Kate Eastman Am Sc Pioneering Human Rights And Driving Legal Reform

Hello and welcome to Season 3 of the Australian Law Student Podcast.

I'm your host, Oliver Hammond, and in today's episode, I had the pleasure of speaking with

one of Australia's leading human rights barristers, Kate Eastman.

From being told that a human rights practice at the Bar was non-existent to leading landmark

cases in discrimination, employment and public interest law, Kate shares her journey of resilience,

advocacy and impact.

We also discuss what it's like being a Senior Counsel Assisting a Royal Commission and the

unique challenges of turning lived experiences into legal reform.

This episode offers invaluable insights for aspiring lawyers passionate about driving

change through the law.

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the Australian Law Student.

Thanks to GradIQ for supporting the podcast.

Thanks so much, Kate, for joining with me today.

I'm very excited to have you on the podcast.

You've had a lot of experience in human rights practice at the Bar, and when you first came,

you were set on building a human rights practice.

But you were told it was sort of non-existent or perhaps fringe, yet today you've had a major

impact in areas like discrimination, employment and public interest law.

What challenges did you face early on, and were there any key moments or cases that made

you feel like, yes, this is possible?

And looking at the profession now, has it become easier for younger lawyers to build

a human rights practice?

Well, thank you for having me on the podcast.

I'm really pleased to be able to participate, and you've started with a really big set of

questions there, Oliver, so thanks very much.

Well, I do call my practice a human rights practice, and when I first started out finishing

law school, I really wanted to work in the area of human rights.

In those days, we did have one subject called human rights, but it was very much sort of

focused on international human rights law and not much on Australian law.

So I then went to London and studied human rights as part of an LLM at London, and I

could really sort of see what was happening in the UK.

Which was, because the UK was sort of part of the Strasbourg European Court of Human

Rights, that human rights was sort of becoming more talked about in the UK and its application

in the common law.

And I thought, look, this is something we should be doing in Australia.

So when I came back, I worked in a large commercial law firm, and that sort of seemed to be really

far away from what I wanted to do around human rights, but I just sort of had that driver.

So there was a couple of things I did.

One is with my very dear friend and now super famous playwright, Susie Miller, we had both

been in London at the same time, and we thought, why don't we set up an organisation for lawyers

that even if they work in commercial law or areas that are not traditionally human rights,

but they have an interest in human rights, that we can share our knowledge, our information

and our experiences about human rights, touching on the work that we do.

If we work in commercial law, if we work for government, whatever it might be.

So setting up Australian Lawyers for Human Rights was one step that I took to start to

develop a practice in the sense that I got to know people with similar interests, and

I got to understand the sort of areas that they worked in.

The other thing was that when I was first starting out in commercial legal practice,

so this is very early 1990s, is there was this movement.

I opened up pro bono work and the law firm that I worked for set up a pro bono committee

and I volunteered to be part of that committee.

And then that meant that I could have some involvement with the law firm about the types

of pro bono cases that we took on.

And they were very open to thinking about pro bono work, not just as favours for the

partners, next door neighbours or children or whatever it might be.

But what might actually have a bigger impact on the public interest and human rights cases.

So that commercial law firm gave me the opportunity personally to go and work in Port Hedland

on a range of cases for asylum seekers who were among the first asylum seekers to be

detained in Australia.

But I also got the opportunity to work at Kingsford Legal Centre.

And so as I was starting to develop my practice in commercial law, I was seeing the thread

or connections with human rights.

And after about three years doing commercial law, I was like, okay, I really just need

to be doing human rights all the time.

And as a law student, I had worked for the Privacy Commissioner and the Sex Discrimination

Commissioner, Quentin Bryce, as a law student.

And so when a job came up at the Australian Human Rights Commission, was in the Human

Rights and Equal Opportunity Commission, I just thought, this is the job for me.

So I applied.

I was very fortunate.

I was very fortunate to get that job.

And it meant that I was sort of working purely on human rights matters at the Human Rights

Commission.

And then after about three years doing that work, the pull was then to go to the bar.

And that's where people said, no, there's not a human rights bar and there's not a human

rights practice.

And I thought, well, I'll make one.

And maybe probably as a younger person, that might sort of sound a bit like, what did you

think you were doing?

Mm.

And then finally, I thought, this is something I really want to do.

And there's human rights in everything we do.

Litigation is about the right to a fair trial.

That's a human right.

When we educate people, give people the opportunity to participate in public affairs, that's all

human rights.

So I really wanted to think about how to take a human rights framework and apply it to the

work that I was doing and to be proud to talk about having a human rights practice rather

than it being sort of seen as something else.

Yeah.

I mean, I think that's something a bit strange or fringe or a bit sort of not a serious type

of practice.

There's probably some people out there still today who think human rights is not a serious

practice.

But if you reflect on the impact of human rights on everybody's lives and the sorts

of cases that come before the courts, there's so much human rights and being able to talk

about human rights and identify them as human rights practices, that will be good, you know,

a good thing.

So challenges were just having that commitment to saying my practice is human rights without

sort of being worried what people thought about that.

Yeah.

And also that your practice is sort of not one dimensional.

So some people know me and my practice from an employment law perspective.

So they would say I'm an employment lawyer.

Others would know me as a sort of regulatory, working in regulatory health or disciplinary

matters.

But I think what I think is really important is that the human rights nature of the work

you can do is spread across a whole lot of areas.

So I hope that sort of answers the big question that you've asked me right at the beginning.

And I hope it's sort of a way of saying any young lawyer who wants to build a human rights

practice can do so.

But think about that concept of human rights quite broadly, that even if you're a tax lawyer,

there can be human rights issues in tax law.

Yes.

A lot of lawyers have got human rights issues.

So it's not a human rights practice or something else.

It's building a practice that brings a rights based focus to it.

Yeah.

I mean, it's amazing to sit down with one of the pioneers, I think, of the human rights

practice.

And I suppose, were there any points along the journey where perhaps it was perhaps encouraging

like you saw encouraging signs that this was perhaps possible to become a reality?

You spoke perhaps a little bit about your youthfulness at the time and the fact that

you sort of...

I mean, there wasn't a human rights practice meant that you could build one and starting

from scratch was something that you sort of took on and used to motivate you in relation

to that.

So, yeah, were there any steps perhaps along the journey that you...

Yeah.

I think coming back to building a community of like minded people, so Australia Noise

for Human Rights and other organisations that were really interested in human rights participating

in those organisations.

Yeah.

It was really helpful to me to find other people who had a similar interest, but also

to learn from them about how they had built their practice and developed their practice.

And while you might call me a pioneer, I would look to someone like Justice Michael Kirby

as one of the true pioneers because he, as a judge on particularly the Court of Appeal

in New South Wales, was able to...

Yeah.

...describe the issues, whether it be a cost issue or a stay issue or procedural issue

or criminal law issue through a human rights lens.

And then he took that approach when he was on the High Court.

And so being able to look to how the law could be applied was really helpful as well.

And then also what I did notice over the time is teaching human rights in law schools really

took off...

Yeah.

...in the 1970s and 2000s.

And so now if you look at electives in law schools, there's human rights all over the

place.

Yeah.

Lots of people do all sorts of different human rights courses.

And one of the things I was able to do as part of building my expertise in that area

was also to teach.

So back also in very early 90s, I started teaching human rights and civil liberties

at the University of Technology in Sydney as an elective subject for undergraduate law

school.

And that also sort of sharpened up my skills as well, is that to be able to build the practice,

people had to recognise that you had the expertise and being able to say that you taught in the

area as well as practised in the area was really important as well.

So a bit of a multi-dimensional area in that regard.

Yeah.

Absolutely.

And I think it's...

You're right.

The presence in law schools today of human rights laws and electives and things like

that is so prevalent that...

Yeah.

It's almost certain that a law student is going to encounter human rights in some way

or another.

So thanks so much for your answer to that.

We'll now change tack and move on to my second question.

As Senior Counsel Assisting the Disability Royal Commission, you've been at the heart

of uncovering systemic failures while pushing for reform.

I suppose we'd like to get to know what it's like being inside a Royal Commission, grappling

with personal testimonies, translating them into legal findings and handling the weight

of responsibility.

Also, are there specific legal challenges unique to Royal Commissions, like parliamentary

privilege, for example?

And in your view, what kind of Royal Commission model works best for driving real change?

Well, thank you for that question because for all lawyers, if you ever have the opportunity

to work in or for or with a Royal Commission, I'd really encourage anyone to take that opportunity

because our Royal Commissions are really different to court processes.

Yeah.

They're established by government.

They appoint Royal Commissioners and a Royal Commission has really extensive powers.

So it can obtain documents from people, even if they don't want to give you the documents.

You can require them to attend to give evidence.

And one thing a Royal Commission can do, which is really different to a court process, is

that it can look at systemic and broad issues.

So in a court process, people are bringing their particular dispute before court.

And asking the judge to decide who's right and who's wrong in that particular court case.

And the judge is sort of really focused a little bit like on ancient history.

So the judge has to go back and look at what happened.

How did these people enter into their contract or their employment relationship?

What went wrong?

And then why did it go wrong?

And if it did go wrong, you know, who's responsible for that?

So what's the outcome?

So you're looking back in time in ordinary litigation.

Whereas a Royal Commission is saying, we think there's a broader public policy issue

here, or there's a problem that has occurred in the past, and we need to find answers to

ensuring that it doesn't happen in the future.

So the Royal Commission I was involved in as Counsel Assisting had a particular focus

on violence, abuse, neglect, and exploitation of people with disability.

And that Royal Commission really had a focus

on hearing very much from people with lived experience of disability about what their

problems had been, what their life experience was, but really importantly, what did they

think needs to change and what was their advice based on their lived experience as to what

we needed to do to either improve our laws, our policies, but the really big thing that

came out of that Royal Commission was changing our attitudes as a community to people with

disability.

So to be able to take that information out of a Royal Commission, the job of Counsel

Assisting is, it's pretty varied in a Royal Commission, but one of the front facing jobs

that people are aware of is where the Royal Commission, like our Royal Commission, hears

evidence from people about their particular personal experiences.

And we felt in that Royal Commission that we really needed to expose some pretty hard

and harrowing experiences.

So that the broader community could really see what lived experience was for people with

disability in their day to day life.

And to say that if there had been violence and abuse or neglect in their life, we need

to know that, understand that, and from that we can work towards solutions.

So we didn't shy away from hard things.

But as a lawyer, it also means bringing a whole range of skills.

It's not just giving a written legal advice as to what the outcome should be, but it's

engaging with people.

And so really building relationships with our witnesses, consulting with a broader community,

and really making sure that we could properly understand those experiences were quite important.

So as you said, some of them are really very traumatic experiences.

They were hard things to present publicly, but we wanted to do that in a way that was

sensitive and traumatic.

We wanted to do that in a way that was more informed.

So that was sort of part of the real focus on the personal testimonies.

One thing with a Royal Commission is it's time limited, so you've got to get a lot of

work done very quickly.

And sometimes there can be very high expectations on a Royal Commission delivering.

But you might have seen from our Royal Commission that we had just over four years to do our

work and we delivered a very extensive report with over 200 recommendations.

So, yeah.

Yeah.

It was a fairly intense period of time for work.

But as you've said, you've asked me the question about the specific legal challenges

you need to Royal Commissions.

Parliamentary privilege is one thing, and that's the extent to which what happens in

the parliaments can be used in the Royal Commission.

And the same sort of rules that apply to the use of any evidence that might come out of

a parliamentary process apply to the Royal Commission.

But the unique features, I think, of the Royal Commission is the Royal Commission.

It has extensive powers to get information and to hear from people who may not ordinarily

ever make their way into a court process.

So the Royal Commission can do that.

The other really interesting legal part of the Royal Commission, and not all Royal Commissions

have this, is to be able to take evidence in private sessions.

So the Royal Commission that I worked in was one where people could tell their stories,

almost in an anonymous way, so that they would share their experiences with one of

the Royal Commissioners.

And that would be a private session.

And from that private session, the Royal Commissioners could learn more about a particular issue

where the person involved did not want to tell their story publicly or didn't want

to be on a live broadcast or for people to know who they were.

And those private sessions, which are confidential.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Royal Commissions act keeps that information and identities of people confidential, was

a really significant part of ensuring that we could get to what some of the really serious

issues in addressing disability were in our community.

So our Royal Commissions, a fantastic opportunity to work in them.

Some pretty hard work, and if you ask me about sort of driving change, it has got the capacity

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . .

But ultimately, a Royal Commission can only make recommendations that's really up to government or the broader community to embrace those recommendations and say, we also commit as a community and a government to those changes.

So sometimes people get a bit disappointed because not all the recommendations are accepted. But when recommendations are accepted, you can really see the benefit of the community having that direct engagement and seeing change in how our laws are made and how they apply into the future.

Yeah, certainly. And I think you're exactly right with lawyers who are in Royal Commissions. I do think that it's such a unique opportunity.

And I think that that is a...

It's an amazing opportunity to drive change in a really hand-in-hand way with government. And so thank you so much for sharing your experience.

Oh, it's my... You're welcome. And it's not just me. We had a really big team at that Royal Commission. And one thing I would say about working at that Royal Commission was just the talent, the depth of talent and commitment of all my colleagues in that Royal Commission was just extraordinary.

And it was just such a great pleasure working with you.

And it was such a great pleasure working with such an amazing team of people, many of whom live with disability. And I learned so much from them. So that was just such an honour to be able to serve as counsel assisting.

Yeah, thanks so much for sharing your experience. We'll now move on to some standard questions that we ask all of our guests for our listeners to get to know the guest a little bit better. I'll start off with the first question. What was your favourite subject in law school and why?

My favourite subject was law school.

My favourite subject was law school.

My favourite subject was international law. I just loved all things international law. And again, when I studied law, there wasn't the sort of breadth and range of international law subjects on offer. But I just, I found international law was this real intersection between international relations, international politics, and then how law wraps around that, and the systems of the UN, and then obviously all the human rights related.

And again, when I studied law, there wasn't the sort of breadth and range of international law subjects on offer. But I just, I found international law was this real intersection between international relations, international politics, and then how law wraps around that, and the systems of the UN, and then obviously all the human rights related.

And again, when I studied law, there wasn't the sort of breadth and range of international law subjects on offer. But I just, I found international law subjects on offer. But I just, I found international law subjects on offer. But I just, I found international law subjects on offer. But I just, I found international law subjects on offer. But I just, I found international law subjects on offer. But I just, I found international law subjects on offer. But I just, I found international law subjects on offer. But I just, I found international law subjects on offer. But I just, I found international law subjects on offer. But I just, I found international law subjects on offer. But I just, I found international law subjects on offer. But I just, I found international law subjects on offer. But I just, I found international law subjects on offer. But I just, I found international law subjects on offer. But I just, I found international law subjects on offer. But I just, I found international law subjects on offer. But I just, I

just doing that reading and being on top of the work is really important and the other thing for

me when I look at my time at law school and I love being there was getting involved in the life of

the law school and I know this has really changed for current law students because you have a lot

of lectures online and perhaps less time at law school on campus and so being able to be involved

in that law community is really important so I was quite involved in the Law Society in Alsa

when I was at law school and to me that really helped me learn a lot more about life people's

experiences and to also do a lot of the work that I do.

Thanks so much for that.

developed some fantastic friendships and networks that have stayed with me forever like they're

still ongoing and probably will be so I think just learning from your books is one thing but

participating in the life of the law school and the legal community is really important as well

that's great advice um with uh the third question could you name a book or a movie or

we've had plays in the past as well before that's been significant to you and one you'd recommend

to students this is really hard in a way in terms of recommending to students but

I think uh as I've got older I've been really interested in reading biographies

often of people who have been lawyers or started out as lawyers and so I'm just I've always been

a big fan of Ruth Bader Ginsburg and I remember once when she came to visit the bar association

she was tiny and in that

time

tiny person uh who made a really big difference to human rights in the US I found reading her

biography and then more recently the films about her and back to my you know friend Susie Miller

who we started uh Australian lawyers for human rights who's become super famous you know she's

written um the RBG play and so that was one thing I thought reading both the book seeing the work

that RBG did and also then how that's then been interpreted for the stage makes her life accessible

uh but it's also a contribution to jurisprudence which is so interesting so that's following that

life trajectory I think is really interesting equally reading the biography of Sir Garfield

Barwick David Marr right that's fascinating you know that's fascinating as well so understanding

where lawyers

have come from and um how they become lawyers is you know interesting and then my other one because

I have a great admiration for our first woman on the High Court Mary Gordron um she is uh and

still an amazing person you know in terms of her thinking about the world and perspective on the

world and her contribution to Australian law is that there's a biography about her I don't think

she's she was so

keen on that biography being um written about her but um to see how the first woman judge on our

High Court came through her life experience and education is really interesting as well and I

suppose for me because I know Justice Gordron uh personally is to it's a really interesting thing

when you know the person but also get the opportunity to read about their life as well

you know and I don't think I've got too many books but my focus is on biographies just to sort of say

what have been other people's pathways and um and understanding that can be really helpful as well

those are some great suggestions and I can imagine um uh Justice Gordron you could uh fact check some

of the uh the things that perhaps were going on you definitely you definitely can and she will tell

you she's still very strong and forthright in her view she will certainly um you know tell you what

what the facts have been and she's you know she's been an amazing supporter of women in the

profession as of many of the trailblazers of women in our profession and I you know I admire and look

up to them but I sort of see our generation as holding the baton and then that baton passes to

the next generation and as you know now like the majority of law students are women and the majority

of solicitors in New South Wales and across the country are women we haven't quite got there with

the bar we've got a way to go on that front but I still think that looking at at women who blaze

these trails if I can use that sort of cliche it really gives us a sense that equality and respect

for our colleagues and inclusion in our profession is still so important but it can be fragile as

well and so

each generation has to commit to wanting the legal profession to be the best that it can be

and inclusive in terms of representing our community so that's what I take from reading

those sort of biographies as well it's a good reminder that it's not just someone who's done

that many years ago but it's an ongoing commitment that we should all have to our profession and our

profession service to our the people in in Australia yeah thanks so much for your answer to

that um

did you always envision yourself practicing in the field you're in and if not what did you think

you'd do when you'd started law school or perhaps but even prior to university uh well that sort of

I probably partly answered that question earlier and um and I mean from quite a young time at

at school I just was very interested in human rights and social justice so if there was a way

of feeling I could make a contribution professionally to human rights that's what I

wanted to do

but at law school as I was saying like people didn't really talk about human rights so you

couldn't really go and do a summer clerkship or an internship at a human rights organization

so I wasn't sort of sure at law school what I would actually do but I knew I was interested in

international law or human rights and so I've been fairly focused on that the whole time it's

not like I went to law school thinking I'd be a tax lawyer and suddenly changed

my personal life a Dais when I went to law school and now we'm

I'm back on the out and about side and about side flat which is something very

interesting and I don't want to even make a statement yet but that's really

been a common thread in in what I've done I would say like the fact that I

had that in my head that doesn't mean that you know you have to have a fixed

view before you go into law school I think one thing about law is you get such um interesting cases and life experiences across the board that being open to what might interest you in law is also a great thing for us as we nothin meet immediately with a position due step Get our safety first, what's the worst?

so many different people we often see people at the worst part of their lives that going to court

is probably the hardest day for some people in their lives or their families depending on you

know what the issues might be and so you don't have to have a fixed view about the area that

you want to work in and probably keeping an open mind is a good thing maybe people would have said

to me I could have kept a more open mind in terms of my interest in human rights but as I said at

the beginning I've been able to really blend that into a whole range of different areas yeah yeah

again thank you so much for your answer to that question we're running out of time so I'll move

on to the last question what's the greatest piece of advice that you've ever received

well I think it's probably two things and one is never compare yourself to someone else

that you

as a legal practitioner have your own responsibilities

and it doesn't matter what the person next to you is doing or the person behind you or in front of

you always have yourself as your own measure of what are your ethical obligations what do you want

to achieve and how do you want to sort of in effect run your business as a legal practitioner

so don't compare yourself to other people and don't always sort of feel then well they're doing

something and I can't do it so don't compare yourself to other people and don't always sort of

should be forget that focus on yourself and the second is when you start law I think you often

have this sense that you've had four five or six years at law school so you've just got to get in

there and achieve really quickly take a deep breath on that you're going to have to be working

probably till you're in your mid or late 70s so if you've got a 50-year career ahead of you as a

lawyer you do not need to do everything in the first five years and so I think put perspective

and think about what you want to do over the longer term and that law might be a career for

a short period of time you can go off and do different things and then always come back to

the law think about the law as sort of a longer term journey and what you learn at law school now

is going to be really different to what you'll be doing in practicing

law in 20 30 40 or 50 years time so that race to try to become a partner really quickly or

go to the bar really quickly you don't need to do all of that but to take time

and to think about the long game on law and fit breaks and have time for yourself and your family

during that period of time so there's the two bits of advice I think that's great advice yeah I think

that's important for people to hear so

um

thank you so much for joining me today and I wish you all the best for the rest of the year

absolute pleasure and good luck with the podcast and I'm very happy to be involved

thank you thanks Oliver

are you a law student applying for clerkships this year you're not alone get free access to

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