Episode 24 29 July 2021
Human rights and alignment to natural law
Principal lawyer, Geraldine Grace | Host, New Earth lawyer podcast
Human rights are the key to a new legal system. Human rights is an area of law that deals with the universal rights of every human being, rights that are inherent to us, regardless of our nationality, sex, ethnic origin, religion, language or any other status.
Human right aligns with natural law - a system of laws that are inherently just, moral and correct. If we can ensure that all those responsible for passing laws and interpreting laws receive the right grounding in human rights, if our national Constitutions enshrine human rights protections and if businesses are accountable for respecting human rights, we will have a legal system that is far more aligned to natural law.
I am an experienced corporate lawyer, using the law to build purposeful, human-centred, Earth-friendly legal enterprises & ecosystems, for happier humans and a better planet.
I am also the founder and host of the New Earth lawyer podcast.
I am based in Melbourne, Australia, and an expert in enterprise governance, purpose, business & human rights and modern slavery. I established my own law practice Geraldine Grace in 2020, focussing on enterprises seeking purpose, and actors in the impact economy.
I am a legal advisor to not-for-profits with a national reach in impact and purpose. I work with Boards to optimise performance and help enterprises embed purpose and integrate human rights into their business.
I have over 20 years' experience practising law in Australia, the UK, Hong Kong and mainland China. I have worked for large global and Australian law firms and was a partner of a top-tier Australian law firm for several years.
I sit on the peak governing body of Australia's largest university.
[0:22] Human rights are the universal rights of every human being, rights that are inherent to us and apply regardless of our sex, our religion, or nationality, or ethnic origin, language or any other status.
[0:55] Some countries guarantee basic human rights to their citizens such as the United States through their Bill of Rights.
[2:30] The Bill of Rights has its roots in a document called the Magna Carta signed in 1215 by King John of England which established boundaries to the powers of the sovereign.
[3:50] Constitutionally guaranteed human rights means that no law can be passed by Parliament that infringes on those rights.
[4:33] Australia has a handful of constitutionally guaranteed rights, some expressly set out in our Constitution and others that are implied by the drafting and structure of the document.
[6:50] Australia has signed up to a number of international human rights treaties but only some of those treaty obligations have been passed by Parliament to become legally binding laws in Australia, such as anti-discrimination laws.
[9:32] Some jurisdictions in Australia (Commonwealth, ACT, Queensland and Victoria) have specific Acts of Parliament that require new laws to be scrutinised by Parliamentary committees to ensure compatibility with human rights. There are many shortcomings to this system as a means of protecting human rights, since the executive government of the day often controls the process and political expediency often wins out,
[12:03] In ACT, Queensland and Victoria, courts can also declare laws passed by Parliament to be incompatible with human rights, although these declarations are not legally enforceable.
[12:39] Courts are also an important source of common law human rights. However, common law rights can be overridden by Parliament.
[14:17] Businesses are beginning to emphasise respect for human rights although there is a way to go before they can genuinely say they do so as their understanding of what human rights are and how they may be impacting human rights are still a work in progress.
[17:44] Natural law is a philosophy that says that human made laws should be based on morality, and ethics and what's inherently correct and natural. Human rights are aligned to natural law.
[19:18] We should ensure that all our laws and all those responsible for passing laws and interpreting laws receive the right grounding in human rights, Moreover, if our country's Constitutions enshrine human rights protections and if businesses are accountable for respecting human rights, we will have a legal system that is far more aligned to natural law.
United States Bill of Rights, from the National Archives
The Magna Carta, from the British Library
Description of our rights under the Australian Constitution, from the Australian Constitution Centre
Australia's international human rights treaty obligations. from the Australian Attorney-General's department
Australian Human Rights Commission website
Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)
Human Rights Act 2004 (ACT)
Human Rights Act 2020 (Qld)
Natural law, from Britannica online.
Hi, everyone, and welcome to the New Earth lawyer podcast. My name is Geraldine Johns-Putra. I'm your host, I'm a lawyer based in Melbourne, Australia.
Today I wanted to talk to you about human rights. Human rights is the key to a new legal system. Human rights is an area of law that deals with the universal rights of every human being. These are rights that are inherent to us. They apply to everyone, regardless of our sex, our religion, or nationality, or ethnic origin, language or any other status.
Some countries in the world guarantee basic human rights to their citizens. It's well known that in the United States, for example, the Bill of Rights defines the rights that every American citizen has in relation to the government. And it includes many guarantees that Americans consider to be central to their way of life, such as freedoms of speech, freedom of religion, freedom of the press, and political activity. It also includes the right to due process under law to be treated fairly. If you're facing legal proceedings, especially by the State, trial by jury, protection from cruel and unusual punishment, protection from self incrimination. The Bill of Rights is actually a series of ten amendments that were made to the original US Constitution after it was drafted. And these amendments were adopted into the Constitution of the United States to address concerns that some of the leading figures of the day had that a Federal government, that is a federation of all of the States as they then were in the US, would become tyrannical. So these rights were instituted and enshrined in the Constitution as a safeguard against government overreaching.
The Bill of Rights has its roots in a document called the Magna Carta, which is also a very well known document. This was signed in 1215, by King John in England, and it was a document that the barons of England made him sign. And what that document does is it outlines the powers of the monarch, vis-a-vis the powers or the rights of the barons. So what it did was it actually established this idea that even the monarch who was supposed to be sovereign, and you know, almighty, in terms of his power over the land, has his powers, has boundaries over his powers, and there are rights that his people, his subjects had, and that was established in the Magna Carta. And some of those rights include the right to be tried by your peers, which is the origin of the right to trial by jury, due process under law and freedom from being arbitrarily detained. So you couldn't just be thrown into jail unless there were proper procedures that had been followed. These are all cornerstone human rights.
And the idea of what happens in the United States as constitutionally guaranteed Bill of Rights, that's important because it means that those rights override any law that's made by the Parliament of a country that restricts or infringes those rights. So any law inconsistent with those rights are subject to challenge by the citizens, and a court, in the case of the US, the US Supreme Court can overturn the laws that are inconsistent with those basic human rights. So that's exactly what happens in the US from time to time.
Now in Australia, and I'm saying this because I'm an Australian lawyer, and my focus really is on a new legal system for a new paradigm, and I would focus my efforts on what happens in Australia. In Australia, we don't have a Bill of Rights. The rights of individuals that we have under our Australian Constitution are very limited. And not everybody understands this. In Australia, there is no express Bill of Rights, like the Americans have, although there are some rights in there, there aren't that many. The rights that are expressly, explicitly stated in our Constitution include a right to trial by jury. But even then that's been interpreted by courts to have limits on it. It applies really only to serious criminal offences. There's the right to vote. There's freedom of religion, and a right to be compensated in a fair way, if the government takes your property.
There are also what we call implied rights in our Australian Constitution. That is, those are rights that the courts have seen fit to say are in the Constitution, just if you read the way the Constitution is drafted or the way it's structured. And the most important one of all is is the right to freedom of political communication. There aren't too many of these implied rights, because if they are not expressly set down in our Constitution, then courts are reluctant to say that they should be implied from reading the context or between the lines you could say of the Constitution.
Okay, so we don't have an express guarantee of freedom of speech in our Constitution, or freedom of press. If our Federal parliament or a State Parliament enacted a law that infringed one of those rights, then unlike an American citizen, we can't challenge that on the grounds that it's a breach of the Constitution.
What we do have in Australia, however, is we have a series of safeguards around human rights. Now all of those have shortcomings as I'm going to explain. The Australian Government through what we call the Executive arm of government, which is really headed by the Prime Minister and his or her Ministers, and all of the bureaucrats that sit under the various ministries, they've, the Australian Government has signed on to a number of international treaties, international human rights treaties. This is another important point, though, that I want to make. Signing an international treaty doesn't mean that what's in those treaties automatically becomes law in Australia. The way that our legal system is structured means that for something to become law, in Australia, it has to be passed by the lawmakers, which is Parliament, the elected representatives of the people. The Executive - Prime Minister, Ministers etc. - they don't have the power to make laws. So when an international treaty is signed, the terms of the treaty have to be passed as a law by Parliament after Parliament considers whether that particular term of a treaty is right for Australia. Now, Australia's signed on to, as I said, a number of important human rights treaties. And some of the laws, the terms in those treaties have been made law in Australia. The really important ones we know of, for example, anti discrimination laws, you know, laws that prohibit discrimination on the grounds of sex or race, and so on and so forth. And many of those anti-discrimination laws are, if there is a claim or complaint that that the government has breached those, then that's often investigated by our Human Rights Commissions including the Australian Human Rights Commission. Now again, those laws, the anti discrimination laws, which are very powerful protections of human rights, those are not in the Constitution. So even those can actually be overturned by the Parliament that made the laws originally, if they do so validly. That's an important point to remember.
Another way in which human rights are protected in Australia is that some of our Parliament's including the Commonwealth Parliament, the federal government, the Federal Parliament, and some States and Territories, specifically Victoria, Queensland and the Australian Capital Territory, or the ACT, have passed specific legislation that called Human Rights Charters or Human Rights Acts are something similar. That says that when laws are passed by Parliament, they must be scrutinised by Parliamentary Committees to ensure that the laws that are passed are compatible with human rights. So that's what the Human Rights Acts and the Human Rights Charters of some of these States and Territories and the Parliamentary Scrutiny Act of the Commonwealth, that's what they do, mainly. So every time these Parliaments, they have to consider a new law or what's known as a Bill, the Member of Parliament that proposes that Bill must accompany it with a statement that says how it's compatible with human rights or if it's not, why it's not. And then those new laws must also be tested by, or proposed new laws must be tested by, the Parliamentary Committee that has the role or responsibility of scrutinising the new law against the human rights considerations. And most of these Acts have a list of human rights, basic human rights that the Committee must consider, and that the statement of compatibility must explain.
There are many shortcomings of this system as well, because the statements that are drafted and the laws themselves are often drafted by the government of the day. Now in our system in Australia, the government of the day controls the lower house of Parliament, where many of these Bills originate. And so they can dominate the timing of debate, they can dominate the debate themselves, they can dominate voting, and very often laws that are passed are passed because of political expediency. And often also, human rights considerations are not the main focus.
One other element of these Human Rights Charters or Acts that you get in the States of Victoria and Queensland and in the ACT is that the courts have power under those statutes to declare certain laws incompatible with human rights. But unfortunately, these declarations by the courts, even if they find that a particular law is inconsistent with with specific human rights, those declarations themselves are not enforceable. And the Government, the Parliament doesn't have to abide by those unenforceable declarations.
Australian courts do have one other important way in which they are source of human rights protections, because there aren't many human rights that are outside of what's written down in the Acts and the statutes are protected under what we call common law. Common law, meaning it's not written down in an Act, it's an, it's laws that have been handed down, you know, through cases that have been brought in courts. And lawyers understand that these common law rights are valid law, they don't have to be written down somewhere in a statute to apply. All right. So common law rights in in Australia include the right to give informed consent to medical treatment, or the right to have your reputation protected, and we have defamation laws around those. However, again, you need to remember or we need to remember that, because we don't have a constitutionally guaranteed Bill of Rights, or other constitutional guarantee of human rights, any common law human rights can be overturned by a valid Act of Parliament. So for example, even the right to give informed consent to medical treatment can be overturned under some of our public health legislation. And if you read the terms of our public health legislation, you will see that there are exceptions to that common law or freedom in recent years.
So I've now explained what the framework of human rights is in this country, I'm just going to bring up something about businesses. And this is an area that I work in a reasonable amount, which is the intersection of business and human rights. There's been a movement by businesses to embrace human rights in some form. And the key document here is the UN Guiding Principles on business and human rights that was issued in 2011, after many years of work, led by an eminent human rights scholar named Professor John Ruggie. Now Professor Ruggie came up with three pillars. Under his guiding principles, the second is the relevant one here. And it says that businesses must respect or ought to respect human rights. It says that their responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate over and above compliance with national laws and regulations that protect human rights. So regardless of what I've said about the human rights framework in Australia, businesses, under guidance from the United Nations have a moral obligation to respect human rights. And this is playing itself out as we see consumers, the community and investors are applying pressure on businesses to take more responsibility for human rights abuses. And we've seen that businesses have been responsible for some really egregious abuses, like allowing slavery in supply chains or engaging in environmental practices that damage human health or livelihoods. mining companies that may be doing business with murderous dictatorships somewhere.
What's growing out of this pressure on businesses is okay, businesses are now saying, yes, we respect human rights, and they're putting out statements and so on to say how they respect human rights. That's well and good. So long as those businesses when they say that actually follow it up with meaningful action and a meaningful culture within the business doesn't always happen. Sometimes it's just a tick box exercise. Moreover, a lot of businesses have this view of human rights abuses as really only the the particularly serious ones that might occur somewhere else in their supply chain, for example, in a developing country without thinking about human rights of the people who are closest to them, the human rights of their customers, or the human rights of their employees, say. So businesses as they take this march towards improving their human rights records, really also are going to have a journey around understanding what human rights actually are, and how so many of the activities impact human rights. But as a step goes, you know, it's a step in the right direction.
So finally, I want to talk about, as I started, saying that I think this area, human rights, that we tend to think of as a separate area of law is actually paramount, to a better legal system. I want to talk about human rights and this interrelation with the concept of natural law. Natural law is a philosophy that says that human made laws should be based on morality, and ethics and what's inherently correct and natural. These are intrinsic to us as human beings. So it has its origin in Greek philosophy, from the time of Aristotle and Plato. And they are famous proponents of natural law, like Thomas Aquinas, who was a Catholic priest in the 13th century. He said that natural law is an aspect of divine providence. It's a way in which rational humans participate in the eternal divine laws of God or whatever higher power you may choose to think of as God. And you see natural law echo in things like the US Declaration of Independence, where it says that it has become necessary, as they declared independence, for the people of the United States to assume the separate and equal station to which the laws of nature and of nature's God entitle them.
There's no fixed understanding of what natural law is. But it comes down to what rational human beings reasonable human beings understand is right, morally. laws that are written down, our statutes or Acts of Parliament, even rules that are put out by not Parliament, but by say government agencies that have been given the power to enact certain rules by Parliament, all of those things that are written down, can and should align with this feeling of what is just and correct. And I would say that an important way of ensuring this is to say that anyone who's in charge of passing or writing down such laws needs a proper fundamental understanding of human rights, including how what they are, how they can be adequately protected, how far a law or rule should or can go if it restricts them. Because there are circumstances or there may be circumstances when an individual human rights should be restricted. But how far should that law go? How far should that rule go in restricting those individual rights? What safeguards should we put in place? Is there another method that's available to us to achieve the same goal without impinging human rights? All of those human rights lenses should be applied every time a law or rule is none applied to society.
And I would also say other steps that we should take towards protecting human rights and thus aligning our societies with natural law is to make sure that our lawmakers have this kind of training, as well as making sure that they scrutinise all of the laws meaningfully. And not just by setting up a Committee that is given responsibilities, that they don't necessarily have the power to enforce. Ensure that all those laws don't infringe human rights unacceptably. Government officials, like I said, those who work for government agencies, they should also ensure this. Courts should be empowered to overturn laws that are incompatible with human rights. All of our judges and our lawyers, me included, we need to have the right training to understand human rights. All of our businesses should be charged with taking seriously their commitments to respect human rights. And we need to actually hold their feet to the fire when they make statements about respecting human rights. And finally, and this might be controversial, but it is my view, we should have constitutionally guaranteed human rights in Australia. Then I would say we would be closer to living under a natural law paradigm.
And so that's it from me, talking about human rights. I hope you've learned something or got something out of this particular episode. Thank you for watching.