Setting priorities in the role of Attorney-General

What should be the priorities of new Attorney-General Robert McClelland? If the Democrats’ A_G spokepersons, Senator Natasha Stott Despoja, was in the job, this is what she would be focusing on in 2008.

If I were Attorney-General

By Senator Natasha Stott Despoja,
Australian Democrats’ spokesperson on Attorney-General’s affairs

If I were Attorney-General, I would be proud to stand as the first-ever woman be our nation’s first law officer. It would remind me that Australia has come a long way on issues of equality and justice, but that there is still much work to be done.

My first job in office would be to implement an urgent inquiry into the state of Australia’s anti-terrorism laws. Public confidence in the laws has been shattered by the bungled application of draconian powers by law enforcement and security agencies.

The inquiry would consider whether the 40 odd anti-terror laws passed by the Howard Government since 9/11 are, in combination, balanced, fair, adequate and necessary. It would have regard to the need for national security, balanced against the maintenance of fundamental human rights.

It would consult with the public, law enforcement and security agencies that use the powers at a federal and state level, and would thoroughly examine the laws from a policy, practical and legislative perspective. It would analyse whether the laws achieve their aim of reducing the threat to Australians from acts of terrorism, or whether they alienate sections of the community and perpetuate extremism.

Importantly, I would commit to the immediate implementation of any recommendations to emerge from the inquiry.

I would lead the Commonwealth in a process towards enacting a legislative Bill of Rights and Responsibilities. The process would focus on public consultation and education with a view to engendering a sense of public ownership of any human rights model put forward.  It would be impartial, well resourced and independent from Government. It would be governed by clear terms of reference but would also recognise the indivisibility and interdependence of all human rights and would not be bound by arbitrary thresholds.
 
In lieu of a Bill of Rights, I would use my position in Cabinet to fearlessly promote and advocate for a rights-based approach to government.

I would advise my Cabinet colleagues that many Australian practices breach international law, and lean on them to adopt a human rights approach across other portfolios. The abolition of mandatory detention and offshore processing of asylum seekers would be a good place to start, as would my Government’s approach to addressing Indigenous disadvantage.

I would work at restoring Australia’s reputation as a compassionate and just nation by immediately legislating to implement our international legal obligations in domestic laws. I would encourage the executive to ratify important treaties and protocols, such as the United Nations Declaration on the Rights of Indigenous Peoples.

I would legislate to close any loopholes that allow Australian intelligence to convict any person of an offence that is punishable by sentence of death. I would be fearless and unwavering in my opposition to the death penalty and other human rights abuses, and encourage the Executive to do likewise.

I would immediately re-introduce the Democrats’ Same-sex: Same Entitlements Bill 2007 which would implement the recommendations of the Human Rights & Equal Opportunity Commission and remove 58 federal laws which discriminate against same-sex couples.

In recognition that the fulfilment of rights is predicated on adequate access to justice, I would overhaul the Commonwealth’s attitude to Legal Aid. I would oversee the urgent injection of additional Commonwealth funds to ensure that marginalised and disadvantaged Australians are eligible for legal aid funding in family, criminal and civil law matters.

At the same time, I would make the awarding of Government Legal Services contracts relative to pro-bono contributions a priority consideration for the Standing Committee of Attorneys-General, with a view to national conformity.

I would commit my Government to reform of the Privacy Act based on the recommendations of the Australian Law Reform Commission. First and foremost, I would remove the double standard that exempts political parties and small businesses.  I would also beef up the enforcement and remedial provisions of the Act to ensure that it properly protects the individual’s right to privacy.

Finally, if I were Attorney-General, I would take steps towards Constitutional reform aimed at enhancing and restoring government accountability, the recognition of Indigenous Australians and an Australian head of State – including removing the politics from the appointment of the judiciary by creating an independent appointments commission to help entrench the separation of powers.

Having introduced legislation for a fixed four-year term in the House of Representatives, if I was Attorney-General, I would know exactly when the next election would be. That way, rather than aim my policies at the polls, I could concentrate on genuine and principled legal policy until it was appropriate to turn my mind to the need to renew my mandate from the Australian people. 

By Senator Natasha Stott-Despoja (This article first appeared in the Victorian Human Rights Law Resource Centre bulletin No 20, December 2007; reproduced with permission of the author).

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