If I were Commonwealth Attorney-General, I would set my sights on achieving the stated goal of the Attorney General’s Department, namely achieving a just and secure society. Unfortunately, we are currently falling well short of this objective. At the most basic level, it requires a universal commitment to the rule of law. Carrying out this task politically involves a combination of listening and leadership. Human rights are increasing the language through which justice is expressed. We have listened to the Australian population and they support a Charter of Human Rights. The National Human Rights Consultation found that there is a range of opinions but vast sections of society support the introduction of such legislation. This is a mandate to introduce a Charter and it would be a significant step towards building a society that is committed to fairness and equality.
As the only Western jurisdiction without a Charter, Australia is becoming legally isolated. Our statutory interpretation and jurisprudence in respect of human rights, press freedom and administrative law is quickly becoming marginalised. It is hard to criticise human rights abuses abroad when we do not even recognise their existence domestically. Once we have this framework, it will assist us to understand the pursuit of social justice in objective terms and not be subject to the whim of political debate.
As Attorney-General, I would apply a rights-based approach and lead the charge to end mandatory detention. The policy has been widely condemned as costly and inhumane, as well as in breach of our international obligations. Malcolm Fraser put forward a reasonable proposal here that should become bipartisan policy immediately. The over-politicisation of this issue has debased public debate in this country and earned us a reputation as mean spirited and legally backward. It is a persistent cause of shame that will only be resolved with political leadership using a legal framework of respect for human rights and international law.
I would also seek to repeal the legislation in respect of people smuggling, which suffers from the same political short sightedness (and attenuating lack of utility) as the policy of mandatory detention. I would also ensure that all Indonesian children held under this legislation are released, which should have already happened under the current government’s policy. I would appoint a Children’s Commissioner to ensure children have an advocate for them who is independent of the Minister for Immigration and Citizenship.
If I were Attorney-General I would set to work at fixing the problem we currently face with the two dozen or so refugees who are the subject of adverse security assessments from ASIO. I represented two of them earlier this year. They have been accepted as refugees and therefore cannot return to their country of origin, but have adversely assessed by ASIO and therefore cannot be given a visa. As such, they face the very real prospect of indefinite immigration detention.
This is a very serious issue for our system of law. Common law systems have traditionally respected personal liberty and do not permit it to be taken away without a clear and justified basis. But currently, a person seeking asylum, as is their right under international law, can be subject to indeterminate detention authorised by an executive arm of government without any avenues to review the merits of that decision.
I would give the courts greater powers to review these decisions, including, as a start, allowing the person the subject of the assessment to see it. These people could also be released from detention and be subject to monitoring as required whilst the assessment remains.
Such a problem raises the broader question of the role of the national security state in our legal system. In the decade since 9/11, the interests of the amorphous concept of national security have trumped civil liberties and transparency in government. This is an imbalance that must be corrected. The revelations by Wikileaks in many ways reveal the deficiencies of our current information protection laws. We were told that Cablegate would be devastating for international relations. Instead, we see that greater transparency in government has fostered debate about the quality of our democracy. Yet none of this information would have been available to the press or an individual; it would have been protected in the name of national security.
An independent and robust fourth estate is essential to a democratic society. Wikileaks has contributed to this in a fundamental way and deserves legal protection just like any publishing. We need stronger protections for whistleblowers and better access for journalists to government material.
As an Australian abroad, Julian Assange deserves full consular assistance. I would seek undertakings from Sweden that it does not intend to hand Assange over to US authorities via temporary surrender and would do my best to protect his civil liberties in my dealings with the US. Any prosecution of Assange on the basis of his publishing activities would be roundly condemned by me as an obvious and direct attack on a free press. Amongst other things, I would have profound concerns about the ability of Assange to receive a fair trial in the US.
The US, of course, has form in denying controversial prisoners a fair trial and the Australian government also has form in failing to do anything about it when it involves an Australian citizen. David Hicks was coerced into making a guilty plea under threat of torture in Guantanamo in legal forum that was improperly constituted. Torture has no place in a society that respects the rule of law. I would set up an inquiry into Australian involvement in the incarceration and treatment of Hicks and advocate for his conviction to be quashed by the US government. It should be government policy to never let anything like that happen to an Australian citizen ever again.
Some of these reforms may require political effort, but at least they are all mercifully low cost. As Rob Hulls has said, the role of AG is fantastic because “you don’t need a stack of money to make a difference.” But one thing that does require proper funding is legal aid. For our justice system to work, everyone must have access to legal representation. In our society, legal issues can have a very profound affect on people’s lives, particularly those struggling in poverty and battling with debt collectors, discrimination and housing issues. We need good laws, but we also need access to justice.
The Federal legal aid budget was slashed and burned under Howard in 1997 and it has never recovered. We are now well behind in global standards and eligibility for legal aid comes in below the poverty line in many states. It is not just morally troubling; it is also economically foolish as modelling has shown that properly funded legal aid agencies provide savings to other areas of the economy that outweighs the extra cost up to nearly three times over.
Recently, we have seen the first increase in federal funding for legal aid since 1997. But there is still a long way to go. Adverse costs protection for public interest litigants would also promote litigation to create policy and legal change.
These are only the first, but most urgent steps I would take towards a just and secure society. Peace and justice are kindred, inseparable concepts that nurture the better angels of our nature. To achieve this, the central pursuit of the Attorney General should be to build a legal system that is devoted to fairness and equality, both in theory and in practice.
Elizabeth O’Shea is a lawyer practising in the area of human rights and social justice. She has previously worked the International Labour Organisation in Geneva and in Louisiana, USA with a capital defence office representing indigent prisoners on death row. You can follow her on Twitter @Lizzie_OShea