Nationalisation and Localisation – Human Rights Policies that Work

The Attorney-General plays a special role within the national Executive Government. In common with each portfolio Minister, the Attorney is responsible for specific substantive laws and policies and for the public administration of these areas. The Attorney is a Cabinet Minister and, hence, shares in the collective responsibility for the direction and performance of the Government as a whole. But uniquely the Attorney-General stands at the intersection of the Parliament, Executive and Judiciary, and from this vantage point flow both opportunities and responsibilities to lead on human rights, the rule of law and the furtherance of Australia as a civil society. In portfolio terms, the scope of the Attorney-General’s Department has altered significantly since I was its Minister during the Keating Government. Most notably, the Treasurer has taken over from the Attorney responsibility for Australia’s company law and the regulation of the equities market. In turn, the Attorney now has a far more prominent role in disaster response and management and homeland security-style issues. Naturally, this shift in portfolio responsibility shapes where the Attorney-General’s attention will be focussed, but the core of the role remains the overall operation of Australia’s legal system and its key institutional structures, namely the national courts and tribunals and bodies such as the Australian Human Rights Commission.

Attorney-General McClelland has been keenly interested in the areas of human rights and in improving the civil justice system. The commissioning of the Brennan Committee to report on Australia’s human rights framework, together with the 2009 strategic framework for access to justice in the federal justice system, are two testaments of his commitment to reform and improvement in both areas. A subsequent Attorney-General would find both valuable work underway and future directions well mapped in the initiatives of Robert McClelland.

If I had the privilege of again being Attorney-General, my overarching approach would be built upon the themes of nationalisation and localisation. By this, I mean that our objectives, policies and institutional arrangements to further the operation of the justice system and enhance the rule of law and human rights, are best determined at the national level. In contrast, actual implementation of policies and deepening public engagement and understanding of human rights is best undertaken within local communities.

The clearest example of a human rights approach requiring national leadership, with local implementation, is in the “closing of the gap” strategy for Indigenous Australians. There are many criticisms that can be made of the Northern Territory intervention, including the fact that top-down imposition of policy on disengaged and disempowered communities simply does not work. This basic and self-evident message should guide the human rights approach more broadly.

I would continue the decade-long drive to establish a truly national legal profession, but this agenda needs to be widened and seen more clearly within a strategic framework. The way lawyers work should sit within a nationally-consistent regulatory framework, but the next generation issue is about the institutional effectiveness of our courts.

The doctrine of the separation of powers rightly emphasises judicial independence and this means the Attorney’s leadership in court reform must be nuanced and conducted cooperatively with judges. A national judiciary is a corollary of a national legal profession. Reform initiatives here would include the emergence of a national judicial appointments process incorporating Commonwealth and State and Territory courts and tribunals, as well as an enhanced national judicial training college, and a single institution to deal with matters of judicial performance and behaviour.

For some years there has been limited but worthwhile movement of judges between State systems and between the States and the Commonwealth. Such a scheme has been regarded as beneficial to both the judges involved and the courts which have participated. This tentative move towards the operation of a national judicial system should be encouraged, possibly through the provision of resources to the Council of Chief Justices to implement a policy of fostering more extensive exchange programs.

Equally, a national judicial selection process which drew judges from a total pool of the Australian legal profession, rather than smaller pools within each State and Territory, would enhance the capacity to make the strongest possible appointments to all courts and tribunals in the most cost-effective way. This also applies to processes and structures to deal with the rare examples of complaint about judicial behaviour.

To progress substantive law reform, my starting point would be to establish through the standing committee of Attorneys-General (SCAG) a joint Commonwealth/State taskforce to review law reform proposals advanced at the national and state level. The aim would be to identify reforms proposed by Law Reform Commissions, Parliamentary Committees and similar bodies and to use this pre-existing work as the basis for a five year program for National law reform.

The reform program will have several key objectives. Firstly, to improve equity in the operation of the law. Secondly, to promote economic efficiency and this will often include achieving national consistency in areas of law. Thirdly, to commence the vital but daunting task of wholesale simplification of the law. Finally, improved community understanding of key laws which touch on individual rights and responsibilities. Building upon current co-operative approaches via SCAG through the mechanisms of Commonwealth leadership and resourcing would be the best way to galvanise the law reform agenda.

An important existing initiative is the project to harmonise the various state and Commonwealth anti-discrimination laws. Given the political obstacles facing a charter of rights, this project offers a way to use the best of various laws and complaint handling mechanisms to advance human rights protection and remedies. I would endeavour to bring this project to fruition.

The Keating Government pursued important initiatives in the area of Indigenous inclusion within Australian economic and social life, such as the establishment of the National Native Title Tribunal and the commissioning of the inquiry which lead to the “Bringing Them Home Report”. There remains unfinished business in this critical area of a national wellbeing. I would pursue a holistic approach to the politically difficult issue of compensation recommended in the Bringing Them Home Report and accepted within the Native Title Act as a consequence for the validation of past statutory grants of interest in land which impaired or extinguished Native Title Rights.

This might involve the setting up of a fund to deal with claims for individual and Native Title Holder compensation, while providing a basis for ongoing investment for the economic advancement of Indigenous Australians.

Professor The Hon. Michael Lavarch is Executive Dean at QUT Faculty of Law. He was Commonwealth Attorney-General from 1993 to 1996