A declaration is not a duty

The International Day of Democracy falls on 15 September, and this year it arrives with two themes. The United Nations is hosting an event on deliberative democracy, Raising Hands and Voices, about fostering agency and ownership in public decision making. The Inter-Parliamentary Union has chosen human rights, with a campaign whose banner declares that "the future of rights is written in parliaments". They look like separate conversations; they are one, and the word that joins them is dignity.

Begin with two documents written within a year of each other. In December 1948, the Universal Declaration of Human Rights opened by proclaiming that all human beings are "born free and equal in dignity and rights" (article 1). It was what its name says: a declaration, addressed to everyone and binding on no one.

The following May, the German Basic Law opened with the same word and made it law. "Human dignity shall be inviolable", its first article reads, and to respect and protect it "shall be the duty of all state authority". The Federal Constitutional Court has struck down legislation on the strength of that sentence ever since, and Article 79 places it beyond amendment. No parliament and no majority, however large, can vote it away. The word itself was not even new: Ireland’s constitution had adopted it twelve years earlier "so that the dignity and freedom of the individual may be assured" (preamble), but a preamble declares rather than commands. What the Basic Law did first was make dignity a duty.

Same postwar moment, same word, entirely different fate. The difference tells us what dignity is. It is not a property a person carries around, like a blood type. It is a status: a standing that others, and above all the state, are obliged to recognise. Jürgen Habermas called human rights "specifications of human dignity, their moral source" (p. 464). Recognition does not enforce itself. No parliament creates dignity; what a parliament creates is the duty to respect it. Someone has to write it down.

Australia's Missing Dignity Guarantee

Australia voted for the Universal Declaration and never wrote a dignity clause into its own Constitution. That was a choice, made twice. At Federation the framers copied the American design and deliberately left out its rights machinery: "Our Constitution is modelled on that of the United States. The decision not to adopt the Bill of Rights or the Fourteenth Amendment was a deliberate one" (p. 5), Justice Virginia Bell wrote; adopting them, in Owen Dixon’s retelling, "was to argue a want of confidence in the will of the people" (p. 5). Then, while democracy after democracy wrote dignity in, Australia declined again: in 1944, 1949 and 1988. A bill of rights would not even have settled it: the United States has had one since 1791 and still has no dignity clause. Australia has neither, and the cost surfaces three times in the same shape: an institution reaches for a concept with no entrenched guarantee behind it.

In 2004 the High Court had to decide whether a stateless man no country would take could be detained indefinitely. With no dignity provision to reason from, the court split four to three in Al-Kateb v Godwin, and the majority answered yes. Even the majority pointed at the gap: if Australia is to have a bill of rights, Justice McHugh wrote, "it must be done in the constitutional way … by persuading the people to amend the Constitution by inserting such a Bill" (p. 594–595 [73]). It took until NZYQ in 2023 to overrule that holding, and even then by way of the separation of powers rather than human rights: detention with "no real prospect" of removal "in the reasonably foreseeable future" is punitive, and punitive detention belongs to the courts, a principle the Court first stated in 1992.

When the Robodebt Royal Commission confronted a scheme that averaged people into debts and then required them to disprove the result, Commissioner Catherine Holmes had nothing constitutional to cite either. She recommended that Services Australia design its processes around the people they are meant to serve, "avoiding language and conduct which reinforces feelings of stigma and shame associated with the receipt of government support when it is needed" (xiv). That is dignity written longhand, because Australian law gave her no shorter way to say it.

And the Indigenous data sovereignty movement has spent a decade asserting authority over data collected about Aboriginal and Torres Strait Islander people: who holds it and who governs it. That is a claim to exactly the status Australian law does not confer. The Commonwealth’s Framework for Governance of Indigenous Data, built to give people greater agency over how data about them are governed, is a floor where the constitution provides none. Note the word: agency. A status just is recognised agency, standing to act and to be answered to.

Even the bench performs the gap: handed "Equality, Proportionality and Dignity" as a lecture title in 2016, Justice Bell gave dignity two sentences of international framing and then turned to the doctrines Australian law actually has; the word never reappears in her lecture. Dignity did eventually reach the Constitution three years later, in the least comforting way. In Clubb v Edwards (2019) the High Court accepted protecting the "privacy and dignity" ([49]) of women entering abortion clinics as a reason to restrict protest nearby: the first time dignity figured in constitutional interpretation here. It arrived as a limit on a freedom, which, Scott Stephenson warns, "flips the principal objective of dignity on its head" (p. 393): everywhere else, dignity exists first to justify rights. A country without a rights instrument received it as a restriction.

Democracy, Citizenship and Human Dignity

Step one level up and the pattern repeats. The U.N.’s 2030 Agenda for Sustainable Development grounds its central pledge, that no one will be left behind, in the recognition "that the dignity of the human person is fundamental" (p. 3). Australia signed up and measures its progress against the goals. None of it is enforceable here; nor, on Habermas’s account, could it be, since human rights "could acquire the quality of enforceable rights only within a particular political community.”  “In spite of its abstract meaning, “human dignity” still retains […] the connotation of depending on the social recognition of a status—in this case, the status of democratic citizenship (p. 475).”

Which is where this year’s theme lands. A constitution, in Habermas’s definition, is "a horizontal association of citizens" resting on "the fundamental rights that free and equal founders mutually grant each other" (DW, p. 131). Deliberative democracy is not decoration on human rights; it is how obligations acquire an author. Agency and ownership mean citizens participating and writing the duties that bind their own state, not endorsing sentiments drafted elsewhere. Raising hands and voices is where that begins. What has to follow, 77 years after Australia put its name to the Universal Declaration, is the writing down. A goal is not a right, and a declaration is not a duty.