UN human rights declaration turns 70

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Today we celebrate the 70th anniversary of the UN Declaration of Human Rights (UNDHR) which was proclaimed by the UN General Assembly as 'a common standard of achievement for all peoples and all nations'. Australians like Dr H. V. Evatt and Jessie Street played a significant role in the drafting of the declaration.

Statue Of Lady Justice Against White BackgroundEvatt, Australian Minister of External Affairs at the time and then President of the UN General Assembly, welcomed the declaration as a 'step forward in a great evolutionary process'. The drafters consulted a broad range of thinkers including religious and philosophical greats such as Pierre Teilhard de Chardin SJ, Mahatma Gandhi and Aldous Huxley. Teilhard counselled the drafters to focus on 'man in society' rather than the human being as an individual.

A decade ago when marking the 60th anniversary of the declaration, Irish poet Seamus Heaney said: 'Since it was framed, the declaration has succeeded in creating an international moral consensus. It is always there as a means of highlighting abuse if not always as a remedy: it exists instead in the moral imagination as an equivalent of the gold standard in the monetary system. The articulation of its tenets has made them into world currency of a negotiable sort. Even if its articles are ignored or flouted — in many cases by governments who have signed up to them — it provides a worldwide amplification system for the "still, small voice".'

Ten years ago, the newly elected Rudd government set up a national human rights consultation. I was privileged to chair the consultation which recommended a national human rights act. Neither side of politics was much interested in this suggestion. The more conservative religious leaders were strongly opposed, thinking that religious freedom might be better protected by parliament without legislation being subjected to judicial oversight for compliance with human rights generally.

Ten years on, they might have cause to think differently. The Queensland government has announced plans to legislate a human rights charter similar to that adopted by the parliaments in Victoria and the ACT. But other jurisdictions, including the Commonwealth, are out of kilter with other equivalent jurisdictions such as the UK and New Zealand which have their own human rights acts.

In the absence of a human rights act, religious freedom tends to be treated by means of exemptions for religious bodies or exceptions for religious behaviour set down in anti-discrimination acts such as the Sex Discrimination Act. During last year's plebiscite campaign on same sex marriage, many politicians and advocacy groups agitated or conceded the need for legislation to make up for the lack of legal protection of religious freedom at a national level.

The right to freedom of thought, conscience, and religion or belief is recognised in the UNDHR which provides: 'Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.'

 

"Let's hope the matter can be promptly resolved when Parliament returns in February. It would be a tragedy for everyone if the issue was left unresolved during the next federal election campaign."

 

Australia is a party to the International Covenant on Civil and Political Rights (ICCPR), which further specifies the right to freedom of thought, conscience and religion. Article 18 of the ICCPR is the main international legal provision protecting freedom of religion or belief. It provides:

'Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

'Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. The States Parties to the present covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.'

There have been numerous Australian inquiries by parliamentary committees, the Australian Law Reform Commission and the Australian Human Rights Commission which have highlighted the need for some further legislative protection of this right at a Commonwealth level.

Like all competing or conflicting rights, the right to religious freedom is limited in its scope. There is often a need to balance conflicting rights. For example, Article 26 of the ICCPR recognises the right of all persons to equality and to non-discrimination on certain grounds — including religion. Article 26 provides:

'All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.'

The most recent report of the Special Rapporteur on freedom of religion and belief to the UN Human Rights Council notes: 'The jurisprudence of the Human Rights Committee and the regional human rights courts uphold that it is not permissible for individuals or groups to invoke 'religious liberty' to perpetuate discrimination against groups in vulnerable situations, including lesbian, gay, bisexual, transgender and intersex persons, when it comes to the provision of goods or services in the public sphere.'

In the wake of the same sex marriage plebiscite, the Australian challenge has been to strike the right balance between the right to freedom of religion or belief for religious educators and the rights to equality and non-discrimination for teachers and students. If we had an Equality Act, we might consider the need for a Religious Freedom Act. As we have a Sex Discrimination Act which deals with discrimination on the basis of various criteria including sexual orientation, it is desirable that we at least have a Religious Discrimination Act.

I served on the Ruddock Committee set up after the same sex marriage plebiscite. We provided our expert panel report to government six months ago. During the recent Wentworth by-election, both sides of politics committed to legislative reform ensuring that at a Commonwealth level there would be no possibility of religious schools being able to expel students on the grounds of gender or sexual orientation. The matter came up for debate in the Parliament last week. But in the shambolic carry-on with a minority government, there was no prospect of any resolution. Let's hope the matter can be promptly resolved when Parliament returns in February. It would be a tragedy for everyone if the issue was left unresolved during the next federal election campaign.

Frank Brennan (second from left) with (from left) with the Hon. Michael Kirby AC CMG; Claire Mallinson, National Director, Amnesty International Australia; Thomas Albrecht, UNHCR Regional Rep; and broadcaster Genevieve Jacobs following a forum at the National Library celebrating the 70th anniversary of the UN Declaration of Human Rights.Both sides of politics are agreed that it is time to repeal section 38(3) of the Sex Discrimination Act which allows a religious educational institution to discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy provided they discriminate 'in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed'.

Both sides of politics are also agreed that the repeal of this provision should not be permitted to work any interference with the right of religious institutions to teach their doctrine in good faith. The Labor Party has agreed to specify that 'nothing in the Sex Discrimination Act 1984 renders it unlawful to engage in teaching activity if that activity: (a) is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and (b) is done by, or with the authority of, an educational institution that is conducted in accordance with those doctrines, tenets, beliefs or teachings.' The government is prepared to put such a statement in the legislation. Let's hope all members of parliament after Christmas can agree to the insertion of such a clause in the legislation providing assurance to religious educators that they can continue to teach their doctrine in good faith while assuring all students and their families that they will not suffer any detriment while sitting at the feet of religious educators.

There are other matters of religious freedom which require attention by our Parliament. Hopefully our elected representatives on both sides of the aisle will soon be provided with the findings of the Ruddock panel to assist them in their deliberations. With the UN Declaration achieving the scriptural age of three score and ten, it is appropriate to appreciate and affirm the worldwide amplification system for the 'still, small voice' of conscience speaking to power, even when that voice of conscience maintains a religious tone, while the power of the state is increasingly secular and the tone of society more stridently secularist.

 

 

Frank BrennanFrank Brennan SJ is the CEO of the Catholic Social Services Australia. He chaired the Rudd government's 2009 National Human Rights Consultation and was a member of the Turnbull government's 2018 Religious Freedom Review.

Top image: statue of Lady Justice (Getty). Second image: Frank Brennan (second from left) with the Hon. Michael Kirby AC CMG; Claire Mallinson, National Director, Amnesty International Australia; Thomas Albrecht, UNHCR Regional Rep; and broadcaster Genevieve Jacobs following a forum at the National Library celebrating the 70th anniversary of the UN Declaration of Human Rights.

 

Topic tags: Frank Brennan, human rights, same sex marriage, Pierre Teilhard de Chardin SJ, Seamus Heaney

 

 

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Existing comments

The interpretation of the law so as to favour human rights is about the wisdom of scholars and about human experience. The power of the state is necessarily secular, however I would hope that doesn't mean that the practising of religious belief has to be a battleground where rights are concerned. There is a wide spectrum of religious beliefs. And practising of our religious beliefs should always be guided by human experience. I'm not a lawyer but I rely on them to do a good job.
Pam | 10 December 2018


I am one of those Australians who had hoped that our parliament could put right the unresolved issue of LGBTI students in religious schools before Christmas. It wasn’t possible. I suggested three steps:

1. Repeal s. 38(3) Sex Discrimination Act which provides:

'Nothing in section 21 renders it unlawful for a person to discriminate against another person on the ground of the other person’s sexual orientation, gender identity, marital or relationship status or pregnancy in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.'

2. Insert a new s. 21(5) to avoid any unnecessary unintended interference with the right of religious schools to teach their doctrine:

'It is no detriment to a student for a teaching authority to engage in teaching activity if that activity:

(a) is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and

(b) is done by, or with the authority of, an educational institution that is conducted in accordance with those doctrines, tenets, beliefs or teachings.

'In this section:

teaching activity means any kind of instruction of a student by a person employed or otherwise engaged by an educational institution.'

3. Leave the rest well alone until the government publishes the Ruddock Review and Parliament considers how best to protect religious freedom - allowing religious institutions to conduct themselves in accordance with their religious teachings while shielding citizens from adverse religious discrimination.


Frank Brennan | 10 December 2018


I am sorry, but there is no need for "religious protections" in counter to protections for LGBTI students. Logically they would only be there in order to enable religious institutions to teach their students that LGBTI people are lesser in some way, or why would they be needed as exemptions? If they don't do that, aren't they already protected? The fact that this is put as a response to gradually removing discrimination against LGBTI people makes it impossible to argue that what is sought is not rights to continue to discriminate against them - at the very least at the level of teaching kids that LGBTI relationships and people are not "normal" and are somehow "lesser". As for the "religious freedom" of parents to indoctrinate their children in accordance with their religious beliefs - why is this sacrosanct? Why should this be a right? Why don't children have the right to be exposed to all forms of religious and secular philosophy and knowledge and make up their own minds? Why SHOULD there be religious schools designed to teach kids that if they are going to be religious, THIS is the religion they should be going with? How is that fair to kids? They haven't chosen this religion, it's being forced on them and given similar weight in their education as actual maths, science, language etc. In short: 1. In what way does protecting LGBTI people infringe on your "religious freedom"? Why should you be free to teach kids something that can be interpreted as discrimination against LGBTI people? 2. Why should parents get to send their kids to schools that teach them their religion as if it's a fact of the universe like science/maths etc? How is that fair on kids?
Jeremy | 11 December 2018


Frank, I was privileged to attend the Forum at the National Library , to listen to the discussion on the 70th Anniversary of the signing of the Convention on Human Rights. I spoke briefly to you at its conclusion. I was born a week after the signing! I was bemused at the mention of the Philippines situation, as I am a regular visitor to that country (married to a Filipina) I was 'interrogated' by Marcos "goons" at MIA , August 1983 , returning to Australia after attending a Forum at a College at San Fernando, La Union; so I am very aware of the fragility of Human Rights.( remember the Brian Gore saga?) We return to the Philippines after Christmas, so it will be interesting to observe changes since my last visit two years ago, with the unlawful behaviour of the current administration. Last point , as a secondary school teacher , we discussed the Declaration in years 11 as part of Religious Studies. Now retired, I hope my former school still does this exercise. It should be compulsory in all our schools!
Gavin O'Brien | 11 December 2018


Frank, An afterthought, did you notice that there was NO coverage of the Forum on the Media, at least not ABC Radio /Television News last night or as far as I know, the Commercial networks. What does that tell us???
Gavin O'Brien | 11 December 2018


While not presuming to argue law with Frank Brennan, I am suspicious of the Government's making any new legislation on religious freedom while they continue to withhold the Ruddock Report. Of Fr Frank's comment following this article, I suggest deletion of first and second clauses, and amendment of third clause as follows: 3. Leave well alone until the government publishes the Ruddock Review and Parliament considers how best to protect religious freedom.
Ian Fraser | 11 December 2018


Gavin, you ask what does the failure of the media to report on the Forum tell us. Some might suggest that it was a "non-event" not worth reporting! Others might suggest that current UN practices reflect a dedication to secular atheistic humanism rather than rights for all human life.
john frawley | 11 December 2018


-At a neighbourly meeting in a private home Australian diplomat Ralph Harry AC CBE told us that he actually penned it sitting near Evatt. -This reminds me of Timothy Matlock penning the American Declaration of Independence authored by Thomas Jefferson.
Kevin G Smith | 11 December 2018


Dear Jeremy, you have the right to your opinion and to expressing it. However, your views on the traditional and universally accepted primary RIGHT of parents to pass on to their children all the gifts of a good life, including their religious faith, and as THEY see it, are quite eccentric. However, even in the general sense, how on earth can children make decisions when they are grown up about whether to follow the lead of their parents or not, if they have had no personal experience of it? All you will succeed in doing is robbing them and indeed society as a whole of any value system(s) at all. Indeed that is rapidly happening and what a mean, empty and unhappy society your ilk are creating.
Eugene | 11 December 2018


I have difficulty with a proposed "right of religious institutions to teach their doctrine in good faith". Could that proposal legitimise the teaching of a religious doctrine that says LGBTIQ sexual orientation is “contrary to the natural law" (Catholic Catechism, n.2357) and ‘objectively disordered’ (n.2358), with grave consequences for the wellbeing of LGBTIQ students. Could not such a provision permit the teaching of a range of other possible doctrines of different religions with grave consequences for society, say women being subservient to men. What if a religion taught ’in good faith’ that certain races were inferior? Surely the State has an obligation to protect its citizens from discriminatory teaching that questions their equality in society.
Peter Johnstone | 11 December 2018


Thank you Frank for this very wise and considered view of human rights on the 70th anniversary of the launch of the UN Declaration of Human Rights (UNDHR). I am sure that many Australians were unaware of the great contribution made to the UNDHR and in the formation of the UN itself by Australians such as Doc. Evatt, Jessie Street and Norman Makin. This history is one of the reasons why Australians gained much praise internationally for being fair-minded and humanitarian. We certainly do not have that positive reputation now after the treatment of asylum seekers, support of US wars and policies, the Indonesian military in East Timor, West Papua and Acheh, refusal to recognise the state of Palestine or take a stand about the human and land rights of its people, the dogged following of the most inhumane US policies etc. The list is a very long one. I think it would have been wonderful if our leaders had cooperated together to introduce an Australian Declaration of Human Rights (ADHR) in time for the 70th anniversary of the UNDHR. Given the mindsets of the leaders of our two major and very conservative political parties that was far too much to hope for. And the attempt by the right of the LNP Coalition to tie the move to protect the human rights of LGBTI school students with religious freedom was never a logical or genuine approach to human rights. I suspect it was undertaken to allow some religious groups to continue their discrimination of LGBTI people. If we had an ADHR, all of these key aspects of human rights could be fairly covered. Such a declaration should also include guidance for our political leaders to ensure that human rights is a key principle in all of Australia's international policies. Will some progressive and humanitarian leaders ensure that we have an ADHR in time for the 80th anniversary of the UNDHR???
Andrew (Andy) Alcock | 12 December 2018


Peter Johnstone. Are you suggesting that to teach that some sexual orientations are contrary to the natural law and some are "objectively disordered" is illegitimate? I can think of a few that are certainly contrary to the natural law and seriously disordered.
john frawley | 12 December 2018


to John Frawley - yes, you understand me correctly. As I said, the State has an obligation to protect its citizens from discriminatory teaching that questions their equality in society. Are you suggesting that it is OK to teach discrimination on the basis of sexual orientation, which is what the proposed approach seems to seek to do ?
Peter Johnstone | 12 December 2018


David Speers interviewed me about a Religious Discrimination Act in the wake of the Ruddock review at https://www.skynews.com.au/details/_5978928937001
Frank Brennan SJ | 14 December 2018


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