Background

Today we celebrate the 60th Anniversary of the adoption by the UN General Assembly of the Universal Declaration of Human Rights (UDHR); a document which set out a new direction for humanity.

Let us go back to December 10, 1948; this was not the best year for human rights.

It was the time of the Berlin blockade by the Soviet army which started on June 24, and finished almost one year later. In December of 1948, western Berliners were almost starving, were without heating coals, and the Western Allies airlift was in full swing. The Iron Curtain was coming down and it was the beginning of Cold War.

It was also when the harsh process of the Stalinisation of Eastern Europe was about to accelerate in countries forcefully incorporated into the Soviet Empire. In 1948 apartheid laws were introduced in South Africa; and much of the world was still under a colonial system with national liberation movements gaining in prominence. In January the same year the modern father of political non-violence, Mahatma Gandhi, was assassinated.

Why in such an inhospitable time for human rights was the UDHR born? There are at least two possible answers.

The first one is the power of leadership at the time of Eleanor Roosevelt, widow of the late US president, and of the USA which was seen then as the world’s moral leader. Mrs Roosevelt, with Canadian and French support, was the principal drafter: important contributions were made by people from China, Lebanon, Chile and USSR. Only South Africa was fundamentally opposed to it.

Second, the genesis of UDHR is firmly rooted in the human rights abuses of World War II in which tens of millions died across the world. Particularly abhorrent was the Nazi holocaust and the concentration camps which were, to put it simply, industrial slaughter houses for the efficient killing of humans beings. The guilt associated with the weak response to the holocaust by the Western Allies and Roman-Catholic Church may have also played a role. Then there were the issues of carpet bombing of German cities and of two atomic bombs being dropped on civilian populations.

The general feeling was “never again”. Let us build a world order that would prevent all these atrocities from happening ever again. So in February 1947 the Commission on Human Rights was appointed by the UN to create an “International bill of rights” to apply to every human being regardless of such characteristics as sex, race and religion.

Reaching agreement on the contents of the document was not easy. Member states voted more than 1,400 times on practically every clause of the text. The USSR would not accept the inclusion of freedom of expression and other civil liberties, some Islamic states objected to the articles on equal marriage rights and on the right to change religious belief; and several Western countries criticised the commitment to economic, social and cultural rights seeing them as an introduction of socialism by stealth.

The Universal Declaration

Finally, on December 10, 1948 the UN General Assembly voted (48 in favour; eight abstentions; zero against) in favour of the Universal Declaration. The United Nations recognised that “inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.

The Declaration was a visionary document; a triumph of hope and optimism. It was the first global statement of universal human rights standards; of which we now take for granted.. Article 1 proclaimed that "Everyone is born free and equal in dignity and with rights".

The 30 articles of the UDHR set out in unprecedented detail the standards of dignity, respect and justice to which everyone is entitled: because they are human.

The Declaration focuses on individual rights (“Everyone has the right …”, “Every human being …”) and lists out the fundamental rights such as:

• Rights to Physical Security
  • The right to life and security of a person
  • Right not to be subject to torture or cruel, inhumane and degrading treatment;
  
  
• Rights to Due Process and Equality before the Law
  • Freedom from arbitrary arrest
  • Right to recognition as a person before the law
  • The right to a fair trial and equality before the law;
  
  
• Rights to Participation
  • The rights to participate in the social, political and cultural life of one’s country;
  
  
• Right to Liberty or Freedom
  • Freedom from slavery
  • Freedom of thought and expression
  • Right to freedom of movement and residence
  • Freedom of marriage and family life
  • Freedom of assembly and association
  • Freedom of thought, opinion and religion; and
  
  
• Economic and Social Rights (Articles 22-27)
  • The right to social security
  • The right to work and education
  • The right to health and well-being
  • Right to rest and leisure

The last two articles emphasise:

• the duty of the whole international community to create a society that allows for the full realisation of human rights (Art. 29); and
• that nothing in the Declaration should be used to take away any of the human rights (Art.30).

The Declaration is not binding on states. Its key importance is that it provides a generally recognised “common standard of achievement for all people and nations and the states that represent them”.

Over the past 60 years, human rights standards have been developed and incorporated into many international laws and treaties - such as the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Social and Cultural Rights (ICESCR) and Convention on the Rights of the Child (CROC).

In fact, 60 years later, this Universal Declaration continues to be one of the most important documents of the 20th century. It has become the inspiration behind a global movement, while setting the benchmark for the world to attain, and providing a standard against which we can all be judged.

Human rights in a contemporary world

Now let us focus on today’s world. Many advances in human rights have been made since 1948 that have improved the lives of millions of people; such as the end of apartheid and the growth of democracy in Latin America and Eastern Europe, and more recently the economic and social development in Asia. In particular the international community has developed an international human rights law system with clearly defined human rights standards in place; which is also used to provide guidance for domestic human rights protection, develop international jurisprudence and some practical protection of individual rights in a limited number of cases. But human rights practices often fall well behind the agreed standards.

For example Article 7 of the UDHR declares that everyone must be "equal before the law", but Amnesty International reported that at least 23 countries have laws discriminating against women. Article 19 acknowledges "freedom of opinion and expression". Sadly, we are aware of 77 countries in which this peaceful expression of views would bring the threat of repression and even death. Article 25 stresses that "Everyone has the right to a standard of living adequate for their health and well-being", but eight out of 10 people around the world still live in poverty.

Wars are being used to deal with domestic and international conflicts. They are often marked by the targeting of civilians by armed groups, killings based on race or ethnicity, rape and sexual violence against women and girls, and the recruitment of child soldiers. The death penalty is also commonly used in countries such as China or Iran and some countries are trying to redefine the ban on torture and ill-treatment.

So there is much to be done in the world to improve human rights practices.

Human rights in Australia

There is also much we could do in Australia.

Australia is the only first world country without significant constitutional protections of civil liberties and without a statutory bill of rights. Currently our Parliament is able to legislate for apartheid style laws and the High Court could uphold them as being in agreement with our Constitution.

We do not have an Australian Bill of Rights because, in comparison with other countries, Australia never has experienced massive human rights abuses by government (save for the situation of Indigenous Australians), or revolution, or civil war, or an invasion and occupation by a foreign oppressor. So historically speaking our experience is significantly different to that of Americans, French, the Poles or Indians.

My argument is that as we learn about technology, trade practices and legal and financial systems from the other countries, we also need to learn about and import human rights protections from countries which, because of their experience, have developed more sophisticated systems and jurisprudence to protect their civil liberties.

I look forward to the start of consultations on the proposed bill of rights for Australia that was promised by Labor. The consultations possibly would result in the weakest possible form of an Australian bill of rights without any implementation value. But if such a bill is agreed upon, even for its educational value it would be better that nothing.

There are many other human rights issues which we could improve upon in Australia. For example, economic and social rights of Indigenous Australians require massive attention. Violence against women stays at significant levels - according to ABS statistics, 29 per cent of Australian women experience physical assault in their lifetime and 17 per cent experience sexual assault. Anti-terrorist laws needs to provide a proportional response to a threat and take into consideration a need to protect our civil liberties.

There is something else I would like to focus on: our migration laws.

I start with acknowledging the reforming spirit of our current Federal Government which has abolished the Pacific Solution and closed Nauru detention centre; and significantly softened our handling of asylum seekers through changes to the Immigration detention policy while abolishing Temporary Protection Visas.

Despite these positive developments, further changes are needed to make our immigration laws and practices compliant with the international human rights standards.

To start with, we need to repeal the excision legislation that involves some 4,000 Australian islands. If we fail do so, we will create “The Indian Ocean Solution” with Christmas Island as its headquarters, and there would continue to be two sets of laws applying, depending on whether an asylum seeker lands in mainland Australia or in excised territory.

Then we need to remove the other vestiges of indefinite, non-reviewable mandatory detention so the system is in line with international Human Rights law. The current policies should be put into the legislation and judicial review available to asylum seekers should be extended. These changes are particularly important as the common law protections of civil liberties were eroded by the previous government.

All these changes are easily achievable, needing bit more government leadership to change public attitudes. We need leadership of the quality and vision provided by Eleanor Roosevelt during her work on the Universal Declaration.

Conclusion

I would like to finish on an optimistic note.

Although much needs to be done, because the UDHR sets clear standards, can and does inspire to action, and continues to occupy high moral ground, I think the improvements in human rights are achievable.

Back in 2001, as Federal Human Rights Commissioner I began working on the situation of children in immigration detention. Allow me to make two points:

First, when it was explained to Australians what the Government is doing to children in Immigration detention - Australians stopped supporting government policy of indefinite mandatory detention of children; they changed their mind.

Second, during the 2000-2004 period I witnessed the emergence of a great people power coalition around the mandatory detention issue. This led to a win in the battle of ideas which lead to the Howard government stopping the indefinite and mandatory detention of children.

To secure a bill of rights for Australia, both our government and our civil society leaders need to provide leadership and stay engaged with the Australian public during the period of consultations on the human rights bill.

Australia also needs to give a higher priority to the human rights education at our schools. Culture around human rights is not automatically acquired at the birth. To add to such a culture there needs to be focus on the Universal Declaration of Human Rights, its history, and the principles it exposes.

However, the ultimate test of our commitment to human rights as a nation is not what we aspire to, not the conventions we sigh, and not even the laws that are set in place. Rather it is how we treat our most vulnerable and powerless.