If I were Attorney-General I would be daunted by the task ahead of me. A decade or more of lawlessness abroad and abuse of the law at home has created such a backlog of immediately needed action that I would scarcely know where to begin. Here is the most pressing action I would take. First, I would advise the Prime Minister and Foreign Minister that the detention of David Hicks in Guantanamo Bay is contrary to international law, that he will not get a fair trial in the US Military Commission as currently proposed, and that the refusal by the Australian Government to seek his release amounts to a dereliction of its duty to an Australian citizen. I would advise them to seek his immediate release and repatriation to Australia.
Next I would advise the Minister for Immigration that the exiling of long-term Australian residents like Stefan Nystrom and Robert Jovicic on character grounds was contrary to international law and damaging to Australia’s international reputation. I would recommend the repeal of those parts of the Migration Act which permit this practice and the immediate repatriation, at the Government’s cost, of those who have been deported under these provisions.
Separately I would advise the Minister for Immigration that the mandatory detention of asylum seekers both within and outside Australia was a breach of Australia’s international obligations and should be immediately abandoned and replaced by a system of processing in accordance with those obligations.
I would give reversal of these policies priority because of what they symbolise: a Government which is dismissive of its legal obligations and which treats human beings as expendable in accordance with political expediency. These policies have been so damaging to Australia’s reputation and corrosive of its national conscience that their firm and swift repudiation would be imperative.
Next I would announce a review of the raft of anti-terrorist legislation which has been passed over the last few years. I would seek a critical review of the excesses of that legislation, such as the over-wide definition of ‘terrorist act’, the offence of inadvertently financing a terrorist organisation, the lack of proper protections and accountability in the new investigative powers, control and preventive detention orders, and the sedition laws. I would propose to wind back the law so that it provided the necessary protections and powers for the fight against terrorism but did not sacrifice long-standing freedoms and civil rights.
With a view to avoiding such excesses in the future, I would appoint an independent inquiry into a Commonwealth charter of rights, following the lead of the ACT and Victoria. The inquiry would investigate the various models and be charged with making recommendations to the Government on the introduction of a charter.
I would next appoint an inquiry into legal aid. The focus of the inquiry would be to advise on the level of funding necessary to restore legal aid to its original role of providing access to justice – both criminal and civil – for all, and how such funding could be obtained.
I would institute a review into the staffing of the Attorney-General’s Department to result in its ‘de-politicisation’ and its reinstatement as a source of fearless and independent advice and policy formulation.
I would, however, reaffirm the current process of appointment of judges. As long as there is a strict separation of powers, I think the Executive Government is entitled to exercise its prerogative of appointing judges. It should be able to influence the judiciary to that extent but that extent only. The corollary of that prerogative is the strict independence of the judiciary and this entails not only freedom from removal but proper pay and working conditions for judges and freedom from political attack. It also imposes a responsibility on Government not to abuse the prerogative by making obviously unsuitable appointments.
I would also reaffirm the Government’s Model Litigant policy but insist that it be more than an empty formulation. The Australian Government Solicitor and other Government lawyers would be instructed to adhere strictly to this policy and to avoid the kind of litigation strategies and tactics which, though defensible for private litigants, are inconsistent with the Government’s peculiar and unique position as a litigant.
That should just about fill the first week. After that I might take a break and contemplate the second.
Michael Pearce SC is Vice-President of Liberty Victoria