Rosalind Croucher AM FAAL*1
The International Bill of Rights and the absence in domestic law
On 10 December 1948, the United Nations (‘UN’) adopted the Universal Declaration of Human Rights (‘UDHR’),2 to provide a roadmap to guarantee the rights of every individual everywhere.3 The declaration was drafted in response to the horrors inflicted on countless people and communities during the terrible conflict of World War II, including Jewish people, ethnic minorities, people with a disability and people of diverse sexualities and genders. It was born of an international consensus that all nations needed to work together to create a better, more inclusive and respectful world for all human beings. An Australian, Dr HV Evatt, or ‘Doc Evatt’ as he was known, was in the Chair of the General Assembly at that landmark moment. On 10 December 2023, we marked its 75th anniversary.
What was distinctive about this Declaration was its move away from an international law that was about the rights of states among themselves, to an international law of human rights, which conferred rights on individual people.
That moment, in 1948, was celebrated and marked across Australia. The Hon Michael Kirby AC CMG, in delivering the opening keynote address at the Australian Human Rights Commission’s ‘Free + Equal Conference’ on 7 June 2024, recalled how, as a 10-year-old primary schoolboy in 1949, his teacher, Mr Gorringe, gave him a copy – as was every schoolchild in Australia.
The UDHR provided the foundation stone for a pair of binding conventions in the 1960s – the International Covenant on Civil and Political Rights4 and the International Covenant on Economic, Social and Cultural Rights5 – and the combination of rights guaranteed in these two covenants ‘represent the most authoritative universal minimum standard of present international human rights law’.6 Together with the UDHR, these three instruments are known as the ‘International Bill of Rights’.
Australia was a founding signatory to each of these instruments and, as a nation, we stepped forward in embracing the commitments of these great documents. Australia has signed and ratified each of the key international treaties since then – and it has not been a party-political exercise. Both sides in our system of Westminster government – and in equal measure – have signed and ratified them, undertaking obligations to the world.7
However, in practice, little has been done to enact the rights and freedoms protected by these instruments into Australian law, in our own Human Rights Act, despite the aspirations perhaps encouraged in the schoolchildren of Michael Kirby’s young years – and repeated attempts to do so.8 This means that the rights and freedoms enshrined in these international human rights instruments are not directly enforceable in Australia at the federal level. The promises of our Commonwealth Government to the world, while genuine, are not backed up fully in practice, and the willingness to do so has also fluctuated greatly over the intervening decades.
While we do have strong rhetoric of the importance of rights and freedoms in Australia, the domestic legislative protection of them is strikingly limited, with specific human rights instruments enacted only in the Australian Capital Territory (‘ACT’), Victoria and Queensland.9 From the perspective of the jurisdiction of the Australian Human Rights Commission (‘Commission’), the absence of implementation of the treaty commitments is also still unfinished legal architecture. When put on a permanent foundation in 1986, the Commission was designed in tandem with an accompanying Australian Bill of Rights Act.10 The Bill was passed in the House of Representatives, but did not survive the Senate. More recently, the idea was the principal recommendation of the National Human Rights Consultation led by Fr Frank Brennan SJ, over a decade ago, with its report in 2009.11 It also did not progress.
The principal purpose of this article is to highlight the five-year program of work of the Australian Human Rights Commission, which has been central to re-advocating the case for a national Human Rights Act – as a key piece of a revitalised human rights framework in Australia. Part II outlines the Commission’s ‘Free and Equal’ report. Parts III and IV focus on why we need a federal Human Rights Act and the differences such an Act would make. Part V of the article considers the report of the Parliamentary Joint Committee on Human Rights, the majority of which strongly supported the Australian Human Rights Commission’s recommendations, particularly in relation to a Human Rights Act. The opportunity is also taken to rebut arguments made in a dissenting report The final section of the article, Part VI, offers some final reflections.
Read Rosalind Croucher's full article in Issue 18 of the Court of Conscience here.
Footnotes
* Rosalind Croucher is an Emeritus Professor at Macquarie University. President, Australian Human Rights Commission (30 July 2017–29 July 2024).
1This article draws on themes that the author has developed over a series of presentations on the Free and Equal work of the Australian Human Rights Commission and the National Lecture for the Australian Institute of Administrative Law 2024. I am appreciative of the comments by the anonymous referees.
2Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948). The Charter of the United Nations was signed on 26 June 1945 which led to the establishment of the UN as an international organisation designed to end war and to promote peace, justice and better living for all mankind. See: https://www.un.org/en/sections/history-united-nations-charter/1945-san-francisco-conference/index.html.
3‘History of the Declaration’, United Nations (Web Page) https://www.un.org/en/about-us/udhr/history-of-the-declaration.
4 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).
5 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’).
6Manfred Nowak, UN Covenant on Civil and Political Rights (NP Engel, 2nd ed, 2005) xx. It took another ten years for the Covenants to enter into force.
7Apart from the Second Optional Protocol to the ICCPR on the abolition of the death penalty, which likely would have been supported by both sides of politics, it is an equal split for the remaining 20 signing and ratification moments.
8Andrew Byrnes, Hilary Charlesworth and Gabrielle McKinnon, Bills of Rights in Australia: History, Politics and Law (UNSW Press, 2009) (‘Bills of Rights in Australia’), attempts are summarised in ch 2, ‘A Short history of Australian Bills of Rights’.
9Human Rights Act 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic); Human Rights Act 2019 (Qld).
10Bills of Rights in Australia (n 8) 29–30.
11Attorney-General’s Department (Cth), National Human Rights Consultation Report (Report, September 2009) 18: see Recommendations 17–31 (‘National Human Rights Consultation Report’).