For more than a decade I disagreed with a great deal of what the Commonwealth Attorney-General was doing and, not surprisingly, I indulged from time to time in a daydream about how I would do things differently (or, in some cases, just do something). Of course it was only ever a daydream – not only was there no prospect of my ever being the Attorney (nor is there now), but there was little prospect of there being a change in the actual Attorney or, at least, a change in the views coming out of the portfolio. Suddenly, this ‘if I were Attorney-General?’ question is not just a wistful game. There really is a new Attorney, and all those ideas of how things might be different could now become someone’s plan. To speculate right now, on what I would do if I was Attorney-General, seems tantamount to saying to Robert McClelland: ‘Here’s a few ideas for what you could do’.
Before saying what I’d do, I’ll say how I’d do it: through a human rights framework. The starting position for all policy would be its compliance with – and furthering of – human rights standards. To design an anti-terrorism policy within a human rights framework, or an asylum seeker policy, or a legal services policy . . . each would take on a significantly different character when the guiding principle, and not the afterthought or begrudging concession, is human rights compliance. And how much more authority will Australia carry internationally when it practices what it preaches?
Perhaps that is all that needs be said, because so much would follow. But here are some specifics.
When reviewed from a human rights perspective, the anti-terrorism laws must be amended. The Dr Haneef debacle demonstrated how far the balance between state powers and people’s rights to liberty and a fair trial has slipped in favour of the state. If the ultimate accountability of the state is through the ballot box, then the recent election result demands that the state winds back its self-serving powers. Relatedly, I would make explicit the government’s commitment to respect for legal process, to non-political participation in the process, and to the independence of legal and statutory officers from the political influence of the state. I would resile completely from executive action that persecutes individuals outside the procedural protection of the legal system.
The recent election result is also a message to the state that the balance has moved too far against asylum seekers. Detention must be abandoned – we release alleged criminals on bail, but not exhausted, frightened, impoverished people seeking our help. I would move to establish an intelligent and compassionate system of reporting and monitoring during assessment of an asylum seeker’s claim.
I would also move to ratify the Migrant Worker’s Convention and the Disability Convention, together with each of the optional protocols to CEDAW and the Disability Convention. But Australia’s history of ratification has not been matched by its commitment to give effect to its obligations in law; I would audit Australia’s domestic compliance with its international obligations – beyond the glib reassurances given to the UN in our infrequent reports under the treaties – and legislate to give comprehensive effect to those obligations.
No audit is necessary to tell us that we have not given domestic effect to either the ICCPR or ICESCR. It is not enough to say that many of the rights can be found scattered around in state and federal statutes, common law and government policy. The simple fact is that we have not clearly and comprehensively extended to Australians rights that we have agreed are universal, and we have not fulfilled our commitment under those human rights treaties. At the very least I would commit government to be bound by human rights standards in legislation and policy, and I would ensure that government compliance would be justiciable; how otherwise can our commitment to human rights be credible?
Australia’s national human rights institution, the Human Rights and Equal Opportunity Commission, must be fully staffed and funded to carry out its statutory mandate. I would rely on it for authoritative advice in developing human rights policy, education and laws. In a related initiative I would reinstate the human rights dialogues that previously provided a unique forum for NGOs and government to exchange news and views, with a commitment to making them accessible (the government might even deign to go to them, rather than summon the NGOs to Canberra), and to the Chatham House Rule.
The one area where Australia has for many years given effect to human rights, in law if not in practice, is anti-discrimination. But the laws – State, Territory and Federal – are variously dated, idiosyncratic, inconsistent, insufficient and ineffective. I would consult with the Australian Law Reform Commission and regional law reform bodies to establish a national review of anti-discrimination laws, to harmonise and modernise them.
In the area of justice – of people’s right to a fair and accessible legal system – I would articulate a national policy for access to legal services, and abandon the small-minded distinction between federal-state matters in legal aid funding agreements. I would clearly delineate and respect the unique and independent role of community legal centres, and stop the relentless push to re-cast them as cheap outreach services for legal aid. I would leave the profession’s pro bono contribution to the profession to manage as it sees fit.
There is, of course, so much more that could be done or proposed by the Attorney-General to achieve human rights for people in Australia and the region: fully fund comprehensive Aboriginal and Torres Strait Islander legal services; enable intervenors and amicus in court proceedings; reform class action procedures; open up Freedom of Information laws; re-conceive the process of native title determination; publish guidelines for judicial appointments; fund AustLII; revisit the arcane confines of ‘Priestley 11’ in legal education; enhance law reform references and consultations, redefine Australia’s aid strategies for Asia and the Pacific, and so on. Ah, to dream. Or not: over to you, the real new Attorney-General.
Simon Rice OAM teaches law at Macquarie University and is the immediate past-President of Australian Lawyers for Human Rights.