Human Rights Day 2018: UDHR 70 years on, time to act?

On 10 December 2018, the Commission co-hosted a celebration of International Human Rights Day with the UN Information Centre, Canberra at the National Library of Australia.

A panel discussion was facilitated by veteran journalist and broadcaster Genevieve Jacobs, which included key note speakers:

• Fr Frank Brennan SJ AO, CEO of Catholic Social Services Australia
• Mr Thomas Albrecht, UNHCR Regional Representative
• Ms Claire Mallinson, National Director, Amnesty International Australia

You can listen to a recording of the event, and a transcript is available below.

 

Genevieve Jacobs
Ladies and gentlemen, hello I’m Genevieve Jacobs currently the group editor of Region Media and I’ll be chairing this discussion. I’d like to acknowledge that we meet and walk upon the lands of the Ngunnawal people and to pay my respects to their elders past, present and emerging and to commit myself to ongoing acts of reconciliation. Ladies and gentlemen, a warm welcome from me too for what promises by the sheer intellectual star power about to assemble before us as much as by the nature of the debate to be a thoroughly fascinating and thought provoking discussion. 70 years on from the Universal Declaration of Human Rights. Joining me on the stage along with Justice Kirby, are Father Frank Brennan, preist, human rights activist, professor of law at the Australian Catholic University. With him, Thomas Albrecht, who is the Regional Representative of the United Nations High Commissioner for Refugees in Canberra with geographic responsibility for 16 Pacific countries, working to ensure that all persons of concern to the UNHCR receive protection, assistance and durable solutions to their plight, and on the end, Claire Mallinson, since 2007, National Director of Amnesty International, with over 30 years of experience in rights based work and the nonprofit sector and Claire is also a member of Amnesty’s Global Management Team. And ladies and gentlemen, just before I continue with the discussion, I do pause to note that it’s relatively rare to be in the presence of not one, but two declared fully endorsed absolutely genuine living national treasures. But that’s

Justice Kirby and Father Brennan.

I’ve introduced Frank many a time before. And he always looks a little embarrassed when I mentioned that he’s a living national treasure. But it’s an honour worthy of noting. We will have time at the end of our discussion for some question and answer from you, the audience and we will have two roving microphones. So I would just ask you, at that point to catch my eye, and to wait until we get the microphone to you. It’s a full crowd. So we’d like to hear what you’ve got to say. Frank Brennan to you first, the foundation of UDHR is this notion that there is such a thing as fundamental values that are shared by all members of the international community. Do you say this as an aspiration, or a fundamental truth as as Seamus Heaney phrase to can there be such a thing as an international moral consensus?

Frank Brennan
I think they can be it’s increasingly difficult in our post-modernist world. But as Michael indicated, when the document was being formulated, there was a very concerted effort to make present, not just those of a Western Christian type perspective, but a broad plurality of cultures, religious, non religious traditions, and I think that’s what it’s remained ever since. In fact, I’d be so bold as to suggest in an increasingly secularist environment in which we live. Human right is almost a new religion, in the in the sense of giving us a statement of ideals to which people can ascribe even though there might be extraordinary diversity in how to apply those principles to particular applications.

Genevieve Jacobs
And I just want to focus for a moment on this idea of whether they can be such a thing as a moral consensus that’s global. Claire Mallinson, surely this idea about human rights is a product to some degree of its age and time and origin, particularly in post war Europe and the world that it came from, initially shaped that declaration, did it not?

Claire Mallinson
It did. And obviously, you know, there was big issues in 1948, that the world would come out of a terrible war, and the Holocaust. But East and West, even though those those clashes, it came together, and I think what it shows is importance of leadership, and the importance of courage.

And I would say, you know, I am an optimist.

It happened in 1948. It can happen again now, but but there will need to be some changes, and people need to actually create those changes. So I think, you know, what we’re seeing now is, our leaders are actually following the people. You know, we saw that with the marriage equality debate here in Australia. So it’s up to all of us, because our our leaders at the moment aren’t showing that courage around the world. It’s up to us to actually say, we’re passionate about the Universal Declaration of Human Rights. And as Michael so eloquently put it, have those close to our heart, and make sure that our leaders actually reflect what we want, and what we think is right.

Genevieve Jacobs
Thomas Albrecht, although Australia was there at the very beginning in 1948, with Doc Evatt, with Jessie Street. Talk to me about the idea ever shared platform of fundamental rights for Europeans coming from the chaos of two world wars, coming from demonstrations of some of the absolute worst of humanity. what’s what’s the meaning of it. From your perspective?

Thomas Albrecht
I think there are a couple of parameters. Maybe before I get to your specific question, just to say, I recently had to prepare some remarks for a multi faith dinner. And that was quite astounded that virtually in each religion that I looked at the fundamentals of refugee protection and the granting of asylum there. So I think there is a long, long history in a couple of rights that already have been very fundamentally established. It’s quite ironic, to see today that there will be questions about what has been pretty much in every culture and every religion are very fundamentally established right.

Very interesting to come back to your specific question to see that some behave as if what we see today in terms of a refugee crisis or refugee problem is it’s very often called that it seems that the history, the memory, as to what we have seen in the aftermath of the Second World War, about the same numbers of displaced people in the in this case, only in Europe, but where exactly, we have learned lessons, again, fundamentally resulting in the establishment of the refugee protection regime of the 1951 convention relating to the status of refugees, and a demonstration of international solidarity, where Australia was very much was part of receiving very, very significant numbers of displaced persons and refugees, sometimes, in a year well, around 100 thousand. And I think that is something that probably needs far more recognition and reflection again today.

Justice Michael Kirby
Can I say, that if you go to the Anne Frank House in Amsterdam, and it’s very moving to me, my partner is from the Netherlands. But when I go there, it’s always got a lot of German people there looking at it. And when you (can’t) go out of the building, they’ve got a map of the world, with an indication of who took how many refugees from Europe, including and especially Jewish refugees. Australia didn’t take very many. We didn’t treat the reffos very well. If they are white and Anglo, then that was okay. But when it came to accepting refugees back in the 1930s, we were not generous. And we there’s still that streak of lack of generosity, I think connected with being an island people, that we have this sort of insular attitude, literally, geographically.

Genevieve Jacobs
On that Michael Kirby, the Universal Declaration of Human Rights is not a treaty, so no legal obligations for signatory countries, when there is an argument that it becomes binding through customary law. But in truth, of course, domestic law always predominates. And the nine core treaties have been ratified by the vast majority of countries, but it can sometimes seem as if the human rights agenda has fallen on hard times globally. Isn’t there a chance that the agenda might be fairly transient in the grand scheme of things and not a lasting foundation that this is a legacy that’s beginning to evaporate somewhere?

Justice Michael Kirby
Well, I couldn’t find the Universal Declaration that came out of the treasures of the National Library, but it was waiting here, the library had put it there in the logical place. And this is the document I was given back in 1949. And I’ve not set eyes on it again since that year, and yet here it is. And it’s still in so many activities, all of those activities I was taking part in last week. Okay, there were people from the Russian Federation, and from China and from Egypt and other countries who are totally opposed to any change in the way we deal with drug issues, for example. The disproportionality of a lot of the punishments there. But no one questioned that the Universal Declaration gave inspiration and guidance. And I don’t think the tyrants of this world can expect this is just going to disappear and it’s there. But we have to make sure that is a living instrument and that it’s used to educate the next generations.

Genevieve Jacobs
Frank Brennan when Doc Evatt went to San Francisco in 1948, he believed that lasting peace required economic and social justice, and that that must take place within an international order. Dr Christopher Sheil from the Evatt foundation says the respect that Australia won, from its moment in the sun among other nations was made manifest in Evett’s selection as president of the third session on 21st of September 1948, rewarding him with the honour of presiding over the adoption and the proclamation of the declaration. Now, what do you think Doc saw in it for us, because as Michael Kirby’s just pointed out a moment ago, we were not necessarily a beacon for human rights in that immediately post war period. What did Doc Evatt see as the value for Australia and Australians of nailing our colours to the mast?

Frank Brennan
I think he having had the experience of being a federal cabinet minister, he’d been a high court judge, and he’d been on the international stage. So I think he had a very keen sense of what was necessary for the machinery of state in order to accord the dignity of the human person as well as human rights. And I think particularly with that international experience, he saw that Australia was a country, which could probably punch above its weight, and that we could do it particularly in relation to these issues of leading by example. And let’s not forget, in that original instrument words, which don’t have so much currency nowadays, but did have great poignancy, then, words like human dignity, like conscience, like public order, like public morality, all of those were also critical in finding this balance and setting this beacon as to how we could be the best, and we could display ourselves on being the best. And I think he did that admirably.

Genevieve Jacobs
I don’t think they make them like Doc Evatt anymore, do they?

Frank Brennan
Oh, I think there might be a few around.

Justice Michael Kirby
One thing I was bearing out from what Frank has said, the AIDS conference I was at last week, there was somebody there who would know who said that of the 46 principles in the Universal Declaration, 17 of them began their journey into acceptance from the World Council of Churches. So that tends to bear out Frank’s point that it wasn’t just a Christian blueprint, it was seeking in the document and the drafts that were put forward to Eleanor Roosevelt and the committee, with the benefit of the Chinese participation and the participation from Lebanon and from other cultural and religious backgrounds, the essence of the things that were in common if they were not they were discarded, but the things that everyone…it was a vote, I think it was 48, zero descent. And there were, I think, eight countries that abstain, but no one voted against it. South Africa and, and Saudi Arabia, both abstained, and a number of the Soviet Republics abstained, because they wanted to lay emphasis on on the issues of economic, social and cultural rights, it’s actually such a good foundation. And the most beautiful thing is, it’s readable. It’s very simple prose. And it’s there for those of a religious persuasion, but also for secularists.

Genevieve Jacobs
Claire Mallinson, geopolitics has played a bit of a role from the beginning and creating somewhat differing constructions of human rights according to cultural values. There’s the old East-West divide that Justice Kirby has just mentioned, between social rights and political rights. Do other nations still hold differing priorities and viewpoints about which rights matter most?

Claire Mallinson
There is a division. I mean, obviously, the US is very keen on the civil and political rights area in China, very keen on the economic and social cultural rights. And, you know, that’s one of the challenges for the world that there is that divide. I mean, going back to some of the the history of the Declaration, women played a really important role at key times. And obviously, we all know about Eleanor Roosevelt who chaired the drafting committee. But there was an amazing woman called Hansa Mehta, who did an intervention right at the, almost right at the end. And she changed the first article, originally it was going to be all men are born free and equal. And she changed it to all human beings are born free and equal. So that that was a really important intervention. And then another woman, Begoon from Pakistan, ensured that

the article about marriage talked about marriage equality. And she was advocating for that, because in Pakistan, she was trying to end forced marriage and end child marriage, because the wording of that has enabled the marriage equality movement right around the world, to use that article, to have the the wins that we saw and celebrated just over a year ago.

Genevieve Jacobs
Frank Brennan, if our neighbours are our allies or our trading partners do give perhaps different waiting to various human rights, are there implications for our international international relationships? I mean, there’s a notion that you could say human rights as a 21st century version of, of the White Man’s Burden, the imposition of civilized values on people who are actually quite capable of running their own affairs.

Frank Brennan
It has been fashionable at times to say that these are simply Western constructs, and therefore Australia in the region is engaged in some sort of exceptionalism. And so when it’s thought we’ve been recalcitrant, for example, there might be this sort of invocation. I don’t think it carries sway in the end. In that, I mean, take the example that Michael gave of the unknown country, which is one of our neighbours, thousands of people just being executed with extrajudicial executions, in order to take on drug runners, so called. Everyone in that country knows that this is wrong, and the ends don’t justify the means in this sort of sense. And ultimately, they will have to be a corrective. And it’s not just some sort of bourgeois Western cultural norm. It’s that, no, in order to protect your citizenry, you have to ensure that the rule of law applies in these sorts of situations. That’s not a Western construct. It’s a universal one.

Genevieve Jacobs
Although Thomas Albrecht, this can be what’s so difficult, we’re looking at transnational human rights issues, this lack of common ground that gives a firm foundation for resolving crises, the the idea that the human rights agenda is something imposed by those who who have the capacity, the wealth, calm, the pace, the stability to demanded of other countries.

Thomas Albrecht
I’ve worked in my 30 years or so in pretty much everywhere around the world, when I talked to refugees anywhere, nobody has ever said that they are quite rightly persecuted. Here we are looking at the most fundamental human rights, freedom of religion, political opinion, sexual orientation, and so forth. And I think there is clearly from all I can see, in reality, not only in the abstract,

an absolute agreement amongst everybody, that these human rights violations have to stop, both in terms of preventing people having to flee and becoming refugees, but also for purposes of finding a solution again, and I think the key here is not so much the rights as such, but exactly the violations that today, we can see, again, a refugee crisis, but actually, when we analyze it further, it’s a crisis of global security that we witness. And what we need here is accountability. Impunity has crawled back into the mind of far too many will have responsibility for their people for their countries, where the Syria, South Sudan are many others. And what I could see in the late 90s, and the more implemented in early 2000s, with the International Criminal Court, couple of arrests and prosecutions were effective, very, very effective to put into the mind of some others who wanted to commit human rights violations and violate fundamental human rights, that they were thinking very carefully about producing refugees again, by persecuting people.

Justice Michael Kirby
Can I just mention, that when when I was Special Representative of Secretary General Boutros Ghali, in Cambodia, for human rights, I put this issue to the test, because I was often accused by the Cambodian Government, when you’re just trying to put these Western values and they will sometimes supported by their neighbors saying this is just Western ideas, and we’ve got to build up the economy and so on. But when I actually spoke to people who’d lived through the horrors of the Khmer Rouge time, and I said to them, what did you think during that time? Did you believe that there was something basic to your dignity and existence as a human being? They they looked at me as though I was mad and asking such a question. I said, Of course we did. Of course, we knew this was something terribly wrong and completely unacceptable to us. But what could we do, we didn’t have the power to, to stand up for ourselves. And if we did, it was a matter of life and death. Autocrats and tyrants like to claim exemption, and there are plenty of them around the world. And it’s not only around the world, sometimes in Australia, though, we don’t have anything like the sort of tyrants and autocrats, and we’ve got our checks and balances to terminate when it becomes unacceptable. I want to thank Thomas. Thomas finishes his service for the Office of the High Commissioner for Refugees this week. He hasn’t had an easy time representing that office. But he has been forthright , he has been faithful to the principal.

As a citizen of this country, I thank you for doing what you have done. And that is a useful thing for the United Nations. It’s a sort of conscience, not just for Cambodia after the Khmer Rouge but everywhere in the world, held to the principles that Mr. Gorringe taught me back there in 1949.

Genevieve Jacobs
Claire Mallinson, I did want your thoughts for a moment because I know you’ve spent quite some time at Cox’s Bazar with the Rohingya refugees from Myanmar recently, I mean, do you see that preventative effects that Thomas mentioned? Do you see that, that weight bearing down on countries?

Claire Mallinson
I think one of the major challenges at the moment is that governments at the moment kind of pick and choose which human rights they want to be advocating for. And if we look at what’s happened to the Rohingya, they’ve had to flee ethnic cleansing, crimes against humanity, war crimes. I met with women who had husbands killed in front of them, their babies ripped out of their arms and had been subjected to physical and sexual abuse. They are some of the most vulnerable people on this planet. Now what is the world doing about that? You know, if we look at Australia, Australia, is doing what what it’s done a lot lately. It’s been inconsistent. In one breath, it’s increasing its humanitarian assistance to the people in Cox’s Bazar, and that’s fantastic. It’s just following amnesty’s highlighting of 18 Myanmar Military who committed war crimes crimes and named five general so it’s put on the sanctions list and said, you know, we need to do something about it. However, unlike, you know, the UK, the European Union, France, and even Donald, you know, we are still funding the Myanmar Military. So, you know, that inconsistency makes it very hard for governments in our region to take Australia’s diplomacy seriously. I’m talking about Cambodia, and I met some really courageous Cambodian human rights defenders last week. And they’ve, they’ve suffered enormously over the last few months, obviously, with the election crack down on freedom of expression, journalists being arrested, human rights defenders picked up, you know, cuts to funding.

It’s very hard for Australia to call the Cambodian authorities to account, because of the deal we did with them about refugees. You know, we given hundreds of millions of dollars to Cambodia to take five refugees, only one of whom is still in Cambodia. So that inconsistency and and you know, have highlighted Australia, but we know right, right around the world is other governments who are inconsistent, that still governments funding Saudi Arabia and providing them with arms, you know, undermines the declaration and undermines our ability to have the police and collective security that we all crave. So that’s what’s got to change. But I’m an optimist, I believe we can create that change

Genevieve Jacobs
Just before I turn to the impact that a lack of a Bill of Rights has in this country, Thomas Albrecht, you are about to depart for your next role. So perhaps now, isn’t it?

Claire Mallinson
Yeah.

Genevieve Jacobs
And perhaps talk to us about how you say the current Australian approach to refugee issues and is it somewhat regressive by contrast with our stance in years past?

Thomas Albrecht
Well, I wouldn’t necessarily look at the past as a reference point. But exactly it fundamental human rights and fundamental refugee rights. One of the rather odd experiences I had when I came almost five years ago, was that I was asked a couple of times of told a couple of times, the 1951 Convention on the status of refugees is no longer relevant. And it took me quite a back a little bit. And I thought I had studied that and applied it over a couple of decades. But when I then went back and read through the convention, again, very carefully trying to check which one is no longer relevant today, I could figure that and let me say something outrageous here, even so I thought I had said what I needed to say, I thought that the people who were telling me that the convention was no longer relevant, had never read it in the first instance. Because what it says is basically, apart from the definition, what is a refugee who is a refugee, and that exactly ties back to people who had their religious freedom violated their political opinion, taken as a cause for persecution, and so forth. It just reiterates that virtually each and every relevant human right, strangely enough, also applies to refugees, you do not stop to be a human being because you become a refugee, that that was necessary to have stipulated is interesting enough, hopefully should be the same today exactly that you have religious freedom, access to courts, and a couple of other very, very essential rights and if I may move ahead, that’s, I think, exactly where I feel the length, the absence of a Bill of Rights here in Australia. And I was surprised about that one, again.

Justice Michael Kirby
That would have come as a shock.

Thomas Albrecht
Yeah.

it was, and that in all seriousness, a government can reach you actively change laws, while a matter is pending in front of the High Court a couple of days before the judges ruled.

In most of the places that I know, the government would have been in very serious trouble, not only from the part of the justices, but pretty much everybody. It’s just against any fundamental principle that I’m familiar with in all the places wherever. And that’s where, clearly, yes, there is some recourse with regard to some of the very serious matters. But when I look at many of my missions that I had to Naru and in Papa New Guinea, and also here to detention centers within Australia and other places.

I was very, very seriously impacted, I have to say, watching what not only the policy in the abstract says and shows, but how that impacts on little children. grandmother’s everybody in between. For much of that there is no traditional recourse, at least not an adequate one as far as my concern, goals. And I think that really shows apart from the relevance for Australians that for everybody, I think that would be an important step forward.

Genevieve Jacobs
So let’s let’s turn now to where we stand in this country. And I think we have seen some significant landmarks along the way. And then 1967 referendum, for example, fundamentally about human rights. More recently, developments like marriage equality,

Justice Michael Kirby
but Michael Kirby, why do you think we’ve never

Genevieve Jacobs
been able to get a bill of rights up in the past with this, one of the arguments against it is that it would give unelected judges too much power over social issues. But But where is that resistance coming from on a social, legal and cultural basis?

Justice Michael Kirby
I think it goes back to the fact that our legal system was inherited from Britain. And it has many, many wonderful things in it. But there is the skepticism of having a statement of fundamental rights. And politicians, Mr. Carr, the former premier and former foreign minister, was a great one for attacking the unelected judges for all of the rotten things they would do, and they seize the controls and take over. But let me tell you that it was the High Court of Australia just across the way here that corrected the great wrong to the Aboriginal people of Australia of denying them access to the economic wherewithal that they had have access to their land rights. So when you told the parliament will always fix things up, I’m afraid Parliament doesn’t always fix things up. I was Chairman of the Law Reform Commission. And I can tell you, sometimes they just won’t do it. If it’s not popular, you know, if it’s a politically sensitive moment, they won’t do it. And that’s why in our system, we have some officials who elected in parliament that we’ve got lots of people that are the officials, the defense forces, the judges, who are not elected and who have to do what Parliament doesn’t get done. And that’s, I pay a great tribute to Frank’s father, Sir Gerard Brennan, who wrote the leading judgment in Marbo against Queensland, and that was fixed up by the judges of the High Court of Australia, not by Parliament.

Genevieve Jacobs
Frank, frequent and on this and when given right ask you to weigh in on this decade ago, you recommended a bill of rights. What do you make with those arguments that a bill or a charter undermines the accountability of MPs to protect human rights, that it’s somehow runs counter to our common law tradition?

Frank Brennan
Well, they’re the standard arguments against a bill of rights. And as Michael is rightly said, we inherited much of the British tradition. Now, while we stood still, the UK, of course, was more and more enmeshed within European system. Now, who knows what’ll happen with Brexit or whatever. But nonetheless, given that UK judges had basically to take into account the jurisprudence of the European Court of Human Rights, it got to the stage where even the British establishment said, it’s far better for us to be working out these answers here, rather than it being done in Strasbourg. So over time, the Brits got to accept that, of course, human rights have to be central to the British way of doing things in terms of justice. Now, as I’ve often said, Suva ain’t Strasbourg, we’ve had no equivalent arrangement here. So strangely, in our judicial isolation, and our political isolation, the politicians have continued to say, oh we don’t want to give the judges I’m elected power. But I think the great irony of this is, and I think we’ll see it come through in the next 10 years or so if nothing is done. In the past, our high court judges like Michael, it’s no disrespect to them to say, when they got a new problem, they’d look at it and they’d say, well, what’s the UK Supreme Court doing? What are they doing in New Zealand? What are they doing in Canada? Well, any new issue that comes up now, like terrorism or whatever, they don’t get much help from overseas, because only overseas courts, their first port of call is their Human Rights Act . So we don’t have one, so ironically, what our politicians have done is implicitly say to our Australian judges, you just go off and invent it all for yourselves without the benefit of that cross fertilization of judicial thinking. And that was one of the critical things that changed my mind on why I thought there was a need for us to get with the flow. In terms of the recognition of human rights, better, the politicians set down the bright line solutions in legislation, rather than the judges simply inventing all of it for themselves.

Genevieve Jacobs
I mean, Claire Mallinson, we’re in a political climate in this country where there is a retreat into ourselves that there’s a sense that that politicians are taking your refuge in nationalism, is it a likely time to be getting on board with a project like a bill of rights for this country?

Claire Mallinson
But obviously, I’m going to say yes, and we need to have a Human Rights Act in the sky didn’t fall in ACT or Victoria, and it won’t fall in, in Queensland when they get their Human Rights Act. There is an irony though, because, you know, if you look at all the opinion polls, and amnesty did research, when Frank to these great consultation, 80% of Australians believe that we should have one. In fact, the majority of Australians actually think we do already have one. But that’s a slightly different issue.

But But at the time, when trust in our politicians is declining and declining, declining, they’re also putting in places that are taking away our rights, you know, in the last decade, you know, the it’s been about 60 pieces of legislation that the government’s and you know, both major parties have enacted, which is slowly taking away all of our rights, whether it’s the metadata legislation, whether it’s about whistleblowing. So So you’ve got that really odd thing going on, you know, we don’t trust our politicians

in any way, how we used to, but they’re actually eroding our rights, that the Australian people want a bill of rights. And so I think, you know, it’s upon all of us to actually go out and campaign for it. And, you know, organizations like amnesty and, you know, the Human Rights Law Center, you know, will be, you know, pushing more and more to have a Human Rights Act here in Australia.

Frank Brennan
So it could I sound one big warning note, and it might not be popular with everyone.

I mean, ACT has its charter, Victoria has it. So the major jurisdictions in Australia, with one is Victoria, and the major boast of the proponents are, well it’s not a very strong act in that judges can’t strike down legislation as such, which I think is too weak. But anyway, that’s another argument. But where it’s useful is in terms of public education, and getting the bureaucracy on board. Now, here I come to the controversial bit. Last week, the High Court of Australia gave a decision in relation to the Victoria Police, describing the actions of the Victoria Police as being thoroughly reprehensible where they arrange for a defense lawyer to be an informant where her activities may have polluted the prosecution of up to three or 400 people. That is an absolute disgrace. And as the High Court said, reprehensible. So basically, in the jurisdiction, which prides itself that here, we have a statutory instruments, which assists with the formation of people in subscribing to human rights discourse, that the very fundamental rules of the legal system are broken down. So a Human Rights Act of itself does not provide the real protection of the citizen. But it is, if you like, the good icing on the cake, if you’ve got a good cake, in terms of a good robust police force of integrity, and a legal system, which is truly available to all and follows the rule of law.

Justice Michael Kirby
You can get the cake ultimately, to the judges in the High Court. And they then upheld, as you’ve said, and the rule of law, to that extent, was upheld, but no one is suggesting a bill of rights is going to solve all the problems. But it with our form in Australia, we had form on Aboriginals, we had form on women’s rights, we had form on prisoners (detainees) we had form on people’s nationality. I grew up in white Australia, and on LGBT rights. There’s no doubt that had we had a Charter of Rights with the principles that could have informed the way judges looked at cases and solve cases, including cases involving refugees, then we would have had a better record than we have had. Australia is on the whole a pretty good country as far as the human rights is concerned. But there are some blind spots. And it’s in those areas of minority rights. And that’s where Bill of Rights can stimulate the parliamentary system, Parliament’s respond to majorities but minorities, they sometimes get left out.

Genevieve Jacobs
So Michael can be on that then say by some miracle became politically fashionable even an election winner to have an Australian Bill of Rights. What format take and and what might conceivably stand in its way?

Justice Michael Kirby
Well, we now have in Anglo countries, we’ve got the New Zealanders who dropped the first step with this declaration of inconsistency. And the courts could make that declaration and hold the flame of that declaration up to the politicians. And they have to say what they’re going to do about it. So that’s been done in New Zealand, it’s been done in the United Kingdom. And it’s been done in in Victoria and the ACT and it’s before the parliament in Queensland. So that would seem to be the natural first step. It doesn’t have to be the last step Canada started with an Act of Parliament. And then subsequently, with Mr. Trudeau, the first you’ve got a constitutional charter. And the surveys of public opinion in Canada show that people have the greatest of respect for the Supreme Court and the judiciary. And they also have the problem with their political governments are less confidence in them. So it hasn’t damaged the institutions of Canada, it is reflected the principle that everybody is entitled to basic rights in a democracy, and sometimes parliament, which, after all, let’s face it, the number of people who are joining political parties, is declining very rapidly in Australia, and New Zealand and the United Kingdom and so on. It’s a real problem. And therefore, the number of people who are the members of parliament, are elected by very relatively very small numbers, you know, they can arrange for a branch and a couple of branches, and then you got a member, and they’ve got all the power to fix everything up, except they don’t fix everything up because they all looking at what will be popular, and what will get them reelected. We need a stimulus. And because we have form on treating minorities unfairly in Australia, and that’s why I think we need this reform. And I hope, all you’ve got to really do is dust off the Brennan report, and introduce it into parliament. And I now predict we will see this before a decade is out. I’ve got about another three or four decades to go.

I’m going to be there. For the celebrations.

Claire Mallinson
And just to kind of follow at Michael’s optimism. I mean, I was in Canberra and Federal Parliament about six weeks ago, when Foreign Minister Marise Payne, launched the Australian Government’s global strategy to end the death penalty, a really proud moment for Australia. And for, you know, all of amnesty supporters who’ve been campaigning for this for a long time. Now, ending the death penalty has never been a popular issue. And but actually, you know, it’s now got cross party support to such an extent that a strategy has been developed by the Australian Government. And now, you know, it’s part and parcel of the work that the government’s doing, and part and parcel of what DFAT does. Now that would never have happened kind of five years ago. So change can happen. You know, so one of the tipping points, there was the tragic deaths of Andrew Chan and Myuran Sukumaran, but the Australian people came together and said, You know, this is outrageous, and we need to do something, and that shifted politicians. So you know, I’m with Michael, we can definitely have a Human Rights Act. It’s not going to be the panacea, but it will provide the framework to which will mean that, you know, everybody in Australia will have a better life and the quality of justice and dignity that we all want

Genevieve Jacobs
Thomas Albrecht how would such a bill be seen by our neighbours, and our allies wouldn’t have a bearing on the way Australia is saying on the global stage with regard to human rights? And and perhaps we might really morally have to take some action if we had one?

Thomas Albrecht
Well, I would certainly think that pretty much everybody would look at it in a very positive and commendable manner. It’s probably not so but widely known. To my surprise, as well, as I said, I just figured it out when I came here, and some good some briefing, and I said, no, no, that can’t be right. I was told, no, it is. But maybe also just to say, apart from

the importance for the domestic context, and also the international depreciation, where there are certainly I think, great opportunities to take it even beyond, again, just a bill of rights, where everybody in the public, I would assume, can agree that we want to when it comes to broader government activities, we want to see efficiency, I would think, and we want to see a level of accountability. And that would, I think, be supported through all of that as well that today, and that was one of my other surprises, you have a minister who by law has to take specific decisions on thousands and thousands of individual cases every year.

I get a lot of emails and files to decide, I have no idea why one would waste somebody’s, time who has enormous responsibility with that type of approach. Because if you really want to then take a fair decision, you need to take your time, you need to study up to the matter. And certainly, and that was the other surprise when it comes to the discretion, a minister with them exercise.

But the way I was trained, you have discretion, yes, you have a range of opportunities to decide this way or that way. It’s but you have to justify why you do that. And I think this is probably where some worry comes in, the judges may review a decision and find that it was not very well justified or more justified at all. And I think these are fundamental values that pretty much everybody in any country would want to see if the decision taken with regard to themselves or in their name to another human being.

Genevieve Jacobs
I’m going to turn it over to you for questions in just a moment. But just before I do that finally, Frank Brennan, to you, were a bill of rights to be enacted, where would it be most likely to have an impact, and why? I know you’re on the recent Ruddock committee, all that discussion about discrimination, with regard to sexual orientation. But where would you say the immediate sort of points of action if a bill would be enacted?

Frank Brennan
Well most immediately, I think it would give us the legal architecture which we lack for the rational discussion of conflicting rights, particularly through the prism that our politicians might use. And what we’ve done in Australia is we’ve taken the classically pragmatic approach, we’ve said, Oh, well, we don’t have a Human Rights Act. But we’ve signed up to this convention, so we’ll have a six Discrimination Act, we’ve signed up to this one. So we’ll have a Racial Discrimination Act, we’ve signed up for this one. So we’ll have an age discrimination negative sign up for this one. So we’ll have a children’s etc. But in terms of having a comprehensive architecture, where we can then resolve conflicting claims, that’s the real breakthrough, which would be provided.

Genevieve Jacobs
Okay, let’s go over to you and hands up plays, and we’ll get the microphone to you. I think our first question is at the back of the room.

Anthony (audience member)
Hi.

Anthony Marcio. By nature, I’m not a conservative person preferring reform, especially when injustice occurs. But I wanted to ask the panel, how they felt about the fact that perhaps if we look back at the Universal Declaration, and having taken place post war, that actually were referring to our elders, and perhaps even people who were better informed in the light of what took place in the First and Second World War, to write a charter, which that now we must adopt. And I’m not saying that it’s not open to reform. But it seems to me that this is a way of actually framing the international chatter of human rights as both fundamentally

somewhat conservative in nature, along with being an adoption, that people who are seeking reform and change, but in a way, it’s only reform because we’re asking for something to be implemented, that was created 70 years ago. Thank you.

Genevieve Jacobs
Michael Kirby I might start with you on that one.

Justice Michael Kirby
Yes, I think it’s true that it took the trauma, and the suffering and all the deaths, and all the destruction of the Second World War, to bring forward two things, at least. One was the Universal Declaration of Human Rights, and the other was the Genocide Convention, because of those images that everybody could see on movietone news of the opening up of the death camps in the Pacific area, and also in Europe. And people were so traumatized about it, that they, they said to themselves, never again, we must put in place. And actually, if you go to the Sydney Jewish Museum, which I recommend to you, it’s worth a visit. There is a big photograph there of Dr Evatt, the former justice of the High Court, introducing the Genocide Convention, because it came just before the Universal Declaration of Human Rights. And it was probably in Paris, because for a reason I’ve never quite understood, the general assembly was sitting in Paris at that time and not in Lake Success. And so the Genocide Convention was adopted, for the purpose of dealing with the genocides that had been revealed after the after the Second World War. So I think it did take that trauma, but we are the in a sense the beneficiaries of, of that mobilization of the human species, in a feeling we must not do this. The other thing we must all be paying attention to, is nuclear weapons. Because we’ve just gone on thinking that everything’s going to be safe, but there’s no certainty at all, that everything’s going to be safe. And there is now a new treaty, which is before the United Nations, the so called ban treaty, to make the position use and threat of use of nuclear weapons, New Zealand assigned and ratified it already in August this year, Australia didn’t, as far as I know, even send a note of congratulations to ICAN the International Committee Against Nuclear Weapons, which was set up in Melbourne, and they won the Nobel Prize for Peace last year. And did they get a letter from the government or the opposition for that matter, to congratulate them for standing up for people against nuclear weapons? I don’t think they did. And, you know, we’ve got to start thinking carefully about nuclear weapons because we saw with Hiroshima and Nagasaki how devastating that can be and when you’ve got a person who is saying I’ve got the biggest nuclear button of them all, well, that’s a reason for great caution, taking defensive steps.

Genevieve Jacobs
Next question up here.

Murray (audience member)
Hello, Murray is my name and my question’s on a slightly different tack. It’s not so much in the realm of life and death, but more how human human rights charter acts and so on deal with the technological onslaught because I’ve got particular concerns about how technology just seems to be introduced willy nilly without much consideration of the consequences, eg: 5g and the Internet of Things. It’s just let’s roll it out and not look into the health consequences etc. And one issue I can just it’s maybe a small one, but still relevant to me anyway, is

to do with noise and the right to peace and quiet. Like I remember the example of people living around Heathrow went to the European Court of Human Rights and said, we’ve got a right to

night’s sleep. And apparently the year the court ruled in their favor, they do you do have a right to peace and quiet. And then the UK Government subsequently went back and it was overruled on economic grounds. A local example is a global company now and beneath them, flying drones all over, but nice and and driving people nuts, it’s as noisy as any they can. Now they’ve got plans to expand in other suburbs and North camera. I look at the local Human Rights Act, it mentions privacy, which is very relevant that’s been raised. And I’m just wondering about this specific case of the right to peace and quiet and the more general issue of human rights’ acts adapting to the technological onslaughts Aldous Huxley’s concerns writ large, I suppose about Brave New World.

Genevieve Jacobs
Frank Brennan, is this probably the ambit of the of human rights law. How do you respond to those questions?

Frank Brennan
Well, our legislators have to deal with these increasingly complex technological questions as you’ve raised, the question is whether or not they can be overriding principles which can help to inform them. And whether those overriding principles can also assist the judiciary in the interpretation of those provisions. Now, for example, the UN Declaration, Article 12. Now on she’ll be subject to arbitrary interference with privacy, family home all correspondence. Now, what is arbitrary interference? That’s the live question, but over time, would develop a jurisprudence of that. And it’s the development of that jurisprudence, both in the courts and in the parliament, which can assist with more rational deliberation on these issues. And the other thing to note is that, of course, with the UN Declaration, it’s posited on the idea that the only interference with rights and freedoms including those who want to operate the plane or the drone, or whatever, they can only be trimmed back, if that’s in order to protect the rights of others, and to meet the just requirements of morality, public order, and the general welfare in a democratic society. So once again, gives you the template for debating those sorts of issues. Whether or not you and I, in the end would agree on how much peace and quiet you should be entitled to. I have the solution as a Jesuit, I can do an eight day Silent Retreat every year. But for the rest of you, yes, there are issues out there that require legal resolution.

Claire Mallinson
And on the broader issue of you know, technology, you know, technology can be absolutely fantastic in terms of protecting and defending human rights. I look at amnesty’s work, we use satellite imaging to identify the expansion of the labor camps in North Korea. And to identify where the Myaman Military had raised people’s villages and a now putting helicopter pads and the Myaman Military are putting camps there. On the flip side, we know technology can actually be used to abuse people and create huge issues of discrimination and violence. We saw that in Myanmar where vigilante groups used Facebook and Facebook did not monitor and control it. So vigilante groups went in and destroy people’s homes. We’ve seen with Twitter, how women in particular have suffered huge amount of the online abuse and trolling. So you know, it can really benefit and help protect and defend human rights and help save lives. But there needs to be those checks and balances. And you know, the declaration is one way of doing that, but that there are other forms of checks and balances that need to be put in place.

Justice Michael Kirby
Can I ask Frank a question, in these eight day Jesuit retreats and I am asking this is a mere simple Anglican. Do they leave, do the young Jesuit priests leave their mobile phones behind? Because I get on the first train every day at 4.55 and everyone except me is looking at their phone, are they required to leave it?

Frank Brennan
They’re supposed to, Michael.

Justice Michael Kirby
I’ll bet it’s under their pillows.

Genevieve Jacobs
We’ll have our final question from Ernst Willheim. Yep.

Ernst (audience member)
Thank you. I was interested in Michael Kirby’s confident prediction that he would see a federal human rights bill within the next 10 years. And I’m wondering where that will come from. I can remember some extraordinarily able and vigorous Attorneys General like Lionel Murphy and Gareth Evans who tried hard, but didn’t achieve federal human rights legislation. I don’t see any political leaders today with that same ideological commitment to human rights. Am I wrong? My question really is, will the initiative come from future political leaders? Or Michael, do you expect a groundswell of opinion from the community forcing political leaders to move?

Justice Michael Kirby
Well, I don’t know if you saw the statement by Premier Andrews at the end of the Victorian Election, when the election had been fought by the opposition, very much on the law and order side opposing the first thing that was going to be done was to close down the injecting drug room, which is saving lives of people from injecting drugs. And that was clearly rejected by the people. And Mr. Andrews came and said a very unusual thing. He said, this election and the issues that it’s been fought on, are an indication that Australia is ready for some bold, progressive action. And I don’t know if that would be true of the whole nation, because Victoria is another place and they do tend to take, they do tend, a bit like the ACT, to take political and philosophical issues much more seriously. But you know, they’ve done a lot of things in Victoria, including Euthanasia Legislation, which I know Frank won’t agree with but which a lot of people have been waiting to see and which other countries have done. So maybe we are ready in Australia for some more progressive legislation. And maybe that message will come over, but time will tell we’ll just have to watch this space.

Genevieve Jacobs
We are certainly as ever ready here in the ACT, the national petri dish for socially progressive notions. Thank you very much indeed. I’ll now hand back to the Human Rights Commissioner, Helen Watchirs.

Helen Watchirs
I think this lunchtime has been a fantastic celebration of the Universal Declaration and I hope people feel invigorated to support a national charter. It may take us a decade to get here, it took us a decade to get from Frank Brennan’s fantastic work in 2008-2009.

On behalf of the Human Rights Commission and our partner, the UN Information Center, I’d like to thank our four speakers and facilitator, Genevieve Jacobs, Commission staff, the staff of the UN Information Office and here at the National Library for actually making this happen. And for you for attending. Please take a copy of the Human Rights Act and keep it close to your heart. We’ve had it nearly 15 years and it’s made a huge difference in terms of our legal system here in the ACT in terms of how we treat people in detention at the Alexander Maconochie Center and the Bimberi (youth detention centre). So it does make a difference and it can do nationally. Thank you.