Castan Centre for Human Rights Law

Launch of the Castan Centre
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 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 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[i].  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[ii].  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[iii], 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[iv].  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][v].  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[vi] I proposed in interpretative principle which I regard as appropriate to the elucidation of the meaning of our Constitution in the contemporary age[vii]:

"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 critic of David Kinley's book (Professor Robert McCorquodale) writing in the Australian Yearbook of International Law, suggested that its authors were excessively optimistic about the impact of human rights law in Australia and about its future.  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, 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 Australia.  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[viii]. 

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 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[ix], 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[x].  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[xi]:  "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[xii].  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 of a parishioner, that he, Philip Adams and I were recently included in an "unholy trinity" that a congregation was commanded to pray for, to save our otherwise lost souls.  So we have share 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 UN'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 UN 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 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 UN remains stalwart.  It was signalled recently by the announcement of the federal government of Australia's intended ratification of the International Criminal Court[xiii].  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.

Castan's memory, and his achievements, will inspire those who follow in the law, including in this Centre, to strive for legal excellence whilst committed to the building of a better Australia and a better world. 

*            Justice of the High Court of Australia.

[i]            Mabo v Queensland (1988) 166 CLR 186; Mabo v Queensland [No 2] (1992) 175 CLR 1.

[ii]          D Kinley (ed), Human Rights Law in Australia (1999).

[iii]            Human Rights Act 1998 (UK) which came into force on 2 October 2000.

[iv]          The Bangalore Principles are set out in (1999) 63 ALJ 497.

[v]            Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42 per Brennan J.

[vi]          (1997) 190 CLR 517.

[vii]         (1997) 190 CLR 513 at 660.

[viii]         Boy Scouts of America v Dale 734 A 2d 1196 (2000).

[ix]          The Australian, quoted M Barnard "Nations hostage to global rights", Sunday Herald Sun (Melbourne), 22 October 2000, 47.

[x]          P P McGuinness, "Bending the agenda of the UN's democratic deficit" in Sydney Morning Herald, 2 September 2000, 31.

[xi]            Barnard, above n 4.

[xii]         There are others, see eg P Akerman, "Judiciary no place for crowd-pleasers", Sunday Telegraph (Sydney), 29 October 2000, 101.

[xiii]            "Ratifying the International Criminal Court", Joint News Release of the Attorney-General (D Williams) and the Minister for Foreign Affairs (A Downer), 25 October 2000.