Victorian State election special edition

The Victorian State election will be held on 27 November 2010. In this special edition of ‘If I Were Attorney-General…’, we have asked the Labor Attorney-General, the Hon Rob Hulls MP, together with Liberal-National Shadow Attorney, Robert Clark MP, and the Greens Shadow Attorney-General, Sue Pennicuik MLC, to reflect on what they would do to better protect and promote human rights and social justice if appointed Attorney-General in the next Victorian State Government.   A Labor Attorney-General: The Hon Rob Hulls MP, Deputy Premier and Attorney-General of Victoria

One of the greatest privileges I’ve had during my time as Victoria’s Attorney-General has been the opportunity to help develop and cement a human rights culture in Victorian public life.

Despite initial anxieties from some quarters, four years into its operation, Victoria’s Charter of Rights and Responsibilities has been vindicated.  Human rights and their companion responsibilities are now considered every day – in services delivered, in laws developed, in decisions made by Government.

In other words, the Charter has affected people’s lives in ways both real and important – from young people with acquired brain injuries being able to remain in their chosen accommodation as one example; to an involuntary mental health patient gaining access to medical treatment as another.

Alas, for those fond of conspiracy, the judiciary has not usurped Parliament but left it with the ultimate say.  In the few cases in which the Charter has been invoked before the courts, the relevant right has been one amongst other long established common law rights already available at law.  Meanwhile, every Government policy has been developed against what could be described as a social impact statement – a robust interrogation of every decision, with Government bound to account for itself in Parliament.

With a legislative review pending – conducted by independent reviewers and supported by Government – there may be further ways in which the Charter can improve Victorian lives.  As well as any resulting reform, however, we must also help the Charter’s language resonate with the whole population.  Here, the Eastern Community Legal Centre’s ‘Human Rights are Aussie Rules’ campaign has had great success – spreading the message that, just as fair play applies on the sports field, human rights are about fairness on the playing field of life.  The response from school kids is that it makes perfect sense – a fact that inspires hope for the future.  It also reminds us of our responsibility to shape this future.

Similarly, its simple message reminds me that the Charter’s existence does not mean we should neglect the other ways in which we can support people’s rights.  The legal system, after all, offers us myriad opportunities to do so – whether it be improving court processes; taking legal services to more communities; tackling the causes that lead people to crime; supporting victims or simply increasing funding to Legal Aid.

That is why the Brumby Labor Government has increased legal aid funding each year in office – with annual state funding now at $68 million, compared with $28 million in 1999.  Similarly, the Government has invested $3.5 billion in resources for Victoria’s courts since 1999 – meaning that courts are finalising more cases than ever before.

Meanwhile, we’re taking justice services to more communities – expanding the Dispute Settlement Centre of Victoria and VCAT services across the state and developing a Legal Services Masterplan to help us plan for future investment and respond to local needs.

In the criminal justice system, Labor has recognised the rights of victims – reintroducing and increasing pain and suffering compensation, establishing a statewide support service and Victims Charter, and reforming family violence and sexual assault laws.

Labor also knows that, while serious offenders must be met with serious consequences, if we really want to be tough on crime, we’ve got to be tough on its causes – ensuring that people aren’t drawn further into its cycle and using the law to set lives back on track.  Accordingly, Labor has reduced re-offending with problem-solving programs that will be cemented in the core business of all courts should we be re-elected.

Finally, Labor has recognised the need to address systemic, as well as individual cases of discrimination and I look forward to the results once the Victorian Equal Opportunity and Human Rights Commission commences its new, proactive role working with business to tackle entrenched inequality.  I also look forward to more Indigenous claims to land justice being settled under our new Traditional Owner Settlement Framework.

All the above reforms are about recognising the rights of every Victorian to equality and access to justice.  Despite this, there are those who have failed to support them – who want Victoria’s Charterabolished, who opposed equal opportunity and native title reform, who slashed legal aid and victims’ services when last in office and now call instead for mandatory sentencing – the antithesis of rights protection in my humble view.

While the results of the Charter’s review will determine any change undertaken – results which I do not want to pre-empt – what I can signal is our determination to stand by what the Charter and all our reforms will continue to achieve for Victoria.  This means that there is only one choice this November for those who care about the rights of Victorians and, if returned to office as Victoria’s Attorney-General, I will continue to seize every opportunity to take rights recognition in all its forms to every corner of the state.

The Hon Rob Hulls MP is Deputy Premier and Attorney-General of Victoria

A Liberal-National Attorney-General: Robert Clark MP, Liberal-National Shadow Attorney-General

Under a Liberal-Nationals Coalition, my focus as Attorney-General will be on reforms that will restore standards and deliver practical and timely results.

Over the past decade, Victoria has suffered from an Attorney-General who has denigrated the judiciary and the profession, attacked freedom of association, axed the independent chair of the Equal Opportunity Commission and sought to scrap the independent board of the Victoria Law Foundation.

While Mr Hulls has been pre-occupied with his ideological agenda, Victoria’s legal system has gone backwards in its ability to uphold the rights and freedoms of Victorians.

Poorly drafted legislation, intrusive bureaucracy and bungled IT projects have made it harder rather than easier for our courts to deliver justice.

Victoria has become a state where justice delayed is justice denied.

Our state’s criminal case waiting lists have grown by 36 per cent since 2003.  Victoria now has Australia’s longest waiting lists for Supreme Court appeals, for County Court trials, in the Magistrates Court and in the Children’s Court.  As at 30 June last year, there were 42,508 criminal cases awaiting trial in Victoria’s courts, compared with 26,085 cases in NSW.

The Attorney-General has treated ventures such as the Neighbourhood Justice Centre and the Drugs Court as soviet-era model farms to distract attention from failures, rather than as mainstream institutions to be made available to all.

The Charter of Human Rights and Responsibilities Act has failed to provide proper benchmarking against international human rights such as the International Covenant on Civil and Political Rights.  The government uses Statements of Compatibility as devices to avoid compliance, and the government’s duplicity in relation to the interpretation of the legislation was slammed by the Court of Appeal in the Momcilovic decision.

Important legislation that would make a real difference, such as jury direction reforms based on the VLRC’s recommendations, has stalled while the Attorney-General has spent his time tinkering with jury eligibility rules for legal staff and retired lawyers.

When legislation such as the Civil Procedure Bill has finally reached Parliament after lengthy delays, the government has brushed aside concerns that the legislation will in many cases make it harder to obtain justice, concerns expressed by bodies including the Law Institute and later reinforced by the Federation of Community Legal Centres.

It’s time for a change of approach.  Victoria needs an Attorney-General able to work cooperatively and constructively with all persons of goodwill, and to deal with points of disagreement on their merits rather than through abuse of those holding different views.

Priority needs be given to practical measures such as additional court staffing to help reduce sentence appeal delays, and enabling more experienced prosecution and defence practitioners to be involved at earlier stages of proceedings, instead of spending scarce resources on increasing numbers of Attorney-General’s policy advisers.

Reducing court waiting lists also requires not bungling crucial court IT projects such as the Criminal Justice Enhancement Program and Integrated Courts Management System, supporting a measured and modular approach to the deployment of new IT, and not imposing on the courts a government-controlled centralised IT system.

Human rights legislation and practice needs to be assessed against the criteria of providing accessible, affordable and effective remedies for genuine injustice without undermining democratic freedoms.  Assessed against those criteria, the 2006 Act cannot continue in its current form.

The Victorian Liberal Nationals Coalition is committed to effective sentencing that will prevent and deter crime, especially violent crime, and reduce recidivism.

This includes not only reform to custodial sentences, such as abolishing suspended sentences for all crimes, but also reforms to community based sentences and fines.  If first time and younger offenders experience sanctions with real teeth, such as being banned from licensed premises, or having to perform properly enforced restitution obligations, then they are far less likely to re-offend in future.

Where offenders have genuine drug or alcohol problems, mental illness or other difficulties, we support programs that seek to assist offenders to re-establish their lives on a stable basis, develop responsibility for their conduct and avoid re-offending.

A Coalition government will also introduce a range of considered and measured criminal law reforms, including reforming bail laws, amending double jeopardy laws to allow the Court of Appeal to grant re-trials where there is new and compelling evidence, and legislating to allow criminal bikie and other gangs to be declared illegal where the Supreme Court is satisfied they are being used for serious criminal activity.

As at the mid-October deadline for this article, there are many elements of the Coalition’s law and justice policy still to be announced.  However, each of our initiatives will be directed towards restoring Victoria’s legal system to make Victorians safer, improve access, reduce costs and waiting times, uphold rights and support the independent, impartial and efficient operation of our courts and tribunals.

Robert Clark MP is Liberal Shadow Attorney-General and Member for Box Hill


A Greens Attorney-General: Sue Pennicuik MLC, Greens Shadow Attorney-General

Australia, particularly at the state level, has not traditionally embraced a broad interpretation of the Attorney-General’s ‘legal affairs’ portfolio to encompass wider justice concerns.  In Victoria, which lacks a Minister for Justice, this limits the ability of the government to implement a coordinated, cross-portfolio response to fundamental justice issues.

If I were Attorney-General, I would consider the justice system as a whole, with a particular focus on the needs of the disadvantaged.  Being responsible for justice in this broad sense, I would work closely with ministers for police, corrections, health, housing, youth affairs, education, disability and other key portfolio areas to ensure that legislative outcomes reduce disadvantage, improve access to justice and benefit the community generally.

This is how I approached my ‘shadow’ Attorney-General portfolio throughout this parliamentary term.  It has led to important amendments to justice legislation, and to debate on key justice and human rights issues that would otherwise not have been aired.

Throughout this term I have been perplexed at a seemingly disjointed approach to legislating.  On one hand, the Attorney-General introduced legislation to unclog what a chorus of critics claim is an increasingly overloaded judicial system.  On the other hand, the Minister for Police introduced punitive, and often Charter incompatible legislation, potentially resulting in more people appearing before the courts and ending up in the corrections system.

I have opposed several pieces of legislation that expand police powers while reducing oversight and evaluation of those powers, increase sentences – often significantly, for existing offences such as ‘drunk in a public place’, and create new offences such as the undefined, yet nevertheless relatively serious, offence of ‘disorderly conduct’.  Most concerning were recent amendments providing for random searches and strip searches of children and people with impaired intellectual functioning without the presence of an independent third person.  If I were Attorney-General, I would negotiate to repeal these provisions because of the potential for misuse, the lack of supporting evidence for their introduction, and the known negative impacts of such legislation on the justice system, the community generally, and on disadvantaged people in particular.

If I were Attorney-General, I would repair gaps in the equal opportunity framework.  The Equal Opportunity Bill introduced this year did somewhat improve Victoria’s framework.  However, it still falls short of contemporary expectations.  In debating that bill, I moved to include ‘homelessness’ and ‘irrelevant criminal record’ as protected attributes.  It was disappointing that the government rejected these much needed amendments, leaving these highly disadvantaged groups open to continued legal discrimination.  I also attempted to remove the ability of religious organisations to continue to discriminate in employment on the basis of sex, marital and parental status, religious belief and gender identity.

Increased accountability across the justice system would also be a priority if I were Attorney-General.  In July this year, I put forward a motion calling on the government to establish an independent body to investigate all police shootings, deaths and serious injury in custody and complaints against police that involve allegations of human rights abuses.  Due to the inherent lack of necessary independence and a consequent incapacity to effectively investigate these matters, internal ‘police investigating police’ systems like the Victorian model have been found in international human rights jurisprudence to be incompatible with the right to life, which in Victoria is enshrined in s 9 of the Charter of Human Rights and Responsibilities Act.

In the final sitting week this year, I also moved to establish an independent prison inspectorate to provide external, independent and open scrutiny of Victoria’s custodial services.  This is currently undertaken by a small internal unit of the Department of Justice.  The work of this unit is not public and much of it is protected by freedom of information laws.  This is not the case in best-practice jurisdictions, and it is certainly not an indicator of a healthy, accountable justice system.

In 2008, I moved several successful amendments to the Coroners Bill that greatly improved access to justice for families who have been compelled, usually in very traumatic circumstances, into the coronial process.  My successful amendments included broadening the circumstances in which a coroner may investigate a death, and requiring responses from public statutory authorities and other bodies to any recommendations made to them by the coroner.  If I were Attorney General I would amend the Act to include my other proposed amendments, rejected by the government and others in that debate, including the provision of legal aid to interested parties and families, and expanding the factors open for comment by the coroner to include the prevention of future deaths.

If I were Attorney-General, I would take this more expansive, justice-driven view of the portfolio to increase accountability and oversight and include wider justice concerns in the portfolio.  This would result in important improvements for justice across a range of portfolio areas and improve public confidence in the justice system.

Sue Pennicuik is the Greens Shadow Attorney-General and Member of the Legislative Council for the Southern Metropolitan Region