However, in a common law country such as Australia, the judiciary also have lawmaking functions, albeit in the minor key. In appropriate cases, it is permissible to the judiciary to invoke international human rights principles, introducing them into domestic law by judicial decision. The warrant to do this is stated in a most important passage in Justice Brennan's reasons in . Indeed, that passage, which formed an essential step in the reasoning of the High Court in may, in retrospect, come to be seen as the most significant contribution of that case to our law. In a sense, it has an importance transcending even the issues of indigenous rights with which the case was concerned. Justice Brennan said:
"The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination and the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands".
This is what Ron Castan and Jonathan Mann would be saying to us in Australia this week as we honour their memory and commit ourselves, in these new institutional ways, to expanding their efforts through research and other work, fired by a proper sense of impatience. Human rights is not just an idea or words. For me, human rights is the nameless Australian soldier patiently teaching Cambodian farmers to rid the fields of landmines. It is my last year's legal Associate, Joe Tan, working for the conduct of a fair election in Kosovo. It is UN High Commissioner for Human Rights, Mary Robinson working tirelessly for the downtrodden and oppressed. It is Ms Sadako Ogata, High Commissioner for Refugees, working for forgotten Vietnamese boat people bundled to the Cambodian border by Khmer who dislike them. It is the Ugandan judge helping to establish rudimentary courts in East Timor.
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THE CRITICS It should not be assumed that human rights law, especially that originating in international bodies of the United Nations, enjoys the support every Australian citizen. A prominent newspaper, commenting recently on the criticisms of Australian legislation within UN Committees declared: "The attempts by various UN Committees to regulate Australian social policies threaten their own credibility more than that of the [Australian] government. The UN Committee system is a third-rate, unaccountable, opaque irrelevance that is unfit to comment on Australian policy".
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Other topics must be placed on the agenda. They include, I think, human rights of drug addicted and dependant persons. I suspect that, in a decade or so, we will look back on our treatment of drug dependence with something of the same embarrassment with which we now look back on the criminalisation of private adult consensual homosexual conduct twenty years ago. The fact that we now appreciate that such laws constituted an over-reach of criminal sanctions, diminishing the human rights and dignity of those targeted, should make us alert to the danger of similar laws which operate in today's society.
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I also hope that the Centre will involve itself in future issues of human rights. Within days I will be travelling (economy class as the United Nations requires) to Quito in Ecuador. There I will be attending a meeting of the UNESCO International Bioethics Committee. Our topic will be the Human Genome Project. Contemporary developments in genetics present many new issues for human rights and human rights law. Can there be any issue of more fundamental importance for the future of human rights than who "humans" will be in the coming century? With the capacity of genetics, potentially, to alter the building blocks of human life, this is not a theoretical issue.
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President Kim has been subject to four attempts on his life. He was imprisoned for more than six years during his struggle. He never lost faith in, and commitment to, fundamental human rights. Similarly the Dalai Lama has constantly emphasised the need for a peaceful resolution to the Tibetans' dispute with China. The Australian Foreign Minister (Mr Alexander Downer) informed me recently of his knowledge of the contributions which Ron Castan made, during his lifetime, to the attempts to build a dialogue between the Dalai Lama and the leaders of the People's Republic of China. Mr Downer paid tribute to those efforts. I am glad that the connection of the Castan family with the Dalai Lama has continued to this day. May some of his grace and compassion shine upon the Centre and inspire in it a concern for human rights law beyond Australia, and particularly in the region and the countries surrounding us.