I want to start by being very direct. Sometimes lawyers don't always do that, but since the
question is - the subject is a question,
"Why Human Rights matter for Everyone", I'm going to answer it
in the first thirty seconds, and I might of course leave the rostrum
at that time, if you'd like me to. On the
other hand, I'll stay for another twenty minutes or so and develop it a little more.
But human rights
matter for everyone firstly (nothing to do with international law) firstly because they are derived from
the
very nature of a human being, and secondly, because the imperative to understand and to accept
that human rights matter for everyone
is strongly supported by international law. And that's the outline
of my theme.
Firstly, they are derived from the very nature of a human being. The present day imperative to
grasp this truth has its origins
in the insights of philosophers and theologians from the earliest of times
- and jurists. While the term 'human rights' might not
have been used, the concept is implicit in the
perceptions of faith that speak of human beings as created in the image of God in
terms of subject to the
command to be neighbourly, to love your neighbour, of love as the fundamental law of life, of the unity
of all humankind. The great codes, legal codes of Hamarabi and of Justinian, with their promulgation of
justice as the constant
and perpetual will to give every man (forgive the 'man', forgive the sexism of
those times) - every man his due. And the contribution
of lawyers, apart from these great codes, to an
understanding of law as the handmaid of human rights, finds wonderful expression
in the words of
Cicero, that great Roman lawyer, statesman, a number of other things. He died in 46BC and he is
reported to have
said: "We have a natural propensity to love our fellow man, and this after all is the
foundation of all law." That's a very intriguing
statement and I hope that sometime during training or
practice, every lawyer will have the opportunity to just reflect on what that
means. "We have a natural
propensity to love our fellow man, and this after all is the foundation of all law." - as a reflection
that
comes to us over twenty centuries. John Donne, coming nearer to us, the poet, the British poet of the
sixteenth or seventeenth
centuries - you'll know his words very well - when he emphasised the essential
relatedness of all humanity, so much so that when
a person dies the whole community is diminished.
You remember his words: "No man is an island" and then concluded with "Do not
ask for whom the
bell tolls. It tolls for thee."
Well then, let's come to the twentieth century and the operation of international law as it found
expression during this century.
The principles of the United Nations Charter and the consistent and
repeated affirmations of the International Community in the
latter half of this century undergird the
imperative to which I've already referred. The Charter was adopted at a World Conference
held in San
Francisco in 1945. Intensive lobbying prior to and during the conference by a widely representative
group, led mainly
by churches and other religious groups, succeeded in strengthening the Charter from
what the initial draft presented, significantly,
particularly, in its expression of a concern for human
rights. In the result, firstly the Preamble to the Charter expresses a determination,
and I quote, "to
reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal
rights
of men and women and of nations large and small". Article 1(3) recites that one of the chief
purposes of the organisation shall
be, and I quote, "to achieve international cooperation in promoting
and encouraging respect for human rights and the fundamental
freedoms for all, without distinction as
to race, sex, language or religion". And then Article 68, perhaps the most important of
all. It required
the Economic and Social Council "to establish a permanent Commission on Human Rights to promote
respect for and
observance of human rights and fundamental freedoms". And on the 10th of December
1948, the first fruits of that Article 68 were
seen when the General Assembly of the United Nations
adopted the Universal Declaration of Human Rights. Its adoption was a triumph
for Dr Frederick Nolde,
a person whom I knew at that time because I was getting caught up in the international scene as early as
1948 and 1949. He was the director of the Churches Commission in Geneva on International Affairs and
he was indefatigable in representing
the insights of religious groups, not confined to the Christian
churches. He constantly emphasized the principle that governments
could not grant human rights.
They could do no more than recognise the human rights which human beings by virtue of their being
and destiny already possessed. And this principle is enshrined in the first Preamble to the Declaration,
which begins "whereas
recognition of the inherent dignity and of the equal and inalienable rights of all
member of the human family is the foundation
of freedom, justice and peace in the world", so on. The
Declaration proceeds to affirm that all human beings are born free and
equal in dignity and rights and
are entitled to all the rights and freedoms set forth therein without distinction of any kind, and
again
there's that recital, expanded this time: race, sex, language, religion, political or other opinion, national or
social
origin, property, birth and finally, or other status. There can be no question that sexual
orientation is properly included in
that recital. It's intended to be exhaustive. The Declaration was
proclaimed to be a common standard of achievement for all peoples
and all nations to the end that every
individual and every organ of society shall strive by teaching and education to promote respect
for
these rights and freedoms and by progressive measures, national and international, to secure their
universal and effective
recognition and observance.
Since these great affirmations of the international community in the forties, the subject of human
rights has seldom been off the
agenda of the United Nations and its parallel organisation, the
International Labour Organisation. In 1966, after fourteen years
of patient negotiation, hampered by the
stresses of the Cold War, two covenants of great importance were adopted by the General
Assembly.
These were the International Covenant on Economic, Social and Cultural Rights and the
International
Covenant on Civil
and Political Rights. And since that time, attention has been given to the adoption of
particular standards in relation to the
rights of groups that were seen to be vulnerable. Thus we have
conventions on the elimination of racial discrimination, of discrimination
against women, and on the
rights of the child. There's a convention against torture; it includes detailed standards on the rights
of
prisoners and detainees. There are declarations on the rights of people with disabilities and the
mentally ill. There are
international standards on refugees and the declaration on the elimination of
religious intolerance. A draft declaration on the
rights of indigenous peoples is presently under
discussion. This comprehensive record of achievement in standard setting in the
UN over the past fifty
years stands as a convincing testimony as to why human rights matter for everyone. It's a question of
the
inherent dignity belonging to every human being, simply and solely by virtue of his or her humanity.
It's a question of equality
of opportunity. It is a question of freedom, justice and peace for the whole
world community. It is a question of international
law and the obligations that Australia has assumed
by its adoption and ratification of these instruments. The strength of this
testimony is in no way
diminished by the fact that when the UN was established, and in those early years the vision of
universal
human rights was affirmed, it was largely made up of western nations. Certainly, it was in no
way as representative of the world
community as it is today, but the repeated debates over the
intervening years as the United Nations has trebled its membership,
more than trebled its membership,
so as to become truly representative of the whole world, has exposed the vision of 1945 to rigorous
and
continuing scrutiny. Yet that vision and its pursuit has emerged all the stronger for that vision.
A testing moment came in 1989-90 when the UN was debating a motion to condemn the manner of
China's alleged suppression of democracy,
culminating in the Tiananmen Square massacre. China relied
strongly on Article 2, Subarticle 7 of the Charter which precludes the
United Nations from intervening in
matters which, and I quote, "are essentially within the domestic jurisdiction of any state".
That was
China's argument. It was rejected and the argument failed to deter the UN from expressing its concern
over that incident.
The stage was then set for a showdown on the issue of the scope of the UN's
authority in human rights matters at the World Conference
on Human Rights held in Vienna in 1993. I
had the privilege of being there and could feel the very real anxiety, the tension that
dominated that
conference over those first few days, an anxiety as to whether it would be possible for the conference to
maintain
adherence to the principle that human rights are universal. Strong views were advanced by
many developing nations that the right
to development was an overriding human right and that national
security concerns might in some circumstances be paramount to human
rights. In the result, however,
the conference came back to those words that had dominated the intervening decades and reaffirmed
by
consensus that human rights were universal, they were indivisible and they were interdependent. And
within the context of this
affirmation, it was acknowledged that the right to development was an
important human right, although no more important than any
other.
I believe the outcome of the World Conference emphasises firstly the importance of an integrated
approach to human rights and equal
opportunity and secondly, that the scrutiny of human rights issues
by the world community is not to be confined by national boundaries.
It's the right and responsibility of
the world community to monitor the observance of human rights, regardless of the sensitivities
of
particular countries and resistance to intrusion into domestic ... so called intrusion ... into domestic
affairs. We've seen
an expression of this sensitivity in the response of some sections of the Australian
community to the decision of the Human Rights
Committee in relation to Tasmania's laws on consensual
homosexual conduct between adults in private. The truth is that the promotion
and the protection of
human rights is no longer a duty owed only by the nation state to its own citizens, fundamental and the
starting
point as that is. It is also a duty owed to the international community.
Before leaving the international aspect, let me mention briefly two exciting events that have
happened only in the last month, as
if to give me something to talk about at this seminar. They both
involved Australia. We were represented at the first by our Race
Discrimination Commissioner, Zita
Antonius, one of my colleagues in the Human Rights Commission. She went to Japan, representing
the
Commission as an Australian delegate. The theme was Human Rights in the Asia-Pacific Region.
Participating countries, apart
from Japan and Australia, included Indonesia, Malaysia, the Philippines,
India, Thailand and Korea, and Zita's report when she came
back said, among other things: "The
participants unanimously affirmed that basic human rights are non-negotiable, that human rights
are
universal and indivisible, that human rights are a legitimate matter of international concern, to be
promoted and protected
in a balanced manner throughout the world by all available means." It's
significant, ladies and gentlemen, that this happened in
Japan, in our region, because the Asia-Pacific
region has been the slowest of all regions to find it possible to establish regional
and national bodies to
advance the protection and promotion of human rights. Every other region around the world has its
own agency
so that you have the international level in the UN, you have the European Commission of
Human Rights, you have the African Commission,
the Latin American and the American. And it's so
significant that these two conferences, the one I've mentioned and the one I'm
coming to, are in our own
region. Lawasia has been working for at least twenty years to advance a recognition of human rights
and to see some kind of regional body established in this region, and it's very significant that this
meeting in Japan made these
affirmations and expressed the hope that there could be closer cooperation
between the Asian nations.
And then, just from the 8th to the 10th of July in Darwin, Australia - my Commission - hosted a
workshop of national human rights
institutions from the Asia-Pacific. It was attended by the national
institutions established in Australia, India, Indonesia and
New Zealand. There's only one other country
in the region that has a national human rights institution, that is the Philippines,
and that has played a
significant role in the past few years, but unfortunately it couldn't be represented because of internal
problems. It's chairman retired earlier this year and I'm not sure what the other difficulties were. But,
nevertheless, about
a dozen other Asian nations that I won't stop to record attended as observers.
They attended because they were interested in the
establishment in their own country of a national
human rights institution. My colleague, the Human Rights Commissioner, was responsible
for running
the workshop and he reported it was very successful, it reaffirmed (quote) "the commitment of
participants to the universal
and indivisible rights declared in the Universal Declaration of Human
Rights and other international human rights instruments, which
recognise that all human beings are
born free and equal in dignity and rights and are entitled to equal protection against any form
of
discrimination and abuse of power". And that's a very good introduction to our seminar today. They
also resolved, these institutions,
and I found these very significant. Firstly, to develop the mutual
support, cooperation and joint activity of national institutions
in the region and to respond to requests
from other governments for assistance in the establishment in their countries of such an
institution.
And secondly, to respond promptly and effectively to request from other national institutions to
investigate violations
of the human rights of their nationals present in a country that has a national
institution. That's an extraordinary decision to
make at the first meeting of national institutions in this
region - to open up each other's country to help from a neighbouring
national institution with the
freedom to investigate human rights violations in that country. The third decision was to establish
an
informal Asia-Pacific regional forum of national human rights institutions and to accept Australia's offer
to service the forum
for a period of up to three years. And the exciting thing about this was that this
offer was made possible by Mr Downer, the Australian
Foreign Affairs Minister, undertaking to give us
$75,000 a year for the next three years in order that we could service such a forum.
The Human Rights
Commission is desperately trying to maintain its other programmes, given a 15% cut in its funding, and
to finish
the national inquiry into the separation, of the forced removal of Aboriginal children from their
families and communities with
our existing resources. But this is a most encouraging response from the
government to the needs of a forum of continuing consultation
between human rights institutions in
this region, and we look forward enormously to the possibilities that are opened up by that.
I haven't left myself much time for the domestic scene, but as I've said, the rest of the programme will
develop that. But let me
just try and say a few words very quickly. The necessity for this seminar is an
indication that there's no room for complacency
about human rights in this country. The basis on which
the Attorney-General, the then Attorney-General of the West Australian Government
explained, the
decision not to accept the recommendation of the Equal Opportunity Commission last December that
legislation be
enacted to protect West Australians from discrimination on the basis of their sexual
orientation was quite outrageous. June Williams
had published a discussion paper on the subject and
invited a community response. There were something like 400 responses; more
than 360 of them
favoured the recommendation that discrimination on the basis of sexual orientation be banished from
Western Australia,
and that's more than 90% of the responses. Less than 10% of the responses were
opposed. Yet the Attorney-General's excuse for
abandoning its clear responsibility to protect the
human rights of an important and significant minority in Western Australia was
to say that the issue
was the subject of serious community division and the government had deferred action for the time
being.
The reality was that there was overwhelming support for the recommendation of the Equal
Opportunity Commissioner and the outcome
represented an abject failure of leadership on the part of
the government, notwithstanding even that the only leadership required
was to respond to community
opinion.
I suppose this seminar might be presented, notwithstanding the wide range of distinguished
speakers from across the nation, as one
limited in its application and relevance to Tasmania and
Western Australia, these being the two states that have yet to legislate
to outlaw sexual orientation
discrimination. But, ladies and gentlemen, it's far more significant in importance than that. I'm
sure that
people from the other states that have an interest in the development of human rights will recognise that
all is not
well anywhere in Australia in relation to sexual orientation discrimination, that the continuing
level of violence that attends
discrimination - this is what distinguishes this particular minority from
many others that suffer discrimination - the continuing
violence, the continuing vilification of this
minority is of relevance to every part of Australia. And I would also add on the
general issue that the
refusal to recognise the rights of one section of the community diminishes the whole community.
There are alarming signs at the present time of a retreat by Australia from the observance of
international human rights standards.
In recent times I've been brought face to face with a level of
continuing prejudice against migrant groups that I had thought we
as a nation had grown out of. It
doesn't have to take a dramatic turn like physical assault or the burning of mosques or synagogues
to
be objectionable. It's the petty, day to day humiliations and insults at the grass level of the community
life that are the
daily experience still of many Australians. In the area of aboriginal reconciliation, you
may have seen the comments of my colleague,
Mick Dodson, recently, expressing the view that since
the last Federal election, there's been a marked deterioration in relationships,
not confined to events at
the national level. The deterioration is such as to engender a real anxiety for the future of the
reconciliation
process. There is the recent forecast - I hope it's not reliable - of significant cuts to the
legal aid budget presently administered
by Legal Aid Commissions around the states, and the figure of
$120 million being taken out of legal aid in Australia was mentioned.
That is going to increase the
pressures on Australia's minorities enormously, because it's the people who are poor and impoverished
that are most in need of legal aid, and it is they who will bear the brunt of the pain of this action if it
takes place in the
budget. My colleague, the Sex Discrimination Commissioner, has written a very
powerful submission to the current Senate inquiry
into the industrial relations amending legislation. I
understand that proposed legislation will remove the present United Nations
human rights instruments
that are presently annexed to the present legislation. Many of the ILO conventions that deal directly
with the rights of workers were annexed to that present legislation and I understand the proposed bill
will remove them. There
is a retreat from the concept of equal pay as a likely outcome of those
amendments. Hopefully, the Senate committee will make a
strong report which will lead to changes
when the bill is before the Parliament. My colleague, the Human Rights Commissioner, is
battling the
Immigration Department over the human rights of refugees and a retreat from some Australian
international obligations
in that regard.
What should I say in a word about political correctness? I can understand, ladies and gentlemen,
the attack on so called political
correctness, if it is intended as an attack on cant and hypocrisy or in
defence of rational debate on issues of national importance,
but free speech has never been a licence for
the vilification of minorities, whether they be aborigines or ethnic Australians or
people with disabilities
or persons with a sexual orientation different from the majority. Some conservative commentators are
not slow to jump on the bandwagon against so called political correctness in order to vent their
frustration with all the human
rights and values that have been affirmed by the international community
and values which Australia has undertaken not only to support
but to actively promote.
And it follows in conclusion that the members of my Commission see many challenges to its
conviction that human rights matter for
everyone. For many minorities in the Australian community it is
a case of out of sight, out of mind and when you add to this the
commonly expressed view in some
conservative circles that all Australians should be treated equally, completely ignoring the truth
that if
people are unequal to begin with, no amount of equal treatment can overcome the disadvantage. And
then, this simply all
emphasises the vulnerability at present in Australia of minorities to further
discrimination. The reality is that for many Australians
there is such a fear of difference, or alternatively,
a commitment to self-interest, that the interests of the majority will always
take precedence until such
time as there is a widespread commitment, at all levels of the community, to the principle that "Human
Rights matter for Everyone".
If there is any truth in these reflections, this seminar assumes very great significance.
