australian Human Rights Commission in the context of the particular celebration this year, of the 75th anniversary of the UDHR. 

It is also another celebration for the Women’s Club, 122 years on 12 October.  

In preparing for this address, I was delighted to find that I have a real affinity with the Club’s founders, especially Rose Scott, one of the first Vice-Presidents. I came across Rose in my doctoral work. I was tracing the idea of testamentary freedom as a balancing act between ideas of property and ideas of family. The introduction of female suffrage was a pivotal moment in that history. So, I came to know the movers and shakers in the suffrage movement in NSW quite intimately.  

Rose is considered ‘Australia’s most significant first wave feminist’.¹ She was a foundation member of the National Council of Women and President of the Women’s Political and Educational League and was the main driving force in the campaign for what became the Testator’s Family Maintenance and Guardianship of Infants Act 1916 – what is known generically now as Family Provision legislation. That was part of my doctoral work and the story is a fascinating one, but of course I am not here to talk about that today. I will take a legal history approach, though, because history – and especially legal history – is my passion. 

The establishment of the Women’s Club in 1901 is very much part of that wider story of women’s engagement, to ‘fill some of the needs of intellectual and academic women’.²  

In talking about the Australian Human Rights Commission, I want to frame it through the lens of ‘why’, ‘who’ and ‘what’. Why were we established; who we are; and what are our functions. 

Why? 

The first Commission was established in 1981, by a conservative Government, led by the Hon Malcolm Fraser as Prime Minister, and Dame Roma Mitchell was appointed as its head. The prior August, Australia had finally ratified the International Covenant on Civil and Political Rights (ICCPR)³ (which had entered into force fifteen years before, in 1976). This moment provided a crucial catalyst to the establishment of the Commission.  

The ICCPR formed part of the three documents known as the ‘International Bill of Human Rights’, together with the International Covenant on Economic, Social and Cultural Rights and the Universal Declaration of Human Rights (UDHR).⁴ The UDHR provided the foundation stone for the international understanding of ‘human rights’ and for the pair of binding conventions in the 1960s. Together these three ‘represent the most authoritative universal minimum standard of present international human rights law’.v 

The UDHR was adopted by the UN General Assembly on 10 December 1948. This year marks its 75th anniversary. 

An Australian was in the Chair of the General Assembly in that historical moment: Dr HV Evatt.  

As we are in the Women’s Club, I wanted to note the role of one remarkable woman in the story of the UDHR: Mrs Eleanor Roosevelt. 

The recently widowed Mrs Roosevelt, wife of Franklin D Roosevelt, President of the US from 1933 to 1945, was asked to chair the ‘Third Committee’ of the General Assembly that had the job of drafting the UDHR.  

Mrs Roosevelt was 62 when asked to take this on, and she had just turned 64 when it was adopted in December 1948. She was tall—at 1.8m or 5ft 11” in ‘old money’—a voracious reader, a terrible cook, but a great hostess. She had a commanding way about her and adored her fox furs. Her biographer, Professor Mary Ann Glendon (a former Harvard law professor), wrote that she approached her role with some trepidation. To her daughter, Anna, she wrote privately that ‘tho the responsibility seems great I’ll just do my best and trust in God’.⁴

The women of the Women’s Club over the years I am sure shared a similar sensibility, with whatever faith each embraced. It also reveals a touch of the ‘imposter syndrome’ and the importance of shrugging it off. 

Mrs Roosevelt ‘leaned in’ to her education, her privilege and her standing. She managed to steer the Third Committee through its work, including by adopting a strategy of entertaining (notwithstanding her limitations in the culinary department). She recognised the value of the communications and relationships that build through the simple fact of engaging informally. She was a natural and ‘organic’ leader, drawing together the strengths of the key people: Peng-chun Chang, a Chinese philosopher, diplomat and playwright; René Cassin, a French law professor, and a Jew, who had lost 29 relatives in concentration camps; Charles Malik, a Lebanese academic, philosopher and diplomat and chief spokesman for the Arab league; and Mrs Hansa Mehta, a veteran of India’s struggle for independence and a tireless advocate for women’s equality, who was responsible for changing the language of the draft from ‘all men are born free and equal’ to ‘all human beings are born free and equal’, in recognition of the need for gender equality. These personalities framed the story of the drafting of the University Declaration. 

What was distinctive about this Declaration was its move away from an international law that was about the rights of states among themselves, to an international law of human rights, which conferred rights on individual people. That great document represented the coming together of different intellectual, philosophical and political traditions into a set of common commitments for all humankind. Eleanor Roosevelt is recognised as the driving force for its adoption.  

Returning to the story of the Human Rights Commission, the Act establishing this first Commission included a sunset clause under which it ceased operation in 1986. Perhaps it was assumed that Australia would have it all sorted out within that time! 

The passage of the Australian Human Rights Commission Act 1986 (Cth) marked the establishment of the present Commission, symbolically again on International Human Rights Day. (It was first called the Human Rights and Equal Opportunity Commission, or HREOC, and renamed in 2008). 

Why we were established was therefore to establish in Australia a mechanism for implementing our Government’s promises to the world in signing and ratifying international human rights instruments. We are integrally part of the UN system within domestic law and have our own rights of appearance in UN fora. 

Who? 

The Commission today comprises myself, as President, and seven other Commissioners as ‘statutory office holders’, appointed as Australia signed up to new international conventions and commitments. The first was in the area of racial discrimination, and the Commission developed around this initial foundation. 

Our current complement includes Commissioners in the areas of:  

• Race Discrimination 
• Human Rights (the original) 
• Sex Discrimination  
• Disability Discrimination 
• Age Discrimination 
• Aboriginal and Torres Islander Social Justice 
• Children 

What? 

Writing on the 10th anniversary of the UDHR, in 1958, Mrs Roosevelt asked, ‘Where … do universal human rights begin?’. They begin, she said, ‘In small places, close to home — so close and so small that they cannot be seen on any maps of the world’ — in ‘the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works’: 

Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere.⁷

The Australian Human Rights Commission has a key role in the seeking of justice for the individuals of which Mrs Roosevelt spoke. We provide education and advocacy about human rights for many different audiences and it is the place where complaints may be brought, both for complaints concerning human rights matters involving the covenants referred to in the Act — principally the ICCPR — and complaints of discrimination on specific grounds under the set of federal anti-discrimination Acts, which include, in addition to the Racial Discrimination Act and the Sex Discrimination Act, the Disability Discrimination Act and the Age Discrimination Act.  

Resolving complaints is a big part of the work of the AHRC. Complaints usually start with just a phone call or email — some form of contact — by, on pre-COVID averages, 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, with a high success rate. Of those that are conciliated, about 75% are conciliated successfully. The participants in the conciliation process are evaluated, and the survey feedback from that is very, very strong—not only from those who are complainants but also from those who are respondents. 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. 

Another very important aspect of the Commission’s work concerns promoting rights and freedoms—bringing the understanding of rights home to individuals, to organisations, businesses, communities and, indeed, to Government. We have a significant educational outreach program and it is perhaps one of its most enduring contributions to Australian society – together with our reports on key human rights issues, like the Bringing them Home report on the stolen generations in 1997; The Age of Uncertainy in 2012 (which led to significant change in practices by Commonwealth agencies including the Department of Immigration and Citizenship and the Australian Federal Police, after the Commission uncovered significant numbers of children being detained due to very unscientific approaches to age identification); Respect@Work on workplace sexual harassment in 2020; Wiyi Yani U Thangani 2020 (Women’s voices), and our Free and Equal conversation which concludes shortly. 

International engagement 

A further aspect of the Commission’s work is international engagement, both in the treaty reporting cycles but also in the field of international technical cooperation, assisting in capacity building particularly in our Asia-Pacific region. 

I have been struck by the complexity of the layers of international engagement through the UN and its various ‘mechanisms’—all of which has grown as the UN itself has grown. As the ‘national human rights institution’, or NHRI, the Commission has a distinct place. As an ‘A status’ body, under the rating system for NHRIs,⁸ the Commission is entitled to participate directly in the work of the Human Rights Council, including the right to speak during annual plenary sessions. These rights are superior to those enjoyed by international NGOs, or ‘civil society’ as they are collectively known in the UN lexicon—not only in the sessions of the Council itself, but also the subsidiary ‘mechanisms’, including the Treaty Bodies and Special Procedures. 

Australia has made a particular commitment to NHRIs over time and is one of the leading supporters internationally of them. 

In the tripartite architecture of UN engagement, the Commission therefore has a distinct role. As the national human rights institution, the Commission is 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.  

It is necessary to the effective functioning of the Commission over the longer term to be a trusted adviser. Good relationships and open doors are absolutely crucial for us to be able to play that role to its fullest. To be the Devil’s Advocate and, as I have said, even at times to be the ‘devil’s blowtorch’, you need to have a respected seat at the table.⁹ Having a ‘Devil’s Advocate’ for human rights is a healthy, indeed necessary, thing in the context of the promotion and protection of those rights.  

Challenges 

Australia was a founding signatory to each of the key human rights instruments and, as a nation, we stepped forward in embracing the commitments of these great documents. For over 30 years, Australia has also been one of the key champions of national human rights institutions globally. This commitment has been unwavering, regardless of what political party is in power. 

Australia has signed and ratified each of the key international treaties since then – and it has not been a party-political exercise. Let me share with you my ‘red pen/blue pen’ exercise: red for Labor; blue for the coalition. If you look at the human rights treaties Australia has committed to and their ratification over the past almost half a century, it is an equal split between Coalition and Labor governments (apart from the Second Optional Protocol to the ICCPR on the abolition of the death penalty which I am sure would have been supported by both sides of politics). This is an example of how human rights are neither a ‘Labor’ nor a ‘Coalition’ project. 

However, little has been done to enact the rights and freedoms protected by these instruments into Australian law, other than the patchy implementation through anti-discrimination laws. This means that the rights and freedoms enshrined in these international human rights instruments are not directly enforceable in Australia. Our promises to the world, while genuine, are not backed up fully in practice, and the willingness to do so has also fluctuated greatly over the intervening decades.   

From the perspective of the jurisdiction of the Australian Human Rights Commission, the absence of implementation of the treaty commitments is also still unfinished legal architecture. When we were put on a permanent foundation in 1986, the Commission was designed in tandem with an accompanying Australian Bill of Rights Act. The Bill was passed in the House of Representatives, but did not survive the Senate. More recently, the idea was the principal recommendation of the National Human Rights Consultation led by Fr Frank Brennan SJ, over a decade ago, with its report in 2009.¹⁰ It also did not progress – then under a Labor government, which may have been more inclined to consider it. 

Institutionally, then, we are like a doughnut – with a hole in the middle. 

Now, the landscape has shifted. There is already considerable momentum in the direction of stronger human rights protections in Australia in the form of dedicated legislative embodiment as Human Rights Acts in Queensland, Victoria and the Australian Capital Territory. There is considerable agitation and advocacy in other State and Territory jurisdictions towards this objective too. Currently our own proposal for a model Human Rights Act for Australia is the central part of discussion for a new Human Rights Framework for Australia, in the inquiry being led by the Parliamentary Joint Committee on Human Rights. 

The Commission’s Free and Equal work 

In December 2018, I threw out a ‘sky anchor’, as I called it, on International Human Rights Day, in announcing the Free and Equal national conversation, to reimagine Australia’s framework of protections of human rights and freedoms.  

The title was drawn directly from the first sentence of the first article of the Universal Declaration of Human Rights – the one that Mrs Mehta has such a important role in – ‘All human beings are born free and equal in dignity and rights’.  

Through 2019 to 2021, we released an Issues Paper;¹¹ three Discussion Papers, ran a submissions process;¹² we held a spectacular national conference on human rights and associated technical workshops,¹³ featuring the United Nations High Commissioner for Human Rights, Dr Michelle Bachelet; and we conducted a series of roundtables, technical workshops and stakeholder consultations.¹⁵  It has been an extensive, consultative process. 

The project’s final outputs include two position papers on key reform priorities, discrimination law reform (December 2021) and a model Human Rights Act for Australia (March 2023), and a final report – being completed this year to mark the 75th anniversary of the UDHR.  

In the first position paper released nearly two years ago, we set out a reform agenda to modernise our federal discrimination laws, including by remedying deficiencies in the current laws, by placing a greater focus on prevention of discrimination and by introducing co-regulatory approaches that will enable governments – and businesses in particular – to be better equipped to prevent and deal with discrimination. 

But addressing discrimination alone is not enough to ensure that people’s human rights are protected. 

The paper on an Australian Human Rights Act is designed to complement protections against discrimination and deal proactively with issues that discrimination laws cannot address. It presents our case, as the national human rights institution, for the introduction of a federal Human Rights Act in Australia, and an outline of our proposed model and associated reforms. I have been speaking a lot about it over the past months. 

It seeks to complete the central, missing piece of our domestic legislative framework for the promotion and protection of human rights in Australia – by bringing rights home. It will also complete the intended design of the Australian Human Rights Commission itself – the ‘hole in the doughnut’ of our institutional legislative architecture.  

There is ‘wind in the sails’ for reform, both in the discrimination law area and in terms of human rights acts.  

On 15 March 2023, the Attorney-General, the Hon Mark Dreyfus MP, referred to the Parliamentary Joint Committee on Human Rights an inquiry into a Human Rights Framework for Australia, focusing in part on our own model for a Human Rights Act.¹⁵ We participated actively in this inquiry, making two submissions and providing evidence twice.  

Much of the attention of the inquiry has been devoted to consideration of the Commission’s proposals for a new Human Rights Framework. In our first submission to the inquiry, we set out our vision for a new National Human Rights Framework (which this report expands on further). 

Much of the evidence to the Committee in public hearings and in the submissions they have received have focused on the Commission’s proposed Human Rights Framework, our model Human Rights Act and proposals for federal discrimination law reform. 

The Commission noted, in evidence to the Committee on 27 September 2023, that it had reviewed the 300 plus submissions made to the Committee to that date, observing that it revealed ‘a high degree of consensus on the way forward for Australia’.  

Of particular note was that a total of 92% of the 318 published submissions support a Human Rights Act for Australia, which is the central recommendation in the Commission’s renewed Human Rights Framework.  

Then on 29 September, the Disability Royal Commission released its final report, after 4 years of work. Across 12 volumes, the Royal Commissioners recommend a range of reforms to protect persons with disability from violence, abuse, exploitation and neglect. Central to the report’s recommendations is a human rights based approach. 

The final report provides strong support for the Commission’s recommendations in relation to reform of the Disability Discrimination Act. It also recommends a national Disability Rights Act, building on the Commission’s model for a national Human Rights Act.  

In considering why we need a Human Rights Act for the protection of rights and freedoms in Australia, I think of future generations. I think of my grandchildren. I will finish with a reflection with them in mind. 

A number of years ago, my eldest grandson, then aged seven, spotted the Magna Carta on the wall in my study – a lovely facsimile produced by the Rule of Law Institute in 2015 to mark the 800th anniversary of the sealing of that landmark document. He said, rather impressed, ‘Grandma, you have the Magna Carta on your wall!’ How did he know about it? Through ‘Horrible Histories’ on television, of course. It was a story of King John being nasty – exceeding power without accountability to parliament. But how does this lead to a conversation about rights, in Australia today? It is hardly the UDHR that young Michael Kirby took home.  

The Magna Carta is not what you might describe as a highly accessible document, in the medieval Latin of the early 13th century. It is iconic, perhaps ‘the vibe’ of our understanding of rights of which I spoke, but over breakfast with your grandchildren? 

On access to justice, how about this:  

Nulli vendemus, nulli negabimus, aut differemus rectum aut justiciam! 

(To no one will we sell, to no one will we refuse or delay, right or justice) 

Human rights-based approaches give us the legal grammar for approaching complex balancing issues. A Human Rights Act for Australia is a missing piece in our domestic implementation of our promises to the world. In this year, the 75th anniversary of the Universal Declaration of Human Rights, we have the moment seriously to begin the process of bringing rights home.  

The language of rights has been on many people’s lips over recent years. It is also a language that inherently has existed in our national character over time and in our common law history and institutions. It is a language that is seen in our early recognition of the importance of suffrage for women, and in the story of William Cooper.¹⁶  

It feels especially right, right now, to tell you the story of William Cooper: with what is going on in Israel, with this being the 75th anniversary of the Universal Declaration of Human Rights, borne out of the horrors of war, and with the failed referendum of the weekend. 

Human rights had meaning for Cooper and he demonstrated it. The holocaust was a primary catalyst for the Universal Declaration, but it also had a deep impact on Cooper. Horrified at the lack of international condemnation of Kristallnacht on 9 November 1938 and its aftermath in the attacks on Jews in Germany, Cooper led his own protest. On 6 December 1938, he led a delegation to the German Consulate in Melbourne to deliver a petition which condemned the ‘cruel persecution of the Jewish people by the Nazi government of Germany’. It was the only private protest against such action. Cooper was 77, a Yorta Yorta man, and the delegation was of Aboriginal people. Cooper was a leading activist with respect to the treatment of his own people and a founding member of the Australian Aborigines League. Had Eleanor Roosevelt known of Cooper’s actions, she would have been proud of him. 

To conclude 

Of Eleanor Roosevelt, Mary Ann Glendon wrote: 

‘Neither she nor anyone else suspected that, at age sixty-two, she was on a course that would lead to the most important achievement of her already distinguished public life’.  

In taking on the leadership of the Australian Human Rights Commission at a similar age, I feel much as she did, that this is the most important role in my life. My achievements will be for others to say. 

More speeches

More speeches by Rosalind Croucher.

Endnotes

¹ As her biographer, Judith Allen, described her: Rose Scott: Vision and Revision in Feminism
(Oxford UP, 1994).
² <https://www.thewomensclub.com.au/history>.
³ International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 
UNTS 171 (entered into force 23 March 1976).
⁴ International Covenant on Economic, Social and Cultural Rights, opened for signature 16 
December 1966, 993 UNTS 3 (entered into force 3 January 1976).
⁵ Manfred Nowak, UN Covenant on Civil and Political Rights, 2nd rev ed, NP Engel, 2005, xx. It took 
another ten years for the Covenants to enter into force: the ICCPR on 23 March 1976; the ICESCR 
on 3 January 1976.
⁶ A World Made New, 25.
⁷ Excerpt from a speech by Eleanor Roosevelt at the presentation of ‘IN YOUR HANDS: A Guide 
for Community Action for the Tenth Anniversary of the Universal Declaration of Human Rights.’ 
Thursday, March 27, 1958. United Nations, New York.
⁸ Known as the ‘Paris Principles’. As summarised in Andrew Byrnes, Andrea Durbach and 
Catherine Renshaw, ‘Joining the club: the Asia Pacific Forum of National Human Rights 
Institutions, the Paris Principles, and the advancement of human rights protection in the region’ 
(2008) 14(1) Australian Journal of Human Rights 63, 66. ‘Principles relating to the Status of National 
Institutions (The Paris Principles)’, adopted by General Assembly resolution 48/134 of 20 
December 1993
⁹ Rocco Fazzari wittily picked this up in his cartoon of me in the March 2018 NSW Law Society
Journal.
¹⁰ National Human Rights Consultation Report (2009).
¹¹ Australian Human Rights Commission, Free and Equal: Issues Paper (April 2019) 
<https://humanrights.gov.au/sites/default/files/document/publication/ahrc_free_equal_issues_pa
per_2019_final.pdf>.
¹² Australian Human Rights Commission, Discussion Paper: Priorities for federal discrimination law 
reform (August 2019) <https://humanrights.gov.au/our-work/rights-andfreedoms/publications/discussion-paper-priorities-federal-discrimination-law>; Australian 
Human Rights Commission, Discussion paper: A model for positive human rights reform (August 
2019) <https://humanrights.gov.au/our-work/rights-and-freedoms/publications/discussion-paper-model-positive-human-rights-reform>; Australian Human Rights Commission, 
Discussion paper: Ensuring effective national accountability for human rights (August 2019) 
<https://humanrights.gov.au/sites/default/files/19.10.14_discussion_paper-ensuring_effective_national_accountability_final.pdf>.
¹³ ‘Free and Equal Conference’, Australian Human Rights Commission (Web Page, 2019) 
<https://humanrights.gov.au/free-and-equalconference#:~:text=The%20Free%20and%20Equal%20conference,rights%20into%20the%2021st
%20Century>.
¹⁴ Roundtables: with the United Nations High Commissioner for Human Rights, Dr Michelle 
Bachelet and Professor Manfred Nowak; Ensuring Effective National Accountability for Human 
Rights Workshop convened in partnership with the Human Rights Institute at UNSW (August 
2019); Technical workshop on improving parliamentary scrutiny of human rights, convened in 
partnership with the Castan Centre for Human Rights at Monash University and the University of 
Adelaide (May 2021); roundtables on the positive framing of human rights and the key elements 
of a federal Human Rights Act (April–June 2021).
¹⁵ Parliament of Australia, Terms of Reference: Australia’s Human Rights Framework, , 
<https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/HumanRight
sFramework/Terms_of_Reference>.
¹⁶ Diane Barwick, ‘Cooper, William (1861–1941)’, Australian Dictionary of Biography 
http://adb.anu.edu.au/biography/cooper-william-5773 (accessed 10 September 2018)