What do you consider to be your greatest achievements this term?
I’ve been a very activist minister as Attorney-General and interestingly I was told I had more pages of legislation this year than any other minister, which was rather fascinating.
But if I was asked about my priorities, while there could be many, I think there are three major areas.
First, the most fundamental reforms to family law since 1975: to institute a new culture in the way relationship issues are addressed; to put children at the foremost in our consideration of issues in relation to family dissolution; and ensuring that people have an alternative to an adversarial process, through the implementation of the Family Relationship Centres and the range of measures enacted around them.
The second area was the implementation of arrangements for the national legal profession — I would like to think they had been flawless. Regrettably, the persistence of the states in nuancing some differences have led to it being a little less than perfect, but nevertheless the change is very significant in itself and it points the way to greater harmonisation of laws within the federation.
Our greatest responsibility to our people in human rights terms is to protect their rights to life, safety and security. The challenges we faced after September 11, 2001, and the earlier attempted bombing of our mission in Singapore, meant that we had to deal with national security issues in a way that protected people from the threat of terrorist acts and the range of counterterrorism measures, I think have been balanced and appropriate to the threats that we face and constitute a major achievement.
Obviously, they are all matters in which further progress will be required.
You have said you don’t support a bill of rights. Why do you argue that the legislature shouldn’t try to protect basic human rights?
My view is that we do have a constitution and it does deal with a range of issues, including separation of powers and that gives us and independent judiciary and it also assumes that we have a robust legislature. And I think some people want to see a transfer of power from an elected robust legislature to an unelected judiciary.
My view is there is a certain chauvinism in that, that reflects what people assume are the rights and entitlements at a particular point in time in our history. I’m interested not in a bill of rights that somebody might think is appropriate for today and tomorrow. I’m interested in the bill of rights that was settled in 1900. And it’s interesting, if people had wanted to deal with values in 1900 and didn’t have the good sense to leave those matters to the legislature, we would have entrenched a White Australia policy, probably a right to bear arms, and I am certain adult male franchise. Those were the values then, but I don’t think they are the values of today.
So it’s my view that these things should not be enshrined in constitutions and bills of rights, but through the people through their responsible legislatures. I’m not alone in that. I mean, Bob Carr holds the same view and many others hold that view.
Victoria has a human rights charter. Are there any difficulties with there not being some kind of national consistency in the area of human rights law?
I don’t think they are leading the way. I think they are half-pregnant. The bills of rights in some places are not bills of rights. They are in fact the states legislating for a HREOC [Human Rights and Equal Opportunity Commission], except that in their commissions they are asking a judge to offer the gratuitous advice that parliament may or may not accept.
The Commonwealth has taken the view that we are perfectly happy to have advice. We do have it from very distinguished people like Justice von Doussa who is the chairman of HREOC, Tom Calma, Liz Broderick, Graham Innes, in each of the areas in which they specialise. So I think it’s interesting that when the states get round to doing it and saying ‘we have to have a bill of rights’. What they have is they are giving the courts something that the courts have traditionally said is undesirable, and that is advisory opinions.
Do you believe there is there a difference between judicial activism and developing the common law and how you define what is what.
Let me just say I have no problem with common law being developed according to strict logic. But when people seek to interpret the matter before them in a way which no longer follows the precedent but strikes out in a new direction then I think it’s a very different matter to what I would call the development of law, where when a new issues arises, you measure it against the accepted principles that have been applied in the past.
If you are to make a fundamental change in direction then the separation of powers, in my view, means that the legislature should take that decision.
The Parliament in relation to terrorism matters determined some time ago to shift the burden of proof required to obtain a grant of bail so that in terrorism there was a presumption against release. And you know that was a very firm view of the Parliament, and my view is if the Parliament thinks some issues are more serious than others, and that is reflected in law, then you would obviously expect that account would be taken of that expression of view by those who have the judicial function.
Do you believe judges are actually neutral and value-free?
In relation to judges they should be value-free, they should be able to see where their own, perhaps experience and values might be taking them and to ensure that they apply their judicial function fairly and properly and free from any prejudice, and I think that’s what judges do.
But I make the point, if judges come to a view they don’t like — or don’t like the way in which particular matters are being progressed through the legislature — they are free to resign their office and pursue public office. In fact, my recollection is that Sir John Latham was a parliamentarian; my recollection is that [Herbert Vere] Evatt left the High Court in order to seek political office. And I’ve got no problem with people who have strong views seeking to give effect to those through striving for public office. No problem at all.
Have you had anyone approach you about that?
No. But I wouldn’t say if people who today held high office said that they would aspire to political office that they would be denied a role. In a competitive environment, you could well see people who have strong views being elected to Parliament, I think would be rather good actually if it did happen.
You said harmonisation of laws would remain on the agenda. What progress are you making?
The personal property security legislation when implemented with the reference of power from all of the states would eliminate 70 pieces of legislation that are on the statute books now, 40 of which contain substantial differences that have no import other than that they were enacted at a particular point in time in a state’s or territory’s legislative history. There is no good sense as to why the differences ought to be in place.
You can look at all of those areas I’ve identified — evidence law, statutory declaration, powers of attorney, issues in relation to conveyancing. There is a framework of law in all of the states and anybody who has to deal in those jurisdictions and has to trade across borders, can only function with high level legal advice as to what the import of those differences might be.
What do you think about Labor’s plan for a first officer of the law separate from someone looking after national security?
Administrative arrangements are a matter for the PM of the day but I would ask this question: where does the fact that I deal with judicial appointments, a range of civil law issues, put me in a conflict of interest in relation to the responsibilities I shoulder as the person responsible for domestic national security? I’ve never seen any conflict arise. It seems to me that those who are suggesting there is, need to point to where that might have occurred. That doesn’t mean to say that the prime minister can’t change the areas of responsibility that individual ministers have.
But I think their questions of administrative orders that a prime minister determines, rather than issues of substance.
Why should lawyers vote Liberal?
My view is that the Liberal Party with it’s philosophical approach in relation to the private sector has a very significant degree of connectivity and mutual interest and certainly I’ve found that, as a member of the legal profession, I’ve been a solicitor now for 40 years, that there is a natural synergy between my interests and the way in which the Liberal Party responds and deals with issues that are important to me.
I think that there is far greater synergy between the Coalition and members of the legal profession, [and the profession] would see it as being its natural home and our performance also reflects that.
When can we expect a response to the Law Council’s queries about the Labor Party’s stance on legal aid?
It’s not our practice to divulge campaign announcements [ahead of] campaign announcements, but I will be pleased to forward the details to you when they are announced.
Labor did not provide a clear answer to the Law Council when asked if it supported a bill of rights, but the ALP’s National Platform says the party supports an inquiry into a bill of rights? Is this still the case?
That’s exactly right. What we were pleased to do in the National Conference was commit to the protection of important rights and freedoms and we tried to entrench them. The Australian Government did at the time, entrench important freedoms into our constitution by referendum both in 1944 and 1988 and both of those were unsuccessful; 1988 was the lowest yes vote recorded. Because of the difficulty in getting passage of referenda, Labor believes we really have to look beyond the traditional model of a bill of rights incorporated into the constitution, and look at what we can actually realistically achieve. We looked at a charter of human rights but what I think is more important is to engage with a national conversation with the community so that what we put into our national platform was a way forward — a public inquiry, a community consultation about what rights we should protect, how we should go about protecting those rights, and ensuring we get the right balance between the rights of the individual, the community, the need for security in crime and terrorism, protection of children’s rights — all of those issues need to be explored.
So do you envisage a piece of legislation separate to the constitution?
If you look at the Victorian model it’s one example of a charter. I’m not going to second-guess the outcome. I think it’s important to have that engagement with the community to identify what rights should be protected, how best to protected those rights, and what form they will take.
It seems where it has been provided for from above — where we have said “this is what the Australian people should have” it’s failed. So perhaps we should step back and have that discussion, that national conversation about rights.
If elected what sort of progress would you like to see in terms of harmonisation of laws? Are there any areas where you see harmonisation as particularly crucial?
I’m happy to have SCAG [Standing Committee of Attorneys-General] identify harmonisation priorities but, I’ll say this, providing it cuts red tape and relieves business burdens and isn’t just harmonisation for harmonisations sake. I wouldn’t support that. It’s like the FOI harmonisation reference by the Attorney-General — where is the red tape that will be cut across state boundaries with that? Where is the business clamour for that outcome? So if we look at that I would expect that if there are inefficiencies that require consistency then they would be identified and prioritised and acted upon. And that’s what the current Attorney-General should be doing: looking at where it cuts red tape, relieves a burden on business and will facilitate business.
In regards to the national profession, most states have implemented the law and that’s about really, a reform program conducted in conjunction with the Federal Government but with the legal profession, leading to greater choice, encouraging competition and other benefits to consumers. It’s to enable integrated delivery of legal services — it’s about cutting red tape, it’s about ensuring that existing and future market demand for legal services is on an Australia-wide basis, it’s about streamlining state and territory regulations to allow lawyers to practise seamlessly within Australia. So you can see that business need there.
What are the greatest obstacles to harmonisation at this point in time?
There are many obstacles but the trick is working cooperatively over time. If you look at the Model Legal Profession, that’s what they’ve been doing — 1994 was the blueprint for the structure of the legal profession. It’s been a while. In March 2002, if you look at where it started really, that was a new phase where you got the Federal Government pushing it. And Labor’s had a bipartisan approach to that. It’s about improving overall service delivery and benefits to consumers.
How would you rate Philip Ruddock’s performance as Attorney-General?
That’s for others to judge. That’s your job not mine.
What would you do better, assuming you had the Attorney-General’s portfolio?
There are important issues and one of them is that dialogue about human rights.
The other area is to have a first law officer, because what we have now is a first security officer and a first law officer. What Labor has said is that we will have a department of homeland security and a first law officer that will be the attorney-general, the roles won’t be confused.
At the moment, the conversation that Mr Ruddock must have is: which does he bring to cabinet — a human rights approach or a first security officer’s approach? He has to have that debate before he’s [arrived at] the Cabinet table. Labor thinks it’s important to have that debate at the Cabinet table because you can do both. You can ensure that human rights and civil liberties are protected.
So is that how you see the role of the attorney-general?
Yes, as the first law officer.
I’d also ensure we have good FOI laws because it’s also about having an open, transparent government. In our National Platform we’ve also talked about whistleblower protection and ensuring that. In terms of whistleblower protection the government has section 16 of the Public Service Act and it doesn’t extend any further than that for whistleblower protection. You’ve had the Coalition chase leaks and use AFP resources on areas where they simply seem to be embarrassed. If it’s about national security then Labor agrees they should track that leak, but if it’s simply embarrassing to government there is a question mark as to why we don’t have adequate whistleblower protection. If you look at a range of reports recently, they have highlighted the inadequate nature of federal whistleblower protection laws. The states have all moved ahead well, the Commonwealth has not.
Why should the legal profession vote Labor?
We offer a position of we can do better. We can look at FOI, whistleblowers, a human rights dialogue, having a first law officer, journalist protection for yourself. When you look at the action of the current government all of this has remained second fiddle. These areas have not been addressed or focused on to the detriment of civil society. And that’s why we then say there will be two roles — one for security and one for law, so that law gets the attention that it deserves.