Date: 
Tuesday 4 September 2018

Author

Rosalind.Croucher

Human Rights are not a foreign language—reflections on the 70th anniversary of the Universal Declaration of Human Rights
Emeritus Professor Rosalind Croucher AM
President, Australian Human Rights Commission
University of Adelaide Faculty of Law
Tuesday 4 September 2018

Acknowledgment

I would like to begin my presentation by acknowledging the traditional custodians of this land, and to pay my respects to the elders, past and present, of the Kaurna people of the Adelaide plains and I also acknowledge any Indigenous guests in the audience today.

Introduction

This year is the 70th anniversary of the Universal Declaration of Human Rights on 10 December. I am using this to frame a number of presentations I am doing throughout the year. This presentation draws together some of my reflections in embracing the role as President of a Commission which has its core functions promoting discussion and understanding about human rights as well as protecting rights through promoting observance.

I have chosen the topic, ‘Human rights are not a foreign language’, to discuss how human rights have always been central to our system of law and government. I will explore the idea of ‘foreign-ness’ from a number of perspectives:
• Common law rights protections
• Human rights in international law
• International treaties and domestic laws
• Australia and the UN human rights processes
• The Commission as Australia’s National Human Rights Institution.

Human rights and the common law

The title of this paper, and this particular aspect of it, was prompted by my work on the ALRC Freedoms inquiry, that led to the report, Traditional Rights and Freedoms—Encroachment by Commonwealth Laws (ALRC Report 129, December 2015), which placed common law rights and freedoms in the spotlight.

A question in my mind throughout was what is the difference between ‘common law rights’ and ‘human rights’? In essence they are the same—in their focus on the individual against actions of the State.

The rights, freedoms and privileges we considered in the Freedoms Inquiry have a long and distinguished heritage in the common law. They embody key moments in constitutional history: including the sealing of the Magna Carta in 1215,  the settlement of parliamentary supremacy against the King following the ‘Glorious Revolution’ of 1688 and the enactment of the Bill of Rights Act 1688,  which still forms part of our constitutional history in Australia.

The Magna Carta sought to protect the ‘liberties’ of all the ‘free men’ of the Kingdom. Although its principal focus was on the relationship between the barons and the Crown, the essence was the assertion of the freedom and protection of the individual against the arbitrary exercise of power by the Crown.

In a speech on the Magna Carta in 2014, the Right Hon Lord Dyson, Master of the Rolls observed that, although many of the 63 clauses are ‘rather technical and of no relevance to use today’, a few of them ‘are gems whose influence has been incalculable’:

it enshrined the rule of law in English society. It limited the power of authoritarian rule. The king was to be subject to the law. It defined limits on taxation. For centuries, it has influenced constitutional thinking worldwide. … In 1965, Lord Denning, then Master of the Rolls, described Magna Carta as ‘the greatest constitutional document of all times—the foundation of the freedom of the individual against the arbitrary authority of the despot’.

The Bill of Rights 1688 similarly anchored itself in the liberties of the people to be protected by law. It referred to the ‘true, ancient and indubitable rights and liberties of the people’ that had been overridden by James II and led to the installation of William and Mary, Prince and Princess of Orange, as the King and Queen, on the invitation of ‘lords spiritual and temporal and commons’. The rights and liberties went essentially to the role of parliament, not the Crown, as the authority with respect to laws; keeping armies; election of members of parliament; freedom of speech and debate in parliament; levying money; and about juries and bail.

The rights and freedoms we recognised and developed by the courts and through legislation, and statutory interpretation in turn—ie through common law.

By statute we added new rights—like female suffrage. First in South Australia in 1894,  in the old Parliament House just down the road, and Western Australia in 1899. Then in 1902, with the establishment of the Commonwealth, the Commonwealth Franchise Act 1902 clarified that women could vote and stand for federal parliament. By 1911 the remaining Australian states extended the suffrage to women.

The notion of ‘human rights’ arose principally from the wave of international conventions in the aftermath of the Second World War and the horrors of the holocaust, spearheaded by the Universal Declaration of Human Rights  itself and, more recently, the International Covenant on Civil and Political Rights (ICCPR). 

The focus on the rights recognised in the common law and then in the conventions in the aftermath of World War II was a common one, in emphasising the rights of the individual against the state. In a speech given in May 2012, the Hon Justice Chris Maxwell, President of the Court of Appeal of Victoria, gave a speech entitled ‘Judges and Human Rights’, in which he made observations about the Victorian Charter of Human Rights and Responsibilities Act 2006, but also pointed out that-

What is often overlooked in debates over the Charter is that there was already, in the common law, a well-developed human rights jurisprudence—most notably in the criminal law.

The common law of Australia has a rich tradition, mostly inherited from England but in part developed domestically, of recognising and protecting human rights.

The Constitution expressly protects a handful of rights: the right to trial by jury on indictment for an offence against any law of the Commonwealth;  freedom of trade, commerce and intercourse within the Commonwealth;  a limited right to freedom of religion that ensures that no one religion can dominate over others;  and the right not to be subject to discrimination on the basis of the state in which one lives.  There is also the requirement that if the Commonwealth compulsorily acquires property, it must do so on ‘just terms’,  which may also be conceived of as a right.

In addition, the High Court has found an implied right to freedom of political communication.  This freedom is not absolute, but any law that interferes with political communication must be ‘reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’.  The freedom operates as ‘a constitutional restriction on legislative power’, rather than as a personal right. 

The Australian Constitution reflects a different approach to rights from, for example, the United States, with its codification of rights in its Constitution through a series of amendments.  That Australia did not go down that road in the drafting of our Constitution, Professor Helen Irving states, was due to the ‘general reserve about directly including policy in the Constitution, instead of powers subsequently to enact policy’. 

In a similar vein, the Hon Robert French AC, while still Chief Justice, gave a presentation on Australia Day, 2010, at the John Marshall Law School, Chicago, on ‘Protecting Human Rights Without a Bill of Rights’.  He observed that ‘[t]he absence of a Bill of Rights in the Australian Constitution is in part a function of our history’, driven by the concern of colonists about foreign affairs, immigration, defence, trade and commerce, and industrial relations—as well as about ‘colonising activities of France and Germany in the region’. Most importantly, the colonists ‘saw themselves as essentially British’:

The federation movement did not seek to rid Australia of British. There was no desire to assert against Government generally, or the British Government in particular, rights and freedoms for colonists. The rights most intensely debated were those of the individual colonies as proposed states, vis a vis, the proposed federal parliament. 

However while Parliament was sovereign, laws it passed were not immune from judicial consideration, through the principle of statutory construction known as the ‘principle of legality’. By reading down laws to minimise possible encroachments on rights and freedoms, the common law—through statutory interpretation—plays a role in protecting them.  This has become known as the principle of legality, which provides some protection to certain traditional rights and freedoms. The primary rationale for this principle was provided by Lord Hoffmann:

[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.
The ‘political cost’ of the decision was also something referred to by French CJ: the interpretation of legislation takes place ‘against the backdrop of the supremacy of Parliament’, which can qualify or extinguish rights and freedoms by ‘clear words’—but words ‘for which it can be held politically accountable’.  Political accountability means that you can get voted out.

The essence of this understanding about rights in the common law is that there are rights, rights of individuals, and they are deeply entrenched—they are not at all a foreign language.

The significance and symbolism of the Magna Carta as the embodiment of rights was brought to mind by Mrs Eleanor Roosevelt, the Chair of the Drafting Committee of the Universal Declaration of Human Rights. In speaking to the UN General Assembly on 9 December 1948 she said that ‘[t]his Universal Declaration of Human Rights may well become the international Magna Carta for all men everywhere’.

Human rights and international law

The distinct language of ‘human rights’ is customarily associated with the establishment of the United Nations and particularly from the Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly on 10 December 1948.

In his Preface to Marc Bossuyt’s landmark Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights (1987), John P Humphrey, who prepared the first draft of the UDHR, observed:

A hundred years from now, jurists may well be saying that the most important, most radical indeed, development in international law in the twentieth century was the growth of an international law of human rights.

What Humphrey was referring to was the move away from an international law that was about the rights of states among themselves, to ‘an international law of human rights, which confers rights on individual men and women’ and in a context where the United Nations was recognised as a distinct actor.

On 26 June 1945 the Charter of the United Nations was signed in San Francisco at the conclusion of the United Nations Conference on International Organization and came into force on 24 October 1945. Those invited to the Conference were the nations that had declared war on Germany and Japan and had subscribed to the United Nations Declaration in 1942.  Australia was one of the original signatories.
The issues of security were uppermost, not just for their own sake, but as enabling respect of the dignity of people. This is evident in the preamble and first article of the Charter of the United Nations. The Preamble opens with the following words.

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED
• to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
• 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, and
• to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
• to promote social progress and better standards of life in larger freedom …

Of the interweaving of security and human rights in the Preamble, Marc Bossuyt observed that ‘human rights are important not only because there can be no human dignity without them but because the future of civilization in this nuclear world may well depend on their implementation’.  The Preamble to the Universal Declaration similarly said that ‘the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’.

One of the first decisions of the UN, in December 1946, was to ask the UN Commission on Human Rights, chaired by Eleanor Roosevelt, to frame an ‘international bill of human rights’.  While the Commission on Human Rights did not achieve a binding convention, they did achieve the foundation for such conventions with the adoption of the Universal Declaration of Human Rights by the General Assembly on 10 December 1948.

The making of the Universal Declaration of Human Rights

Bringing together the philosophical traditions of the members of the Commission on Human Rights into a final draft that was acceptable to the General Assembly was a considerable achievement. As Professor Mary Ann Glendon observed, the 18 members of the first Commission on Human Rights were ‘a remarkable group of people with strong convictions and strong personalities’, including ‘some of the most able and colorful public figures of their time’:
The Commission’s Lebanese Rapporteur, Charles Malik, a philosophy professor-turned-diplomat, was the chief spokesman for the Arab League during the Palestine crisis, and would later hold many key posts in the UN, including the presidency of the General Assembly. The French member, René Cassin, was an ardent Zionist, who had served as Charles de Gaulle’s wartime legal adviser, and who would receive the Nobel Peace Prize in 1968 for his varied contributions to human rights.

Nationalist China’s Peng-chun Chang, the vice-chairman of the Commission, was a leading educator-turned-diplomat who had also achieved renown as a poet and playwright. General Carlos Romulo of the Philippines had won a Pullitzer prize for his pre-war articles predicting the end of colonialism. Mrs Hansa Mehta was a veteran of India’s struggle for independence and a tireless advocate for women’s equality. Alexei Pavlov, nephew of the famed conditioned-reflex scientist, was a powerful orator who, we now know, was under instructions from Moscow to obstruct and delay proceedings. Chile’s Hernàn Santa Cruz was an aristocratic man of the left who shared John Humphrey’s determination to include social and economic rights in the Declaration along with traditional political and civil liberties.

At the first meeting of the Commission in New York in January 1947, it was decided that a group comprising Mrs Roosevelt, Peng-chun Chang and Charles Malik, with the assistance of John Peters Humphrey, the Secretary of the Commission, would formulate a preliminary draft to be presented at the second session in June. 

Mrs Roosevelt understood the value of informal settings to establish relationships. Immediately after the conclusion of the first session, she invited Chang, Malik and Humphrey to her apartment on the weekend for afternoon tea. Mrs Roosevelt recalled that, it was decided that Humphrey would prepare the preliminary draft and, as they ‘settled down over the teacups’, a heated philosophical discussion got underway:
Dr Chang was a pluralist and held forth in charming fashion on the proposition that there is more than one kind of ultimate reality. The Declaration, he said, should reflect more than simply Western ideas and Dr Humphrey would have to be eclectic in his approach. His remark, though addressed to Dr Humphrey, was really directed at Dr Malik, from whom it drew a prompt retort as he expounded at some length the philosophy of Thomas Aquinas. Dr Humphrey joined enthusiastically in the discussion, and I remember that at one point Dr Chang suggested that the Secretariat might well spend a few months studying the fundamentals of Confucianism! But by that time I could not follow them, so lofty had the conversation become, so I simply filled the teacups again and sat back to be entertained by the talk of these learned gentlemen!

Although known to be a terrible cook, she recognised the value of the communications and relationships that build around the simple fact of engaging informally—an approach that resonates with me greatly. 

At the June 1947 meeting of the Drafting Committee, a four-person working group was established: Cassin, Malik, the UK representative Geoffrey Wilson and Mrs Roosevelt. The task was ‘to suggest a logical rearrangement of the articles of the Draft Outline supplied by the Secretariat’ and to suggest a redraft. Within the temporary working group, the task of re-drafting was given to René Cassin.


Cassin preserved the substantive content of Humphrey’s draft, but added a preamble followed by what is known in continental legal terminology as a ‘General Part’—a set of introductory principles to guide the interpretation of the specific provisions that followed. The rights themselves were then arranged according to the logic of the general principles, proceeding from those belonging to persons as such to the rights of persons in social and political relationships. The draft which Humphrey had loosely organized by topic began to take on a more organic structure, a beginning, middle and end.

Peng-chun Chang added a Confucian sensibility to the early stages, integrating ‘conscience’ into the UDHR. 

What they achieved was not a foreign language, but a common language of rights.

It was envisaged that the Declaration would be followed by binding treaties,  but this took a while. The 1950s were consumed by the Cold War. It took until the 1960s for the United Nations to be able to achieve the two covenants that, together with the Universal Declaration on Human Rights, would be known as the ‘International Bill of Human Rights’: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic and Social Rights (ICESR).  Resistance to intrusions on national sovereignty by the Soviet bloc and the US proved to be significant brakes on the progress of both covenants.

In his masterly treatise on the ICCPR, Manfred Nowak explained that the Socialist States regarded international supervision (especially that of a judicial nature) as an ‘impermissible interference in the internal affairs of a State’.

As another commentator remarked:
Cold war politics frequently threatened to derail the drafting process and then the adoption itself. As the [Human Rights Commission] debated what the three human rights protocols should contain—and when the [Human Rights Commission] should instruct the UN to act to protect the human rights of a nation’s citizens—hyperbole erupted. American conservatives charged any human rights document crafted by the United Nations would bring socialism to America while delegates from the Soviet bloc argued that racial segregation proved that western democracies only gave lip service to civil and political rights. 

On 16 December 1966, both Covenants and an Optional Protocol allowing for individual and inter-State communications were adopted by the General Assembly. The combination of rights guaranteed in the two covenants ‘represent the most authoritative universal minimum standard of present international human rights law’.  But it took another ten years for the Covenants to enter into force: the ICCPR on 23 March 1976; the ICESCR on 3 January 1976.

International treaties and domestic laws

As international treaties, the ICCPR and the ICESCR create obligations between States parties: to respect the human rights recognised in the them within their territory and subject to their jurisdiction.  But the rights in the covenants do not become domestic law until incorporated through legislation.  For example, the Racial Discrimination Act 1975 (Cth) enacted into domestic law the International Convention on the Elimination of All Forms of Racial Discrimination 1969; while the Sex Discrimination Act 1984 (Cth) enacted the Convention on the Elimination of All Forms of Discrimination Against Women 1979.

There are also reporting obligations that come with the treaties. Using the ICCPR as the example, States parties agree to submit reports about how they have given effect to the rights in the Covenant and on the progress they are making in the enjoyment of those rights. The reports are made to the Human Rights Committee—the relevant supervisory committee for the ICCPR.

In addition, by virtue of the first Optional Protocol, the Human Rights Committee may receive ‘communications’ from individuals who claim that any of their rights enumerated in the Covenant have been violated by the relevant State party and who have exhausted all available domestic remedies.
The ratification of the ICCPR by Australia in 1979 provided the catalyst to the passage of the legislation that established the first iteration of the Australian Human Rights Commission in 1981—the ‘Human Rights Commission’. In his Second Reading Speech, the then Attorney-General, Sen the Hon Peter Durack, said that its establishment ‘will help Australia to discharge the obligations it has assumed under the covenant’, which was to be ‘the primary point of reference’ for the Commission. 

The second iteration was as the Human Rights and Equal Opportunity Commission, or ‘HREOC’, under the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

Part of the architectural design of the HREOC was an accompanying Australian Bill of Rights Act.  The functions that the 1981 Commission had in relation to the ICCPR were to be continued by HREOC, but with the Australian Bill of Rights Act the functions were to be exercised under that Act rather than the former functions in relation to the Covenant. The Bill was passed in the House of Representatives, but did not survive the Senate. So the functions under the ICCPR for Australia continued to sit with HREOC and, after 2009, with the renamed Australian Human Rights Commission—even without a formal enactment of the covenant as a ‘Bill of Rights Act’.

The human rights functions of the Commission are ‘partly foreign’, through the conventions linked to Commission processes, and partly domestic via our own legislation and the federal Discrimination Acts.

Australia and the UN human rights processes

There is a certain tension in the relationship between our domestic position and international commitments under the human rights treaties. The number of reporting obligations has increased, with each new treaty signed and ratified over the years: there are now nine core international human rights instruments, of which Australia is a party to seven. Each one has a committee of experts to monitor implementation of treaty provisions by States parties. There is also the process of Universal Periodic Review—a government to government dialogue about compliance against all of the nine treaties, the UDHR and the Refugee Convention.

A question that has regularly come up since the establishment of the UN, has been the relationship between the sovereignty of States parties and the UN processes. It has been an issue from Day One of discussions on international treaties—indeed of the establishment of the United Nations itself. Sovereign domestic parliaments may not want to be ‘ruled by Geneva’ as one of the phrases goes, and ruled instead by Washington, London, Ottawa or Canberra, but signing up to the international community through its conventions, covenants and treaties does affect what sovereign parliaments do. It is not so much about ‘rule’ by Geneva, but reflecting sincerely upon those deep commitments in one’s domestic fields of operations. After all, the Concluding Observations of the Committees do not have the force of law. They are about dialogue, and there is moral force in them, although authority rests domestically, and not with the UN mechanisms.

There is certainly a nationalistic element to these dialogue processes. Whenever UN scrutiny is raised in Australia’s media or political debate, you are very likely to hear comments in the debates that follow, like these:
• How dare they tell us what to do!
• The UN? Doesn’t that include rogue states like North Korea? What credibility do they have?
• Why don’t they focus on someone else—we have a much better human rights record than, say, Russia, Syria and Saudi Arabia!
While these concerns are valid ones, they miss the point of the process. Every country goes through similar processes—the UPR, for example, and the reporting to treaty bodies. They all get their turn, and there is no evidence that they get an easier hearing than we do.

Moreover, the process is not a comparative one. If Australia has committed to uphold certain rights then it is reasonable for us to be assessed on whether we meet them. Determining this has nothing to do with whether another country meets those same standards.
It is not a ‘league chart’ or ranking system. It is about dialogue to assist a country to consider how it can improve its domestic situation—in Australia, starting from a much higher base than others.

In observing how these processes work and intersect with domestic institutions of government and the Commission as Australia’s NHRI, I have been reflecting on the question of ‘navigating in foreign waters’.

One observation is that there is a civilian sensibility in the UN world. The maintenance of the old League headquarters of the UN in Geneva, Switzerland, the ‘Palais des Nations’, certainly maintains the civilian feel, at least in Geneva. In the middle of Europe, the staff are also largely drawn from those with a civil law background. I have a sense that the ‘parsing’ of rights and the grammar of solutions sits differently as between those from common law and civilian countries, but again this is an early thought.

Another observation is that the various parts of the UN system relevant to human rights have names that are very similar and are easily confused. The UN Commission on Human Rights became the Human Rights Council, for example, in 2006. The Human Rights Committee is entirely separate and is a treaty-based mechanism. It is a body of 18 independent experts that monitors implementation of the ICCPR.
Perhaps it is not that human rights have become a foreign language in this context, but rather the question of whether the burgeoning mechanisms of the UN, and particularly of the Human Rights Council, are creating a foreign-ness that works against effective and constructive mutual dialogue? It is an observation, expressed as a question, not a conclusion.

The role of the Australian Human Rights Commission

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.

The Australian Human Rights Commission has a key role in the seeking of justice for the individuals of which Mrs Roosevelt spoke. 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.

Complaints usually start with just a phone call or email — some form of contact — by, on average, 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. 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 an enormous educational outreach program.

The combination of promoting and protecting human rights is seen in all the work we do—it is central, not foreign.

Concluding reflections

Returning to the other part of my theme, in the Universal Declaration of Human Rights, the document that has been described as the ‘parent document, the primary inspiration, for most rights instruments in the world today.  The story of its making in 1947 and 1948 is, to a large extent, the story of how a highly diverse collection of men and women worked together, against daunting odds, to make the idea of an international human rights standard a reality.  They achieved a common language—a universal language—of human rights.

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.  Human rights had meaning for him 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.

As we reflect on the 70th anniversary of the UDHR we should be proud of those who contributed to its history and of those, like Cooper, who showed by example why human rights matter.

Our system for protecting human rights has not changed significantly for a long time. There is value in continuing our reflections on whether we need to do more to protect human rights in our own Australian way—a federal Constitutional way— and in which the role of the Australian Human Rights Commission is central.

I see my role as President of the Australian Human Rights Commission, in the spirit of Mrs Roosevelt, as an ambassador, or champion, spreading the word about rights and freedoms and the centrality of ‘dignity’ as the essential right linking all of the international conventions to which Australia has committed.

It is ultimately about bringing the understanding of human rights home, so they are not seen or perceived as foreign things—not a foreign language, but part of our everyday vernacular.