If I were the Attorney General in the next government I would have three priorities

May 1, 2022

Is it too much to hope that after the May 21 election we see an AG who energetically pursues three priority initiatives; A treaty with Indigenous Australia and a republic, a national human rights charter, and a substantial reduction in the cost of justice.

In the scheme of things the office of Attorney-General is an important one. Australia’s democracy can be markedly improved if we have a first law officer committed to progressive reform.

Sadly that has not been the case, in anything other than a sporadic fashion, since Lionel Murphy held the position in the Whitlam government until he went to the High Court in early 1975. Murphy’s initiatives still impact today. Legal aid, the Family Law Act, abolition of the death penalty and the establishment of the Australian Law Reform Commission, to name but four of this controversial figure’s successes.

Australians deserve an Attorney General who has an eye to ensuring that he or she uses the office to modernise constitutional and legal arrangements and to enhance equality in this nation. Is it too much to hope that after the May 21 election we see an AG who energetically pursues three priority initiatives; A treaty with Indigenous Australia and a republic, a national human rights charter, and a substantial reduction in the cost of justice.

A consequence of the awful political climate that has permeated this nation since the rise under former Prime Minister John Howard (1996-2007) of cynical politics and right wing populism, has been a refusal to entertain the idea that European Australia must not only recognise in the Constitution the fact that it invaded this land but that a treaty with Indigenous Australians which is legally binding is a necessity. As is the case with a human rights law, Australia is the odd man out when it comes to a treaty with the Indigenous peoples of the land. In New Zealand, Canada, and the United States treaties have been part of the landscape since the 18th century. With a treaty would come the possibility of real equality for Indigenous Australians and as historian Mark Mckenna has noted, a “treaty would break the 200-year-old cycle of governments not negotiating with the Aboriginal people,” because “[i]t would say ‘we’re no longer just going to do things to them’, but that they’re included and empowered.”

The treaty must be constitutionally entrenched so that it cannot be ripped up by a future government. And alongside this modernising of the Constitution, which still reflects the Australia of 1900, should come the idea whose time has already been, but which remains elusive – an Australian republic. Barbados has just removed the British monarch as its head of state and Jamaica is about to do likewise. In the context of the certain abdication or death of the current monarch in the term of the next federal government, cutting constitutional ties to the British royal family is a necessity.

The third of the constitutional reforms, and one which compliments and reflects the other two mentioned here, is a human rights charter. Australians are poorly protected at the federal level by the lack of enforceable human rights. A major consequence of this state of affairs is that governments are able to detain asylum seekers for years on end, allow ASIO and the AFP to detain without access to a lawyer and to vet legal representation for a person in custody, and access personal data with little by way of adverse consequences if the data is misused. And of course, as we have seen in recent years, raid journalists who report on matters about which the government would rather you did not know.

But perhaps the hardest priority of all is access to justice. Despite their having been numerous inquiries in the past three decades to improve access to the Australian legal system the hard fact is that unless you are very wealthy or you are fortunate enough to access limited legal aid funds, participating in the legal system in any but the most cursory of ways, is exceptionally difficult.

This is not just about federal courts and tribunals. State and territory justice systems are equally prohibitive in terms of cost. The Productivity Commission’s most recent (2022) report on Government Services shows that court filing fees for state and territory supreme courts and federal courts has risen from an average of $2535 to $3582 within the past decade. And as the Law Council of Australia pointed out last year if individuals are not able to access legal services the cost shifts to other areas such as health. “Research shows that if legal problems are unresolved, costs shift to other areas of government spending like health care, child protection, housing and incarceration. It has been estimated the cascading costs of unequal access to justice are 2.35 times those of direct spending on legal aid services,” the Council observed on 3 December.

Tinkering with the legal system will not fix the issue of access to justice. An Attorney-General today needs, and this requires leading state and territory colleagues, to take radical action to reengineer the way we deliver justice in this country. Back in 1995 the Australian Law Reform Commission recommended that courts should be able to reduce or exempt losing parties from having to pay costs so as to recognise social and economic inequality. Why should, for example, a bank be awarded hundreds of thousands of dollars in costs when the losing litigant is a pensioner?

The ALRC proposed “that a court should be able to vary the rule that costs follow the event where it is satisfied that a party’s ability to present his or her case properly or to negotiate a fair settlement is materially and adversely affected by the risk of an adverse costs order. Such a power will provide some assistance to people who are unable to pursue meritorious cases or to negotiate fair settlements because of the risk of costs following the event.”

Such an initiative would remove a major impediment to access to justice, which is the fear of losing and being hit by a bankruptcy making costs order. That policy, along with much greater use of low cost mandatory alternative dispute resolution, and therapeutic justice initiatives such as more drug courts, Indigenous courts and other smart justice interventions, could make access to justice more than a hollow mantra.

Read more in our If I were the minister series.

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