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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-03-25 Daily Xml
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UNIVERSAL DECLARATION OF HUMAN RIGHTS

Adjourned debate on motion of Hon. M.C. Parnell:

1. That 10 December 2008 is the 60th anniversary of the adoption by the United Nations General Assembly of the Universal Declaration of Human Rights;

2. That 9 December 2008 is the 60th anniversary of the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide;

3. Recognises that the realisation of the rights in the declaration is a responsibility of all, including those in this parliament;

4. Pays tribute to those Australians who played leading roles in the development and adoption of these important instruments of international law and who, since then, have contributed to their implementation;

5. Recalls that the adoption of the declaration and the convention were a response to the suffering of those who had experienced human rights violations, especially the 'barbarous acts' perpetrated during World War II;

6. Recognises, with regret and disappointment, that in the intervening 60 years, violations of human rights, including acts of genocide, have continued to occur around the world;

7. Affirms that 'the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want [is] the highest aspiration of the common people';

8. Declares its own 'faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women';

9. Commits itself to the principles contained in the Universal Declaration of Human Rights as 'a common standard of achievement for all peoples and all nations' and to their promotion throughout South Australia.

(Continued from 26 November 2008. Page 943.)

The Hon. I.K. HUNTER (21:37): I commend the Hon. Mark Parnell for his motion on the 60th anniversary of the adoption by the United Nations General Assembly of the Universal Declaration of Human Rights. I indicate now that later in my contribution I will move two amendments to that motion.

The UDHR was adopted on 10 December 1948, and was historically referred to as the 'Magna Carta of all mankind' by Eleanor Roosevelt, who had been the chair of the drafting committee. It was one of the first major achievements for the United Nations and was based on the notion of all humans having fundamental rights and freedoms. It was conceived as a broad-based international declaration that could be used in the defence and advancement of human rights.

The drafting committee of the declaration was made up of eight people, including an Australian, William Hodgson, a World War I veteran and career diplomat, who pushed for a multilateral convention on human rights and an international court to implement it. The committee was made up of people from very different ideological backgrounds, but they agreed on some basic principles: non-discrimination; civil and political rights; and social and economic rights. As the preamble to the declaration states, the members believed that the 'inherent dignity of all members of the human family is the foundation of freedom, justice and peace in the world'. In all, the declaration contained 30 articles for human rights.

Today, in this place, the rights and freedoms outlined in the Universal Declaration of Human Rights seem to be obvious, but those who drafted the declaration did so with the raw scars of World War II exposed for all the world to see. The fact that human rights were not automatically afforded to all citizens was glaringly and painfully obvious.

Despite how remote that world might seem from the one that we inhabit today, the reality is that we are blessed not only by time but also by place. For the rights and freedoms that we, by and large, enjoy in Australia, and which most of the western world have similarly enjoyed in the aftermath of World War II, are not rights and freedoms that have been available for those everywhere, despite the universal aims of the UN when the declaration was adopted. We must not forget the words of Martin Luther King Jr, 'Injustice anywhere is a threat to justice everywhere.'

As was demonstrated by the very need for the UN statement on lesbian, gay, bisexual and transgender rights back in December last year, in which 66 members of the United Nations General Assembly supported a statement confirming that international human rights protections included sexual orientation and gender identity, there is still far too much injustice in our world.

In eight countries still today, the maximum penalty for homosexual behaviour is death, whilst in a further nine it is life imprisonment. In a world where human rights were valued and where such injustice had been eradicated, we would not need such statements. Such a world seems so very far away still to many people.

Sadly, it is all too true when the Hon. Mark Parnell notes that, in the 60 years since the adoption of the declaration, human rights continue to be violated. We need not look to distant shores to see such instances, the most obvious being the removal of Aboriginal children from their families, our stolen generations. That is an all too real reminder that Australians cannot claim to have upheld the ideals of the declaration as well as we should like to have done.

While we focus on the declaration of human rights, it seems an appropriate time to reflect briefly on the need for an Australian bill or charter of rights. For all the benefits of the declaration, it remains a non-binding document. Prominent human rights defender Julian Burnside QC has written:

It is only by having such a charter that we can have local legal protections for the human rights that we recognised in the United Nations declaration.

At the moment we do not; we have an ideal that we generally uphold, but it is not an ideal that is enforceable by law and, while some argue that we do not need it to be enacted in legislation because of Australia's high standards of human rights, the reality is that we should not take these things for granted.

I am pleased that the federal Attorney-General, Robert McClelland, has announced plans for a consultation process about a bill of rights for Australia. We are, I understand, the only democratic nation on earth not to have such a bill, and it is time that we did.

I know that there are many concerns that a bill of rights would centre too much power with the judiciary but, rather than becoming some sort of lawyers' picnic, it is normal, everyday people who benefit from enshrining human rights. Geoffrey Robertson QC, the prominent human rights lawyer, spoke in Sydney last December about the UK's Human Rights Act enacted 10 years ago. Robertson said:

Recent reports in Britain, assessing 10 years of the charter, showed that the greatest beneficiaries are ordinary people: law-abiding citizens treated unfairly by public servants, by bureaucrats, in ways that are never noticed by the press, never mentioned in parliament.

And it is in the nursing homes, in the hospitals and the schools that a myriad of demeaning, humiliating practices have been stopped. They haven't even had to come to court in most cases, because the doctors, nurses and community groups—aware of what the act is saying, aware of the need for greater respect for human dignity—are bringing them to the attention of the public servants, who are realising the error of their ways.

Furthermore, under the Westminster system we, as a parliament, are meant to be an equal partner with the judiciary, not above them, ruling down. I wish Father Frank Brennan all the best in the task ahead of him. I urge him to remember that, despite all of the noise that opponents will no doubt make, 90 per cent of Canadians support their charter of rights and freedoms, which was introduced in 1982 and, surely, that gives us some idea of how popular the idea such a charter might be if introduced in Australia.

On the anniversary of the Universal Declaration of Human Rights in December last year, states from around the world came together to deliver a statement recognising that human rights violations based on sexual orientation and gender identity continue around the world. I was pleased that Australia was amongst those nations taking such a stand. Australia and other nations must continue to make such stands if we are to truly uphold the declaration, and particularly article 7, which provides:

All are equal before the law and are entitled without any discrimination to equal protection of the laws.

I urge all members of this parliament to remember article 7 as they contemplate the equal opportunity legislation currently before us. We cannot cherry-pick those aspects of human rights which we want upheld.

There are two points about this motion that the government does have some reservations about, and those are parts 3 and 9. I indicate that I will be moving an amendment to address our concerns. Part 3 of the motion, read in context, states:

The Legislative Council recognises that the realisation of the rights in the declaration is the responsibility of all, including those in this parliament.

The mover said in his speech:

As a state government we should commit ourselves to the principles contained in the Universal Declaration of Human Rights, and as a parliament we should promote it throughout South Australia.

We might not, at first glance, have any issues with that statement; it seems simple enough. However, the signatory to this declaration is the commonwealth of Australia, not the state of South Australia. As a state it is important that our parliament be given the opportunity to debate international laws before they are integrated into state laws.

There is some concern that the Hon. Mr Parnell's words could—and I emphasise the word 'could'—be taken to imply that the parliament means to apply the entire declaration. Perhaps it is far-fetched, but I suppose that lawyers are paid to weigh the possible ramifications of words, and those in this chamber with some legal training might want to talk to me about that later. I am sure that, in the past, they have enjoyed the benefits of being paid for weighing the ramifications of words. Therefore, I move:

Leave out paragraph 3.

Paragraph 9 of the motion asks the Legislative Council to commit itself to the principles of the declaration and to their promotion throughout South Australia. I move that the motion be amended as follows:

Leave out paragraph 9 and insert—

9. Agrees with the principles contained in the Universal Declaration of Human Rights as a common standard to which the nation aspires.

To recap very briefly, the government does not want to give the impression that parliament has just created an instrument to be used in the courts by simply agreeing to this motion—far-fetched it may be, but it is a possibility. That is not our intention. The amendments I have moved would alleviate these concerns and allow government members to support this very important motion.

Before I conclude, I wish to draw to the council's attention to two other articles of the declaration, in relation to which, in the not too distant past, Australia's record of upholding has been dismal—articles 11 and 14. Article 11 provides for the assumption of innocence. This is perhaps the most basic human right of any justice system; but, in the aftermath of the terrorism of the earlier part of this decade, we were all too quick to forget that basic tenet. I hope that this has passed and that, once again, no matter what the charge, we live in a world where we remember that everyone is entitled to the presumption of innocence. Imagine what it must be like—

The Hon. M. Parnell interjecting:

The Hon. I.K. HUNTER: I think not. Imagine what it must be like to live in one of the many nations that still do not recognise this right. Closely tied into Australia's recent history to Article 11 is Article 14, section 1, which states:

Everyone has the right to seek and enjoy in other countries asylum from persecution.

Again, in that awful period of fear that was fuelled by the political motivations of the previous Howard Liberal government, we forgot our international obligations and insisted that these people were queue jumpers, that they were seeking something to which they were not entitled, but in fact they were, and that was freedom.

Let us hope that this cultural amnesia does not return. Again, I congratulate the Hon. Mark Parnell for bringing this motion to the chamber, and I indicate that the government supports its passage with the amendments I have outlined.

Debate adjourned on motion of Hon. M. Parnell.

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