President Speech: International Commission of Jurists (Vic) Opening of the Legal Year (2010)

International Commission of Jurists (Vic) Opening of the Legal Year

The Hon Catherine Branson QC, President, Australian Human Rights Commission

1 February 2010

May I acknowledge the Wurundjeri People, the traditional owners of the land
on which we meet, and pay my respect to their elders past and present.

I would also like to acknowledge the Victorian Governor Professor David de
Krester, and his wife Mrs Jan de Krester; Chief Justice Hon Marilyn Warren;
other senior representatives of each of the three branches of the Victorian
government; the many community leaders present and also the many members of the
legal profession present. I feel greatly honoured to have been invited to
participate today in the opening of the legal year.

It is a little over twelve months since I left the Federal Court to become
President of the Australian Human Rights Commission. It has been an exciting and
enlightening time as I have spoken with a diverse range of people about how
protecting human rights contributes to a healthy and harmonious society.

Respect for human rights underpins every well-functioning democracy including
our own.

This last year has seen extensive public discussion of the place of human
rights in Australia’s system of governance through the National Human
Rights Consultation.

The National Consultation was a fine example of participative democracy. It
demonstrated that Australia’s vibrant community sector understands that
enforceable human rights protections are critical to our capacity to safeguard
important freedoms and to ensure that the inherent human dignity of every person
is respected. Many of you, whether as individuals or as representatives of
organisations, told the National Consultation that human rights protections in
Australia should be improved – and that this would make a difference to
all of us, but most importantly, to the lives of the vulnerable and
disadvantaged members of our community.

Importantly, the vast majority of those who participated in the National
Consultation said that they want human rights protected by law, and in
particular by a national Human Rights Act.

Yet the question of whether Australia should enact a Human Rights Act remains
controversial. At the heart of this controversy is a debate on the role that
law, and particularly the courts, should play in protecting human rights. It is
a debate with which legal practitioners in Victoria are very familiar.

I find it surprising that the question has provoked the expression of such
polarised views. It seems to me that human rights have an indisputable place in
Australian law. It is both legitimate and appropriate for human rights to
influence judicial decision-making. We have well-established principles relating
to the use of international agreements as aids to the interpretation of
statutes; and international human rights instruments serve as legitimate guides
in developing the common law.

It is right that law should concern itself with fundamental rights and
freedoms. This is what the community expects.

Community contributions to the
National Consultation consistently argued that our system of governance should
be improved to better prevent human rights violations from occurring. However,
when they do occur, a person whose rights are violated

should be able to do something about it. This is in accordance with the
international human rights agreements that Australia has voluntarily agreed to;
these agreements state that a person who suffers a breach of one or more of the
enunciated rights must have access to an enforceable remedy.

And this is where the courts have an important role to play. A good system of
human rights protections includes an independent, transparent and principled
assessment of whether executive power has transgressed an individual’s
fundamental rights and freedoms.

The National Consultation demonstrated the extent of community concern about
the reach of executive power in Australia today. The Consultation Committee
heard repeated expressions of concern about the setting aside of the Race
Discrimination Act in order to implement the Northern Territory Emergency
Response; the impact on the individuals concerned of the lengthy and potentially
indefinite detention of asylum seekers; and the increase in law enforcement
agencies’ powers as a result of the new national security laws.

We are primarily concerned here with civil and political rights, occasionally
described as negative rights, which largely set out restrictions on how a
government can interfere with individual liberty. The legal protection of these
rights is very familiar – many such rights form part of our common law.
They reflect the great conservative ideas of freedom under law, restraint on the
power of the state and the deep link between individual liberty and private
property. ^[1]

Internationally, the experience of the last decade is that the relationship
between individual liberty and national security is one of the most contested
human rights issues. We do need measured and appropriate national security laws.
However, we will not achieve national security through repressing liberty.
Liberty and security are not opposites to be traded off one against the other.
Instead, we must all work together to create a community where diversity is
accepted and liberty valued.

Perhaps the key controversy regarding the legal protection of human rights
concerns is the protection of economic, social and cultural rights. The National
Consultation heard much about these rights – about the right to freedom
from violence, to the highest attainable standard of health care, to sufficient
food, clothing and water.

There is an ongoing controversy about whether rights of this kind are
justiciable – some of our most experienced and respected legal
practitioners disagree on this issue. The central elements of the controversy
are whether these rights are too broadly expressed to be meaningful and whether
allowing them to be considered by courts would give the courts an inappropriate
role in determining resource allocation.

My own view is that the question of whether economic, social and cultural
rights are justiciable cannot be answered in the abstract; it is necessary to
identify the right in question and what it is proposed that the courts be
authorised to do. It is worth remembering, however, that decisions of our courts
already impinge in a variety of ways on the allocation of public resources and
that common law judges adjudicate daily on rights that are broadly expressed.
What is important is that it is economic, social and cultural rights that matter
most to the majority of people in Australia. The realisation of these rights is
fundamental to the protection of human dignity universally.

My key message to you today is that human rights matter, and that the legal
protection of human rights is an important aspect of any well-functioning
democracy.

The legal protection of human rights is, however, just one aspect of an
effective system of human rights protection. An enhanced system of human rights
protection in Australia would require the Parliament, the executive government
and the judiciary all to consider human rights in a more deliberate way when
making decisions. Such a system would, I hope, be accompanied by an active and
engaged public and community sector more fully informed about human rights,
working to influence our decision makers.

Each of us here today, no matter what we do or where we do it, has an
important role to play in furthering the protection of human rights in
Australia. I urge each of you in your daily lives to do what you can to promote
respect for human dignity. I look forward to the ongoing national discussion, in
which many of you will play an influential part, about the role of human rights
in Australia’s system of governance.

Thank you.

^[1] Jesse Norman and Peter Oborne,
Churchill’s Legacy: The Conservative Case for the Human Rights Act (2009).