A Long History On The Right Side Of Rights


On 10 December 2008, the world will celebrate the 60th anniversary of the adoption by the United Nations of the most important document of the 20th Century: the Universal Declaration of Human Rights.

In 1948, Dr Bert Evatt, then our Deputy Prime Minister, was President of the General Assembly of the UN when the Declaration of Human Rights was adopted and he had a very significant role in fostering it.

However, it is less well known that a second Australian had a key role too. He was a member of the eight-person sub-committee which actually drafted the Declaration. In 1951 when Eleanor Roosevelt retired as Chair of the UN’s Human Rights Commission, that same Australian became the Secretary (or Rapporteur) of the Commission.

By the time of his retirement in 1954, he had overseen the first drafts of the two human rights treaties designed to implement the Declaration into the legal systems of all UN member countries: the International Covenant on Civil and Political Rights (the
ICCPR) and the International Covenant on Economic, Social and Cultural Rights.

Together with the Declaration they are probably the most significant documents of all time, yet most Australians would not even have heard of the second Australian who had such an influence over their conception. Back to him later.

It is ironic that although this country had so much to do with the establishment of the human rights movement by the United Nations in the aftermath of World War II, we are one of only four nations in the world — and the only democratic country — which has not introduced a charter or bill of rights in some form to implement its human rights obligations domestically.

Why is this so? In the 1950s and 60s Robert Menzies was prime minister. A conservative, he was also a noted Anglophile with a very English suspicion of codified rights. It was not going to happen while he was there.

In the 1970s, Labor prime minister Gough Whitlam promoted a human rights bill but it failed to pass the opposition-controlled senate.

In the 1980s, West Australian Premier Brian Burke lobbied the Hawke government hard against a bill of rights because of his dual concerns that it would force electoral reform on his state and require repeal of state laws discriminating against Aborigines.

And of course, in the last decade under John Howard there was no chance.

Now with a new federal Government sympathetic to human rights, the punishers and straighteners are girding up again to try to stop the new impetus towards a bill of rights.

What are their arguments against?

First, they suggest that a bill or charter of rights, as an ordinary act of parliament, will be a "lawyers’ picnic". However, the evidence derived from the introduction of other charters is to the contrary. Very little litigation has resulted in Britain, New Zealand or Victoria.

A second objection is that the sorts of rights which usually go into charters are "vague". If, as in Victoria, the rights are based on the ICCPR, this contention is simply not true. Certainly the rights are general in their terms but because the ICCPR has formed the basis of most of the human rights legislation that has been either implemented or amended over the last 40 years, dozens of courts around the world have interpreted its terms and there is a bank of precedents which tell us what those rights mean.

In addition, the Human Rights Committee of the UN, to which victims of human rights infringements — including Australians — have the right to petition, has further clarified the content of such rights.

Even if it were true that an element of vagueness or abstraction remained, the problem could be easily fixed by giving the legislative drafters of a charter careful drafting instructions. If even the parliamentary drafters could not get it right, then our politicians could go to work on the draft bill themselves.

If there is any vagueness left after that, then there is a further answer: parliament will be able to amend it later!

The next, related, argument of charter opponents is that it would transfer parliamentary power to "non-elected" courts. This is illogical nonsense — the sort of stuff we used to hear from Brian Burke.

Another baseless fear is that, in requiring courts to interpret other legislation in accordance with a charter of rights, the will of the people will be overborne. But courts cannot impose their own interpretation on legislation unless the parliamentary intention is unclear. If they are guided by a well-drafted charter in interpreting vague legislation, so what? Courts have to interpret legislation all the time and an unclear amendment of say, the Prickly Pear Eradication Act, is no more likely to result in an interpretation upsetting to the Executive than one relying on a precedent-based charter.

These criticisms by politicians are also quite hypocritical. If they oppose legislative implementation of Australia’s international human rights obligations, then they should be calling for the immediate repeal of the Racial Discrimination Act, the Privacy legislation, the Sex Discrimination Act, the Ombudsman Act, the Evidence Act, the Disability Discrimination Act and the Anti-Discrimination/Equal Opportunity Acts of the States, all of which implement parts of international human rights treaties.

If there is no problem with having human rights provisions in these Acts, why is it a problem if you bundle them together and call them a charter of rights?

Of course a statutory charter would not stop bad legislation being introduced but it would flag for parliamentarians and the public that the Executive was proposing something extraordinary or unusual, by setting benchmarks for good law.

So who was the Australian who helped draft the Universal Declaration of Human Rights? His name was Whitlam. No, not Gough, but Fred — the former PM’s father. Very few Australians know of that role and that he oversaw the initial drafts of the two most important human rights treaties in history.

The reason for that ignorance is that we do not treat human rights seriously enough in this country. By supporting the Rudd Government’s forthcoming inquiry into the need for further human rights protections, we can redress that failure, and 60 years on, honour the memory of one of the most influential Australians of his generation.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.