Robert McClelland has been Australia’s Attorney-General for 18 months: how does he think he’s going? Here, first hand, is a summary of his and the Rudd Government’s achievements, from his perspective.
Speech by Attorney-General Robert McClelland
‘Creating a Just and Secure Society’: 18 months in office
Monday 29 June 2009, to his ALP electorate conference (slightly edited)
The Attorney-General’s Department is entrusted with a number of important functions. It is the primary agency for national security issues, and alos primary custodian for our system of democracy, the rule of law and human rights.
The motto of the A-G’s is “creating a just and secure society”. Our work over the last 18 months has been loyal to that goal. Two days after my swearing-in as Attorney-General, a radio journalist introduced me with this observation:
“National security, emergency management, native title and family law. These are just some of the legal knots crowding the in-tray of new Federal Attorney-General Robert McClelland.”
Not surprisingly, the in-tray hasn’t lightened since.
In those opening days of government we were looking to the future, beginning to implement what we wanted to achieve and honouring our election commitments to the Australian people. Today, the world is changing so rapidly, and global influences are so pervasive, that the law must be subject to continual review.
In terms of framework, there are two key questions:
- are our laws relevant to the times, and
- do they match the expectations of the community and Australia’s standing as a good international citizen?
Within that framework there are a number of key areas of practical work, including:
- National security;
- Organised crime;
- Emergency management;
- Access to justice;
- Family law;
- Human rights; and
- Native title.
First and foremost, I would like to deal with national security. There is no greater responsibility of government than to protect the safety and security of its citizens. My priority has been to ensure strong counter-terrorism laws that protect the community and that reflect the values and freedoms that are part of the Australian way of life.
Given that the threat of terrorism will unfortunately be with us for some time it is necessary to recalibrate our laws so that they can operate on a long term, sustainable basis. Engagement with and support from the community is essential.
In December 2008 I announced the government’s response to a number of outstanding reviews of national security legislation.
These reviews included:
- The Clarke Inquiry into the Mohamed Haneef case;
- The Parliamentary Joint Committee on Intelligence and Security, Review of Security and Counter-Terrorism Legislation;
- The Australian Law Reform Commission’s review of Australia’s sedition laws; and
- The Parliamentary Joint Committee on Intelligence and Security, Inquiry into the proscription of ‘terrorist organisations’ under the Australian Criminal Code.
The government supported all 10 of the recommendations made by the Clarke inquiry and most recommendations made by the other reports.
In summary, the Government has committed to:
- establishing a National Security Legislation Monitor to review the practical operation of Australia’s counter-terrorism legislation;
- establishing a Parliamentary Joint Committee on Law Enforcement to extend parliamentary oversight to the Australian Federal Police;
- extending the mandate of the Inspector-General of Intelligence and Security to enable it to cover other agencies such as the Australian Federal Police;
- reviewing the operation of Part 1C of the Crimes Act that allows for pre-charge detention, in light of the Clarke Inquiry; and
- enhancing law enforcement capabilities.
The government is committed to consulting and building public confidence in our counter terrorism and security laws and is preparing a discussion paper and exposure draft of the legislation for public release and comment this year.
Already, however, following the Street Review, the Australian Security Intelligence Organisation (ASIO), the Australian Federal Police (AFP) and the Commonwealth Director of Public Prosecutions have implemented key recommendations to enable greater interoperability between our law enforcement and intelligence agencies, including:
- new Counter-Terrorism Prosecution Guidelines to improve consultation and communication in investigations and prosecution of terrorist offences; and
- new Joint Operations Protocols between ASIO and the AFP, to provide regular and accountable exchange of national security information and ongoing high-level consultation on operations.
In addition, the Government is also moving to address emerging threats, including:
- developing strategies to counter violent extremism;
- implementing recommendations of the E-Security Review to address the growth in sophisticated online attacks; and
- ensuring our national security strategy addresses all hazards – both man-made and natural.
The Prime Minister’s National Security Statement underlined organised crime as a growing and continuing national challenge. In April 2009, the Standing Committee of Attorneys-General (SCAG) agreed to develop a comprehensive national response to combat it. In June 2009, I introduced legislation to help make this national response a reality. It implements measures to:
- more readily confiscate criminal assets and the instruments of serious crime;
- require individuals to demonstrate that their wealth was legally acquired, where reasonable suspicion is established;
- enhance the ability of law enforcement agencies to infiltrate criminal organisations and provide protection for undercover officers;
- adopt the principle of collective responsibility by extending criminal liability to all individuals who jointly commit an offence; and
- broaden the list of gang related criminal offences that can be tracked using telecommunications interception powers.
We have also committed to establishing an Organised Crime Strategic Framework to target organised crime through enhanced intelligence and information-sharing capabilities, and preventative responses. The framework will set out measures to utilise the Australian Crime Commission’s (ACC) strategic intelligence to promote engagement with the community to build awareness and combat organised crime.
With significantly enhanced capabilities, the Commonwealth is working with States and Territories to coordinate law enforcement efforts through developing shared priorities, improved interoperability and information sharing.
The 2008 National Security Statement also acknowledged the enormous threat posted by natural disasters and recognised them as a core national security concern. The government has adopted an ‘all-hazards’ approach to national security which brings together the policy, capability and response areas for natural and man-made disasters. The A-G’s Department has been restructured with three divisions to look after each of these areas in a holistic, forward-focussed approach.
We’ve also shifted from a model where the focus was simply on emergency response capability to working cooperatively with the States and Territories on long-term, nationally co-ordinated approaches to developing emergency resilience, response and recovery. A good example of this was the agreement in November last year of the Ministerial Council for Police and Emergency Management (MCPEM) to develop a National Catastrophic Disaster Plan as well as national strategies for community engagement, education, self reliance and recovery.
The government has also contributed $27 million to establish a national telephony-based emergency warning system, including $11.3 million to build a secure database of phone numbers for the system to use and conduct research into mobile location-based warnings. The Rudd Government has also made a massive investment in emergency management, increasing funding for emergency response capability by 33% since coming to office in 2007.
The 2009-10 Budget increased the Government’s total commitment to disaster mitigation measures to $203 million. This includes:
- an additional $79.3 million over 4 years for the Disaster Resilience Australia Package and $12.8 million to the National Aerial Fire Fighting Arrangements for the same period;
- an additional $6.8 million to increase access for priority users to the mobile telephone network during times of congestion, such as Black Saturday; and
- $10 million over the next two years to the Bushfire Mitigation Program to identify and address risk priorities across the nation.
Access to justice
In addition to our critical work in national security, incorporating organised crime and emergency management, the access to justice agenda is central to the rule of law and integral to the enjoyment of basic human rights.
Unless it is accessible, the integrity of our justice system is compromised and diminished. The critical test is whether our justice system is fair, transparent, simple, affordable and accessible. Also, does our system provide effective early intervention to help people resolve problems before they escalate and lead to entrenched disadvantage?
In January 2009 I established an Access to Justice Taskforce in my Department. The objective in doing so was to examine access to justice from a system-wide perspective – to determine what works, what doesn’t and why. The Government is doing this in four ways:
1. identifying priorities for reform that will increase the capacity of individuals to understand the laws that affect them;
2. empowering people to find their own solutions to disputes;
3. ensuring that the use of public resources is proportionate to the issues in dispute; and
4. improving the scope for resolving disputes, quickly, simply and cost-effectively.
Last month, for example, I introduced legislation to help reduce the cost of litigation and minimise unnecessary court delays. The Access to Justice (Civil Litigation Reforms) Amendment Bill introduces targeted reforms to ensure people are able to resolve their disputes quickly, effectively and fairly. The amendments make clear that the court, litigants and their representatives are expected to conduct litigation efficiently.
The Bill includes key reforms, including:
- introducing an overarching obligation to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible;
- providing powers to impose cost penalties on parties and their lawyers who fail to comply with this duty;
- clarifying directions the Court can make to control the progress and conduct of legal proceedings; and
- streamlining appeals pathways to reduce confusion for litigants and ensure the best management of Court resources.
These reforms are essential in enabling federal courts to deliver a fair, effective and affordable service to litigants. The amendments complement other changes to the Federal Court Act introduced last year that allow the court to appoint an appropriately qualified person to inquire into any aspect of a proceeding and provide a report to the court.
I know from my experiences as a lawyer that some people are intimidated by the justice system, and others feel they don’t have sufficient skills to navigate it.
For people with limited means to assist themselves, the Government is also doing a lot more to ensure legal assistance programs are adequately resourced. Funding of over $700 million has been allocated for legal aid services in the Budget forward estimates. Base funding for legal aid will be maintained over the next four years and will be indexed for inflation.
In the past two years, the Government has also provided over $48 million in additional one-off funding to address immediate pressures on service delivery. This years additional contribution, includes:
- $10.1 million for Commonwealth legal aid services;
- $4 million for Community Legal Centres; and
- $6.2 million for Aboriginal and Torres Strait Islander Legal Services (ATSILS).
This is on top of additional payments of $28 million made last year, including $10 million in one-off additional funding for Community Legal Centres, $11 million for ATSILS and $7 million for legal aid commissions.
Funding for Community Legal Centres will help disadvantaged Australians who require legal assistance with day-to-day concerns such as consumer protection, mortgage and tenancy issues, welfare rights, family separation, older people and homelessness issues.
Aboriginal and Torres Strait Islander Legal Services (ATSILS) will receive funding for increased staffing and accommodation to assist the increased cost of service delivery.
Funding for Legal Aid Commissions will address immediate pressures on service delivery and support measures such as improved mediation conferencing services, upgraded information technology and video-conferencing equipment, and mediation training.
It is clear, however, that the current legal aid funding system is less than satisfactory.
Collaboration across all jurisdictions will be crucial to getting legal aid funding on a more sustainable basis.
Our access to justice agenda is most clearly demonstrated in the area of family law – an area of the justice system where many ordinary mums and dads have frequent contact. Since coming to office, I have been keen to identify and implement new and better ways to improve the experiences and outcomes for families engaged in the family law system. I am not doing this for the sake of change.
The formative years for children are critical and should ideally be safe and happy environments where they have opportunities to grow to their full potential.
The Government is exploring what changes can be made in the family law area to ensure the system protects children from harm. I have already begun working with the States and Territories to reduce violence against women and their children. Work is being done in several areas:
- developing a national registration scheme for domestic and family violence orders;
- developing a training package on domestic violence for judicial officers; and
- asking the Australian Law Reform Commission to conduct an unprecedented examination of the interaction of Federal, State and Territory laws relating to the safety of women and their children.
I am also investigating what else might be done to help separating parents resolve disputes outside the courts – to move away from the adversarial model of the ‘winner and loser’ approach.
Federal Court restructure
The critical test as to whether our justice system is accessible is the extent to which it is, amongst other things, efficient and effective. It’s my responsibility to ensure that mechanisms for resolving disputes, which are paid for by taxpayers, make the best use of these resources. Efficiency and effectiveness must, therefore, extend to the courts system.
In May 2009 I announced a significant restructure of the Federal Courts to better serve the needs of the Australian community. Currently, matters under Commonwealth law are heard by the Federal Magistrates Court, the Family Court or the Federal Court. Both the Family Court and Federal Magistrates Court can hear family law matters, and the Federal Court and Federal Magistrates Court also share jurisdiction in some general federal law matters.
Understandably, these arrangements, particularly in the area of family law, have led to confusion amongst litigants and inefficiencies in funding and administration. In short, they are financially unsustainable and are impeding access to justice.
The Government is restructuring the Federal Courts system by:
- merging the Magistrates Court into the Family Court and Federal Court;
- consolidating all family law matters under the Family Court; and
- consolidating all general federal law maters under the Federal Court.
The restructure will provide better outcomes for Australian families and children who require the support of the court system.
Like the area of national security, the maintenance and protection of our citizens’ basic human rights are fundamental to maintaining the kind of society we all enjoy.
In December 2008, I announced a comprehensive national human rights consultation to deliver on this promise. The consultation committee of eminent Australians is seeking the community’s views on three questions:
1. which human rights they think are important;
2. whether our current human rights protections are sufficient; and
3. how they would like to see human rights and responsibilities protected in the future.
When these consultations recently concluded, over 60 roundtable discussions were conducted in cities and townships across the country with nearly 40,000 written submissions received. I think we can safely assume from this level of interest that Australians have welcomed the opportunity to have their say on this important issue.
The government has, however, made it clear that any proposal that comes from this process must preserve the sovereignty of Parliament to pass laws in the national interest.
Apart from this consultation process, the Government has also taken other steps: we have ratified the United Nations Convention on the Rights of Persons with Disabilities, and acceded to the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women. In April 2009, my colleague, the Minister for Indigenous Affairs, Jenny Macklin, announced our support for the UN Declaration on the Rights of Indigenous Peoples. And in May I announced that Australia had signed the Optional Protocol to the UN Convention Against Torture and committed to introducing a national offence against torture.
We are also working towards becoming a party to the Optional Protocol to the Disabilities Convention. The government has also issued a standing invitation to the United Nations to visit Australia to investigate the protection of human rights here.
These measures reaffirm the Government’s commitment to human rights and send a strong message both within Australia and internationally that we will take all necessary steps to protect and defend basic human rights.
Like many Australians, I have been concerned and critical for some time about several aspects of the native nitle system. The predicted 30 year timeframe to resolve claims is as unacceptable as it is absurd and hardly compatible with the ideals and values of a developed nation.
In March 2009 I introduced the Native Title Amendment Bill to give the Federal Court the central role in managing all native title claims. A nationally consistent, coordinated approach to the resolution of native title will give the impetus to broader, quicker and more flexible negotiated outcomes and that includes deciding who mediates the claim.
Having the court actively control the direction of each case will mean that opportunities for resolution can be more readily identified. The courts will be able to issue consent orders on matters beyond native title which will allow for fairer and more just results. The court will also be empowered to use an agreed statement of facts when undertaking consent determinations.
Other legislative changes will enable the court to refer specific issues for expert assessment and report. This will be a particularly effective way of focussing on anthropological issues. I am confident these amendments will result in better and faster results in native title claims.
In a federated nation such as Australia, common standards and the harmonisation of law have an excellent chance of producing shared benefits. The application of this to the legal profession itself, is a particularly good example.
Regulation of the legal profession in Australia remains overly complex and inconsistent, with up to 55 different regulators across the country. As a result, different practices apply in different jurisdictions, including for example costs disclosure and billing, admissions and practicing certificates and complaints handling and professional discipline.
Australian lawyers and consumers no longer operate in just one State or Territory. To deliver a seamless national economy we can no longer justify such disparate regulation for just one profession. In April 2009, an important step was taken with the Council of Australian Governments (COAG) agreeing on a plan to achieve national regulation of the profession beginning with draft legislation to be prepared for consideration within 12 months. I have already announced a specialist taskforce, and a consultative group to assist it, to make recommendations and prepare the legislation.
National regulation of the legal profession will benefit consumers, lawyers and firms alike:
- Consumers of legal services will benefit through increased competition, reduced compliance costs and billing arrangements that are simplified and more transparent;
- Lawyers will benefit by being able to easily operate across jurisdictions; and
- Legal firms will benefit by being more competitive in both the national and international arena.
I look forward to seeing how best we can disentangle the complexities and achieve national uniformity for the profession.
Another important area that will benefit from a harmonised approach is that of personal property securities (PPS) law. PPS law governs how personal property may be used as security for a loan, and for many years, successive Governments have identified the need to reform this area. Australia currently has a maze of PPS legislation and security registers. This has impeded the ability of individuals and businesses, particularly small-to-medium size businesses, to use their property in raising capital.
Given the current uncertainty in global financial markets, increasing the willingness of lenders to provide finance and the capacity of businesses and individuals to borrow is crucial.
Last month, I introduced the Personal Property Securities Bill to create a single legal framework for lending using personal property as security. This single piece of Commonwealth legislation will harmonise more than 70 different pieces of Commonwealth, State and Territory law.
PPS reform delivers on the Government’s ambitious deregulation agenda, providing greater certainty to businesses, reducing red tape and legal disputes. The reforms will play an important part in reducing the cost and increasing the availability of credit to more businesses, while consumers will have greater certainty in acquiring unencumbered goods. The new laws will be supported by a referral of power from the States and a national online register of PPS interests. NSW has already referred its related power.
As Attorney-General I am very pleased by what we’ve been able to achieve in our first 18 months in Government. However, there is more to do.
I have said we are now entering the business end of the Rudd Government’s first term of office. It will be a time when a lot of hard detailed preparatory work comes to fruition. The government is continuing the work of ensuring “a just and secure society” as well as promoting a greater sense of inclusion and collaborative effort amongst the Australian community.
I think it’s a reasonable assertion that no other generation in Australia’s history has been given so many opportunities to prosper and grow. How we use the opportunities we ourselves devise and those presented to us is the key to a successful future.
As Attorney-General I look forward to achieving even more in the months and years ahead. Thank you.