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).
