Remembering the Universal Declaration

And Australia's human rights record
Mary Gaudron

If, as they say, the road to hell is paved with good intentions, I am knocking on the gates right now. I had intended to speak about Jessie Street the internationalist. I had intended to do some research on the topic. But unfortunately, life got out of control once more. What I do know about Jessie Street the internationalist is that which Madame President Burgmann recalled at the beginning of this lunch. She was an adviser to Bert Evatt - I should call him the Honourable Herbert V Evatt - at the San Francisco Conference in 1945, which established the United Nations. That conference wrote the UN Charter, but it also did something else. It wrote what is arguably the most important document ever reduced to writing, whether on paper, papyrus, velum or tablets of stone; namely, the Universal Declaration of Human Rights.

The Universal Declaration of Human Rights was not officially adopted by the General Assembly of the United Nations until December 1948, but its drafting was completed in December 1945. Its 60th birthday was celebrated with some considerable fanfare in Europe last December. It would not surprise me, however, if the events passed unnoticed here in Australia. The lack of surprise, if that was the case, makes it all the more amazing that Jessie Street should have been committed to an international solution to the problems we faced here and in many other countries, and that she should have been committed to the idea of an international declaration of human rights.

Although, at the time of the Declaration's drafting, Australia had many men and women in many theatres of war throughout the world, Australia in 1945 in general was somewhat less than truly international in its outlook. England was home. Australia's involvement in the war, announced in 1939, was announced on the basis that England had declared war and in consequence Australia was also at war. Well, 30 years later - that is, in 1975 - the notion that Australia's laws could be shaped by international conventions was fairly revolutionary. As a general rule, at that stage, the federal parliament only ratified treaties that it believed it could implement within its enumerated heads of legislative power. If it did otherwise implement them, it ratified them with something that became known as 'the federal state clause'.

I recollect that in 1972, in the equal pay case, I argued on instructions from the two-man government - the wife of one of whom I see sitting over there - that Australia had not ratified the International Labour Organisation's convention on equal pay because the Conciliation and Arbitration Commission had not granted equal pay to women. I argued, with some force, about which now I think I should have perhaps had some embarrassment, that it was the fault of the Arbitration Commission that Australia could not honour its international obligations and that the secondary consideration, of course, was that women didn't have equal pay.

Equal pay, the ILO convention on equal pay which featured so importantly in that case, is just one aspect of the earlier 1945 Universal Declaration of Human Rights. Article 23(2) simply provided that everyone has the right to 'equal pay for equal work'. It is truly bizarre is that, although Australians, notably Dr Evatt and Jessie Street, should play such a significant role in the drafting of the Universal Declaration, it took so long for Australia to put into effect any of the obligations by which it was at least normatively bound from 1948 and earlier.

The principle of equal pay, which maybe, maybe not, came about in 1972, was not the only key provision in the Declaration of Human Rights. Of far greater significance was, and is, Article 7. Let me read to you:

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

That must have been a pretty radical idea in 1945. We know now that Australian Aborigines are still far less than equal, and in 1945 they were considerably less than equal before the law. And I am here to tell you that, at that stage, the law afforded them no protection at all. It was not until 1975 that the passage of the Racial Discrimination Act and the UN Declaration on the Elimination of all Forms of Racial Discrimination was implemented in Australia. Te Act's implementation was not based on that convention and it was not based on Article 7 of the Universal Declaration. It was based on the 1967 Constitutional amendment, which simply did two things. It provided that the Commonwealth parliament had the power to legislate with respect to people of various races, including the Aboriginal race, and it provided that Aboriginal people could be counted as citizens. Australian Aborigines were citizens of this country, if not the equivalent; that is to say, they were British subjects by virtue of and from the moment of their birth. It is a disgrace that we should have failed to recognise and treated them so poorly and so shamefully for so many years.

Article 7 was not of course concerned solely with the rights of people of different races. There was no 1967 amendment to the Constitution allowing for the federal government to legislate for the equal rights of women. But their protection languished, not withstanding the presence of Article 6, which says that everyone 'has the right to recognition everywhere as a person before the law'. That position did not change till 1973. By then, some of the more adventurous thinkers were putting forward a proposition which much earlier had been advanced by Dr Wilfred Jenks as President of the International Labour Organisation. He had argued that the federal clause was a ban and that the federal government could legislate pursuant to its external affairs power to implement the treaties it had ratified. By 1983 that view was in the ascendancy, and Senator Susan Ryan took steps to ensure the ratification of the UN Convention on the Elimination of all Forms of Discrimination against Women and in 1983 she shepherded through the parliament the Sex Discrimination Act. Let me interpolate here Susan, just this much as an aside. It is my great delight that it was and remains called the Sex Discrimination Act. When I was growing up, nouns had gender and people had sex. Now it is the other way around.

It was almost 35 years to the day after the adoption of the Universal Declaration of Human rights that Australia had at least embraced the notion of equality in its laws. Now the importance of those two pieces of legislation, the Racial Discrimination Act and the Sex Discrimination Act, can never be minimised. They are not Constitutional enactments. The parliament can repeal or revoke them any day it wants to. But they're all that we have in this country to ensure we are anything like a fair and equal society. Let me amend that. Apart from the little-used, less often thought of, Section 117 of the Constitution that was explored in a case called Street - he being one of the descendants of Jessie Street - and the Queensland Bar Association. They are all that we've got. Section 117 provides that a resident of one state shall not in another state be subject to any discrimination in the other state on account of his or her residency of the other state.

Those two pieces of anti-discrimination legislation are all that we have got. It is not an accident that, in the context of the 10-point Wik plan - hands up those who remember the 10-point Wik plan that has almost disappeared from our consciousness - our Aboriginal leaders insisted that the Racial Discrimination Act could not be amended. The Racial Discrimination Act is the bedrock foundation upon which native title lies.

No I do not want to enter this debate. I know and I understand the reason why someone should argue for a constitutionally enshrined bill of rights, and particularly a bill of rights that replicates and guarantees rights enshrined in the Universal Declaration. But let me tell you about a little job I had in Belarus. The international trade union movement complained to the International Labour Organisation that the independent union movement of Belarus was being discriminated against and that its members were being persecuted. The government of Belarus pointed to what was undoubtedly the most beautiful constitution I've ever seen. The constitution enshrined the equal rights of everyone. It guaranteed at least every right in the Universal Declaration and then some. For example, it guaranteed the rights of trade unions and trade unionists. So seriously did Belarus take its international obligations, that it had the public holiday for International Women's Day.

Quite naturally, in the face of the allegation that it was treating its trade unionists a little less than properly, it pointed to its beautiful constitution. 'How can it be', they said. 'Look, we've enshrined all these rights in the constitution and in addition we have enshrined every international norm. So it's just not possible.' Well indeed it was possible. It was possible for one reason and one reason only. There was nothing in its constitution which permitted citizens to approach the courts in the protection of their constitutional rights. That could be done only by the prosecutor-general - he was the man giving the trade unionists a moderately bad time - the president or the chief justice. But the chief justice would only do so after the trade unionists had served their time in prison. I mentioned the situation in Belarus because the Universal Declaration recognises there is no protection of human rights without the rule of law.

Let me read you some of the articles that relate to the rule of law:

Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9: No one shall be subjected to arbitrary arrest, detention or exile.

Article 11: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Well, if Australia was tardy in implementing or giving effect to Article 7 of the Universal Declaration, it was more than ingenious in recognising the rule of law. The genius of the Australian Constitution lies in a little subsection called section 75(5). Its terms are probably meaningless to those of you non-lawyers who are present here today. It gives the High Court original jurisdiction in which any person, citizen or non citizen seeks mandamus, prohibition or an injunction against an officer of the Commonwealth. As a result of that tiny little subsection, ministers of the federal government, federal public servants, their agents and others acting on their behalf may be compelled to perform their Constitutional and legal duty and may be restrained from acting in excess of their constitutional or legal power. The section, like lamingtons and Australian Rules Football, is all our own; our own peculiar genius. Not surprisingly, governments of both sides have sought from time to time to cut down the operation of that little subsection; and equally not surprisingly, High Court has resisted their attempts every time. That little subsection is quite unique. It has no equivalent, as far as I know, in any other Constitution. Certainly it has no equivalent in the United States of America. And it is only because America hasn't got that equivalent provision that we have that legal black hole known as Guantanamo Bay.

The last time I ventured into the debate about Guantanamo Bay, I was quite rightly dismissed as an armchair critic. Let me not argue the point; but I can still read and I can tell you that the indefinite detention without trial before a properly constituted and independent tribunal is a breach of several of the provisions of the Declaration of Human Rights. I won't go through all of those provisions, but let's start with 'Article 3: Everyone has the right to life, liberty and security of person'; 'Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'; 'Article 9: No one shall be subjected to arbitrary arrest, detention or exile'. What else is incarceration in Guantanamo Bay? 'Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal'; 'Article 28: Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realised'.

In dismissing my criticisms of Guantanamo Bay, the Attorney General quiet correctly said that it was the courts of the United States that would decide if David Hicks' detention was lawful and it is true. At this stage they are four years too late in doing so. There is no point in my doing anything more because I'm sure you all know the United Nations and the European Union have both called for the closure, the immediate closure, of Guantanamo Bay.

Now I have mentioned Guantanamo Bay and David Hicks for another reason. It is true that today in far too many places, human right abuses occur on a large scale. Human rights abuses are often driven in those places by political, ethnic or religious differences. In the case of white Australia, human rights abuses also occur, and they occur at individual levels. The victims of those abuses are usually the most vulnerable. As a general rule the authorities don't interfere with nice middle class men and women like us. They pick on the difficult people. They pick on the non-conformists, the troublemakers, the dissidents, and as often as not they pick on the mentally ill and the mentally disabled.

We now know of the most serious violations of the rights of Christine Rau and Mrs Solon. So far as I know, no compensation has yet been provided. But let me hazard a guess that the damages must be enormous. I read in yesterday's Sydney Morning Herald, which I always understood to be a journal of record, that two men, nameless and unidentified, have been in immigration detention for three and five years, respectively. How much more vulnerable can you be than to lack a name and an identity? Today, the Herald reported that the Commonwealth government has settled the claim of a child who had been severely traumatised as a result of the two years he spent in immigration detention. According to the Herald, this was settled after a 63-day hearing in the Supreme Court. For that there will not be any change out of a million dollars, I promise you. Moreover, it is said that the damages aspect would be in the order of a million dollars.

Now I have been round this town long enough to know that abuses occur not only because people are vulnerable; they occur as often as not because good people do nothing, and as often as not good people know nothing. Detention centres are set apart and isolated from the mainstream of society, and deliberately so; so that you will not know what is going on. But it cannot be denied that, if abuses can occur, they will occur.

For that reason, I am not going to talk about Guantanamo Bay any more today. I am going to take this occasion to remind you or perhaps acquaint you with the terms of Article 14 of the Universal Declaration of Human Rights. It says simply: 'Everyone has the right to seek and to enjoy in other countries asylum from persecution.' Not a word about detention centres there. And because of that, I think today is an appropriate occasion to call for the immediate closure of immigration detention centres. At least there is a better than respectable argument that we should do it on economic grounds, if we won't do it because of the terms of Article 14, if we can't do it out of fellow feelings with other human beings.

This is an edited text of Mary Gaudron's address to the annual lunch of the Jessie Street Trust held in the Strangers' Dining Room in the Parliament House, Sydney, on 3 March 2006. Mary Gaudron QC was the first female Judge of the High Court of Australia and served as Justice from 1987 to 2003. She was Deputy President of the Australian Conciliation and Arbitration Commission from 1974 to 1980 and Chairman of the New South Wales Legal Services Commission from 1979 to 1980. She was appointed Solicitor-General of New South Wales in 1981 and held this office until her appointment to the bench in 1987. She is currently a Judge with the International Labour Organization (ILO) Administrative Tribunal and the member of a panel of external and independent experts who have been appointed by the Secretary-General to explore ways to redesign the system of administration of justice at the United Nations.

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