Mark Dreyfus has been sworn in as attorney general, having first held the job in 2013 in the Rudd era. Since then he has had seven years as the shadow attorney, so he knows what’s pressing and what’s not. Mark Dreyfus’ agenda … A process of Demorrisonification … The NIC … Refenenda galore – The Voice, The Republic … Whistleblowing and other freedoms – Collaery, Assange … The quality of tribunal and commission appointments … High Court vacancies … Bureau chief Polly Peck reports from Canberra
Mark Dreyfus has been sworn in as attorney general, having first held the job in 2013 in the Rudd era. Since then he has had seven years as the shadow attorney, so he knows what’s pressing and what’s not.
There’s a pile on his plate after nine years of indulgence, wreckage, neglect, incompetence and duplicity from Brandis, Porter and Cash.
The extent of the law and justice policy vacuum left by the outgoing government is astounding.
Some things that were high on the previous government’s agenda will be given low priority – think, Religious Discrimination.
Labor is on record as saying it supports a Religious Discrimination Bill – but not Morrison’s bitter, bigoted law, which was designed as a wedge to make it seem that the Labor Party hated Christians.
The ALP platform says an Albanese government will “prevent discrimination against people of faith” but it won’t support discrimination against students and teachers at work, while “maintaining the right of religious schools to preference people of faith in the selection of staff”.
In Opposition, the Labor Party was not enthusiastic about the original Bill’s Folau clause, protecting “statements of belief”.
Labor will put the legislation onto the back burner. It might reappear sometime in “this term of parliament” – by 2025. The god-botherers will have more time to stew in their juices.
The priority is for a National Integrity Commission, this year. Independent MP for Indi Helen Haines’ Bill lapsed when parliament was dissolved for the election.
The Labor Party didn’t support her Bill, even though cross-benchers and a few Liberals did.
Labor is proposing a NIC with a commissioner and two deputy commissioners, each with five year terms.
There will be no difference in the powers to investigate public officials and law enforcement officials, which was the Coalition’s weird offering.
Instead, Labor’s NIC will be empowered to investigate serious and systematic corruption by Commonwealth parliamentarians and their staff, public servants, statutory office holders, the Commonwealth judiciary and the Governor-General.
The presumption will be for in camera proceedings, but NIC will have discretion to hold open hearings, when in the public interest.
Otherwise, the commission will have the full powers of a Royal Commission, including the power to search, to compel witnesses and to issue warrants. NIC will make findings of fact and, if necessary, refer corrupt officeholders to prosecutors.
With support running at 80 percent for a federal anti-corruption commission that could growl and bite, Morrison’s failure to meet the community expectations on government integrity must surely be high up on his lengthy list of blunders.
Labor has pledged a constitutional Voice to parliament and this will require a referendum. The proposed legislated Voice has been scrapped.
The Coalition had no intention of taking any constitutional steps to advance the Uluru Statement from the Heart.
Labor’s commitment runs the full breadth of the Uluru statement, which apart from the Voice also includes a treaty and a process for truth-telling.
The government has promised to establish a Makarrata Commission – a process for conflict resolution, peacemaking and justice.
The referendum’s prospects of success would be enhanced if it had bipartisan political support. Already the forces of reaction and regression are urging Opposition leader Dutton to oppose the constitutional Voice “on principle”.
Dreyfus has made noises about the prosecution of whistleblower Bernard Collaery, but given no firm commitment that the wretched, expensive protracted prosecution will be dropped.
The new AG described the conduct of the prosecution as an “affront to the rule of law”.
“I haven’t seen a cogent explanation as to why that’s in the public interest.”
He said he’ll have an “early” departmental briefing about the case. He’s keeping his options open in the event the department tells him something that might persuade him not to intervene.
Where this leaves the prosecution of whistleblowers David McBride and Richard Boyle is uncertain, but there has been no signal that the AG is interested in intervening in those cases.
Whistleblowing is all very well, but the safe avenues for revealing government misconduct are limited and perilous.
What then of Julian Assange?
As Opposition leader Anthony Albanese said Assange’s imprisonment had gone on long enough.
Mark Dreyfus as the shadow AG agreed.
“Given his ill health it is now time for this long-drawn-out case against Julian Assange to be brought to an end.”
Asked at a press conference on May 31 whether this was still Labor’s position, Prime Minister Albanese said, “my position is that not all foreign affairs is best done with a loud hailer”.
The hint was that there may be discussions going on with British and US authorities about getting Assange back to Australia – in much the way the Howard government in 2007 negotiated a face-saving return of David Hicks from Guantánamo Bay.
US lawyers at the Assange extradition hearings in London argued that if found guilty of violations of the Espionage Act, the prisoner could serve his 135 year maximum sentence in an Australian prison.
The ALP says it will “restore” Freedom of Information. There’s no mention of the policy in the party’s official platform, but presumably this involves addressing the snail like pace with which FOI applications are processed, the expense and the unlawful decisions to block the release of documents.
The other lapsed issue in the freedoms locker is defamation law reform. Western Australia still has not passed the uniform consolidated model provisions from 2020.
The new government in Canberra will not proceed with the online Trolls Bill. That was little more than another wedging piece of legislation, so that the then government could spruik the message that Labor was “soft on trolls”.
Stage two of the defamation reforms still has to to be addressed – liability for internet intermediaries, take-down orders, safe harbour protections, immunities and defences.
Dreyfus is committed to an improved appointments process for both the HRC and the AAT. – but he is not proposing to “start again” with the AAT.
What can be done in both instances is a refined, transparent, open and independent method of making appointments that are screened by independent panels.
That’s not to say that the AG gives away his right to make appointments outside the panel selections.
There’s a ghastly state of affairs at the Human Rights Commission because of the manner in which appointments were made by the three attorneys over the previous nine years.
Brandis appointed Tim Wilson as the Human Rights Commissioner straight from the Institute for Paid Advocacy, a lobbying and preferment peddling outfit whose policy included the abolition of section 18C of the Racial Discrimination Act and the HRC itself.
Wilson went on the become the Liberal MP for Goldstein, only to be removed by his constituents at the May election.
Madam Cash appointed Lorraine Finlay to the same job, someone whose stance against fundamental human rights issues is even more obnoxious that Wilson’s.
Chin Tan, The Christian Porter’s appointment for Race Discrimination Commissioner has been almost invisible, unlike his predecessor the active and effective former commissioner Tim Soutphommasane.
The Geneva based Global Alliance of National Human Rights Institutions has suspended the HRC’s A-status because the Coalition’s appointments were open-ended, without being advertised or subject to independent assessments.
In other words there is concern about the commission being used as a dumping ground for political allies whose job it is to toe the government line.
Dreyfus will address the appointments process for both the HRC and the politically tainted Administrative Appeals Tribunal.
The camel that is the Federal Circuit and Family Court of Australia will not be unstitched by the new government. The separate divisions for family law matters and other circuit court matters will stay as they are.
There is no plan to introduce a Bill of Rights, although Dreyfus has suggested that he would like to see the various pieces of anti-discrimination legislation strengthened.
Chunks of the previous government’s policy on class actions will be thrown in the waste paper basket. It is likely that Labor will look more closely at the Law Reform Commission’s recommendations.
Big law shop Allens predicts the Coalition policy that group members get no less than 70 percent of the proceeds of claims will get the chop. Basically, it means it’s up to the court’s discretion to approve funding commissions.
Assistant minister Matt Thistlethwaite is the new Minister for the Republic.
It’s a project for Labor’s second term as no government can have too many referenda in the pipeline.
“Australians will wake up one day, Charles will be the king and they won’t have had an opportunity to have a say in that.
It’s always been the problem with the Great Australian Cringe. We can’t leave the monarchy while dear old Brenda Battenberg is Queen, then it is Charles’ turn and he’s waited so long that it would be unfair not to let him has a try. Then there’s gorgeous William who is so popular. And so on.
Good luck Thistle.
Much needs to be done to restore the role and importance of the Attorney General’s Department. As AG for more than three years, Christian Porter had a record of sidelining his bureaucrats, leaving positions vacant for too long, ignoring reports and generally being responsible for a decline in morale.
Brandis was another shocker. His meddling with the independence of solicitor general Justin Gleeson is unlikely to be forgotten.
To her credit Madam Cash tried to repair some of the departmental problems that arose from the neglect and crude political manipulations of her predecessors.
Dreyfus and the Albanese government will have the opportunity to made two appointments to the High Court in this term of parliament.
Patrick Keane’s term is up by October 26 and chief justice Susan Kiefel becomes constitutionally senile on January 17, 2023.
Dreyfus will be going to the Law Council, the states, and bar councils for feedback on appropriate replacements.
Submissions from flat earth outfits like the Samuel Griffith Society and the Institute of Paid advocacy will be sent to the shredder.
Formally, High Court appointments are made by the prime minister.