LAUNCH
OF THE CASTAN CENTRE FOR HUMAN RIGHTS LAW
MELBOURNE,
TUESDAY, 31 OCTOBER 2000
The
Hon Justice Michael Kirby AC CMG
CHAMPIONS OF HUMAN RIGHTS
This week Australia honours two fine men, champions in
the field of human rights. The first is the late
Ron Castan QC whose name has been given to the Castan
Centre for Human Rights Law at Monash University in Melbourne,
launched today. The other is the late Dr Jonathan
Mann. He will be remembered at a function in Sydney
organised by the AIDS Trust of Australia on 3 November
2000. There, the Federal Minister for Health and
Family Services (Dr Michael Wooldridge) will announce
scholarships, supported by the Australian Government,
to honour Mann's name.
Both Ron Castan and Jonathan Mann were friends of mine.
Both were young men lost at the height of their powers.
Ron Castan died last year of a complication following
surgery. Jonathan Mann was killed in September 1998
when a plane, on which he was travelling from New York
to Geneva, crashed off the coast of Canada. Both
men were charismatic, courageous and dedicated to fundamental
human rights not only in their own countries but far way.
Ron Castan was a first rate technical lawyer whose brilliant
legal mind planned and executed the change in Australian
law regarding Aboriginal land rights known as the Mabo
Case.
Jonathan Mann was an outstanding epidemiologist.
He was serving in Zaire (now Congo) when HIV/AIDS first
appeared. He immediately saw the mighty challenge
for humanity and for medicine. He perceived the
paradoxical link between protecting the human rights of
those most at risk of HIV and stemming the spread of the
epidemic. Both men were Jewish - proud of their
faith and culture. But neither took a narrow view
of religion. Each had a big heart, only matched
by a big mind driven by great love for humanity.
It is no accident that these two men were Jewish.
Each of them learned at their parents' knees the vital
importance of Chesed - the Hebrew word for
the loving-kindness that God manifests towards every living
creature. That word "loving kindness",
or some similar notion, is found in all of the world's
great religions. It is the essence of the idea that
underpins the global movement to uphold fundamental human
rights.
It is not entirely coincidental that Castan and Mann were
champions of human rights. The world movement for
the protection of such rights is itself, in part, the
outcome of the settlement that followed the establishment
of the United Nations after the Second World War.
In the aftermath of that War were discovered the grim
horrors of the Holocaust. They revealed the many
victims of Hitler's tyranny. These included members
of many minorities - communists, gipsies, Jehovah's
Witnesses, the intellectually impaired and homosexuals.
They were victims of hate because they were different.
However, by far the greatest suffering fell upon the Jewish
people of Europe. Their stories are heart-rending.
We must never forget them. Ron Castan and Jonathan
Mann did not forget. They turned the dreadful experiences
of their people into a zeal for action to protect fundamental
human rights wherever they were threatened.
The gesture of the Australian government to honour Jonathan
Mann with the award of scholarships for research by Australians
into aspects of HIV/AIDS is most welcome. There
can be no better memorial for a creative scientist than
an intellectual commitment of that kind. It is also
wholly fitting that the new Centre for Human Rights Law
at Monash University should bear Ron Castan's name.
With such a name, and under the leadership of Professor
David Kinley, there is no doubt that the Centre will mix,
in proper proportions, the demands of dispassionate scholarship
and a full understanding of the high moral cause which
underpins the international movement for human rights.
David Kinley brings from his birthplace, Northern Ireland,
a realisation of the importance of respect for the human
rights of everyone, if law and order are to be based on
more than the power and force. He has built up a
strong reputation in Australia. His book on human
rights explores every nook and cranny of the law in this
country as it operates to protect fundamental rights.
Australia is now one of the few countries of the world
without a constitutional Bill of Rights. I have
no doubt that the Castan Centre will contribute to the
ongoing debate on whether we should change that situation,
as Britain did,
or stick with the legal approaches of the past.
THE AGENDA
The Centre starts its life with bright hopes on the part
of its members, the friends of Ron Castan and his family
and other supporters. I wish to venture a few suggestions
about topics which should be included in its agenda.
Indigenous human rights: Out of respect for
Ron Castan, and his leadership in utilising the law as
a means of protecting and upholding the human rights of
Australia's Aboriginal and Torres Strait Islander peoples,
it must be expected that the Centre will include in its
programme particular items relevant to those human rights.
This will not be difficult. In the international
literature of human rights, the rights of indigenous peoples
in settler societies (Australia, Canada, New Zealand,
South Africa, the United States and Zimbabwe) have attracted
much scholarship. Some of it concerns the implications
for the rights of indigenous peoples within a developed
polity of the promise in the common first articles to
the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social
and Cultural Rights that "peoples" will
enjoy a right to self-determination. It is important
to make the point that this right does not necessarily
mean political independence. But it does involve
the concept of effective participation in aspects of governance
specifically relevant to such peoples.
In approaching the human rights of the indigenous peoples
of Australia, it may be hoped that the Centre will exhibit
the same questioning approach to the law as Ron Castan
did. Before the Mabo litigation, he had a
junior brief in Papua New Guinea to John Kearney QC of
the Melbourne Bar. They were engaged in a claim
for land rights of indigenous peoples against the Crown
in right of Papua New Guinea. Nellie Castan, in
that questioning way for which all lawyers are grateful
to their spouses and partners, demanded to know why such
a claim could not be made against the Crown in right of
Australia. Ron Castan gave the orthodox explanations:
a Privy Council decision; established law over a hundred
and fifty years; the special need for stability of land
law and so on. But in the end, he himself began
to question the orthodoxy. The affront to basic
human rights and dignity of the old law was challenged.
The result was a tectonic shift of the law.
All of us need to be alert to similar blind spots in the
law. Fundamental human rights law can often be a
stimulus to re-examination and change of established doctrine.
Bangalore Principles: A second issue to which
the Centre must contribute concerns the utilisation, in
Australian courts, of the principles of international
human rights law. This involves the application
of the Bangalore Principles, devised in 1988.
According to those principles, international human rights
law is not, as such, incorporated in Australia's domestic
law unless lawfully introduced by an Australian lawmaker.
Ordinarily, this means an Act of Parliament or valid action
of the Executive Government pursuant to statutory authority.
However, in a common law country such as Australia, the
judiciary also have lawmaking functions, albeit in the
minor key. In appropriate cases, it is permissible
to the judiciary to invoke international human rights
principles, introducing them into domestic law by judicial
decision. The warrant to do this is stated in a
most important passage in Justice Brennan's reasons in
Mabo v Queensland [No 2].
Indeed, that passage, which formed an essential step in
the reasoning of the High Court in Mabo may, in
retrospect, come to be seen as the most significant contribution
of that case to our law. In a sense, it has an importance
transcending even the issues of indigenous rights with
which the case was concerned. Justice Brennan said:
"The common law
does not necessarily conform with international law,
but international law is a legitimate and important
influence on the development of the common law, especially
when international law declares the existence of universal
human rights. A common law doctrine founded on
unjust discrimination and the enjoyment of civil and
political rights demands reconsideration. It is
contrary both to international standards and to the
fundamental values of our common law to entrench a discriminatory
rule which, because of the supposed position on the
scale of social organisation of the indigenous inhabitants
of a settled colony, denies them a right to occupy their
traditional lands".
According to this notion, then, international human rights
law may legitimately be invoked, at least in cases of
ambiguity, to resolve uncertainties in legislative interpretation
and to fill gaps in the common law.
My own view is that the same principles may be invoked
in construing the Australian Constitution which is, after
all, a statute, although one of a particular character.
In Newcrest Mining (WA) Limited v The Commonwealth
I proposed in interpretative principle which I regard
as appropriate to the elucidation of the meaning of our
Constitution in the contemporary age:
"Where there
is ambiguity in the meaning of the Constitution, ...
it should be resolved in favour of upholding such fundamental
and universal rights. The Australian Constitution
should not be interpreted so as to condone an unnecessary
withdrawal of protection of such rights. At least
it should not be so interpreted unless the text is intractable
and the deprivation of such rights is completely clear.
... [Its] purpose is to be the basic law for the government
of a free people in a nation which relates to the rest
of the world in a context in which the growing influence
of international law is of ever increasing importance"
Whilst this principle has not yet been accepted by all
members of the High Court of Australia, I do not doubt
that a major challenge of the coming century will be the
reconciliation of international law with Australia's domestic
law -including that of its Constitution.
Bill of Rights: A third project for the agenda
arises in a connected context. It concerns the question
whether Australia should now move towards a national legislative,
and possibly constitutional, Bill of Rights. With
the coming into force of the United Kingdom Human Rights
Act of 1998 on 2 October 2000, Australia is now
one virtually alone amongst the developed countries of
the world in having no general or constitutional charter
of rights which citizens can invoke when they allege that
their fundamental rights have been infringed. With
the centenary of federation, it is important that we reflect
upon the changes that have occurred in a hundred years
that may make it appropriate, now, to re-examine this
question.
When in the constitutional debates at the end of the nineteenth
century the proposal for a Bill of Rights was voted down,
Australia was substantially a monochrome society with
shared values and fewer minorities. The situation,
in part, is different today. That is why there is
a keen and growing interest in the Bill of Rights question.
I would expect that this Centre will contribute to the
national reflections about it.
The Asia-Pacific region: I would also hope
that the Centre will reach beyond Australia and involve
itself in the human rights issues of the region.
In my own life, I have had the privilege to meet, and
work with, some of the leaders of the struggle for human
rights in Asia and the Pacific. Amongst the most
notable of these is President Kim Dae-jung of the
Republic of Korea. His courage, imagination and
fortitude have lately been recognised by the award to
him of the Nobel Prize for Peace. That prize was
earlier awarded to His Holiness the Dalai Lama of Tibet.
These two men contradict the suggestion that there is
an exception to human rights in the countries of our region -
that somehow the nations of Asia are exempt from the universal
development of human rights law.
President Kim has been subject to four attempts on his
life. He was imprisoned for more than six years
during his struggle. He never lost faith in, and
commitment to, fundamental human rights.
Similarly the Dalai Lama has constantly emphasised the
need for a peaceful resolution to the Tibetans' dispute
with China. The Australian Foreign Minister (Mr
Alexander Downer) informed me recently of his knowledge
of the contributions which Ron Castan made, during his
lifetime, to the attempts to build a dialogue between
the Dalai Lama and the leaders of the People's Republic
of China. Mr Downer paid tribute to those efforts.
I am glad that the connection of the Castan family with
the Dalai Lama has continued to this day. May some
of his grace and compassion shine upon the Centre and
inspire in it a concern for human rights law beyond Australia,
and particularly in the region and the countries surrounding
us.
Human rights in the future: I also hope that
the Centre will involve itself in future issues of human
rights. Within days I will be travelling (economy
class as the United Nations requires) to Quito in Ecuador.
There I will be attending a meeting of the UNESCO International
Bioethics Committee. Our topic will be the Human
Genome Project. Contemporary developments in genetics
present many new issues for human rights and human rights
law. Can there be any issue of more fundamental
importance for the future of human rights than who "humans"
will be in the coming century? With the capacity
of genetics, potentially, to alter the building blocks
of human life, this is not a theoretical issue.
Other topics must be placed on the agenda. They
include, I think, human rights of drug addicted and dependant
persons. I suspect that, in a decade or so, we will
look back on our treatment of drug dependence with something
of the same embarrassment with which we now look back
on the criminalisation of private adult consensual homosexual
conduct twenty years ago. The fact that we now appreciate
that such laws constituted an over-reach of criminal sanctions,
diminishing the human rights and dignity of those targeted,
should make us alert to the danger of similar laws which
operate in today's society.
One reviewer of David Kinley's book (Professor Robert
McCorquodale) has suggested
that its authors were excessively optimistic about the
impact of human rights law in Australia and about the
future of such law. Professor McCorquodale argued
that such impact, in default of enforceable rights under
a general or constitutional Bill of Rights, depended too
much on the vagaries of legislative initiatives and judicial
imagination.
Recently I received a similar criticism of an essay I
have written for The Stanford Journal of Law and Policy.
My essay, to be published in 2001, concerns the contrast
between the law affecting homosexuals in the United States
and Australia. Certainly, in Australia, we can look
with pride on the fact that, with the assistance of international
law, criminal offences against adult homosexual conduct
have been abolished in all parts of the country.
Likewise, in the Australian Defence Force, there is no
ban on homosexuals and no "don't ask don't tell"
policy, as in the United States. Nor is there any
prohibition on homosexuals in the Boy Scouts in Australia,
unlike the American counterpart.
The reviewer of my article suggested, however, that I
was unduly optimistic. That attitudinal change in
Australia concerning sexuality was still slow in coming.
That legal discrimination is still common. That
basic human rights are not impartially accorded.
Indeed, that in my own case, I would not have been appointed
to the High Court of Australia if I had not earlier gone
along with the "don't ask don't tell" demand
of Australian society. If these criticisms are,
even in part, true, the issues of sexuality will also
present a challenge for the future agenda of human rights
and this Centre. Clearly there will be plenty to
do. One hopes that the Centre will have support,
both intellectual and financial, to ensure that it can
fulfil the challenge of these and other agenda items.
THE CRITICS
It should not be assumed that human rights law, especially
that originating in international bodies of the United
Nations, enjoys the support every Australian citizen.
A prominent newspaper,
commenting recently on the criticisms of Australian legislation
within UN Committees declared: "The attempts
by various UN Committees to regulate Australian social
policies threaten their own credibility more than that
of the [Australian] government. The UN Committee
system is a third-rate, unaccountable, opaque irrelevance
that is unfit to comment on Australian policy".
To like effect was a comment by the well known iconoclast,
Padraic McGuinness.
Writing in September 2000, he declared in a newspaper
column: "... These treaties have been used
by zealous and inadequately supervised diplomats and lawyers
as implements for extending their own political power.
... The glaring problem of the UN is what has been called
the democratic deficit ... [It] is worsened by the active
interference in UN activities of non-governmental organisations
(NGOs) which themselves are entirely unrepresentative,
undemocratic and concerned with their own special agendas".
Writing in a Melbourne newspaper a few weeks ago, Michael
Barnard voiced a similar view:
"We live in an age - where minority (and sometimes
extreme) elements ... are increasingly inclined to seek
the overthrow of domestic law through appeals to a hotpotch
'international community'". To Barnard, the
problem was the "rights industry" which "either
through manipulation or a bloated sense of mission, keeps
expanding its horizons" threatening the autonomy
of the nation state.
It will be important for the Castan Centre for Human Rights
Law to listen to, and answer, these critics.
I know and respect Paddy McGuinness for his work as editor
of Quadrant, a journal that undoubtedly contributes
greatly to Australia's intellectual life. I am aware,
from a letter from a parishioner, that he, Philip Adams
and I were recently included in an "unholy trinity"
that a congregation was commanded by their priest to pray
for, to save our otherwise lost souls. So we have
shared prayers in common. But the weakness of the
opinions of the unidentified newspaper editorialist, Paddy
McGuinness and Michael Barnard, is that they do not tell
us what they would put in place of the United Nation's
efforts to defend human rights on the planet. Surely,
would not be more of the power of unbridled nation states,
unrestrained by human rights law and world opinion.
Surely, we have made some progress in the twentieth century
and can learn from its awful errors. Ron Castan
did. Jonathan Mann did.
From my work for the United Nations in Cambodia and elsewhere,
I know only too well that there are weaknesses in the
UN system. But the answer is to strengthen it and
especially to strengthen the elements of law, consistency,
efficiency and accountability. It will probably
never be possible to cure the "democratic deficit"
by holding a global election for the UN Secretary-General.
So the only way the United Nations will work for us all
is by our active participation in its human rights and
other affairs. By the active involvement of the
nation states, including Australia. Despite occasional
interruptions, Australia's steady commitment to the United
Nations remains stalwart. It was signalled recently
by the announcement of the federal government of Australia's
intended ratification of the International Criminal Court.
We are, as usual, one of the first nations to take this
step. It will be followed by Australian legislation.
Australia remains a good international citizen.
It is helping to build a world that is governed by law,
not brute power. A world respecting fundamental
human rights, and not condoning genocide, oppression and
other abuses of the vulnerable and minorities.
The strongest input into the global movement for human
rights is not that of "unrepresentative NGOs"
or "loony extremists". It is that of nation
states, like Australia, that wish to learn from, and to
help, others. Input also comes from the work of
strong professional organisations. Knowledgeable
or courageous NGOs and individuals with a commitment to
human rights and the rule of law.
This is what Ron Castan and Jonathan Mann would be saying
to us in Australia this week as we honour their memory
and commit ourselves, in these new institutional ways,
to expanding their efforts through research and other
work, fired by a proper sense of impatience. Human
rights is not just an idea or words. For me, human
rights is the nameless Australian soldier patiently teaching
Cambodian farmers to rid the fields of landmines.
It is my last year's legal Associate, Joe Tan, working
for the conduct of a fair election in Kosovo. It
is UN High Commissioner for Human Rights, Mary Robinson
working tirelessly for the downtrodden and oppressed.
It is Ms Sadako Ogata, High Commissioner for Refugees,
working for forgotten Vietnamese boat people bundled to
the Cambodian border by Khmer who dislike them.
It is the Ugandan judge helping to establish rudimentary
courts in East Timor. It is Jonathan Mann fighting for
the voiceless against the spread of AIDS in Africa.
It is Ron Castan turning his great gifts to the advantage
of Australia's indigenous peoples.
Ron Castan's memory, and his achievements, will inspire
those who follow in the law, including in this Centre,
to strive for legal excellence whilst committing themselves
to the building of a better Australia and a better world.
