Attorney General Mark Dreyfus and his agenda … Massive reform agenda after years of neglect and paralysis … Overtones of Lionel Murphy’s busy era as AG … National security …Whistleblowers … Human rights … Max Shanahan reports
Three months into his second stint as First Law Officer, Justinian takes a look at the achievements, priorities and attitude of Attorney-General Mark Dreyfus.
Amid the constitutional convulsions of the past week, and the controversy which surrounded the office during the previous government, Dreyfus’ reprise as AG has – thus far – been fairly smooth sailing.
With reforms in progress and upcoming, and the new government’s honeymoon period in full swing, anything less would be a worry. However, once the low-hanging fruit of new government is dealt with, it remains to be seen whether deeper legal and attitudinal changes will progress.
Dreyfus took office in the wake of an extraordinary proliferation of national security legislation. While such lawmaking was predictable and largely justified in the 9/11 and Islamic State eras, the new AG will be left to deal with the aftermath of this rapidly built infrastructure as courts, oversight bodies and the public begin to reevaluate the necessity and appropriateness of norm-breaking impositions on free speech, open justice and privacy rights.
Already, the High Court has struck down elements of citizenship-stripping laws and the Independent National Security Legislation Monitor (INSLM) appears poised to recommend changes to, or the abolition of, the Commonwealth’s control order regime.
The AG’s response to the INSLM’s report on the secret conviction, sentencing and imprisonment of Alan Johns (a pseudonym) provides a useful example by which to assess the difference in tone between the current and former government.
Infamously, Alan Johns was charged, convicted, sentenced and imprisoned without any public disclosure. Only once the matter was inadvertently disclosed in the ACT Supreme Court did then-AG Christian Porter make a statement to parliament on the issue.
The INSLM was highly critical of Porter’s secrecy:
“I expressed skepticism that the statement of the AG contained … all that could publicly be said about the circumstances of the prosecution.”
Dreyfus himself was, at the time, “deeply troubled by the extraordinary secrecy surrounding the case” and decried the Morrison government’s “ever-increasing climate of secrecy”.
The INSLM report, handed to parliament earlier this month – provides the Attorney-General with an opportunity to re-evaluate the Commonwealth’s tendency towards secrecy.
Dreyfus’ willingness to address the issue is seen in the decision to order a review of the National Security Information Act before acting on the recommendations made in the Alan Johns report.
Dreyfus told Justinian that the review will “consider how the Commonwealth can better balance the vital importance of open justice with the essential need to protect national security”.
A number of provisions will likely face scrutiny in the INSLM’s review. Section 22 – the operative provision in the Alan Johns matter – allows the AG, prosecutors and defence to essentially agree to secret proceedings.
Given the convergence of interests in intelligence cases, this is often the most desirable outcome for all parties. There is no requirement to consider principles of open justice in this procedure.
The previous government tried to argue to the INSLM that the AG played the role of open justice advocate, but the existence of the Alan Johns case shows the shortfalls in that.
The INSLM has recommended a “contradictor” be involved in s.22 proceedings. Whether the AG accepts this and other diminutions of his powers will show how committed the government is to recalibrating the Commonwealth’s position on transparency.
Sections 29 and 31 – not considered in the Alan Johns review – will likely also come under the microscope. Indeed, some academics and judges have questioned their constitutionality, let alone appropriateness.
Section 29 requires that s.31 proceedings – which determine non-disclosure and witness exclusion – be held in closed court.
Similarly, s.31 requires that the court give greatest weight to national security considerations over matters of open justice and transparency when considering the extent of public disclosure that is necessary.
Speaking after his retirement from the High Court, Michael McHugh said, in a paper for Australian Bar News, there is “a strong case that the legislation is an attempt by parliament to usurp the judicial power of the Commonwealth”.
The National Security Information Act is unlikely to be the only piece of rushed and poorly drafted national security legislation to come under examination in the near future, and Dreyfus’ readiness to commit immediately to a wide-ranging review of the Act signals a willingness to confront other related problems.
By far the most public break with the previous government was the decision to withdraw consent for the prosecution of Bernard Collaery.
Widely welcomed, the move was largely unsurprising after Dreyfus said during the election campaign that the prosecution as “inimical to the rule of law”.
While the Collaery decision demonstrates, at the very least, a redress of one of the more bizarre legal decisions from the previous government, it will be the scope of proposed reforms to the Public Interest Disclosure Act that provide a more fulsome picture of the new government’s commitment to whistleblower protection.
So far, Dreyfus has prioritised straight-forward measures such as clearing up the distinction in the Act between workplace grievances and legitimate public interest disclosures.
Professor A.J. Brown, head of the public integrity research program at Griffith University, says that “it’s a good element to go ahead and fix up now, but it’s certainly not the most important thing”.
More expansive reforms – likely incorporating the recommendations from the Moss Review of the PID Act – are expected to be prioritised in the first half of next year.
One area in which conflict may be brewing is the establishment of an independent whistleblower protection commission, with the power to, among other things, investigate whether complaints have been properly handled and whether it was reasonable for the whistleblower to make a public disclosure.
Brown describes the lack of such an arbiter as “a crucial missing link in the infrastructure”.
A senate committee, with four Labor members, recommended in 2017 that an independent body be set up to support whistleblowers, investigate reprisals and remedy detrimental outcomes.
More recently, Greens and independent MPs have been calling for creation of this agency as part of the proposed Commonwealth Integrity Commission.
Greens Justice Spokesperson David Shoebridge says his party is “extremely keen” to see the independent body established, and that giving confidence and protection to whistleblowers is an essential part of ensuring any eventual integrity commission can do its work properly.
While Dreyfus has reportedly wavered on the idea of an independent whistleblowers commission, Shoebridge says there are “some positive signs” from the Attorney-General that “there’s a growing commitment to ensure whistleblower protections are renovated before the new federal integrity commission”.
As the government begins to look at broader changes to public disclosure legislation, two whistleblowing cases continue to drag on.
Despite calls to do so, Dreyfus has declined to intervene to end the prosecutions of Richard Boyle and David McBride.
Whereas the prosecution of Bernard Collaery, as a national security case, required the explicit consent of the Attorney-General, the Boyle and McBride cases do not. Any use of the AG’s powers to override the ODPP would be unusual.
Furthermore, both cases are at a more advanced stage than the Collaery matter, with hearings imminent to determine whether the whistleblowers can rely on the public interest defence under the PID Act.
Professor Brown believes that, while both cases have “gone on far too long … at great human and financial cost”, the outcomes of the public interest defence hearings are important points points of law that require resolution:
“I can appreciate why the Attorney-General has said to let the law run its course, but if it drags on and on, the justification for saying that there is no longer any public interest in the case would become stronger.”
For David Shoebridge, that point has already been reached:
“I can’t see a meaningful distinction between the three cases. There is a compelling case for the Attorney-General to end the political prosecutions of McBride and Boyle.”
Despite the insistence of the Greens and advocacy groups, it is highly likely that the matters will continue into the new year.
One of the Attorney-General’s first legislative actions in government has been to introduce reforms to the Australian Human Rights Commission.
The Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill addresses the politicised appointments that saw the renewal of the commission’s “A-status” deferred by the global accreditation body.
The previous government’s appointments included politically favourable candidates such as Tim Wilson and the relatively unknown, yet connected, Lorraine Finlay to the Human Rights Commissioner role.
The loss of A-status would mean the loss of participation rights at the UN Human Rights Council, and relegation to a tier of human rights compliance that includes such questionable bedfellows as Libya, Myanmar and Bahrain.
The new legislation seeks to ensure that appointments are merit-based and transparent, with a provision requiring that the commission’s president have “appropriate qualifications, knowledge or experience”.
Although limited, the proposed changes directly address the concerns raised in relation to the re-accreditation of the Human Rights Commission. Professor Ben Saul, who has written about the commission’s troubles, says the Bill is “a positive [but] a pretty modest step, because it’s just restoring what is blindingly obvious that public appointments should be made on a merit basis”.
Whether “merits-based” appointments eventuate in reality remains to be seen – the detail of appointments guidelines, and the extent of ministerial intervention, is yet to be fleshed out. According to Saul:
“… it would be good to have some more certainty around what ‘merit-based appointment’ means and the power of the minister to vary the recommendation made.”
The legislation addresses the two main points of criticism raised by the re-accreditation report – appointments and tenure – but questions over the funding and mandate of the AHRC remain.
One short term fix, recommended by the re-accreditation agency and urged by the commission itself, would be to increase funding to the AHRC, which faces the prospect of staff cuts and an inability to “perform our statutory functions” as complaints surge in the wake of the pandemic.
The AHRC tends to focus predominantly on anti-discrimination issues, largely ignoring economic, social and cultural rights. Ben Saul describes the AHRC as being built on “an outdated 1980s model [which is] ripe for root and branch reform”.
Already, in debate over the AHRC Bill, the government has joined with the opposition to prevent amendments proposed by the Greens to establish an LGBTIQ+ commissioner within the AHRC.
The Attorney-General did not respond when asked whether broader reforms to the AHRC are required. While the government did not take any wider reform plans to the election, the extent to which it seeks to match international best practice with the AHRC will be a good indicator of the seriousness with which it takes commitments to a “human rights-based approach” to governance.
The new government’s early responsiveness to international criticism and willingness to engage with intergovernmental organisations on the AHRC issue demonstrates a conscious attempt to reset the Commonwealth’s attitude to international law following the strained relationship endured during the time of the Coalition government.
Dreyfus told Justinian that the Albanese government is “committed to restoring our international standing, and once again being respected for our approach to international law and engagement with international institutions”.
Certainly, the government’s increased engagement with international bodies, and a commitment to a “human rights-based approach” from the Attorney-General will go some way to recalibrating relations on the global stage.
Ben Saul says:
“Labor is historically more supportive of and effective in engaging with international human rights mechanisms, at the same time they’re not so different in terms of being defensive against criticism of Australia’s human rights record and wanting to use human rights as a foreign policy tool without necessarily accepting the same level of scrutiny.”
So long as the government maintains its policy on asylum seekers and remains a relative laggard on climate change, the “human rights-based approach” extolled by Dreyfus will remain somewhat thin.
Nevertheless, with a stated commitment to indigenous justice reinvestment, movement towards a referendum of the Voice to Parliament, as well as flagged initiatives such as changes to the Privacy Act and Sex Discrimination Act, it is fair to say that the Albanese government has provided a more positive and constructive approach to human rights.
A further indication of this has been the Attorney-General’s decision to discontinue the Commonwealth’s High Court appeal in the Montgomery case.
With two new justices on the bench, the previous government sought to overturn the precedent set in Love and Thoms that Aborginal people cannot be aliens, removing them from the scope of the immigration minister’s powers to detain and deport non-citizens.
The decision to discontinue the challenge at such a late stage – the court had already heard arguments – demonstrates a distinct change in tone towards indigenous and immigration issues.
As a result of the discontinuance, Montgomery had his visa cancellation revoked, and 12 Aboriginal non-citizens were set to be released from immigration detention.
Coupled with Labor’s justice reinvestment plan and the upcoming referendum on the Voice to Parliament, it is clear that the Attorney-General has provided a clear change in attitude and policy on indigenous legal issues.
Beyond the decisions already made in relation to whistleblowers, the AHRC and national security legislation, it’s been a busy few months in office for Mark Dreyfus.
Landmark reforms such as the Voice to Parliament and the Commonwealth Integrity Commission continue to be developed, while there is consideration of the ALRC’s judicial impartiality report and implementation of the Respect@Work report’s recommendations to be completed.
High up on the agenda will be continuing consultation for the appointment of a new High Court Justice ahead of Justice Patrick Keane’s retirement in October.
The recent Meeting of Attorneys-General – the first since November last year – laid out a broad range of reform priorities, including further consideration of model defamation reform; agreement on national principles to address coercive control; and development of a proposal to increase the minimum age of criminal responsibility.
Increased consultation with the states and territories is a key tenet of the new Attorney-General’s agenda, and Meetings of Attorneys-General are to be held quarterly, up from the previous biannual regime.
Dreyfus told Justinian:
“… reforms will require close collaboration between all governments and meeting more regularly enables us to drive coordinated, national responses to issues … This first meeting was a very cooperative meeting and a very good start to what I think will be a continuing cooperative relationship between the Commonwealth and the States.”
Amongst academics and parliamentarians, Dreyfus’ first three months in office have largely been described as a breath of fresh air. After nine years in opposition, there is a large legislative and social reform agenda to be implemented.
Whether Dreyfus is able to proceed on larger, more expansive reform of institutions and legislative schemes will ultimately depend on whether he can persuade the conservative wing of his party to agree to long-lasting change.