Outgoing Australian Human Rights Commission President

Holly Kendall in conversation with Catherine Branson
The Honourable Catherine Branson has been the President of the Australian Human Rights Commission since August 2008. Earlier this year she announced her retirement from the position. Right Now’s Holly Kendall met with her to discuss her achievements, challenges and successes as President and what the future holds for the development of human rights in Australia.
Prior to being President of the Australian Human Rights Commission the Honourable Catherine Branson was a Federal Court Judge for 14 years. She had previously practised as a Queens Counsel and was the Crown Solicitor for South Australia.

RN: Thank you for meeting with us today. What has been your biggest challenge as the President of the Australian Human Rights Commission?

[The Honourable Catherine Branson] Well the challenges were numerous. It was a very different sort of job than the one I’d done before. I’d been a judge for 14 and a half years and they do very different sort of things. Judges are expected to behave in different ways from presidents of human rights commissions. Judges by and large are expected to sit in their chambers and write and not be involved in public debate, whereas the president of a human rights commission is very much involved in public debate. So personally I suspect just the move to the different role was a big challenge.

Often when we think of human rights we think only about other countries.

The substantive challenge of the position, one that I expect is faced by all presidents, is how to use the office and how to ensure the Commission itself is influential in advancing a culture of respect for human rights in Australia. It is a difficult task, but it is a very important task, and working out the best way to try and achieve that cultural change is a very large challenge.

At your first oration as President of the Australian Human Rights Commission you said “in Australia we have legislatures that are insufficiently rights-conscious and bureaucracies that are insufficiently rights-sensitive.” Do you think any progress has been made in this respect and if not what actions should be taken to implement cultural change?

I think there have been real improvements. In part it is because the Australian Human Rights Framework has begun to be implemented. There is training now for public sector agencies around human rights.

The other very important issue is that the parliament has now created the Joint Standing Committee on Human Rights. Although it is early days I am extremely hopeful that the work of that committee will lead to a much higher level of understanding within our parliament and improve debate in our parliament around human rights issues. As part of the Framework, every new legislative initiative that goes through parliament must now be accompanied by a Statement of Compatibility with Human Rights. That means that those who develop policies will have to be conscious of human rights as they develop them and when legislative initiatives are brought to fruition the Statement of Compatibility will have to accompany them. That in itself will have very important educative outcomes.

Often more is gained by persuading people by engaging with them – by mediating, by conciliating, by educating – than is necessarily gained by simply enforcing. At the end of the day if human rights are really respected in Australia it will be because people value them, not because the law tells us to.

On the topic of the National Human Rights Framework, prior to the consultation you stated that the process would be “an important opportunity to find out what human rights really mean to people in Australia.” What do you think human rights mean to people in Australia? Are they a priority?

Australians I think do regard human rights as very important, even if many of them largely take them for granted because only a limited number of Australians would have ever experienced a serious breach of their human rights. I think they’re almost something that many of us carry without thinking very much about it. So often when we think of human rights we think only about other countries, we think of Africa and we think of totalitarian regimes but we don’t think of our own country. We do know that when even an average Australian experiences a breach of their human rights they are incensed by it and they believe it is not the way things should be done in Australia. That shows to us that they do regard them as important.

Do you think that the Australian Human Rights Commission needs greater powers to carry out its functions and mission?

Everybody, I guess, would like to have slightly more power to require people to do what they believe is the right thing. There are particular difficulties in Australia around our constitution, which does not allow administrative bodies to exercise judicial powers.

There is also another sense in which the Commission’s not having a wide range of compulsory powers is positive; that is because very often more is gained by persuading people by engaging with them – by mediating, by conciliating, by educating – than is necessarily gained by simply enforcing. At the end of the day if human rights are really respected in Australia it will be because people value them, not because the law tells us to.

The Commission’s first position is that mandatory detention as a policy should be abandoned. We don’t believe it has been shown to work as a deterrent.

Earlier this year speaking at a conference on implementing human rights in closed environments, you mentioned that the Australian Human Rights Commission has reported on five immigration detention centres in Australia, but that there are now more than 20 and the Australian Human Rights Commission is no longer able to undertake detailed reporting due to limited resources. How do you see the conditions faced by those in immigration detention improving?

I think there are substantial efforts being made both by the Department of Immigration [and Citizenship] and by the managers of the centers to improve conditions. An important area has been a willingness to make appreciable improvements to health services including mental health services, which are, I think, the most critical aspect of improving the environment for those detained in our immigration centers – if we are to continue detaining them.

I think those who are in the mainstream of a society become fearful about the risk that those more vulnerable, those more marginalised, might have their rights increased. Often these concerns dissipate when the initiative is experienced.

The Commission’s first position is that mandatory detention as a policy should be abandoned. We don’t believe it has been shown to work as a deterrent. We don’t think it is necessary. We know it is damaging to people’s mental health in particular and it is costly.

But if it is to be retained I think the most important initiative on the horizon is Australia’s movement towards ratifying the Optional Protocol to the Convention against Torture (OP CAT). When we ratify OPCAT we will be obliged to put in place a regime of inspection for every place within Australia where people are detained. That will not only include our prisons, it will include our places of immigration detention. It will also reach to places where children are detained, places where psychiatric patients are detained, military detention facilities, police lock ups, every place. The inspection regime will be intended to be a preventative regime. It is a regime that is already operating in a number of countries around the world and seems to be having very positive outcomes. I look forward eagerly to Australia ratifying OPCAT and that inspection regime being put in place.

Currently there seems to be, if not bipartisan opposition, a lack of bipartisan support for the statutory protection of human rights at a federal level. Why do you think that is?

I think it’s important to identify first that what is intended by those who, like me, like the Australian Human Rights Commission, urge more encompassing protection of human rights. This is not a reduction in the powers of our parliament but the requirement of greater transparency in the conduct of the parliament. Much of that transparency should be achieved by the Statements of Compatibility and the work of the Joint Standing Committee on Human Rights. It may be that there have been, at least in the past, some initiatives that the government has preferred not have to carefully examine for their human rights implications. There are certainly legislative innitives where I think the potential human rights implications have simply not been identified until after they were enacted. Increased examination, increased transparency around human rights issues, I think, will be important.

People I think overestimate the potential restrictions that might be imposed by a national Human Rights Act. People are often fearful of things that they haven’t experienced before. Very often as well, I think those who are in the mainstream of a society become fearful about the risk that those more vulnerable, those more marginalised, might have their rights increased. Often these concerns dissipate when the initiative is experienced. We know that some countries that only had statutory protection of human rights ultimately moved to constitutional protections. This seems to me to illustrate they didn’t find the legislative protections particularly harmful or damaging.

What do think the chances are that we will have a federal human rights Act or even a constitutional bill of rights over the next two decades?

A period of two decades is a long time. It’s very hard to know, often attitudes move so quickly, that you can look back and think I couldn’t have seen that coming but it did come. I think in the next two years the chance is very remote. I identify that period because of the intended review of the (Australian Human Rights) Framework in 2014.

Two decades out I think it is just too hard to predict. I think it likely that we will eventually have such protections.

Australia is often described as a middle power in terms of international diplomacy. What role should Australia be taking in the development of international human rights?

Australia is playing an important role in human rights protections internationally. It is not one of the super powers, but it is a respected player in international debate. It’s playing an important role in the Human Rights Council in Geneva. I’m particularly gratified that Australia took the initiative in respect of a resolution that only recently was adopted by consensus in the Human Rights Council which reflected the importance of national human rights institutions. I think this demonstrates important recognition by Australia, in that international sphere, of the role national institutions can play within countries in protecting human rights.

When we speak about human rights in other countries we must be sure that our own house is in order.

Australia, through its development aid program, is doing very important work around human rights. Recently we heard Foreign Minister Carr make clear that much of the aid that Australia has promised to Afghanistan in future years will be directed to ensure that the rights of women and the status of women in Afghanistan are respected. Already we are contributing significantly to the education of women in Urozgan province. Throughout our aid program Australia is conscious of rights whether they are the rights of women, the rights of children, the rights of people with a disability, or the right to education. I think Australia is respected for the work in this capacity.

Does Australia have the moral authority to be participating in the development of international human rights considering our record specifically in relation to those of Aboriginal and Torres Strait Islander heritage and refugees?

The rights of Indigenous people throughout the world are very difficult and they prove particularly difficult for Australia. It is very important that these rights are kept at the forefront of public policy consideration in Australia, but they are receiving a very high level of consideration presently. Not everyone is in agreement about whether every initiative is the right one but I don’t think anyone thinks that Aboriginal and Torres Strait Islander Affairs are not under fairly intense consideration.

This doesn’t mean, I think, that Australia is not able to participate, holding its head fairly high, in international affairs around human rights and indeed it is doing so. For the reasons I’ve given I think we have the authority to do so. I also think it is very important for us to remember that when we speak about human rights in other countries we must be sure that our own house is in order. When we urge other countries to respect the rights of their people we must be very careful that we are appropriately respecting the rights of our own people.

What are the most pressing and important issues to be addressed by the next President of the Australian Human Rights Commission and what should they do about them?

I think that the role of every president is to make sure that the Australian Human Rights Commission is as effective as it can be in protecting and promoting human rights in Australia. Different presidents will seek, no doubt, to do that in different ways. A president here is simply the senior member of a team of commissioners. We now have six commissioners, we will shortly have seven. So being able to help the Commission come to a consensus view about the policy work we do is a very important responsibility.

New means of communication with the public, new sources and a new basis for educational initiatives constantly come up. We are moving now to use social media more than we have in the past. I think the new president will be looking for new innovative ways to expand the educative message of the Australian Human Rights Commission.

I think the new President will be very involved in working with her colleagues to identify what are the most pressing areas for more intense work. I wish her well.

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