The Universal Declaration on Human Rights

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The United Nations Universal Declaration on Human Rights is not carried into law in Australia, it is not a constitutional provision on a state or federal level, therefore it has no place before any state court. People can claim to have all the fantastical rights they can imagine, but unless they are enacted by constitutional provision, they don’t even exist in law. All rights are a fiction of law, and must be perceived that way by the law.

“The state of New South Wales is not a signatory party to the Universal Declaration of Human Rights.” ~ Magistrate David Heilpern, Grafton Local Court, Crown v Robert Sudy, 6th of March 2013

“It does not rest upon judicial pronouncements to accord, or withhold, recognition of the law in question by reference to the judge’s own notions of fundamental rights, apart from those constitutionally established.. . ..subject to any constitutional invalidity, the judge has no authority to ignore or frustrate the commands of the lawmaker. To do so would be to abuse judicial power, not to exercise it. – Durham Holdings Pty Ltd v New South Wales (1999) 47 NSWLR 340 1

We have no Charter of Freedoms as Canada does, or a Bill of Rights as the UK does, all of our rights are based on common law and constitutional provisions. Unless it is carried into a legislative capacity or by precedent, it doesn’t exist in this body of law, and is not considered court-admissible. The court has no provision by which to adopt it, so it cannot be heard in the proceedings.

Parliamentary Supremacy

“The existence of a court presupposes the rule of law and therefore precludes the court from entertaining any proposition incompatible with the rule of law. The existence of a constitution presupposes the rule of law and therefore renders unconstitutional any attempt to subvert the rule of law. Parliament cannot suspend the rule of law, because the legislative power is limited to the making of law, which by definition must be consistent with the rule of law. We are under a “government of laws”, not a “government of men”.

In Momcilovic v The Queen & Ors [2011] HCA 34 2 limitations were imposed on any courts broad interpretation of the Victorian Charter of Human Rights and Responsibilities Act 2006. 3 The High Court held that Victoria’s Charter of Human Rights protects fundamental human rights while maintaining parliamentary sovereignty, and does not empower the courts to radically re-interpret legislation or subvert the parliaments intent. 

Click to access momcilovic-v-the-queen-2011-hca-34.pdf


The UNDHR does not have force of law in Australia

The Charter of the United Nations does not have force of law in Australia. In short, the content of the Charter has not been carried into effect within Australia by appropriate legislation. The Commonwealth of Australia’s Charter of the United Nations Act 1945, as amended in 2010, appears to bring the international law into domestic law. Section 5 states clearly: “The Charter of the United Nations (a copy of  which is set out in the Schedule) is approved.” The better view is that what is now s.5 of the Charter of the United Nations Act 1945 serves only for the purposes of international law, to ratify Australia’s participation in the United Nations.

In Bradley v Commonwealth [1973] HCA 34 (“Rhodesia Information Centre case”), the High Court stated the rationale for the decision (ratio decidendi) which is binding on lower courts. 4 Barwick CJ with Gibbs and Stephen JJ held that:

“Section 3 of the Charter of the United Nations Act 1945 did not make the Charter binding on persons within Australia as part of the municipal law and neither the Charter nor the Resolution of the Security Council had been carried into effect by legislation in Australia. Hence they could not be relied upon to justify executive acts or resist an injunction to restrain an excess of executive power. … That provision does not make the Charter itself binding on individuals within Australia as part of the law of the Commonwealth. Section 3 of the Charter of the United Nations Act 1945 was no doubt an effective provision for the purposes of international law, but it does not reveal any intention to make the Charter binding upon persons within Australia as part of the municipal law of this country, and it does not have that effect.”

Click to access bradley-v-commonwealth-1973-hca-34.pdf

This conundrum is further expressed in the Federal Court case Minister for Foreign Affairs and Trade and ors v Magno, G. and anor [1992] FCA 864; 28 ALD 1195 In this case Justice Gummow compares the binding nature on Australian domestic law of the Vienna Convention on the Law of Treaties as opposed to the UN Charter. 

“Secondly, not all legislative approval of treaties or other obligations entered into by the Executive renders the treaty binding upon individuals within Australia as part of the law of the Commonwealth, or creates justiciable rights for individuals. An example is s. 3 (sic) of Charter of the United Nations Act 1945. This simply states that the Charter is “approved”, something insufficient to render the Charter binding on individuals in Australia: Bradley v The Commonwealth [1973] HCA 34; (1973) 128 CLR 557 at 582, Koowarta supra at 224. See also Dietrich v The Queen supra pp 66-67. 7 The legislation with which this appeal is concerned is not within this class, because s. 7 states that certain provisions of the Convention “have the force of law” in Australia.”

Click to access minister-for-foreign-affairs-and-trade-and-ors-v-magno-g.-and-anor-1992-fca-864-28-ald-119.pdf

Similarly, regarding the International Covenant on Civil and Political Rights, it was held in Dietrich v The Queen [1992] HCA 57 that:

“The ratification by Australia of the I.C.C.P.R. on 13 August 1980 did not render it part of Australian municipal law. The I.C.C.P.R. is now contained in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). While the Act confers power on the Human Rights and Equal Opportunity Commission to investigate and conciliate alleged breaches of rights contained in the I.C.C.P.R., it does not create justiciable rights for individuals. Likewise, although Australia’s accession to the First Optional Protocol to the I.C.C.P.R. effective as of 25 December 1991 enables Australians to petition the United Nations Human Rights Committee for alleged violations of the rights set out in the I.C.C.P.R., it does not make the I.C.C.P.R. part of Australian municipal law.” 6

Click to access dietrich-v-the-queen-1992-hca-57.pdf

The position is further stated in Minister for Immigration and Ethnic Affairs v Teoh (1995) HCA 20, where at 286 ‑ 287 Mason CJ and Deane J said: 7

“It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute.  This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of parliament, not the Executive.  So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.”

Click to access minister-of-state-for-immigration-and-ethnic-affairs-v-teoh-1995-hca-20.pdf

As also noted by Hayne J. in Joosse v Australian Securities and Investment Commission [1998] HCA 77: (at [21])

“The third element in the submissions made by the applicants, and the one to which greatest significance was given in oral argument, asserts that significance is to be attached to certain of Australia’s international dealings. These contentions fail to take account of certain basic principles. First, provisions of an international treaty to which Australia is a party do not form part of domestic law unless incorporated by statute. It follows that what one of the applicants referred to as various human rights instruments do not of themselves give rights to or impose obligations on persons in Australia. Similarly, the Charter of the United Nations does not have the force of law in Australia.”

Click to access joosse-v-australian-securities-and-investment-commission-1998-hca-77.pdf

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Legal obligations of non-signatory nations

Non-signatory nations may also be found in breach of The Universal Declaration of Human Rights, so there is no real difference between the legal obligations of a signatory nation or a non-signatory nation. 9

The Universal Declaration of Human Rights is a product of the UN system, adopted unanimously by the General Assembly of the UN in 1948. It is not a binding treaty that states ratify or accede to. Rather, it is a declaration of  “…a common standard of achievement for all peoples and nations, to the end that every individual and every organ of society … shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.”

Treaties form a common basis for negotiations between nations. It is more difficult working with those that are outside the treaty system. However, if the UNDHR has become part of customary international law binding all nations, it becomes the basis of mutual obligations between states, and nations can be held accountable for their compliance or non-compliance with it regardless of whether individual states have ratified or acceded to the relevant treaties.


Means of applying international law

Michael Kirby AC CMG.; “Domestic Implementation of International Human Rights Norms ” 

The Bangalore Principles state, in effect: 10

  • 1. International law (whether human rights norms or otherwise) is not, in most common law countries. part of domestic law.
  • 2. Such law does not become part of domestic law until Parliament so enacts or the judges (as another source of law-making) declare the norms thereby established to be part of domestic law.
  • 3. The judges will not do so automatically, simply because the norm is part of international law or is mentioned in a treaty – even one ratified by their own country.
  • 4. But if an issue of uncertainty arises (by a gap in the common law or obscurity in its meaning or ambiguity in a relevant statute), a judge may seek guidance in the general principles of international law, as accepted by the community of nations.
  • 5. From this source material, the judge may ascertain and declare what the relevant rule of domestic law is. It is the action of the judge, incorporating the rule into domestic law, which makes it part of domestic law.

Click to access domestic-implementation-of-international-human-rights-norms.pdf

Robert French CJ.; “International Law and Australian Domestic Law11

Click to access international-law-and-australian-domestic-law.pdf

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