Thank you to the Evatt Foundation for your invitation to be part of this celebration of the 70th Anniversary of the Universal Declaration of Human Rights passed by the United Nations General Assembly in 1948, under the Presidency of Dr H V Evatt. I was especially pleased to know that the play Eleanor and Mary Alice has been so successful, demonstrating how important the arts, comedy, poetry are to advancing human rights.
The Universal Declaration was seen by Eleanor Roosevelt as 'the international Magna Carta of all mankind', and by Australia’s former High Court Justice Mary Gaudron as 'arguably the most important document ever reduced to writing, whether on paper, papyrus, velum or tablets of stone'.
Tonight, I would like to set a rather different tone by explaining my concerns that Australia has become isolated and exceptional in its failure to protect the human rights of some of the most vulnerable in our community. Sadly, we have let down the Evatt vision and his courage. He would have been astonished to learn, that 70 years later, Australia has yet to implement the Universal Declaration in national law. Australia is no longer an international leader in upholding human rights, at home or abroad. The nation’s reputation as a good international citizen is undeniably tarnished as an advocate and exemplar for the protection of fundamental freedoms and for the vision of the Universal Declaration.
May I begin however by observing that you can never overprepare for public speaking. Just recently, I gave a speech at the Maitland City Library of NSW on Human Rights and, as is my wont, I began by saying how important Dr Herbert Vere Evatt had been in promoting the idea of the international rule of law and social justice. My heart sank as someone in the audience immediately raised their hand to remind me that ‘Doc’ Evatt had been born in Maitland and that I did not need to tell them about his brilliance and commitment to civil liberties! I suspect that many of you here tonight will also know more about him than I do.
I am nonetheless confident in saying that Doc Evatt was a vitally influential participant as foreign minister in the negotiations for the UN Charter and in ensuring that Australia became a founding member of this organisation in 1945. In Evatt’s view, the former League of Nations under the Covenant had failed to prevent conflict and he saw the drafting of the UN Charter as an opportunity: this time the postwar world would be founded on social welfare and economic justice and a ‘province for law and order’.
The ideal that the rule of law and protection of human rights can moderate and even avoid international aggression and conflict has inspired my legal career as an international lawyer. Doc Evatt’s powerful — though not always welcome — leadership as head of Australia’s delegation at the talks in San Francisco on the draft UN Charter led to the invitation, three years later in 1948, by Eleanor Roosevelt to Australia to join her as one of eight nations drafting the Universal Declaration on Human Rights. William Hodgson represented Australia during these negotiations and Doc Evatt was supportive of the human rights that were being articulated.
What is perhaps less well known is that Dr Evatt was elected President of the General Assembly in its third session in September 1948 — the highest position reached by an Australian in international affairs. According to his wife, Mary Alice, this was the achievement he most valued as a voice on the world stage for the international rule of law. Under Evatt’s Presidency, the Universal Declaration was passed by 48 of a possible 58 nations, without a single negative vote. Can you imagine this happening today; either that Australia would be elected as President of the General Assembly or that a human rights declaration would achieve such broad consensus?
Communist Party Dissolution Act 1950
Evatt’s commitment to the international rule of law was of course reflected in his commitment to civil rights in Australia. Despite many objections from within his own party, Evatt appeared in the High Court to argue against the constitutional validity of the Communist Party Dissolution Act 1950 that would have banned the party in Australia. The High Court decided that the Menzies government did not have the power to ban a political party in peacetime. This decision was probably the most important one ever made by the High Court to protect fundamental civil rights. The 6:1 majority found the Act to be unconstitutional as it attempted to oust the independence of the courts to legal review of government decisions and threatened judicial independence.
I mention this decision and Evatt’s role in it — now nearly 70 years ago — to contrast the position today where federal parliament increasingly passes laws that oust the jurisdiction of the courts with mandatory sentencing laws, where ministers are granted discretionary powers that are neither compellable by the courts nor for practical purposes reviewable by them; when politicians denigrate judges and their decisions in the media; and when parliament has given the Minister for Home Affairs a discretionary power to overturn certain decisions of the Administrative Appeals Tribunal. The Communist Party case continues to provide a powerful judicial check against the abuse or overreach of executive power in Canberra.
The legacy of Doc Evatt has been described variously by biographers as a champion of civil liberties, a dangerous radical, maligned hero, exceptionally talented, contentious and polarising, irreverent, insistent and boisterous. Doc Evatt’s legacy 70 years after the Universal Declaration remains vital today in a world facing war, poverty, injustice and inequality. He followed the lode star of social justice, individual liberty and the rule of law and is to be remembered and honoured.
Returning to the Universal Declaration
For the first time in legal history, the Universal Declaration of Human Rights linked avoidance of conflict and use of force to the idea that human rights should be protected by the rule of law. The Declaration lists 30 articles to protect human rights emphasising in the preamble the inherent dignity and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world. It:
Upholds the principles of non-discrimination and equality before the law; the rights to life, liberty and security of the person and to effective judicial remedies and fair criminal trials;
Prohibits slavery and arbitrary arrest, detention or exile;
Under Article 14, everyone has the right to seek and enjoy in other countries asylum from persecution;
Upholds the right to nationality (of notable current relevance to the Rohingya);
Upholds social and economic rights — a standard of living adequate for the health and wellbeing of the family, including food, housing and social services.
While the Declaration set out a voluntary rather than legal set of principles, it proved over time to be the founding inspiration for the suite of binding treaty obligations: the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), the Convention against Torture (CAT), the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), and the International Convention on the Elimination of all forms of Racial Discrimination (ICERD). While I agree with international law scholars that the Declaration now reflects customary law and is binding on all nations, the key point is that the Declaration has created the scaffolding for contemporary human rights law throughout the world. Indeed, I have found that in my work, especially at the Australian Human Rights Commission, I often revert to the Declaration rather than the more technical treaties because its words are clear in emphasising fundamental freedoms recognised by all: they are ‘Universal’.
It is true to say that, since those heady days of drafting the UN Charter and Universal Declaration, Australia has been a supporter of and contributor to human rights treaty negotiations and has ratified almost all of the major international human rights instruments. Australia has for many decades had a reputation as a good international citizen. It is also true that for most people most of the time, human rights have been respected in this country.
That is, until 2001: the year of the children overboard misstatement by the Howard government, the Tampa rescue of asylum seekers and the terrorist attacks on the Pentagon and Twin Towers. Since that time, respective governments and opposition parties have employed the language of fear to conflate the right of vulnerable people to seek asylum with terrorism and Islamophobia, and to pass laws that breach our human rights in innumerable ways with counter-terrorism laws that are unprecedented outside wartime, and which appear to be disproportionate. The passing of the de-encryption laws a few days ago has proved to be part of a pattern of rush counter-terrorism law just before Christmas. As an ordinary citizen with no access to information from the security services, I cannot say whether these laws meet the legal standard:
Necessary and proportionate?
I am concerned that laws so obviously interfering with the rights of all Australians should be passed for political reasons without evidence but rests on fear and the cover all phrase: ‘dangerous times’. I find it more than curious that dangerous times do not seem to include the fact that since January this year, 75 women and 20 children have been killed in domestic violence, while very few have tragically died as a result of terrorist acts. If, as the government argues, the strong laws and $billions in funding have indeed prevented terrorist attacks, perhaps we could apply the same logic to support women and families to reduce deaths as a consequence of domestic violence?
But over the last 10-15 years or so, Australia has regressed in its commitment to human rights and has been repeatedly condemned by responsible treaty bodies within the United Nations system.
In 2017, the United Nations Human Rights Committee released its recommendations from its review of Australia’s compliance with a key human rights treaty, the ICCPR. The committee criticised Australia for failures in key areas: the treatment of refugees, Indigenous rights and inadequate protection of human rights, especially the lack of a national human rights act. Australia was excoriated before the UN Human Rights Committee for its ‘chronic non-compliance’ with the committee’s recommendations over many years, drawing particular condemnation over the mandatory detention of children and the same-sex marriage survey. The Committee said it was ‘unacceptable’ for Australia to ‘routinely reject’ the committee’s views, or ‘self-judge’ international human rights treaties, telling Australia it could not ‘pick and choose’ which laws it sought to follow and which rights it wanted to uphold.
I can speak personally about my experience as President of the AHRC when I had the opportunity to make a presentation to the Human Rights Council’s Universal Periodic Review for 2 minutes. All the recommendations were dismissed by the Australian government on the self-judging and inaccurate statement that Australian laws and policies are consistent with its international legal obligations.
The recently appointed High Commissioner for Human Rights, Michelle Bachelet, said the newly concluded global compact on migration could help countries co-operate on migration and would protect the rights of some of the world’s most vulnerable. She said, ‘Australia, a member of this council, has suggested it might withdraw from the Compact, should join the consensus of the global community, adopt the compact and revise the country’s policies with respect to people arriving at its borders without a visa.’ Her fiercest criticism was reserved for Australia’s offshore immigration regime, on the remote islands of Nauru and Manus in Papua New Guinea. ‘The current offshore processing centres are an affront to the protection of human rights’, Bachelet said.
There are countless examples of Australia’s failure to protect human rights:
Expansion of executive, discretionary powers, disproportionate laws that do not meet the legal test of necessity to meet a legitimate aim; e.g., counter-terrorism laws;
Anti-protest laws, especially with regard to environmental concerns;
Data protection and invasion of privacy, and the passing of the de-encryption laws;
Failure to give effect to the Declaration of the Rights of Indigenous People, to which Australia has signed up; failure to close the gap in health, especially of remote Aboriginal communities suffering inadequate housing, and access to medical care; punitive laws that see too many Aboriginal people locked up, and over 20 years after the Royal commission into Aboriginal deaths in custody, greater numbers than ever sometimes dying in our jails;
Rejection of the ‘Uluru Statement from the Heart’;
Restrictions on freedom of speech and attacks on civil society, reduced funding for community legal centres and failure to respect adequately to social problems of homelessness and domestic violence;
The regressive position of women in Australia; in the World Economic Forum’s Gender Index, Australia has moved in recent years from 15th to 46th, before moving up to 36th this year;
Politicians advocating for a return to racially selective migration policies; calls for a ban on Muslim immigration; to prioritise immigration from white South African farmers but stopping it from other African nations; calls for an English language exam to quality for citizenship set at a standard that many Australians would fail;
Refugees held indefinitely on Manus Island or Nauru;
The Australian Law Reform Commission identified federal laws that potentially breached rights; despite specifically being prevented from looking at laws that allowed people to be locked up unfairly or that breach privacy, it still identified over 100 laws that potentially breached rights, from secrecy laws to laws that reverse the presumption of innocence;
A Liberal-National Party controlled committee into the 2016 federal election has called for voter identification laws, in a move Labor has criticised for both creating a ‘a pathway to voter suppression’ and offering no proof of necessity.
I think you will see my point.
How did it come to this?
How is Australia so isolated from its western legal roots and so exceptional in its failure to protect common law freedoms and rights? We are the only western democracy and only common law country in the world that does not have some form of either a constitutionally entrenched or legislated Charter or Bill of Rights. The countries with which we want to be compared, the UK, Canada, the US, New Zealand and much of Europe, have either a legislated or constitutionally entrenched Charter of rights that sets a cultural benchmark for the community and tools for the Courts to provide a check on the abuse of executive power by government. Parliament has failed to implement the major human rights treaties to which Australia is a party: the ICCPR, ICESCR the CRC or the Refugee Convention.
It is Australia’s shame that while we have been a leader in negotiating human rights treaties, we have usually chosen not to give effect to these rights in our national laws through parliament; the appropriate democratic institution as the sovereign representative in our democracy. Unless parliament passed laws to give national effect to the international obligation, it is not directly part of our domestic law. Two bubbles: one international obligations, the other sometimes contrary national law.
Australia protection of human rights is best understood as a patchwork of laws, leaving wide gaps in the freedoms for some of the most vulnerable in our community; some laws provide comprehensive protections against discrimination on the grounds of race, sex, disability and age, while other rights, such as freedom of speech, association and privacy are only partially protected. It is welcome news that a few days ago Australia passed the Modern Slavery Act, creating obligations for business to report slavery within their supply chains. Australia has also recently ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), one of the most important reforms for the future of our prisons, detention centres, and potentially aged care facilities. However, the ad hoc, and inconsistent protections for human rights leave many without a remedy.
What about the Constitution?
The Australian Constitution protects the independence of the courts and the right of citizens to judicial review of unlawful government act, along with freedom of religious expression. But it protects very few other common law rights. There is no provision, for example, that prohibits arbitrary detention without trial as required by the Universal Declaration, a prohibition as old as the Manga Carta that provides: ‘No man may be detained arbitrarily without charge or trial by his peers.’
What about the High Court’s role in protecting human rights and our long-established common law freedoms? The High Court has implied certain rights such as the right to political communication and the right to vote. While the courts are quick to repeat the mantra that parliament is subject to the rule of law and laws are to be interpreted according to the principle of legality — that is, the common law will be ousted by the clear and unambiguous words of parliament — all too often the techniques of statutory interpretation have not been employed by the courts to overcome the words of parliament for the apparently convincing reason that parliament represents the sovereignty of the people and it passes the laws that the courts are bound to uphold.
I suggest we examine this reasoning more closely. What if parliament, the government of the day and the opposition are in lock step over policies that breach a fundamental prohibition on arbitrary detention? I believe that the courts should step in and insist that parliament pass laws that are consistent with that overriding prohibition. In short, even parliament is subject to the rule of law, just as Bad King John in 1215 was held to be subject to the law.
Human rights protection has been left to the Joint Parliamentary Committee on Human Rights — the so-called scrutiny committee — that has proved to be a toothless tiger that invariably votes on committee reports strictly along party lines and is largely ignored during parliamentary debates on proposed laws.
Finally, then we come to the AHRC It has a wide mandate and powers to investigate and conciliate complaints of breaches of anti-discrimination laws and the human rights obligations in the CRC and the ICCPR. Now you can see the flaw in protections. In attempting to hold the government to account for breaches of the CRC and the ICCPR, a treaty that is not directly part of Australian law. It is almost inevitable that the Commission is on a collision course with the government of the day; e.g. the Bringing Them Home (Stolen Generations) and Forgotten Children reports. Compounding the legal problems has been mounting interference in the independence of the Commission, along with that of other institutions that I suggest are crucial to our working democracy, notably the ABC.
In summary, we have no charter of rights, most human rights treaties have not been enacted into national laws and the Constitution fails adequately to protect fundamental freedoms. Widening the gap in human rights protections, our courts — especially the increasingly conservative ‘black letter’ High Court — have failed to challenge parliament’s laws that egregiously breach our common law freedoms and rights.
What is to be done?
There are many possible way forward: education, leadership, cultural change. An Australian Charter of Rights would better protect all our human rights. It would fill the holes in our patchwork protection of rights in this country creating a better rights safety net for all us. It would help to ensure that our government complies with the rules it has promised to comply with under international law. It would build a culture of rights — of respecting the values we all care about. There are different models that a Charter could take. The strongest protection for human rights would come from enshrining a Charter of Rights into our Constitution – the rule book for our nation. This is the version adopted by Canada, South Africa and the US.
Constitutionally protected human rights would override any laws passed by federal or state parliaments that breached those rights. A constitutional Charter, however, would require a successful referendum for implementation and is almost impossible in an environment where we cannot repeal the race power nor recognise our indigenous peoples. A more achievable option is for a legislative Charter of Rights. This was the model proposed by the 2009 Human Rights Consultation led by Father Frank Brennan. Over 80 per cent of the submissions and a majority of people polled in social research supported an Australian Human Rights Act. Yet the Rudd labor government failed to introduce a charter, balking at the political hurdle. It may very well be that leadership comes from the states and territories: the Victorian and ACT Human Rights Acts and the Queensland draft Human Rights Act may provide a tipping point for momentum at the federal level. It is true that parliament could change the legislation if and when it wanted. But in fact, no country has ever repealed a charter, though some amendments have been made to reflect experience over the years.
What could a Charter do? An individual could ask a court to issue a declaration that a proposed or existing law is not consistent with Charter Freedoms. The law would then be sent back to parliament to decide what action to take, thereby ensuring the continued sovereignty of the elected members of parliament. The experience in Victoria, the ACT and overseas is that the most significant practical impact of a Charter of Rights is at the lower level of government departments — administrators and the federal police, Medicare, Centrelink— that must consider human rights before they act. Most of this work is done quietly, where the questions are: what are the legitimate aims of the this law? does it restrict other freedoms disproportionately and Is there are less restrictive way to achieve the goal?
The M68 case and the PNG Supreme Court
The isolation of Australian law from the protections given to asylum seekers by most comparable nations is demonstrated by the unanimous decision of the Papua and New Guinea Supreme Court in Namah v Pato, on 26 April 2016. The Supreme Court found that the detention of asylum seekers on Manus Island was invalid under the Constitution that provides ‘No person shall be deprived of his personal liberty’, subject to express exceptions. The PNG Supreme Court ordered that the Australian and Papua New Guinean governments end the detention of asylum seekers. Accordingly, Prime Minister O’Neal’s PNG government closed the detention centres in October 2017 and transferred the detainees to other Australian constructed accommodation on Manus Island, in effect replicating detention.
Nearly three months earlier on 3 February 2016 in the M68 case, the High Court of Australia had confirmed the constitutional validity of our offshore processing regime. A Bangladeshi woman, an asylum seeker, had been intercepted at sea four years earlier and detained on Christmas Island as an ‘unlawful non-citizen’ under the Migration Act. She was transferred to Nauru on 22 Jan 2014 and gave birth to a daughter in Brisbane on 16 December 2014. She asked the High Court to prevent her enforced return to Nauru on the ground that her detention offshore by the Commonwealth was unlawful. She had claimed refugee status, but it had not yet been determined by the time of the court’s decision nearly two and a half years after her arrival.
The Plaintiff challenged the constitutional validity of section 198 AHA (2) of the Migration Act, under which an officer is bound to take an ‘unauthorized maritime arrival’ to a regional processing country. The government realised that the Migration Act probably did not authorise an official to force her to Nauru and introduced an amendment repairing the defect: section 198 AHA (2) on 30 June 2015, with retrospective effect to 18 August 2012, providing the necessary legislative authority. On this basis, the majority of judges rejected her challenge and authorised her return.
The six-member majority of the High Court found that section 198 AHA is a valid law of the Commonwealth. Justice Gordon was the sole dissentient. She considered that section 198 AHA is invalid because it attempts to vest a judicial penal power in the executive, contrary to the doctrine of the separation of powers. Respectfully, I agree. Immigration detention has become a penal sanction that may be imposed only by a judge under the rule of law. This is, for the moment, a minority view.
I am troubled by this analysis for several reasons. First, I wonder how far parliament can go before the courts will step in to insist on the principles of legality and common law. An unambiguous law passed by parliament should not be permitted to override our fundamental rights. Even parliament is subject to the rule of law. Secondly, the offshore processing regime, as it has evolved, is egregiously in breach of Australia’s international obligations under the Refugee Convention, the Convention on the Rights of the Child, the Torture Convention and the ICCPRs. Not a single judge refers to these treaty protections. It is not acceptable for our courts to ignore the legal regime of obligations under international law and I wonder why so few judges consider the common law presumption that parliament intends to comply with international law.
Sometimes we get it right: the federal court orders for Minister Dutton and the Department of Home Affairs to bring the severely ill child and his mother to Australia for medical treatment on the common law principle that the government owes him a duty of care. I checked the flight schedule and expect to see that mother and child on the plane to Australia tomorrow.
Finally, opponents of human rights Charters argue that they transfer power from elected parliamentarians to unelected judges, Common law rights first crafted by judges. This sets up a false binary, for both parliament and the courts can protect rights. In fact, a Charter would give enhanced power to ordinary Australian to protect their rights. Of course, a Charter is but one piece of the democracy puzzle. We need education to ensure that the community, parliamentary representatives and public servants understand that a Charter is a pillar of democracy alongside an independent judiciary, freedom of the press, and fair elections. We have waited too long for a Human Rights Charter. We need to revisit the earlier recommendations for a Human Rights Act that reflects the UDHR as an integral part of our democracy providing a check against executive powers.
The UDHR remains as vivid and relevant today as it was in the post war years. Let us look again at the Declaration and reinvigorate our advocacy to give it legal effect in Australian laws over 70 years later; let us live up to the vision of Doc Evatt in ensuring the rule of law prevails over increasingly arbitrary government.
Emeritus Professor Gillian Triggs was the president of the Australian Human Rights Commission from 2012 to 2017. She has held many senior academic positions, including dean of the Faculty of Law and Challis Professor of International Law at the University of Sydney (2007-12), and director of the British Institute for International and Comparative Law (2005-07). She is currently a Vice-Chancellor’s Fellow at the University of Melbourne, Chair of Justice Connect, and Chair of the Inquiry into Abuse of Office and Harassment for the United Nations body UNAIDS. These are the speaking notes for her address on the 70th anniversary of the Universal Declaration, presented by the Evatt Foundation and Sydney Ideas at the Seymour Centre, Sydney, on 9 December 2018.
Triggs, Gillian, 'From good international citizen to pariah? The decline of human rights protection in Australia', Evatt Journal, Vol.18, No.2, September 2019.<https://evatt.org.au/papers/good-international-citizen-pariah-decline-human-rights-protection-australia.html>