GetUp! Action For Australia

hi
Any update with how things are going with Curtis Island? How many of us have signed the petition? Where do we go next? I for one really am sick to death of short term gain over long term prosperity. Keep up the good work.

rgds

Ian

I am sure you will find the address below
by former High Court Judge Mary Gaudron, on the Declaration of Human Rights,
also inspiring.
She also
gives an insight on how we may proceed using section 75.5 of the
constitution.
Her story of her time in Belarus is instructive.
John
Ward

Publications: Papers 

“The most important document
ever reduced to writing, whether on paper, papyrus, velum or tablets of stone” –
Mary Gaudron.
Remembering the Universal
Declaration
And Australia’s human rights record
By Mary
Gaudron 
Shut the
detention centres down, says Mary Gaudron.
If, as they say,
the road to hell is paved with good intentions, I am knocking on the gates right
now. I had intended to speak about Jessie Street the internationalist. I had
intended to do some research on the topic. But unfortunately, life got out of
control once more. What I do know about Jessie Street the internationalist is
that which Madame President Burgmann recalled at the beginning of this lunch.
She was an adviser to Bert Evatt — I should call him the Honourable Herbert V
Evatt — at the San Francisco Conference in 1945, which established the United
Nations. That conference wrote the UN Charter, but it also did something else.
It wrote what is arguably the most important document ever reduced to writing,
whether on paper, papyrus, velum or tablets of stone; namely, the Universal
Declaration of Human Rights.
The Universal
Declaration of Human Rights was not officially adopted by the General Assembly
of the United Nations until December 1948, but its drafting was completed in
December 1945. Its 60th birthday was celebrated with some considerable fanfare
in Europe last December. It would not surprise me, however, if the events passed
unnoticed here in Australia. The lack of surprise, if that was the case, makes
it all the more amazing that Jessie Street should have been committed to an
international solution to the problems we faced here and in many other
countries, and that she should have been committed to the idea of an
international declaration of human rights.
Although, at the
time of the Declaration’s drafting, Australia had many men and women in many
theatres of war throughout the world, Australia in 1945 in general was somewhat
less than truly international in its outlook. England was home. Australia’s
involvement in the war, announced in 1939, was announced on the basis that
England had declared war and in consequence Australia was also at war. Well, 30
years later — that is, in 1975 — the notion that Australia’s laws could be
shaped by international conventions was fairly revolutionary. As a general rule,
at that stage, the federal parliament only ratified treaties that it believed it
could implement within its enumerated heads of legislative power. If it did
otherwise implement them, it ratified them with something that became known as
“the federal state clause”.
I recollect that
in 1972, in the equal pay case, I argued on instructions from the two-man
government — the wife of one of whom I see sitting over there — that Australia
had not ratified the International Labour Organisation’s convention on equal pay
because the Conciliation and Arbitration Commission had not granted equal pay to
women. I argued, with some force, about which now I think I should have perhaps
had some embarrassment, that it was the fault of the Arbitration Commission that
Australia could not honour its international obligations and that the secondary
consideration, of course, was that women didn’t have equal
pay.
Equal pay, the
ILO convention on equal pay which featured so importantly in that case, is just
one aspect of the earlier 1945 Universal Declaration of Human Rights. Article
23(2) simply provided that everyone has the right to “equal pay for equal work”.
It is truly bizarre is that, although Australians, notably Dr Evatt and Jessie
Street, should play such a significant role in the drafting of the Universal
Declaration, it took so long for Australia to put into effect any of the
obligations by which it was at least normatively bound from 1948 and
earlier.
The principle of
equal pay, which maybe, maybe not, came about in 1972, was not the only key
provision in the Declaration of Human Rights. Of far greater significance was,
and is, Article 7. Let me read to you:
All are equal
before the law and are entitled without any discrimination to equal protection
of the law. All are entitled to equal protection against any discrimination in
violation of this Declaration and against any incitement to such
discrimination.
That must have
been a pretty radical idea in 1945. We know now that Australian Aborigines are
still far less than equal, and in 1945 they were considerably less than equal
before the law. And I am here to tell you that, at that stage, the law afforded
them no protection at all. It was not until 1975 that the passage of the Racial
Discrimination Act and the UN Declaration on the Elimination of all Forms of
Racial Discrimination was implemented in Australia. Te Act’s implementation was
not based on that convention and it was not based on Article 7 of the Universal
Declaration. It was based on the 1967 Constitutional amendment, which simply did
two things. It provided that the Commonwealth parliament had the power to
legislate with respect to people of various races, including the Aboriginal
race, and it provided that Aboriginal people could be counted as citizens.
Australian Aborigines were citizens of this country, if not the equivalent; that
is to say, they were British subjects by virtue of and from the moment of their
birth. It is a disgrace that we should have failed to recognise and treated them
so poorly and so shamefully for so many years.
Article 7 was
not of course concerned solely with the rights of people of different races.
There was no 1967 amendment to the Constitution allowing for the federal
government to legislate for the equal rights of women. But their protection
languished, not withstanding the presence of Article 6, which says that everyone
“has the right to recognition everywhere as a person before the law”. That
position did not change till 1973. By then, some of the more adventurous
thinkers were putting forward a proposition which much earlier had been advanced
by Dr Wilfred Jenks as President of the International Labour Organisation. He
had argued that the federal clause was a ban and that the federal government
could legislate pursuant to its external affairs power to implement the treaties
it had ratified. By 1983 that view was in the ascendancy, and Senator Susan Ryan
took steps to ensure the ratification of the UN Convention on the Elimination of
all Forms of Discrimination against Women and in 1983 she shepherded through the
parliament the Sex Discrimination Act. Let me interpolate here Susan,
just this much as an aside. It is my great delight that it was and remains
called the Sex Discrimination Act. When I was growing up, nouns had
gender and people had sex. Now it is the other way
around.
It was almost 35
years to the day after the adoption of the Universal Declaration of Human rights
that Australia had at least embraced the notion of equality in its laws. Now the
importance of those two pieces of legislation, theRacial Discrimination
Act and the Sex Discrimination Act, can never be minimised. They are
not Constitutional enactments. The parliament can repeal or revoke them any day
it wants to. But they’re all that we have in this country to ensure we are
anything like a fair and equal society. Let me amend that. Apart from the
little-used, less often thought of, Section 117 of the Constitution that was
explored in a case called Street – he being one of the descendants of
Jessie Street – and the Queensland Bar Association. They are all that
we’ve got. Section 117 provides that a resident of one state shall not in
another state be subject to any discrimination in the other state on account of
his or her residency of the other state.
Those two pieces
of anti-discrimination legislation are all that we have got. It is not an
accident that, in the context of the 10-point Wik plan — hands up those who
remember the 10-point Wik plan that has almost disappeared from our
consciousness — our Aboriginal leaders insisted that the Racial
Discrimination Act could not be amended. The Racial Discrimination
Act is the bedrock foundation upon which native title
lies.
No I do not want
to enter this debate. I know and I understand the reason why someone should
argue for a constitutionally enshrined bill of rights, and particularly a bill
of rights that replicates and guarantees rights enshrined in the Universal
Declaration. But let me tell you about a little job I had in Belarus. The
international trade union movement complained to the International Labour
Organisation that the independent union movement of Belarus was being
discriminated against and that its members were being persecuted. The government
of Belarus pointed to what was undoubtedly the most beautiful constitution I’ve
ever seen. The constitution enshrined the equal rights of everyone. It
guaranteed at least every right in the Universal Declaration and then some. For
example, it guaranteed the rights of trade unions and trade unionists. So
seriously did Belarus take its international obligations, that it had the public
holiday for International Women’s Day.
Quite naturally,
in the face of the allegation that it was treating its trade unionists a little
less than properly, it pointed to its beautiful constitution. “How can it be”,
they said. “Look, we’ve enshrined all these rights in the constitution and in
addition we have enshrined every international norm. So it’s just not possible.”
Well indeed it was possible. It was possible for one reason and one reason only.
There was nothing in its constitution which permitted citizens to approach the
courts in the protection of their constitutional rights. That could be done only
by the prosecutor-general — he was the man giving the trade unionists a
moderately bad time — the president or the chief justice. But the chief justice
would only do so after the trade unionists had served their time in prison. I
mentioned the situation in Belarus because the Universal Declaration recognises
there is no protection of human rights without the rule of
law.
Let me read you
some of the articles that relate to the rule of law:
Article 8:
Everyone has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the
constitution or by law.
Article 9: No
one shall be subjected to arbitrary arrest, detention or
exile.
Article 11:
Everyone charged with a penal offence has the right to be presumed innocent
until proved guilty according to law in a public trial at which he has had all
the guarantees necessary for his defence.
Article 12:
No one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence, nor to attacks upon his honour and reputation. Everyone
has the right to the protection of the law against such interference or
attacks.
Well, if
Australia was tardy in implementing or giving effect to Article 7 of the
Universal Declaration, it was more than ingenious in recognising the rule of
law. The genius of the Australian Constitution lies in a little subsection
called section 75(5). Its terms are probably meaningless to those of you
non-lawyers who are present here today. It gives the High Court original
jurisdiction in which any person, citizen or non citizen seeks mandamus,
prohibition or an injunction against an officer of the Commonwealth. As a result
of that tiny little subsection, ministers of the federal government, federal
public servants, their agents and others acting on their behalf may be compelled
to perform their Constitutional and legal duty and may be restrained from acting
in excess of their constitutional or legal power. The section, like lamingtons
and Australian Rules Football, is all our own; our own peculiar genius. Not
surprisingly, governments of both sides have sought from time to time to cut
down the operation of that little subsection; and equally not surprisingly, High
Court has resisted their attempts every time. That little subsection is quite
unique. It has no equivalent, as far as I know, in any other Constitution.
Certainly it has no equivalent in the United States of America. And it is only
because America hasn’t got that equivalent provision that we have that legal
black hole known as Guantanamo Bay.
The last time I
ventured into the debate about Guantanamo Bay, I was quite rightly dismissed as
an armchair critic. Let me not argue the point; but I can sti ll read and I can
tell you that the indefinite detention without trial before a properly
constituted and independent tribunal is a breach of several of the provisions of
the Declaration of Human Rights. I won’t go through all of those provisions, but
let’s start with “Article 3: Everyone has the right to life, liberty and
security of person”; “Article 5: No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment”; “Article 9: No one shall
be subjected to arbitrary arrest, detention or exile”. What else is
incarceration in Guantanamo Bay? “Article 10: Everyone is entitled in full
equality to a fair and public hearing by an independent and impartial tribunal”;
“Article 28: Everyone is entitled to a social and international order in which
the rights and freedoms set forth in this Declaration can be fully
realised”.
In dismissing my
criticisms of Guantanamo Bay, the Attorney General quiet correctly said that it
was the courts of the United States that would decide if David Hicks’ detention
was lawful and it is true. At this stage they are four years too late in doing
so. There is no point in my doing anything more because I’m sure you all know
the United Nations and the European Union have both called for the closure, the
immediate closure, of Guantanamo Bay.
Now I have
mentioned Guantanamo Bay and David Hicks for another reason. It is true that
today in far too many places, human right abuses occur on a large scale. Human
rights abuses are often driven in those places by political, ethnic or religious
differences. In the case of white Australia, human rights abuses also occur, and
they occur at individual levels. The victims of those abuses are usually the
most vulnerable. As a general rule the authorities don’t interfere with nice
middle class men and women like us. They pick on the difficult people. They pick
on the non-conformists, the troublemakers, the dissidents, and as often as not
they pick on the mentally ill and the mentally
disabled.
We now know of
the most serious violations of the rights of Christine Rau and Mrs Solon. So far
as I know, no compensation has yet been provided. But let me hazard a guess that
the damages must be enormous. I read in yesterday’s  Sydney Morning
Herald, which I always understood to be a journal of record, that two men,
nameless and unidentified, have been in immigration detention for three and five
years, respectively. How much more vulnerable can you be than to lack a name and
an identity? Today, the Herald reported that the Commonwealth government
has settled the claim of a child who had been severely traumatised as a result
of the two years he spent in immigration detention. According to
the Herald, this was settled after a 63-day hearing in the Supreme Court.
For that there will not be any change out of a million dollars, I promise you.
Moreover, it is said that the damages aspect would be in the order of a million
dollars.
Now I have been
round this town long enough to know that abuses occur not only because people
are vulnerable; they occur as often as not because good people do nothing, and
as often as not good people know nothing. Detention centres are set apart and
isolated from the mainstream of society, and deliberately so; so that you will
not know what is going on. But it cannot be denied that, if abuses can occur,
they will occur.
For that reason,
I am not going to talk about Guantanamo Bay any more today. I am going to take
this occasion to remind you or perhaps acquaint you with the terms of Article 14
of the Universal Declaration of Human Rights. It says simply: “Everyone has the
right to seek and to enjoy in other countries asylum from persecution.” Not a
word about detention centres there. And because of that, I think today is an
appropriate occasion to call for the immediate closure of immigration detention
centres. At least there is a better than respectable argument that we should do
it on economic grounds, if we won’t do it because of the terms of Article 14, if
we can’t do it out of fellow feelings with other human
beings.

Luv it.