If I were Attorney-General... archive 2013Other 'If I were AG...' columns

  • Greens Senator Penny Wright

    Autonomy and certainty for the legal sector

    3 September 2013

    With Australians heading to the polls this weekend, we asked the three people contending to be the next Commonwealth Attorney-General to outline their visions and priorities for human rights and justice in Australia. Here’s what The Greens Senator Penny Wright had to say… (You can find Liberal Party’s George Brandis’ piece here and Labor’s Mark Dreyfus’ piece here.)

    Autonomy and certainty for the legal sector

    The law is a powerful force in any society. There have always been some who can use it to advance their own interests, but if there’s one thing we can learn from history, it’s that the law can get it wrong. In Cromwell’s England it was illegal to eat fruit mince pies. Fifty years ago in Australia it was illegal to be gay.

    We have always needed progressive forces to push for change where the law is out of date, doesn’t reflect the community’s values or is simply unlawful. The Australian Greens want to see a more caring society, where the rights of all people are upheld.

    Access to justice is often defined as being able to get legal advice and assert rights. But the ability to challenge unfair laws should be open to all who live in a society, not just those with wealth or power. As Attorney-General, I would support policy development and law reform advocacy as important functions for non-profit organisations, complementing their casework and advice roles.

    There is an increasingly forceful view that those in receipt of public funding have no business engaging in this sort of activity. When the Refugee and Immigration Legal Centre (RILC) challenged the federal government’s “Malaysia solution” policy in the High Court, some questioned their right to use government funding to challenge law or policy. If a policy is illegal or incompatible with human rights, where better to challenge this than the highest court in the country? The RILC’s stance was vindicated. Where there is no such challenge, illegitimate government action, incompatible with human rights, would have prevailed against some of the most vulnerable individuals in Australia.

    This is a democracy at its most robust and mature – upholding the rule of law for all, not just the most wealthy.

    Elsewhere in the legal sphere, we see growing attacks on the rights of legal assistance services to highlight and work to change the systemic legal and social problems they are uniquely positioned to understand.

    It is not simply a matter of resources: in many cases, the restrictions are ideological. If I were Attorney-General I would ensure that community legal centres and legal aid services can work to their strengths, challenging systems and laws which are unfair and disproportionately affect disadvantaged Australians.

    In Queensland, the state government gagged community organisations by making funding agreements subject to the condition that an organisation “must not advocate for state or federal legislative change”. Nor can their website so much as link to other organisations who advocate for such change.

    The New South Wales government issued similar funding guidelines earlier this year, but not before de-funding the Environmental Defenders Office for its “left agenda to destroy the economy”.

    This trend from conservative state governments – on the back of the Howard government’s record of restricting the use of public money for litigation in 1997 – bodes ill under a federal Coalition government.

    Upholding human rights and defending the rule of law are some of the most fundamental duties of the principal law officer in Australia.

    I would act swiftly to reduce the scandalous over-representation of Aboriginal and Torres Strait Islander Australians in our prisons. Late last year, I initiated an inquiry into a Justice Reinvestment approach to criminal justice as Chair of the Senate Legal and Constitutional Affairs References Committee. By reinvesting money away from prisons into the disadvantaged communities where most offenders come from, it is possible to reduce crime, reduce imprisonment rates and build communities all at once. If I were Attorney-General I would prioritise the federal government taking a leadership role through a national expert body, and working with the states to deliver grants for pilot programs.

    As Attorney-General, I would consolidate human rights and anti-discrimination laws, introduce compensation for wrongful convictions and ratify the Optional Protocol to the Convention against Torture (OPCAT) in a fraction of the time successive governments have spent prevaricating.

    And as well as ensuring political autonomy for community legal centres and legal aid commissions, I’d also provide the financial certainty they urgently need. The Greens will double funding for community legal centres and Indigenous family violence prevention legal services, over the forward estimates. We will increase legal aid funding and other Indigenous legal services by half, and maintain this. The recommendations of my Senate inquiry into federal court fee increases, acknowledging that the courts must be properly resourced as an independent pillar of government, would also be implemented.

    The Greens’ access to justice policy for the 2013 federal election responds to increasingly urgent calls from the legal community to address unmet legal need in Australia. I know that fundamental rights become privileges if they cannot be upheld.

    As the Greens’ spokesperson for legal affairs, I am able to keep these things on the agenda and maintain pressure on the government. As Attorney-General, I would delight in implementing these basic steps to ensure the rule of law, the protection of human rights and access to justice for all Australians.