Lumen - The University of Adelaide Magazine The University of Adelaide Australia
Lumen Winter 2009 Issue
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A champion of human rights

Catherine Branson QC is President of the Australian Human Rights Commission and a former judge of the Federal Court of Australia. The University of Adelaide law and arts graduate spoke to Lumen about her role.

Lumen: Australia has made significant progress in the area of equal rights for Indigenous Australians, same-sex couples, disabled people and the treatment of refugees, but which areas have we neglected?

Catherine Branson QC: Much progress has been made in human rights protection over recent years. However, even in those areas where progress has been made, there is more work to be done. There remains a roughly 17-year life expectancy gap between Indigenous and non-Indigenous Australians. Discrimination on the grounds of sex and sexual orientation has not been eliminated. People with disabilities need greater protection. Australia continues to place adult asylum seekers in mandatory detention longer than is necessary to verify identity and to undertake health and security checks. Too many people in Australia remain unable to live free from violence, harassment and discrimination.

Lumen: Can you give some examples of less blatant forms of discrimination in Australia that are still happening and should not be tolerated?

CB: Less blatant forms of discrimination remain pervasive in Australia. For example, discrimination can occur when workplaces unnecessarily fail to provide family-friendly working arrangements; and when assumptions are made, rather than questions asked, about what a person with a disability can do. It is unacceptable that in the World Economic Forum's Global Gender Gap Index Australia is ranked 1 (with other countries) for educational attainment but 41 for labour force participation.

Lumen: How effective do you believe the Northern Territory Intervention will be in the long term, given the failure to involve and consult Indigenous people in its implementation?

CB: It is of critical importance that Aboriginal and Torres Strait Islander women and children enjoy full protection, on an equal basis with other Australian women and children, against all forms of violence and discrimination. I recognise that there can be tension between the rights of women and children in Indigenous communities on the one hand and the rights of those communities as a whole on the other. However, government policy should be developed and implemented consistently with Australia's obligations under international human rights law. Non-discrimination is a fundamental principle of international human rights law. While 'special measures' may be taken to secure human rights and fundamental freedoms, consultation is an important element of special measures.

The Intervention outcomes are only likely to be sustainable in the long term if the processes by which they are achieved respect human rights and human dignity. This will involve consultation, and ideally, partnership with those most closely affected by the Intervention.

Lumen: Can you name any of your former law lecturers at the University of Adelaide who influenced you to any great degree? As a former lecturer yourself, what is the most important legacy you can leave a student?

CB: I was fortunate to be taught law at the University of Adelaide by lecturers of a high standard. Their influence on me is probably best reflected in my continuing belief that the law can be a powerful instrument for social justice. It is important, I believe, to instill in tertiary students an understanding that higher education is a privilege and its benefits should be used in a way that is consistent with the public interest.

Lumen: We remain the only country in the western world without a Human Rights Bill. Why? What are the arguments against such a charter given it could only protect people?

CB: The reasons why Australia has no charter of rights are complex. They probably include the fact that, unlike the United States, France and South Africa, Australia has not experienced serious conflict over rights. For this reason many people tend to under-estimate the fragile nature of human rights protection in this country.

Those opposing a Human Rights Act say that there are already sufficient human rights protections in Australia. This is not true. The Australian Constitution does not protect fundamental rights such as the right to life, the right to be free from torture and cruel and inhumane treatment and the rights to freedom of expression and association. Moreover, the Australian Parliament, which has the power to over-ride common law protections, is not required to consider the impact of proposed laws on human rights. I am not talking purely hypothetically. There are examples of Australian laws that have shown insufficient regard for human rights -- mandatory immigration detention laws, counter-terrorism laws and the Northern Territory Emergency Response, to name just a few.

Opponents of a Human Rights Act also say that such an Act would transfer power from the elected Parliament to the appointed Judiciary. A Human Rights Act would not do this because, subject to the Constitution, it would leave Parliament with the final say about the content of any law. If a court finds a law to be incompatible with the human rights protected by the Human Rights Act, it would not be able to strike down the law. It could only draw attention to the law's incompatibility with the rights protected by the Human Rights Act. By requiring Parliament to give consideration to the human rights implications of any proposed law a Human Rights Act would result in greater transparency in law-making -- and eventually an enhanced human rights culture in Australia.

Finally, opponents of a Human Rights Act suggest that it would make for a more litigious society. The experiences of jurisdictions like the UK, Canada, Victoria and the ACT that have Acts of this kind suggest that this is unlikely to be the case.

Lumen: Have the public hearings started regarding a Federal Government consultation into human rights?

CB: Yes - for details, see: www.humanrightsconsultation.gov.au/www/nhrcc/community.nsf/calendar.

Lumen: In the course of your first year as President of the Human Rights Commission, have there been any major revelations regarding your goals and the challenges that lie ahead?

CB: My work as President of the Australian Human Rights Commission has made me even more conscious than I was as a Federal Court judge of the need for greater protection of our human rights. It has also persuaded me of the desirability of everyone in Australia being better informed about their own human rights and more respectful of the human rights of others.

Catherine Branson QC
PHOTO ROY VAN DER VEGT

Catherine Branson QC
PHOTO ROY VAN DER VEGT

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