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Australian Journal of Human Rights |
Melinda Jones[*]
The concept of human rights signifies the idea that society should not just recognise and accommodate difference, but that society should be transformed by the inclusion of that difference into its daily modus operandi. For human rights to take on the form of a transformative morality, it is essential that the idea of human rights be explored and that the principle of equality it incorporates should imbue formal education on all levels. We are, in 1998, approaching the midway point in the United Nations Decade for Human Rights Education. We are also at a point of incredible turmoil, a point where many of the human rights gains made over the last 20 years have been swept aside in a matter of months, and where racism and hatred have been granted a new legitimacy. This makes the task for those of us working towards effective equality urgent. The Australian Journal of Human Rights plays a small but significant part in highlighting abuses of human rights and in the debate about how to go about the task of achieving equality.
Human rights can be approached from two directions. One approach is, beginning with international law, to extend from the formal documents encapsulating ideals of justice into rules or legal aspirations. This approach takes the standards set in international fora and at the domestic level (as proclaimed in bills of rights etc) and engages in analysis and comparison of practice and law. The alternative approach moves from moral, philosophical and legal precepts of `rights', and appeals to notions of justice and equality to disclose injustice and inequality. For many, the two approaches overlap, and both sources are called upon to detect differential treatment and oppression of those lacking power in society. For ultimately it is those characterised as `outsiders' who are victims of abuse, indifference and invisibility, and the mainstream who are inadvertently or overtly the holders of power who are able to resist inequality, adapt legal structures to their benefit and perpetuate the idea of the `normal' and `abnormal'. However, normalising outsiders will not have the effect of overcoming inequality. Work of feminist scholars has demonstrated the unacceptability of simply expecting women to become men, and that if equality is to be meaningful it is essential to challenge the phallocentric character of society and to work to bring about the transformation of society to reflect the reality of women's lives as well as those of men. From this work it is made clear that if we are to be successful in achieving equality on all fronts, it will be necessary to bring about fundamental change in the distribution of power and in our idea of commonsense. Human rights education needs to invoke a transformative morality which will imbue us with a sense of true equality as `right'.
The United Nations Decade of Human Rights Education runs from 1995 until 2004. The Draft Plan of Action for the UN Decade for Human Rights Education sets out the normative basis and the objectives of human rights education in very broad terms.[1] The overall objective of human rights education is to eradicate prejudice and to establish the full range of civil, political, social and economic rights. Human rights education is located in political activity -- in direct engagement in concrete, people-focused, issue-oriented, particular struggles -- as well as in human rights courses taught in schools and universities. There is seen to be a need to provide human rights training for professionals (judges, lawyers, prosecutors, police officers, prison personnel, military officials, teachers); for members of NGOs; for the mass media; for health care workers and students; as well as a need to train the trainers. It is notable that human rights education will often not bear that name, and that much human rights learning can take place in informal settings.
Human rights education necessarily goes beyond the imparting of knowledge about international law and international human rights instruments. It involves teaching, learning, and understanding human rights principles as basic moral principles -- as norms to govern our everyday experiences. This means that the purpose of human rights education is to achieve acceptance that, at a deep level, as individuals, families, groups, communities and even states, we must appreciate and accommodate difference, and be able to move beyond this to a level of all-inclusive equality.
Educational programmes must be tailored to meet the needs of the community of learners. This is especially so given that there will be very different human rights education needs in various countries and even areas within countries.[2] In designing and implementing human rights educational activities, the social and political environment must assume significance. Different strategies for human rights education must be adopted depending on whether democratic norms are accepted or established in a given country; whether there is an authoritarian regime; and whether human rights are viewed as no more than matters of diplomatic rhetoric and political convenience. Human rights education must also occur at a number of points along the educational continuum if it is to be successful.
To translate the principles of human rights education into successful (broadly defined) educational programmes, it is essential to move from the level of generality to target educational needs. The objective of the education must not lose sight of the ultimate principle of according dignity and respect to all people, but must incorporate specific, realisable objectives which ideally incorporate measurable outcomes. Innovation in human rights education will be the result of lateral, context based, imaginative objective setting, which go beyond mainstream educational approaches to addressing the specific human rights matters under consideration.
In the field of education promoting the human rights of people with disabilities, for example, it is desirable to teach the values of individual responsibility and moral courage (to the non-disabled population), to eradicate prejudice and to promote enabling environments in which people with disabilities are included in the community and are able to participate fully in the life of that community.[3] One objective in human rights education in this field is the amelioration of the disabling effect of the impairment. Another approach is to design programmes to educate people about the prevention of impairment. This latter approach, which should in no way detract from dealing with the very significant human rights abuses to which people with disabilities are subjected, will necessarily focus on maternal (particularly antenatal) health and nutrition, and on the implementation of safety standards in the workplace.
In light of the potential of human rights education for social transformation, the first principle contained in the statement which resulted from the Workshop on Asia-Pacific Human Rights Education: the Right to Human Rights Education, convened in Sydney Australia in August 1996, is worth recalling:
Human rights education is not an end in itself, but must aim to promote social transformation ... As affirmed in the 1993 UNESCO World Plan of Action on Education for Human Rights and Democracy, human rights education must be `participatory', `creative, innovative and empowering at all levels of society'. Human rights must be brought into all aspects of education and social discourse.[4]
While it has been generally thought appropriate to direct human rights education at those who suffer human rights abuses, at political activists campaigning for human rights, and at those in positions of authority who have the potential to perpetrate or prevent human rights abuses, a more recent strategy of human rights education is to direct the teaching and learning to as wide an audience as possible. To prevent the phenomenon of the `innocent bystander' requires the teaching of not only recipes for rights and discernment of wrongs, but the generalised imparting of ethical principles concerning individual responsibility and moral courage. In particular, human rights education should take place in developed countries within the compulsory school sector. Unless human rights education involves the evocation of human rights as a transformative morality, and promotes significant changes in power relations within society, it will be unsuccessful.
Human rights education begins with the premise that all people are entitled to be treated with dignity and that it is not acceptable to discriminate against anyone on the basis of religion, ethnicity, gender, sexual orientation or race. An important aspect of self-identity is established through membership of and participation in the community in which one lives. Robert Post has commented that a community involves `a particular way in which social organisation is created, by internalising norms into the identities of persons. Because such internalisation must occur for a person to have a "self", community is a primary form of social organisation; it is always with us. We value it as we value ourselves'.[5] Stanley Benn has also noted that human rights are conditions of self-realisation, as it is only through participation with others that we have the opportunity to realise or to fulfil our nature.[6]
Apartheid in South Africa involved massive human rights abuses which were perpetuated through segregation.[7] Racism in the United States was embodied in the segregation of black students until the Supreme Court ruled against it.[8] Australian society continues to construct community in a fashion which excludes and disenfranchises many of its members. Members of ethnic groups are ghettoised and schools continue to perpetuate myths about indigenous people as `primitive' and `different' by focusing teaching about indigenous culture in a way which separates and differentiates rather than empowers and includes. For example, schools invite traditional dancers, and teach about traditional weapons and skills, but do so without talking about the `ordinary' lives of most urban indigenous people. School students meet and hear of those ancient and important aspects of traditional culture -- but forget that many indigenous Australians have been denied citizenship and continue to live in poverty and without access to basic social and economic rights (clean water, adequate health care) which are generally taken for granted. Further, the exclusion of children with disabilities from mainstream schools, which is tantamount to the exclusion of those children from the community, continues. A significant aspect of human rights education is to teach the value of all people -- and the best way of showing that a person is valued is by including him or her. The Australian community must be constructed in such a way that the lived experience of women, people with disabilities, indigenous and NESB Australians and people of all sexual orientations are valued and included.
As Wills and Leipoldt write:
Because our culture has not valued certain human difference, there has been an overwhelming history of segregating and congregating people who share negatively valued difference. Our test of valuing someone is simple: if you value them ... you will seek to be with them. Equally simple is the test of not valuing someone: if you hold them of little or no value ... you will seek to be separate from them ... physically and socially.[9]
For most Australians, the process of exclusion is subtle and not a matter of government policy. However, for children with disabilities the exclusion is justified and enforced through government policies and practices.[10] The evidence is that not only are students with disabilities who are segregated denied the opportunity to learn accepted social behaviour and to gain the acceptance of their peers, but that for those in segregated environments there are generally low educational expectations and high degrees of abuse. There is evidence, also, of the benefits to those children without disabilities who learn together with children with disabilities. They learn to adapt their behaviour -- the speed of their speech, the rules of the game -- to accommodate the needs of others. They learn to provide support, to extend friendship and to accept those who are different from themselves. They learn that disability itself is socially constructed -- and that the child in their class is just a child like themselves albeit a child who functions differently, speaks a different language, celebrates different festivals or who has experience of different sexual relationships.
With respect to including children with disabilities, it is not enough to place the child in a segregated unit in a mainstream school or to place a child in a class without the appropriate support for active inclusion. Inclusive education involves a commitment of resources and, more importantly, a commitment of will.[11] No one wants to be educated in a hostile environment, and given the likelihood that the child who has experienced segregation will have low self-esteem, the transition from a `special' school to mainstream needs to be carefully planned and the teachers and community appropriately prepared. A means of overcoming prejudice must be found, however, as fear of difference is not a sufficient basis for the denial of rights.
The principle of inclusive schooling as a human rights education strategy applies to all communities in which there is segregation, whatever the motivation for that exclusion. The manner of promoting an inclusive education community will vary from situation to situation, as the barriers to full participation will be different for each group. The challenge for human rights educators is to find the balance which respects the equality of all learners and which accepts and accommodates difference, in order to diminish it to the point of irrelevance.[12]
Formal human rights education can be delivered through a range of vehicles. One vehicle is the dedicated course on human rights. Another is the inclusion of a unit of work on the topic of human rights in a course primarily concerned with other content. This has been the approach of multicultural curricula, where multicultural ideas have been simply grafted on to the main concerns and existing values of the society such as possessive individualism, occupational mobility and status attainment.[13] McCarthy reports research which has found that this sort of education is counterproductive, and that the racist attitudes of students may become entrenched by units of work which make no attempt to engage with questions about power relationships between different groups in the community including questions about the role participants in the educational process have in producing as well as consuming education.[14]
A better vehicle is the incidental teaching of human rights content by adopting a culturally and socially inclusive curriculum. An inclusive curriculum is one in which the content of subjects presents positive and contemporary images of people from a diversity of cultural and linguistic backgrounds, including differences in ability, and which links texts and materials to the lived experience of the members of each group.[15] An inclusive curriculum must also address the question as to why there has been exclusion of certain groups, and must work to validate voices which have been silenced or made invisible through the power of other people's discourses.[16] One example of an inclusive curriculum can be found in the legal ethics course, Law, Lawyers and Society, taught at the University of NSW. Students are taught that good lawyering goes beyond knowing the rules governing the profession to include appropriate working with all clients. Students undertake workshops on cross-cultural communication -- which focuses on indigenous clients in a range of real-life situations: as victims; as accused; as powerful parties in mining negotiations -- and on dealing with clients with disabilities: involving consideration of accommodations required for the full range of disabilities (physical, intellectual, psychiatric).
Three other Australian projects which exemplify this third approach are worthy of mention: the Anti-racism Policy of the South Australian Department of Education; the project on gender-sensitive teaching resources for compulsory subjects in law schools; and the human rights and literature project.
South Australian Education Department Anti-racism Policy
Taking seriously the terms of the Equal Opportunity Act (1984), the South Australian Education Department developed an Anti-racism Policy in 1990 as the framework for eliminating racism from the working and learning environments for which it is responsible. Writing in Volume 1 of the Australian Journal of Human Rights, Efrosini Stefanou-Haag outlined the need for such a policy:
Racist discrimination within the education context can take many forms -- less attention in class, put-downs, playing down the successes and achievements of particular groups or individuals while highlighting any negative aspects of behaviour or performance, undermining some students' career aspirations by making discouraging remarks and refusing to recognise and respond appropriately to learning needs are but some examples ... At the heart of discriminatory behaviour is the notion that certain groups are less entitled to succeed in our society than are others. It is the experience of many Aboriginal people and those from language backgrounds other than English that discrimination intensifies after they have proved they have skills, talents and abilities which compare favourably with those of people from the dominant group. There is an assumption that people from these groups should know their place. That place is not in positions of leadership or influence. Individuals from these groups who achieve success are often viewed with suspicion; it is assumed and often stated that they `got there' through special provisions or by foul means.[17]
The Anti-racism Policy was designed in consultation with students, parents, teachers and community groups, and included Aboriginal, non-English speaking and English speaking background people in metropolitan and country locations, and in school and community settings. The Anti-racism Policy makes racism incompatible with good education, and makes it clear that racism is unacceptable in places of work and learning. Further, the Policy includes grievance procedures with respect to racist discrimination and harassment to be put into place at all schools and worksites. Significant time and money has been spent on training principals of schools as well as many staff. The curriculum has been reviewed and a second language requirement introduced. This success of the policy has depended on a committed Department, but has taken the existence of antiracist legislation to be crucial. The law has not only had a significant educational impact on public values, but has also given weight to the decision of the Department to introduce profound changes in the mode of education delivered to children in South Australia.
Gender Bias in Law School Courses[18]
The second example of developing an inclusive curriculum is a project funded by the Australian Government Department of Employment, Education and Training for the development of materials to address gender bias in subjects taught in Australian law schools. The materials are designed to be used as teaching models within core curriculum areas and to insert perspectives and materials at specific points of the subject without affecting the whole curriculum. Using the principle of affirmative action through the textbook[19] the materials draw on the writings of women and on trial judgments which often give facts to provide context and do not over-represent wealthy parties. Teaching resources have been developed in the areas of work, violence and citizenship, and relate to subjects including civil procedure, torts, contracts, property, company, trusts and equity, criminal law, and family law. Similar resources on other areas of human rights would be of great value to human rights educators.
Human rights and literature project
The last project worthy of mention is the human rights and literature project -- a grand title for the move by a number of authors of children's literature to deal specifically with human rights issues, and by school authorities to include these works on the school English curriculum. Three examples come to mind. These are a book about a young refugee from Bosnia, Christine Mattingly's No Guns for Asmir;[20] Blabbermouth[21] by Morris Gleitzman, the hilarious tale of a young woman with a significant communication impairment -- the person with the problem is her father; and Dianne Kidd's moving story of a boy's search for identity and the impact on this search of his discovery of family members being part of the stolen generation of Aboriginal children -- The Fat and Juicy Place.[22] Each of these books provides the opportunity to engage in significant teaching about human rights to children already sensitised to the problems by the empathy they feel for the central characters of the books.
It is crucial that, beyond appropriately constructing the community and the curriculum, the teaching method adopted by the teacher models the value of treating all learners with equal concern and respect. Co-operative learning is one such inclusive teaching strategy -- that is, it is designed to meet the learning needs of all participants in the class, independent of ability (or dis-ability), race, gender, or language. The principles of co-operative learning are fundamentally tied to the responsibility of all teachers to promote equality in both theory and practice. It requires teachers to design learning activities which teach social skills such as listening, valuing all members of the group, sharing, being supportive, mediating and negotiating outcomes as a central aspect of the educational process, and for the teachers themselves to demonstrate such skills.[23] This teaching methodology is significant because, as Dr Mara Sapon-Shevin from Syracuse University argues, there is a transformative potential for co-operative learning strategies.[24] Reviewing Sleeter and Grant's five approaches to multicultural education, Sapon-Shevin contrasts transformative teaching with an ameliorative programme. While the latter approach to race relations would aim to teach children to appreciate and accept individual difference by teaching about different racial and ethnic groups and the importance of accepting or tolerating difference, transformative teaching would be specifically anti-racist and would attempt to teach an understanding of the nature of prejudice and discrimination, and to teach about the social construction of difference -- that some differences are valued and others stigmatised.
In writing about the importance of adopting co-operative learning strategies, \tSapon-Shevin comments:
I am interested in teaching children about cooperation so that they can, for example, be more thoughtful about an economic system that accepts a high unemployment rate as `normal', stratifies workers by race and class, and often focuses on production rather than workers. I am interested in having students make connections between what they have learnt by functioning in co-operative classrooms and broader workplace issues such as childcare for working parents, adequate health benefits and medical care, and the benefits of decentralised and democratic (not top-down) managerial structures ... I am committed to education that is transformative, which allows students to move beyond the conditions of their own world to envision and enact a different vision.[25] ... Attending to the content of co-operative learning means explicit teaching about the concepts of competition, co-operation, discrimination, sexism, racism, prejudice and oppression. As such, our co-operative learning curriculum must be closely linked to a broader curricular agenda related to notions of equality and justice... Co-operative lessons cannot be wholly successful if they embody sexism, racism or ageism within their framework.[26]
This needs to be true for all educational strategies if human rights education is to be successful in bringing about the moral and social precept of equality which it strives to achieve.
The Australian Journal of Human Rights was established in 1994 to enhance the possibility of human rights education in Australia and the Asia-Pacific. Members of the Australian Human Rights Centre, based at the University of NSW, considered that it was essential that there be a forum for discussing the basis of human rights, both theoretically and in application. The journal aims to provide material which can form the basis of human rights education. It further aims to enhance analysis of the concept of human rights, to assess the success of measures designed to implement human rights, and to detail abuses of human rights. The journal is intended to develop a community of human rights scholars who come from a wide variety of disciplines, and to develop human rights discourse in the region. The journal publishes both thematic and general issues, and has already allowed for systematic discussion of racial hatred; children's rights; human rights and the administration of criminal justice; and social and economic rights.
This issue of the Australian Journal of Human Rights contains material on a broad range of topics. The `Casenotes, Commentaries and Recent Development' section of the journal is dedicated to providing information about developments in human rights both domestically and with regard to international law. In this issue we begin a regular feature on human rights issues for Australians at the United Nations, to be edited by Jane Hearn and Kate Eastman. This will record details of communications with United Nations bodies, including individual complaints and official government reports. Dorne Boniface has provided details about the proposed changes to the Human Rights and Equal Opportunities Commission (HREOC) and critically assesses the developments in Australia's primary human rights institution. Elizabeth Evatt analyses the concept of denunciation from a treaty in the context of the action of the Democratic People's Republic of Korea with respect to the International Covenant on Civil and Political Rights (ICCPR). Sarah Pritchard and Jane Corpuz-Brock's submission to the Human Rights Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade provides insight into the dialogue on human rights between Australia and states in the Asia-Pacific region. This background material is designed as a compliment to the substantive discussion of the transformative potential of human rights.
Di Otto investigates the inherent contradiction in the jurisprudence of human rights, which arises as a result of the aspiration to equality and the classification of international human rights into a hierarchy of generations. She suggests that a post-structural analysis of human rights is valuable in freeing the conversation about human rights from the liberal positivist trap of dualism and power politics. Taking seriously the principle of equality requires us to recognise the transformational potential of human rights which involves a reordering of power relations at both a local and a global level. Otto argues that it is possible to rise above the oppositional approach to rights, which is inherent in the debate about cultural relativism, and which orders and prioritises civil and political rights over social and economic rights and which discounts the significance of collective rights as well as the rights of women, children, people with disabilities and indigenous people.
Damien Miller addresses a different theoretical issue which has concerned many of the `left' who are desirous of achieving social justice but are sceptical about the possibility of achieving justice or equality through an appeal to rights. As an indigenous Australian, Miller is very aware of the false promise and hollow offering of citizenship and declarations of formal equality. However, like Americans of colour, Miller argues that it would be a strategic mistake to abandon rights, even if the critique of the Critical Legal Studies movement is accepted. For indigenous Australians it is important to breathe life into the concept of rights and to embrace rights both in their descriptive and transformative shells. As Patricia Williams has commented, rights taste too good in the mouths of those who are just beginning to be able to take advantage of them to abandon them for any other strategy.[27] Miller looks at the new use of rights being adopted by indigenous communities and considers this to be an important step towards full inclusion and participation of indigenous people in Australian society.
Darren Dick focuses on the complex question of the relationship between native title and native rights which may arise independently of or concomitantly with a claim of native title. He looks at the belated recognition of indigenous land rights by the Australian courts in Mabo (No 2)[28] and Wik[29] and compares the Australian jurisprudence with the development of indigenous rights in Canada. This is important not only because a comparative approach provides an interesting basis for analysis, but also because the courts in each jurisdiction has kept an eye on the other. The differences between the approaches of the different courts is instructive, particularly in regard to the development of distinct concepts of aboriginal rights and aboriginal title developed in Canada. The broader approach to human rights taken in the Canadian courts is evident in respect to the greater voice given to the testimony of indigenous people themselves, rather than `expert' anthropologists, and in the willingness of the courts to be creative in respect of the question of extinguishment of title. Dick concludes that, as a result of adopting Canadian jurisprudence, the Australian courts have moved forward and have begun to give primary weight to indigenous oral evidence, and that the idea of non-site specific land rights is beginning to gain acceptance. However, Australian courts are more ready than their Canadian counterparts to find that native title has been extinguished.
Gino Naldi takes us from the domestic sphere to an analysis of the international law regarding self-determination in the context of the East Timor case.[30] Naldi is critical of the International Court of Justice (ICJ), particularly in its failure to accept that a decision about a treaty made by the Australian government was a decision about Australia. In finding that the Court had no jurisdiction to hear the matter, international law has left the people of East Timor in limbo. Adopting a perspective on human rights as active precedents designed to empower oppressed groups, Naldi argues that a broader conceptualisation of the idea of self-determination, reflecting the free and genuine expressions of the will of the people, is in order. He argues that the practical effect of the ICJ's opinion is the failure to respect the right to self-determination of the people of East Timor and that `the international community is under an obligation to recognise as illegal and invalid Indonesia's presence in East Timor and that an obligation also exists requiring it to refrain from lending any support or assistance to Indonesia with reference to its presence in East Timor'.
The international community not only has obligations with respect to the collective rights of minority groups, it also has a duty to take action to prevent genocide and to ensure that abusive regimes are brought to justice. Kirsty Sangster considers the strategy of using Truth Commissions to reconcile a people for wrongs perpetrated against them. In the aftermath of apartheid, the people of South Africa are struggling to come to terms with the horrible reality of the significant abuses of power by the previous regime. Sangster asks us to consider whether truth-telling is therapeutic and whether it is a satisfactory response to the many cases of political death, torture, rape, and overt discrimination.
Christine Parker brings us back from the extremes of one regime to the subtleties of another. Parker's concern with sexual harassment focuses on the ability of public regulation to be effective in the light of corporate governance. She investigates the interplay between public policy and public decision-making and corporate reality. Parker again looks to the transformative possibilities for human rights to change workplace cultures rather than simply focus on the resolution of individual complaints. She calls on HREOC to be given more power to regulate proposed mandatory action plans or codes of conduct with respect to corporate behaviour. She reminds us that to achieve real change in this area it is necessary to link private law model liability mechanisms to public law duties. She concludes that `public rights do not transform private hearts and minds are brittle levers of change', but that the test of successful human rights law can only be measured in terms of the resultant social change.
Human rights education is education directed at the fundamental values informing society. Habermas, in discussing the question as to why we learn, isolated three cognitive interests of human beings.[31] At the baseline there is an interest in control of the environment. The interest in control extends to technical, empirical and conventional knowledge -- the ability to replicate a determined pattern of behaviour or to determine the `agreed right answer'. The second cognitive interest Habermas says that we have in learning is understanding. This is a level of learning involving judgment, for it involves the ability to negotiate meanings and, by way of interpretive knowledge, to come to a common solution to a difficult problem. At the highest level of cognitive engagement, Habermas says, comes freedom. Freedom is a result of self-reflective and critical knowledge, knowledge which allows an appreciation of how that knowledge is constructed. Education should be designed to promote freedom -- for each learner, and for all members of the community.
Clarence Dias, at a Workshop for human rights educators from the Asia-Pacific Region, suggested that the success of human rights education should not be judged by its threat to empower the disempowered, but from the potential of the education to transform the values of the powerful.[32] While work in the field of the sociology of education has shown that educational institutions have the potential to replicate inequalities, such as inequalities relating to race, gender or (dis)ability, educational institutions also have a concomitant transformative potential. Jack Mezirow has argued that `transformative learning is not a private affair involving information processing; it is interactive and intersubjective from start to finish.'[33] Education is not a neutral experience at any point where it is encountered. The international human rights regime provides the backdrop for educational institutions to redefine their mission in terms of the community's moral vision. Recognising that knowledge is socially produced, deeply imbued with human interest, and implicated in the social relations within the community, human rights education is a means of ensuring that learners engage in `critical self-reflection, which results in the reformulation of a meaning perspective to allow a more inclusive, discriminating, and integrative understanding of one's experience. Learning includes acting on these insights'.[34]
This volume of the Australian Journal of Human Rights investigates many of the issues relating to the meaning of human rights, and rights generally, and to the notion of citizenship as a signifier of acceptance and full participation in the life of the community. It looks, too, at the relationship between public ideals and private governance; at the role of the state in preventing genocide; and at the value of international human rights law in the promotion of equality. The Australian Journal of Human Rights takes a role in the conversation about equality and justice, and attempts to establish a discourse by which society can be transformed.
With the decline of religion as the basis for teaching moral precepts, international law can be seen to encapsulate the modern Ten Commandments -- the Universal Declaration of Human Rights. Like the Biblical source of moral law, where the rules specified go beyond the ten to 613 commandments and are complemented and interpreted by a great body of oral law, much of which is found in written texts, \tthe international law code of morality is contained in a range of international \ttreaties including the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, as well as in `soft law' such as United Nations General Assembly Resolutions, international jurisprudence and commonly accepted rules known as jus cogens.[35] This body of law, reflected in the Bills of Rights which form part of the law of almost every nation of the world except Australia, reflects the moral aspiration of equality by which there arises \tan entitlement of all people to be treated with equal concern and respect, to the provision of health, housing and food which befit all humans, and to cultural and religious integrity.[36] If this can be accepted as a `transformative morality' we will have come a long way towards addressing power differentials, empowering the disempowered and recognising the need to restructure and reform society into an `equality mould'.
[*] Senior Lecturer, Faculty of Law, UNSW. An earlier version of this paper was presented to the UN Workshop on Human Rights Education in the Asia-Pacific Region. I would like to thank Matthew Zagor for his invaluable research assistance, and the Law Foundation of NSW for supporting this project.
[1] General Assembly and Economic and Social Council: A/49/261/Add.1; E/110/Add.1 14th November 1994.
[2] Also significant is the age and educational level of the learners: see Wolf-Wasserman M and Hutchinson Teaching Human Dignity: Social Change Lessons for Every Teacher, 1978.
[3] On issues relating to the rights of people with disabilities see Jones M and Marks L A Disability Diversability and Legal Change Kluwer, Dordrecht (forthcoming 1999); Swain J, Finkelstein V, French S and Oliver M (eds) Disabling Barriers -- Enabling Environments Sage, London (1993); Morris J (ed) Encounters with Strangers: Feminism and Disability The Women's Press, London (1996); Brown H and Smith H Normalisation Routledge, London (1992).
[4] As reported in [1996] AUJlHRights 19; (1996) 3 Australian Journal of Human Rights 121.
[5] Post R `Community and the 1st Amendment'(1997) 29 Arizona State Law Journal 437 at 479.
[6] S Benn `Human Rights and Human Nature' in Tay, AE-S (ed) Teaching Human Rights, AGPS Canberra 1981.
[7] See Asmal K, Asmal L and Roberts RS Reconciliation Through Truth Creda Press, Cape Town 1996.
[8] Brown v Board of Education 347 US 438 (1954).
[9] Including Children who Challenge Us Most (1993) PLEDG Project.
[10] See L v Minister for Education for the State of Queensland [1996] EOC 92-78; P v Director-General Department of Education [1996] EOC 92-795; and Cook S and Slee R `Struggling With the Fabric of Disablement: Picking Up the threads of the Law and Education' in Jones M and Marks LA. Despite the optimism of many people with disabilities, it would appear that the current activity surrounding the introduction of education standards under the Disability Discrimination Act 1992 is not likely to change this situation.
[11] See Pij l S J, Meijer C J W and Hegarty S Inclusive Education: A Global Agenda, Routledge, London 1997.
[12] See Minow M Making All the Difference, Cornell University Press, Ithaca, 1990.
[13] McCarthy C `Multicultural Discourses and Curriculum Reform: A Critical Perspective' (1980) 44 Educational Theory 81.
[14] McCarthy C ibid at 94; see generally Kanpol B and McLaren P (eds) Critical Multiculturalism: Uncommon Voices in a Common Struggle, Bergin and Garvey, Westpoint, 1995.
[15] See Connell R W, Making the Difference: Schools, Families and Social Division, Allen and Unwin, Sydney 1982. Giroux Border Crossing: Cultural Workers and the Politics of Education Routledge, New York, 1992.
[16] Shapiro H Between Capitalism and Democracy: Educational Policy and the Crisis of the Welfare State, Bergin and Garvey, New York 1990.
[17] Stefanou-Haag S `Anti-Racism: From Legislation to Education' in [1994] AUJlHRights 12; (1994) 1 Australian Journal of Human Rights 185 at 189.
[18] The resources on Work and Violence were prepared by Reg Graycar and Jenny Morgan; that on Gender and Citizenship by Sandra Berns, Paula Baron and Marcia Neave.
[19] See Mari Matsuda. See also Frug M J Postmodern Legal Feminism Routledge New York, 1992.
[20] Mattingly C No Guns for Asmir, Puffin, Ringwood 1993.
[21] Gleitzman, M Blabbermouth Piper, Sydney, 1992.
[22] Kidd D The Fat & Juicy Place Angus & Robinson, Sydney (1992).
[23] Kagan S Co-operative Learning 1996; Johnson DW Learning Together and Alone: Co-operative, Competitive and Individualistic Learning 4th ed, Allyn and Bacon, Boston, 1994; Stahl R, \t`Co-operative Learning' (1994) The Social Educator 41-3; McGrath H and Noble T Different Kids, Same Classroom Longman Sydney 1993.
[24] Sapon-Shevin M `Co-operative Learning, Co-operative Visions' in (1991) Holistic Education Review 25.
[25] Ibid at 27.
[26] Ibid at 28.
[27] Williams P The Alchemy of Race and Rights (1993) Virago Press, London p 164.
[28] Mabo v Queensland [No 2] (1992) 175 CLR 1.
[29] Wik Peoples and Thayorre People v Queensland (1996) 187 CLR 1.
[30] East Timor (Portugal v Australia) [1995] ICJ Reports, 90.
[31] Habermas J Knowledge and Human Interests Heineman, London, 1972.
[32] Dias C `Towards Liberation, Distraction or Deconscientisation: Tasks for the UN Decade of Human Rights Education in the Asia-Pacific Region' [1996] AUJlHRights 13; (1996) 3 Australian Journal of Human Rights 9 at 12.
[33] Mezirow J Fostering Critical reflection in Adulthood: A Guide to Transformative and Emancipatory Learning Jossey-Bass, San Francisco, 1990.
[34] Mezirow J ibid Preface xvi.
[35] For the text of international instruments relating to human rights see The United Nations and Human Rights 1945-1995 UN Blue Book Series, Vol VII United Nations 1995. For a discussion of the sources of international law see Steiner H J and Alston P International Human Rights in Context Clarendon Press, Oxford, 1996.
[36] There is, of course, some dispute about the universality of these principles. It is argued that they are oppressive of certain groups and amount to a form of imperialism known as cultural relativism. It is argued that the hierarchies of rights which refer to civil and political rights as first generation and collective and indigenous rights as fourth generation is objectionable as a mere reflection of capitalism. It is not my intention to enter into these debates here, but simply to note that such disputes occur whenever new moral codes attempt to displace existing ones.
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