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The University of Melbourne Chancellor's Human Rights Lecture 2004
The Hon Justice Michael Kirby AC CMG
Wednesday 3 November 2004

HUMAN RIGHTS AND GOOD GOVERNANCE ­ CONJOINED TWINS OR INCOMPATIBLE STRANGERS?

CONTEXT AND TIMING

I have been coming to the University of Melbourne for close on fifty years; ever since I took my first tentative steps in student activities in the 1950s. It is one of the great universities of our country, indeed of the world. From the start, in 1850, it has been a leader in ideas essential for the progress of humanity. I am thankful for the chance to give this lecture in such a seat of learning.

Recently, at a conference to mark the centenary of the institutions of conciliation and arbitration in Australia, I came upon an instrumental talk given at this University by Henry Bournes Higgins1 who had graduated Master of Arts and Bachelor of Laws of the University. On 13 July 1896, a hundred and eight years ago, he delivered a lecture to the Historical Society of this University. Higgins, like so many of the founders of the Australian Commonwealth, was a product of this place. In receptiveness to new and bold ideas, there has been no institution more welcoming in Australia than the University of Melbourne.

In his talk, Higgins, the product, like me, of Protestant Ireland, educated by the Wesleyans, embraced notions that had been propounded in 1891 by Pope Leo XIII in his Encyclical, Rerum Novarum 2. I am sure that I do not have to tell you that for a man born in, or derived from, Ulster, this was no small thing. The Pope had addressed himself to "poverty and suffering [in this world, not] ... joy and glory hereafter. ...[I]n place of telling the masses that whatever they suffer is of God's will, and that they should submit patiently, he enter[ed] into an elaborate discussion of the social question and the means of dealing with it ... [He proposed] that a State can, if it adopts the right means and without distribution of doles, alter the economic condition of the poor".

This papal idea was founded in concepts of the natural law. Much of its reasoning would be explained today in terms of notions of the inherent dignity of the human person and the human rights and fundamental freedoms that are the consequence. Leo XIII's ideas struck a chord with Higgins who had been trained at this University in the English common law and in the rules of equity, which always reflected precepts of natural law. In the young Higgins' mind a marvellous alchemy arose, marrying the natural law ideas of the Popes and the English legal notions of fairness and reasonableness. Mix in a little economics and some political theory (together with history to keep his audience's attention) and Higgins was well on the path to the constitutional concept of industrial conciliation and arbitration for Australia.

In the event, this famous graduate was to play a key role in the constitutional convention in Melbourne3 that adopted the constitutional power to permit the coming Federal Parliament to make laws on this subject. As a member elected to that Parliament from a constituency not far from here, he was to play a vital part in the debates that led to the statute that was finally nearing adoption exactly a century ago4. Later, as a Justice of the High Court of Australia, Higgins was to have important functions in clarifying the provisions, and constitutionality, of that Act. As second President of the Commonwealth Court of Conciliation and Arbitration, he was to prove innovative and influential in implementing his new province of law and order in the industrial scene5.

All of this is simply to show that great things sometimes come from addresses given to audiences at this University. Looking back on Higgins' 1896 effort, we would now describe it as a notable contribution to securing individual human rights and good governance in Australia. Certainly, the system of industrial justice for which he worked, and which he inaugurated6, was to become one of the three economic pillars of Australia's federal story during the nation's first century7. By century's end, industrial arbitration, the White Australia policy and high tariffs had declined or disappeared. Such is the cycle of ideas. Lecturers, here and elsewhere, do well to remember the transience of ideas, even large ones.

The present Human Rights Lecture, named for the Chancellor, celebrates Fay Marles' contribution to human rights. It was inaugurated at her behest. The Chancellor has a personal and longstanding commitment to human rights. As Victoria's first Equal Opportunity Commissioner, she made notable contributions both to the principles and practices of human rights protection - specifically in the rights of women, indigenous Australians and other groups disadvantaged by discrimination or exclusion.

Most Australians are, or have family or friends who are, members of some minority group. I myself - a constitutional officeholder - know what it feels like. As a member of a sexual minority, I have been on the receiving end of discrimination, prejudice, calumny and hatred. In these times of enlightenment, it is astonishing that it should still be so. Astounding that misunderstood passages in Holy Books should be used in the twenty-first century, against all of the knowledge that is now available to humanity, and often at the instigation of people pretending to religion and spiritualism, who stigmatise homosexuals.

Recent public comment in Australia has sometimes, sadly, evidenced prejudice8. Those responsible for such discord and animosity in our community bear a heavy responsibility for the violence, suicides, denigration and low self-esteem that ensue. It seems truly remarkable to me that such ignorance exists and stubbornly survives in the face of so much contemporary science about the universal and natural occurrence of sexual variation in humanity as in other species. A society of human rights and good governance will provide effective institutions, laws, education, leadership and redress to combat the primitive demons and ignorant superstitions that some people stir up.

I honour the Chancellor for the work that she has done to make human rights and good governance a reality in our midst in Australia. It is by science, research, teaching and the spread of knowledge that the veil of ignorance and hatred will eventually be lifted. Recent events suggest that we still have a long way to go. Bishop Desmond Tutu once said that everyone hates discrimination so much that they try to pass it down the line to someone else. Many people, it seems, need someone they can look down on. This infantile disorder will not be cured overnight. It will only be overcome by the effective protection of human rights and the creation and maintenance of strong institutions that truly believe in the principle of equal justice under law. That is the principle for which the judges of this nation stand. I believe it is the principle of our Constitution. But in Australia and elsewhere in the world, it is a principle that needs constant reinforcement. We can never take it for granted.

A DECADE OF PROGRESS

The years 1995-2004 were designated as the United Nations Decade for Human Rights Education. The decade is therefore drawing to its close. One feature of the decade has been the growing appreciation, including in Australia, that talk, or fine international instruments, about human rights are not enough. It is essential to address the institutions, theory and practical implementation of human rights9. This realisation has directed increasing attention to good governance. Governance and good governance have attracted many definitions. But the notion remains a "contested concept"10. Why is this so?

The United Nations Development Programme (UNDP) has defined the word "governance" broadly as "the exercise of economic, political and administrative authority to manage a country's affairs at all levels. It comprises the mechanisms, processes and institutions, through which citizens and groups articulate their interests, exercise their legal rights, meet their obligations and mediate their differences"11.

A shift to placing emphasis on good governance, both in the rhetoric of the conduct of foreign affairs and in institutional and aid policy has been a marked feature of the strategy of the present Australian government. Thus AusAID, the agency for Australia's foreign aid programme, adopted a definition of "governance" similar to that of UNDP. It described "good governance" as the "competent management of a country's resources and affairs in a manner that is open, transparent, accountable, equitable and responsive to people's needs"12.

In placing this emphasis on "good governance", Australia was reflecting moves that have occurred both within the Organisation for Economic Cooperation and Development (OECD), in the United States administration and in agencies of the United Nations responding to these concerns. Thus, the United Nations High Commissioner for Human Rights in 2002 expressly linked the effective realisation of human rights with improvements in national governance13:

"Governance is the process whereby public institutions can conduct public affairs, manage public resources and guarantee the realisation of human rights. Good governance accomplishes this in a manner essentially free of abuse and corruption, and with due regard for the rule of law. The true test of "good" governance is the degree to which it delivers on the promise of human rights: civil, cultural, economic, political and social rights".

This shift to a new institutional emphasis on "good governance" came to a head within the organs of the United Nations on 21 April 2004. At the 57th meeting of the Commission on Human Rights, a resolution14 was adopted, without a vote, on the subject of "The Role of Good Governance in the Promotion of Human Rights".

This resolution recited the universality of human rights and the adoption by the United Nations Millennium Declaration of a commitment to good governance in promoting human rights. It noted that "transparent, responsible, accountable and participatory government ... is the foundation on which good governance rests" and that, as such, it was indispensable to the full realisation of human rights and the building of "effective democratic institutions". The Commission resolution went on that "good governance practices necessarily vary according to the particular circumstances and needs of different societies". In its substantive part, it called upon member states to provide governance responsive to the needs and aspirations of the people in order to achieve the full realisation of human rights, to eradicate poverty and to build international cooperation on development. It called on the High Commissioner for Human Rights to convene an international seminar on this subject and to compile ideas and practices for the furtherance of this notion throughout the world.

On 15-17 September 2004, the proposed seminar took place in Seoul, Republic of Korea. The new High Commissioner for Human Rights (Madame Louise Arbour, a past Justice of the Supreme Court of Canada) attended. So did I. In the course of my attendance, I became aware of some of the controversies of this notion of "good governance". The purpose of this lecture is to indicate some of the strengths of the new idea; but also to mention some of its difficulties. Be sure that, in the years ahead, we will all hear more about "good governance". It is, it seems, an idea whose time has come.

The difficulties of the notion of good governance were addressed very soon after the opening of the Seoul seminar. A participant from a well-respected non-government organisation (NGO) in India referred to recent reports ascribing to the President of the World Bank (Mr J Wolfensen) the assertion that the Bank preferred to talk in terms of "good governance" because talk of "human rights" made its donors "nervous". Why does human rights talk make financial donors "nervous"? Is "good governance" a softer option and should that be a matter of concern?

To some participants from developing countries in Seoul, the idea of "good governance" is simply the latest attempt of developed countries to impose on the developing world their notions of governance, whatever the culture, needs and capacity of poorer nations. In short, talk of "good governance", in practice, could, according to this viewpoint, be seen as a Trojan horse for institutions and laws that would impose upon developing countries the machinery of "governance" considered suitable to the developed world and protective of the interests and power of the developed world. Instead of promoting human rights and nation-building, "good governance", according to this viewpoint, is the means of ensuring strict obedience to the rules imposed on the developing world by the World Trade Organisation and, through bilateral trade agreements, the means whereby the richest countries shore up their economic advantages when compared to the rest.

From this viewpoint15, so-called "good governance" is simply another mechanism to reinforce good protection of flows of capital and finance around the world to the enormous advantage of rich nations and their investors16. Critics of the idea of "good governance" point out that, increasingly, economic power has shifted from governmental organs, and even regional groupings of nations, to multinational corporations which bestride the world and dictate in significant ways how it will be governed, naturally to their own benefit. Tony Evans, in a critical article, has explained17:

"At the global level, the increasing authority of global institutions, and the activities of trans-national corporations, suggest that democratic representation and participation are less achievable in the post-Cold War world than many commentators argue. The creation of a global free market, backed by the creation of new global institutions with international standing, described by some as the 'new constitutionalism', favours the interest of capital above the interests of all others. This is seen in the activities of the World Bank, the WTO and regional economic unions, all of which are designed to impose a market discipline that favours corporate and financial interests. Rather than taking a wider view of development that includes human rights, security and dignity, 'new constitutionalism' confers privileges, rights of citizenship and representation on corporate capital, while constraining the democratisation process that has involved struggles for representation for hundreds of years"18.

I have, by now, sketched the ambit of this debate. Given the importance which the Australian government, and other bodies, attach to the notion of "good governance", what should we think about it? Is it truly an indispensable support for the attainment of human rights? Or is it, as some critics assert, simply the latest attempt of neo-liberalism and the international economic market to debase human rights in the unending pursuit of the global economic advantage of the already wealthy? The answer to these questions is important in the world today, including the world concerned about the protection of human rights.

GOOD GOVERNANCE ON AUSTRALIA'S AGENDA

Let there be no doubt that an emphasis on "good governance" is high on the foreign affairs agenda of the Australian government. Indeed, it would be right to say that it is one of the highest priorities which the government, and specifically the Minister, Mr Alexander Downer, have emphasised, especially in relation to the region of Asia and the Pacific to which Australia must chiefly relate.

In August 2000, the Minister authorised the publication of Guiding Principles for Implementation of Good Governance19. In his foreword, Mr Downer stated that Australia had a central role to play as an advocate of good governance. It was a sponsor of the resolution of the Commission on Human Rights on the subject which was "ground-breaking" and heralded "new international thinking on the connections between human rights and transparent, accountable and participatory government"20. He pointed to this country's long and robust liberal-democratic tradition and its position as a strong, stable and significant regional power as reasons why Australia's relationship with its neighbours would place increasing emphasis on governance issues. He cautioned the need to tailor solutions to governance problems "individually", recognising that it was inappropriate to adopt an approach of "one size fits all". The principles of good governance endorsed by the Minister included some strategies related to politics; some to economics; some to study of the theory and practice of good governance.

We can readily see the shift in direction of Australia's foreign assistance towards each of these special targets.

Take politics and governance as a first example. In the Indonesian general election of 1999, the first fully free election since 1955, Australia provided an experienced team of electoral observers and a $15 million electoral assistance package. The Australian Electoral Commission21, which has an unblemished record at home, helped its Indonesian counterpart to rekindle electoral democracy in our neighbourhood. The recent presidential election, and the peaceful transitions of the presidency in Indonesia, suggest that democratic principles have widespread popular backing. Most of the credit must be given to the Indonesian people themselves. Clearly, however, the building of electoral democracy (for all of its faults) is an important component in safeguarding human rights. Without democracy, it is arguable that human rights, even if supported by a government, are merely privileges "granted" by those in power. They are not asserted rights, claimed as an entitlement by the people to whom they properly belong22.

Secondly, building an economy necessitates improving the rule of law as an assurance for investors that disputes, when they arise, will be determined not by corrupt deals or brute power but by expert judges based on pre-existing norms explained and justified in a public process. Here too, Australia has been involved in neighbouring countries. It has assisted in the establishment of a commercial court in Indonesia and in the training of its judges and officials. It has provided specialised academic courses to strengthen the Indonesian judicial system. It has arranged training of Indonesian officials in such subjects pertinent to good governance as intellectual property rights law, human rights law, environmental law, town planning and international trade law and practice23.

More basic assistance has been given in East Timor, following its independence. It has had to start, virtually from scratch, in creating a legal and judicial system of its own. For many years, Australian judges, or retired judges, have provided assistance to the courts of the Pacific countries. I did so myself between 1993-1996 when I was President of the Court of Appeal of Solomon Islands. But now the institutional assistance is more intensive. It is supplemented by support from, and to, community based organisations24. These are practical measures of good governance.

A major governance project in the Pacific has been the Policy and Management Reform (PMR) initiative. This has promoted a harmonised system of tariffs; a reduced tariff structure following the lines of Australia's own earlier reduction of tariff barriers; public service reform including enhanced protection against corruption; and the placement of selected Australian public servants as mentors and instructors in key government departments. For example, in Samoa, Australia is working closely with the Treasury, the Public Service Commission, the Department of Trade and Customs to advance the government's economic and public sector reform agenda25.

In order to improve the workings of the private sector, assistance is being given to fairly basic projects in Pacific countries. These include review of the law governing directors; the introduction of courses on corporate conflict of interest, ethics, duty of care and due diligence; the provision of audit trails; board effectiveness; statutory duties and so forth26.

The participation of Australian police in United Nations peacekeeping work has a long history. Lately, the cooperation has been more direct and bilateral. Thus, Australia has been helping East Timor and Solomon Islands to strengthen policing as a prerequisite to the rule of law and conditions of peace in which alone human rights will be respected27. Similarly, Australia has been a lead supporter of the struggle against HIV/AIDS in developing countries. Recently, when I was in South Africa, I found that small specialised projects, supported by AusAID, have been initiated in Africa to supplement the many initiatives in countries28 geographically closer. Building on our own strong institutional response to the HIV/AIDS epidemic, Australia has contributed substantial funds both to bilateral and multilateral initiatives aimed at strengthening national infrastructures so that they can respond effectively to the epidemic.

Two special subjects have been given priority in Australia under the auspices of "governance" initiatives. One has been addressed to poverty alleviation. The other involves an initiative to respond to the danger of terrorism in our region. Recent events in Bali and Jakarta have demonstrated that the dangers are close and are not theoretical. In the provision of aid to neighbouring countries, a realistic linkage has been acknowledged by Australia between terrorist risks and poverty. In a recent treatment of this subject, AusAID observed29:

"Sustainable reductions in poverty can only be achieved in stable environments and growing economies. Terrorism destroys lives and properties, exacerbates instability and has significant economic consequences. The threat of terrorism results in less confidence, reduced investment and disrupted services - all of which suppress economic growth, making the challenge of tackling poverty more difficult. It also undermines personal security particularly for the poor who are most vulnerable".

What might have been added is that terrorism, and strengthening counter-terrorism capacity, is not purely a matter of poverty or security resources. Terrorism commonly grows out of ideas. Sometimes those ideas may be justified. Mahatma Gandhi and Nelson Mandela (who at different times were incarcerated in the same prison in the centre of Johannesburg) were for a long time "terrorists" to the governments they confronted. Throwing around the label of terrorism, and thinking that its challenge can be met solely by law enforcement, would be hopelessly naïve. We need great subtlety of mind, and flexible strategies, in response to the challenges that are now labelled as "terrorist".

This is why the third governance strategy of the Australian government should be noted. It involves promoting study of the theories and practices that underpin good governance and teaching human rights to specialised groups. The Australian government has established the Centre for Democratic Institutions (CDI), hosted within the Australian National University in Canberra. CDI provides support to developing countries through training, placements, networking and information exchange. It conducts workshops for overseas Parliamentarians; orientation for new judges; leadership courses for non-governmental organisations; media courses for journalists; support of the Ombudsman and activities designed to address anti-corruption30.

From my short review, it can be seen that an important change has occurred in Australia's recent strategy to promote human rights through foreign aid. There is now increasing attention to systemic and institutional issues. There is increasing acknowledgment of the essential role that key players in the legislature, the judiciary, the media and civil society play for the defence of human rights. This is as true at home as it is internationally.

Some observers have drawn to attention the ambivalence of Australia's strategy in the provision of foreign aid. For instance, we strongly support the inclusion of a Bill of Human Rights in the interim constitution for Iraq. But most of our political leaders, in both major groupings, are strongly opposed to the adoption of a Bill of Rights at home. This would be more understandable if it could be said with conviction that Australia's legislative process was always effective in defending the basic human rights of minorities. Sadly, it is not so whether those minorities are Aboriginals31; refugees32; prisoners33; electors in unequal constituencies34; the physically disabled35; homosexuals36 and so forth.

A PERSONAL EXPERIENCE: CAMBODIA

So what is the response we should give as Australians to the recent insistence of the rich countries of the world that more attention should be paid to issues of governance? Is this truly a diversion because the world of global finance gets uncomfortable at the mention of human rights? Is it just a stalking horse for the effective protection of financial interests and the unimpeded flow of capital that reap ever-richer rewards for developed countries at the cost of the poor? Or is it an essential prerequisite for the effective protection of individual human rights to have strong governmental institutions in place to help do the job?

Between 1993 and 1996, I had the opportunity to consider this puzzle when I served as Special Representative for the Secretary- General of the United Nations for Human Rights in Cambodia. The post was provided for in the 1991 Paris Peace Agreements. I became one of about 30 United Nations Special Rapporteurs and Special Representatives reporting on particular countries or themes to the Commission on Human Rights and the General Assembly. The post gave me a rare opportunity to see the translation of the noble language of the United Nations human rights instruments into actuality. Emerging from two decades of violence, revolution, genocide and war, Cambodia needed more than talk about human rights. It needed to identify exactly what "human rights" means to ordinary people in such a disadvantaged environment. Truly it needed to build the institutions that would deliver human rights to its citizens - in effect the institutions of good governance.

In my role as Special Representative, I had no blue helmets to enforce the recommendations in my reports. Initially, all of the soldiers of the UNTAC Peacekeeping Force had withdrawn by the time I arrived. My only sanction was published reports delivered in New York and Geneva in which I described candidly the achievements and failings of the Royal Cambodian Government, measured against the standards of the United Nations human rights instruments.

In performing this function, I observed the interaction between economic growth and the improvement of human rights. I saw how, although economic development is not necessarily an assurance of improvement of human rights, it is difficult to provide the environment for respect for many human rights without the basic necessities that a modern economy can provide to the people37. This insight concerning the inter-relationship of economic progress with human rights reinforced the accuracy of the statement in the Vienna Declaration on Human Rights of June 1993:

"All human rights are universal, indivisible and inter-dependent and inter-related ... While the significance of national and regional peculiarities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms".

It was in my work as United Nations Special Representative that I threw off the lingering belief that human rights were effectively about what happened in police stations, polling booths and courthouses. They are involved. But for most Cambodians, the urgent questions that they addressed when speaking to me of human rights were the issues concerned with the protection of women and girls, including in education; the access of all to drinking water; the provision of basic healthcare; and the removal of landmines. Such fundamental human rights issues cannot be assured without the establishment and maintenance of institutions of good governance. It is simply not possible.

Corruption in various forms was endemic in Cambodia after the breakdown of government. But it is a complex issue. Corruption cannot be addressed only by enacting punitive laws. For example, the underpaid soldiers, living on a salary pittance, took to charging informal "tolls" on the roads that they were guarding. The amounts charged were comparatively small. In a society of efficient governance, the tolls would doubtless be levied with the authority of Parliament, paid into consolidated revenue and disbursed towards proper military salaries. Were these exactions corruption? By the letter of the law they were. The soldiers, after all, had guns. Yet looked on in another way, they were an interim self-help means of making the "user pay". "User pays" is an idea Western societies embrace, although they do not normally back it up, as such, with guns.

The rigidities and inflexibility of governance in many developing countries are the reason why corruption flourishes. When I studied undergraduate economics, I was taught that sometimes, where laws are out of date, harsh and inflexible and incapable of being changed, corruption can be justified economically as a means of market substitution for the breakdown of the lawmaking process. It seemed an odd theory. Yet I have no doubt now that many gay clubs in Australia in former times were probably maintained by the passing of money to police who turned a blind eye. Such instances demonstrate the need to tackle questions of human rights and governance together.

ANOTHER PERSONAL EXPERIENCE: TASMANIA

The inter-connection between protecting human rights and good governance has been brought home to me, in Australia, by the remarkable way in which the defence of human dignity and fundamental freedoms has sometimes been reinforced by institutional initiatives. Putting it bluntly, it is not enough to enact fine laws and proclaim worthy sentiments. These must be followed up by institutional and attitudinal changes. Law is important. But it is not enough.

A good case in point, demonstrating the link between human rights and good governance, can be found in the treatment of homosexuals in Tasmania. By the early 1990s, that State was the last bastion opposing attempts in Australia, by criminal law, to stamp out sexual minorities, to belittle their human dignity and to force them into shame and silence. Shame and silence is the most effective means of ensuring the maintenance of the status quo in power balances. "Don't ask, don't tell" is commonly a formula for discrimination and entrenched injustice. Dialogue and openness are the instruments of rationality and progress, not to say ordinary human kindness.

In 1988, support for the decriminalisation of adult homosexual conduct in private was 15% lower in Tasmania than the national Australian average38. Yet, by the time decriminalisation occurred in that State in 1997, because of the campaign of civil society organisations, it had risen to 15% above the national average. It was even higher in Hobart than in Sydney, sometimes described, from within the ghetto, as the "gay capital of the Pacific". Who would ever have thought this of Hobart?

The way reform was achieved was itself a story about good governance. Citizens of every sexual orientation campaigned publicly and in the media for change in the criminal law. Their efforts were at first ridiculed. Premier Robin Gray declared that homosexuals were not welcome in Tasmania. Arrests, public vilification, censorship and direct discrimination were much in evidence. It looked as if change had reached a dead-end. Even attempts to link decriminalisation with legislation to address the new and urgent problem of HIV/AIDS failed to pass the Tasmanian Upper House.

It was at this stage that two campaigners for gay law reform, Rodney Croome and Nicholas Toonen, telephoned me. They said they were thinking of taking the case of Tasmania to the United Nations Human Rights Committee. They asked for my advice. I told them not to waste their time. Fortunately, they politely but firmly ignored my advice. In the struggle to achieve human rights, progress belongs to the courageous.

Rodney Croome and Nick Toonen took Australia to the United Nations Committee established under the International Covenant on Civil and Political Rights. The Committee found that, in the criminalisation of private conduct by homosexual people, Australia in Tasmania was acting in breach of the International Covenant39. This finding led to the passage through the Federal Parliament of legislation over-riding the Tasmanian law, based on Australia's treaty obligation40. The constitutional validity of that legislation was challenged in the High Court41. But then, reflecting the shifts of public opinion, the Tasmanian Parliament repealed the old laws. The legislation now has an undiscriminating law punishing nonconsensual sexual conduct, whatever the gender of the perpetrator and the victim42.

Interestingly, following these symbolic changes in the law, publicity about them and greater openness by homosexual people themselves, attitudes began to alter. Recent polls in the northern rural communities of Tasmania, such as Deloraine, La Trobe and Ulverstone, showed support for equality in the treatment of samesex couples to be as high as 70%43. Good governance in Australia has contributed to such changes.

One of the first governmental agencies to challenge internal antagonism against people on the grounds of their sexuality was the Tasmania Police. Its stance changed in 1992, possibly because of new leadership and stimulated by the work of the State Equal Opportunity Commission. The police initiatives were soon joined by those in the Department of Education. And in 1999, the Health Department established its own committee, followed in 2001 by a forum of Tourism Tasmania. Nowadays, school-based antihomophobia poster competitions and the provision of resources to teachers in the State has helped turn attitudes around.

It is in the schools, in the homes and in the media that phobic attitudes against Asian Australians and people of colour, including indigenous people, were altered in earlier decades. Tackling discrimination against women, refugees, homosexuals, disabled people and other vulnerable groups is work in progress in this country. The point to be noticed is that a turnaround is possible. It can be achieved in a relatively short time. But it needs a commitment to human rights, leadership in politics and the engagement of the institutions of governance.

In 1994, in Tasmania, the Secretary of the Department of Education issued two memoranda banning materials on, and discussion of, homosexuality in public schools throughout the State. Three months later, he issued another memorandum granting an exception from the first, but only to permit promotional materials from organisations that promised to "convert" students' sexuality from gay to straight44. Shortly after the Criminal Code of Tasmania was reformed, the Education Secretary resigned. His repressive memoranda were revoked by his successor.

In their place rational policies were instituted. A course, originally developed in Victoria for Grade 9 and 10 students, "Pride and Prejudice", was introduced in Tasmania45. It is being trialed for introduction as a compulsory element in school education. It has proved popular with teachers and students. It shows what can be done in fewer than twenty years to turn a most repressive State into a leader in enlightenment and defence of equality for all citizens. Now, the Government of Tasmania has adopted a goal of wholly eliminating homophobic discrimination as a State objective.

Tourism Tasmania advertises in gay conferences. What a change a decade makes. This kind of change can only occur by a change in governance on an important issue. Hundreds of learned lectures by earnest lecturers pointing to the irrationality and ignorance of discrimination against people on grounds of their indelible nature - whether gender, race, skin colour or sexuality - will not have the impact that leadership in good governance, the legislature, politics, the judiciary and administration will attain That is why good governance is important and beneficial. Well deployed, it can be a vital protection of human rights and a guarantee against the abuse of rights.

THE RESIDUAL ISSUES

My experience in Cambodia and Australia's experience in responding to homophobia in Tasmania does not mean that the recent embrace of good governance as a national and foreign policy goal is without puzzles that we must address. There are at least five concerns.

The first is the occasional ambivalence that we have, as a nation, in the way in which we preach good governance goals for others which we are not willing to accept for ourselves. I have mentioned the local resistance to the incorporation of the broad principles of human rights into the Australian constitutional and legal system. Such incorporation has happened in Canada, South Africa, New Zealand and since 2000 even in the United Kingdom from which we inherited our suspicions of a bill of rights. A modest experiment with a human rights statute has been adopted in the Australian Capital Territory46. In due course, this may lead to other experiments including, eventually, at the federal level.

However, this will not be completed in my lifetime, certainly not in my professional lifetime. Meanwhile, foreigners who hear of our commitment to fundamental human rights as an attribute of good governance may contrast this with the occasional incapacity of our own institutions of governance to defend basic human rights when valid legislation arguably overrides such rights and derogates from our obligations under United Nations human rights treaties. This was recently demonstrated in the case of children detained in mandatory immigration detention in Australia47 and in the case of an indefinite detention of a stateless person who could not (despite his request) be deported to another country willing to receive him48.

When such cases arise in Australia's own governance, we should not be surprised when others on whom we urge "good governance" accuse us of double standards and suggest that we have need to address the weakness in our own governance whilst we are about helping others to overcome theirs.

Secondly, we should retain a healthy scepticism concerning some of the "governance" talk. Occasionally, it is simply a demand of more power for the bureaucrat. As the case in the Education Department of Tasmania in the 1990s shows, not all firm and honest "governance" is necessarily "good". Not all "governors" are necessarily devoted to human rights and fundamental freedoms. This point was made effectively in a recent address given by Chief Justice J J Spigelman of New South Wales to the Convocation of the University of Sydney49. He descried the Soviet practice of applying corporatist language across society's differing institutions (including Universities) and how it had to be watched with high vigilance. The "measurement of the unmeasurable" was a danger inherent in unthinking references to "governance". The demand for "performance indicators", common in this dialogue, is prone to easy manipulation. Chief Justice Spigelman used a vivid example of a50:

"Soviet five year plan for the factory production of nails, measured in tons. Result: large amounts of large nails, but inadequate numbers of more-difficult-to-produce small nails. Problem recognised: performance indicator changed to a measurement by quantity. Result: excessive numbers of small nails produced, and no large nails".

Thirdly, it is essential to respect the differing structures of government in different countries while insisting upon the universality of international human rights law. The dominant Western notions of democracy are themselves the product of a lengthy evolution. When we look at the huge sums expended in modern electoral campaigns, the power of media interests to run a strong editorial line, the external backing for particular parties and candidates and the decline of actual membership of political parties (not to say the institutional problems that arose in Bush v Gore) we can realise that Western electoral systems are imperfect and cannot be viewed as the last word on democratic governance51. On the other hand, human rights without an effective democratic form of governance rests on a flimsy foundation52. As Anthony Langlois has remarked53:

"Until the people of those States live in a democracy, Š they cannot be confident of owning these standards or norms as fully fledged rights. Rights cannot be infringed without recourse. Standards or norms can given to taken away depending on whim, or more charitably put, depending on the international or domestic strategic interest of the State in question Š China and other such states engage in such activities to the extent that they do - not out of respect for human rights, not because they have become liberals who believe in the individual's freedom, choice or autonomy, or the need for economic and political environment. On the contrary, they adopt such human rights standards as they must in order to achieve certain political, economic and strategic interests".

Fourthly, it is important to pay attention to the criticism of Western insistence on "good governance" by those in developing countries, who say that it is a paradigm that has been overtaken to some extent by events. The events to which they point include the growing power of global corporations that operate across a number of State borders and the growing power of regional and international organisations in which effective accountability to the individual who is affected by their decisions is remote and problematic.

In such exchanges, mutual hypocrisy is never far away. The attacks on the composition of the United Nations Security Council and on multinational corporations is sometimes made by autocratic States defending their own bad governance and undemocratic regimes, simply seeking a diversion. Nonetheless, there is an element of truth in the criticism of developing nations of the notion that "good governance" rhetoric today often involves only the governance of nation states. In today's world, governance is necessarily a larger concept. Gaining good governance in the global corporate sector and more accountable governance in regional and international organisations is unquestionably a vital issue for the twenty-first century. As we address and encourage "good governance" at the national level, including in neighbouring states, we would be well advised to concern ourselves as a nation with how to tackle effectively the governance issues of mega-corporations and of the new international and regional bureaucracies.

Fifthly, there is the connected criticism that "good governance" is sometimes being demanded as a mask for the protection of market forces and is equivalent to the intrusion into human rights discourse of notions defensive of finance and capital movements that may not always coincide with the defence of individual human rights. An instance of the tension here can be seen in the WTO demand for observance of the international patent regime of the TRIPs Agreement at a cost of the cheap availability of generic drugs to combat the diseases that afflict individuals in the developing world. The involvement in the national delegations of important Western nations of large corporate interests has sharpened this anxiety in developing countries about "good governance" talk. This concern was expressed by Tony Evans in his recent essay in Third World Quarterly54:

"The close relationship between WTO delegations and representatives of global business and finance suggests that the interests of the poor are of little concern. ... Christian Aid notes that Cargill, a company that controls half the global trade in grains, 'was heavily involved in preparations for the US negotiating position on agriculture before the last round of trade talks ... with some commentators claiming that the company wrote the first draft of the US negotiating position' ... Similarly, business groups were extensively canvassed by the European Union during the process of drafting a proposal for an investment agreement, although other interest groups were excluded. In a further case, the Australian delegation included eight representatives of business but rejected all attempts by NGOs and trade unions to gain a seat.55"

The experience of developing countries with the power of capital and finance in WTO negotiations - specifically concerning the TRIPs Agreement and exceptions for generic drugs for the treatment of HIV/AIDS, tuberculosis and malaria perhaps understandably make some such countries, and their NGO supporters (such as Christian Aid) bristle at the talk of "good governance". For them, "good governance" often constitutes code words for the protection of the financial interests of global corporations associated with large economies, insufficiently attentive to the basic human rights of individuals in the Third World.

When I held my United Nations post in Cambodia, I endeavoured to interest the World Bank in the funding of judges' salaries, as a prerequisite to the building of an institution of governance, the judiciary, essential to social and economic revival. At the time, the World Bank refused, declaring that it did not want to get sucked into the "black hole" of Cambodia's national budget. But now the World Bank and other institutions are showing interest in such questions in the name of "good governance". Critics are sometimes suspicious that the turnaround has happened for less than wholly idealistic reasons.

CONCLUSIONS

Good governance is today a twin theme with human rights, certainly on the international level. I have given two reasons from my own experience, one abroad and one at home, that show that these notions are linked. Like love and marriage in the old days, you cannot have one without the other. But like the ripples in a pond, the linked notions are, in turn, connected with still wider issues of governance more generally.

How do we reform the United Nations to make it more accountable? How do we make international regional institutions more answerable to those whom they serve and more respectful of the human rights principles that they proclaim? How, above all, can we render powerful transnational corporations more accountable in their governance to the communities and individuals around the world that they affect beyond the shareholders and investors whom they serve and reward?

The last issue is the hardest because the United Nations Development Programme estimates that of 40,000 such corporations currently operating in the global economy, the top 100 control a fifth of all such corporate assets. Furthermore, a third of all world trade is within such corporations and a further third of world trade is between such corporations56. To say the least, the decisions of such corporations have a much larger impact on human rights globally than the decisions of most nation states and inter-governmental bodies. In today's world to focus only on national good governance may miss the main game. We should not give up on transnational corporate governance, national corporate governance and international institutional governance because they are harder for us to pick on or the influence.

Human rights are more than the proclamation of splendid international instruments. Good governance and institutional reform within each nation are vital to the effective delivery of human rights. But they are not enough. Countries like Australia, which are committed to good governance must practise at home what they teach abroad. Otherwise, their instruction will be discounted and may be dismissed as involving double-standards. They must also become engaged in the wider issues of international governance affecting both international institutions and multinational corporations. As Kofi Annan said recently, "Simply put, our post-War institutions were built for an international world, but we now live in a global world"57. When Australians talk of "good governance" they must take its lessons upon themselves. They must constantly test their own institutions, their democracy and their defence of the human rights of minorities by the best standards. And they must be willing to apply the notions of good governance beyond the nation state to the world as it now is; not as it once was.

Westphalian national sovereignty is gradually being eroded by global forces. We need leaders with the insights of the founders of the Australian Commonwealth, such as H B Higgins, to chart afresh the century ahead - taking the good ideas of the past and adapting them to the very different world of the future. This was done by Higgins in this University in 1896 in his lecture with profound consequences for governance and rights in Australia in the century ahead. Good governance, in its widest sense, is an idea of equal potential for the whole world in the century to come.

 

 

ENDNOTES

1 H B Higgins, Another Isthmus in History, Creswick, Melbourne, 1896.
2 Pope Leo XIII, Encyclical Rerum Novarum, 1891.
3 H B Higgins, Official Record of the Debates of the Australasian Federal Convention, Melbourne, 27 January 1898 at 182.
4 M D Kirby, "Industrial Conciliation and Arbitration in Australia - A Centenary Reflection", unpublished address for the Centenary Convention on Conciliation and Arbitration in Australia, Melbourne, 22 October 2004. The Conciliation and Arbitration Act 1904 (Cth), received the Royal Assent on 15 December 1904.
5 cf J Isaac and S Macintrye (eds), The New Province for Law and Order (2004), Cambridge.
6 As in the Harvester judgment: Ex parte H V McKay (1907) 2 CAR 1.
7 M D Kirby, "Human Rights and Industrial Relations" (2002) 44 Journal of Industrial Relations 562 at 563.
8 "Christians attack gays", Sydney Star Observer, 7 October 2004, 1.
9 Australian Parliament, Joint Standing Committee on Foreign Affairs and Trade, Human Rights and Good Governance Education in the Asia Pacific Region ("Joint Standing Committee Report"), June 2004.
10 Joint Standing Committee Report, 11; cf T Weiss, "Governance, Good Governance and Global Governance. Conceptual and Actual Challenges" (2000) 21 Third World Quarterly 5. Weiss mentions 8 definitions.
11 United Nations Development Programme, Governance for Sustainable Human Development (UNDP Policy Document), 1997, Ch 1.
12 AusAID, Good Governance: Guiding Principles for Implementation (2000), 3.
13 Joint Standing Committee Report, 13 [para 2.16] quoting United Nations High Commissioner for Human Rights, What is Good Governance? (2002).
14 E/CN.4/RES/2004/70.
15 T Evans, "If Democracy, Then Human Rights?" (2001) 22 Third World Quarterly 623 at 635 (hereafter "Evans").
16 Evans, 640.
17 Evans, 639-640.
18 Quoting S Gill, "Globalisation, Market Civilisation, and Disciplinary Neo- Liberalism" (1995) 24 Millennium: Journal of International Studies 339 at 413. 19 AusAID, above n 12.
20 Ibid, Foreword, 1.
21 M D Kirby, "Upholding the Franchise- Contrasting decision in the Philippines, United States and Australia: (2001) 21 Australian Bar Review 1 and 10.
22 A J Langlois, "Human Rights Without Democracy? A Critique of the Separationist Thesis" (2003) 25 Human Rights Quarterly 990 ("Langlois").
23 AusAID, above n 12, 9.
24 Ibid, 9.
25 Ibid, 11.
26 Ibid, 12.
27 Australian Development Cooperation Programme of AusAID (November 2003), 9.
28 Ibid, 6; cf Meeting the Challenge: Australian International HIV/AIDS Initiative (July 2004).
29 AusAID, Counter Terrorism and Australian Aid (2003), 4.
30 AusAID, Good Governance, above n 12, 9.
31 N Pearson, "Land is Susceptible of Ownership" in P Cane (ed) Centenary Essays for the High Court of Australia (2004) 111, 124; cf Yarmirr v Northern Territory (2001) 208 CLR 1; Western Australia v Ward (2003) 213 CLR 1; Yorta Yorta Aboriginal Community v Victoria (2003) 214 CLR 422.
32 cf Al-Kateb v Godwin (2004) 78 ALJR 1099.
33 Muir v The Queen (2004) 78 ALJR 670; cf Cameroon v The Queen (2002) 209 CLR 339.
34 Attorney-General (WA) v Marquet (2003) 78 ALJR 320.
35 IW v City of Perth (1998) CLR 1; X v The Commonwealth (1999) 200 CLR 177.
36 The reference is to the provision of superannuation and like benefits and the uniform provision of property and other protections.
37 R Croome, Address to a Union Congress, Hobart, 2003.
38 Toonen v Australia (1994) 1 Int Human Rts Reports 97 (No 3) reproduced in H J Steiner and P Galston, International Human Rights in Context (Clarendon, 1996), 545-548.
39 Human Rights (Sexual Conduct) Act 1994 (Cth).
40 See Croome v Tasmania (1997) 191 CLR 119.
41 Criminal Code (Tas), s 123 (repealed). See now s 185. The Hon Justice Michael Kirby AC CMG 25
42 Croome, above n 37.
43 Croome, "From Worst to Best" [Spring 2004] Refresh.
44 Ibid, 3.
45 Human Rights Act 2004 (ACT). See J Debeljack, "A Significant, Yet Incomplete, Step Towards the Domestic Protection and Promotion of Human Rights" (2004) 15 Public Law Review 169.
46 G Williams, The Case for an Australian Bill of Rights (2004).
47 Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 78 ALJR 737; Re Woolley; Ex parte Applicant M 276/2003 [2004] HCA 49. 48 Al-Kateb v Godwin (2004) 78 ALJR 1099. 49 Reported in the University of Sydney News, 1 October 2004, 2. 50 Ibid. 51 See Evans, above n 15. 52 Langlois, above n 22. 53 Langlois, 1018-1019. 54 (2001) 22 Third World Quarterly 623 at 635. 55 Citing Christian Aid, "Fair Shares. Transnational Companies, the WTO and the World's Poorest Countries" (1999), A Christian Aid Report. 56 Evans, (2001) 22 Third World Quarterly 623 at 638. 57 Report of the Secretary-General, Role of the United Nations in Promoting Development in the Context of Globalization and Interdependence A/54/358 (15 September 1999) quoted in A F M Maniruzzaman, "Global economic governance and the challenge facing international law in the 21st century" (2004) 54 Amicus Curiae 10 at 11