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Cite as: (2009) 83(04) LIJ, p.26


The Australian Human Rights Commission president has welcomed the National Human Rights Consultation project.

There are no downsides to the introduction of a federal Human Rights Act, according to Australian Human Rights Commission president Catherine Branson QC.

Ms Branson, who was the guest speaker at last month’s LIV and Victorian Women Lawyers (VWL) Dame Roma Mitchell Memorial Luncheon, said such an Act would make a real difference to the protection of human rights in Australia.

However, more importantly, it would also have a significant impact on the lives of ordinary people.

“Such a Law would ensure that those who make decisions affecting the lives of ordinary Australians respect human rights.

“It would ensure that Parliament thinks of human rights when making Laws – that government departments think about human rights when it develops policy and that public service providers, such as Centrelink and Medicare, think about human rights when dealing with the public.”

Ms Branson said it seemed to her that the entire system of human rights protection in Australia needed an overhaul and that was why she was particularly delighted the government’s promised National Human Rights Consultation was now underway.

She said the reality is that while Australia was a great country for most, most of the time, human rights protections in Australia were ad hoc and incomplete.

The position was somewhat better in Victoria with the Charter of Human Rights and Responsibilities Act 2006 and in the ACT with the Human Rights Act 2004, Ms Branson said she wanted to concentrate on human rights protection at the national level.

There were some limited rights protections in the Australian Constitution, some common Law rights and numerous Laws that protect particular human rights. Australia also had a reasonably robust democracy and an independent judiciary, she said.


“However, to those who say that our strong democratic tradition and the independence of our courts are enough to ensure that our human rights are protected, I say, we can do better.”

Ms Branson said a Human Rights Act would provide a comprehensive framework for protecting human rights in Australia.

She explained how the controversial High Court decision on the indefinite detention of a stateless Palestinian man, Ahmed al-Kateb (Al-Kateb v Godwin [2004] HCA 37), who was refused a protection visa to stay in Australia and could not be removed overseas, may have been decided differently had a Human Rights Act existed at the time.

Ms Branson said a Human Rights Act would also protect the rights of ordinary citizens and cited the example of the Howard government’s overhaul of sedition offences.

She said the media, the public and a Senate inquiry had all voiced concerns that the new sedition offences might intrude unreasonably on freedom of expression.


“The problem was that the sedition offences were so vague that they had the potential to prohibit a broad spectrum of legitimate speech.”

She said a federal Human Rights Act may have prevented the sedition offences being enacted in such vague and broad terms.

“The pre-legislative scrutiny process would have put the Laws through a ‘human rights test’. Such a test would create a ‘culture of justification’ – a culture in which every exercise of power that interferes with our fundamental freedoms would have to be publicly and transparently justified.”

As for the common refrain of those who oppose a federal Human Rights Act, Ms Branson said that far from transferring decision-making from Parliament to an unelected judiciary, such an Act would enhance democracy through a more open and transparent consideration of the human rights impacts of proposed legislation.

“The pre-legislative scrutiny would ensure that Parliament is clearer about its intention, which would significantly assist the judicial process of interpreting statutes.”

Ms Branson commenced her five-year term with the Human Rights Commission on 14 October last year. At the time of her appointment she was a judge of the Federal Court of Australia, a position she had held since 1994.

For more on Ms Branson’s speech, see http://www.liv.asn.au/media/speeches/20090304_ Address.html.

For more information on the national consultation, see http://www.humanrightsconsultation.gov.au. The LIV’s Administrative Law and

Human Rights Section has established a working group of LIV members interested in contributing to a submission to the National Human Rights Consultation Committee.

More than 200 people attended the Dame Roma Memorial Luncheon on 4 March at the RACV Club, Melbourne.

A raffle at the luncheon raised $1169.50 for the White Ribbon Foundation of Australia, which aims to eliminate violence against women.

The annual event is held to mark International Women’s Day and commemorates the achievements of Dame Roma Mitchell who graduated as a Lawyer in December 1934.

In 1962 she was the first Australian woman to be appointed Queen’s Counsel, in 1965 she was the first woman to hold office as judge of a superior court – the Supreme Court of South Australia and in 1991 the first woman to hold vice-regal office.

Michele Fankeni

Australia strengthens women’s rights

Last month saw the commencement in Australia of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

The Law Council of Australia (LCA) welcomed the increase in protection for the rights of Australian women.

LCA president John Corcoran said it meant that Australian women who believed their human rights had not been respected would be able to bring their complaint to an international committee provided all domestic avenues had been exhausted.

He said the LCA had made a number of presentations to the federal government, urging it to embrace CEDAW and open itself up to international scrutiny in the area of discrimination against women.

“The complaints mechanism contained in the Optional Protocol will work to complement Australia’s existing sex discrimination regime and will provide an added incentive for government to ensure that Australian women’s rights are respected,” Mr Corcoran said.

In welcoming the entry into force in Australia of CEDAW on 4 March, federal Attorney-General Robert McClelland said that the government was making it clear it was serious about positive engagement with the UN on human rights issues.

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