Speech: Access to justice in multicultural Australia
MARK DREYFUS QC MP
SHADOW MINISTER FOR THE ARTS
MEMBER FOR ISAACS
AUSTRALIAN INSTITUTE OF JUDICIAL ADMINISTRATION/MIGRATION COUNCIL CONFERENCE
ACCESS TO JUSTICE IN MULTICULTURAL AUSTRALIA
FRIDAY, 13 MARCH 2015
I would like to thank both the Institute of Judicial Administration and the Migration Council for the kind invitation to address this conference.
It is very encouraging to see these two organisations team up in this way. The law and the legal profession – and the courts – exist to serve the community, and the Australian community has certainly been shaped by migration.
We are a multicultural nation. Our law and our legal institutions must reflect that, and must accommodate that.
I am particularly heartened by the subtitle of this conference: ‘access to justice in multicultural Australia’. There cannot be proper access to justice in Australia if we do not have the multicultural nature of our society front of mind.
There is an incredible breadth of experience and knowledge represented at this conference, and a great variety of topics covered.
I would like to speak about the work that can be done in the federal Attorney-General’s portfolio to further access to justice in a multicultural society.
The current Attorney-General’s now-aborted attempt to repeal section 18C of the Racial Discrimination Act is probably the most prominent political tussle over multiculturalism in the term of this Parliament.
However, several other aspects of the Attorney-General’s portfolio have a bearing on Australian multiculturalism. Today I want to speak not just about the RDA and human rights law, but also national security and intelligence. I will also touch on the role of the Attorney-General in selecting and appointing federal judicial officers.
I want to make the point that governments and parliaments must bear the multicultural nature of our society in mind in the exercise of all of their powers. We must be conscious of cultural diversity in deciding on the substance of our laws, in the way in which we conduct debate about what the law should be, and in deciding who we appoint to apply the law.
I will turn first to the substance of the law.
There has been a lot of debate in recent years about the Racial Discrimination Act. Even now, though the Government has formally abandoned its plan to repeal s 18C of that Act, some conservative backbenchers are still agitating for a rollback of this decades-old law.
I will not revisit the ins and outs of the debate around section 18C, but I sincerely believe that the course of action pursued by the Government was divisive and damaging to our social cohesion. The Government admitted as much when they dropped it, saying the matter was a distraction when national unity was needed in the face of the present terror threat.
But the debate on section 18C has reminded us of the role that the law plays in shaping our society. It might otherwise be easy to forget the totemic importance to Australian multiculturalism of the Whitlam Government’s ratification of the Convention on the Elimination of Racial Discrimination, and enactment of the Racial Discrimination Act.
Paul Keating gave an excellent speech in 1995, on the 20th anniversary of the Racial Discrimination Act. He noted the context in which the Act was passed:
“It was less than a decade since the referendum which put Aboriginal
Australians on the census. It was only a few years since the practice of taking Aboriginal children from their families had ended. The attitudes from which those things flowed were still very common.”
Keating was under no illusion that any parliament could ‘legislate away prejudice’, and neither am I.
I am convinced, however, that much of our progress in the last four decades has been built on the foundation provided by the Racial Discrimination Act.
The amount of litigation arising out of the Act is, in the broad view, vanishingly small. But the legislation sets a standard. It sends a message, a signal. It records our community’s rejection of bigotry, and the value we place on mutual respect and societal harmony. It reassures multicultural communities. As Keating so eloquently declared in his 20th anniversary speech:
‘It is a reminder to minorities that a democratically elected parliament has decided that discrimination or vilification is unacceptable; that it is hostile to the values of the majority of Australians, outside the boundaries of what Australia is and what Australia stands for, that they are inside and the racists are outside.
Last year, we saw just how important that message has been to Australia’s many multicultural communities. A wide coalition of communities united to oppose the Government’s attack on the Racial Discrimination Act. Jews and Arabs, Chinese and Indians, Greek and Turkish communities, Australia’s original custodians and its newest arrivals – all united to speak for the importance of protecting section 18C.
I think it is clear that the Government miscalculated the depth and the breadth of community feeling about this particular patch of the Commonwealth statute book.
It is a salutary reminder for all of us of the importance of the law in the lived experience of Australians of all backgrounds.
But it is not just the content of our laws that matters. In a democracy such as ours, parliamentarians must be careful not just about the content of the legislation they seek to pass, but also about the way they consult on and debate those laws, both within and beyond the Parliament.
In the past year the Australian Parliament has passed two very substantial pieces of national security legislation. More has been foreshadowed by the Government, and I expect further Bills to be in the Parliament this year.
These are laws of general application. Much of the legislation dealt with to date has not even been specifically directed at the newest form of terror threat – the threat posed by Australians joining terrorist organisations fighting in the conflict in Syria and Iraq and then returning to Australia. Or even if they never go to the conflict in the Middle East, the threat posed by Australians succumbing to the twisted ideology of the terrorist groups there, and then seeking to carry out attacks here.
However, in public debate, and in much of the Muslim community, this legislation, and the Government’s rhetoric about its importance, have been seen to be directed at Australian Muslims generally.
In the volatile environment the terrorists are seeking to ferment through their cunning use of propaganda through social media, parliamentarians and ministers have a responsibility to conduct public debate on counter-terrorism measures in a very careful and considered way.
The former Director-General of ASIO has been very clear about the importance of close cooperation with the Muslim community in addressing the present terror threat.
Speaking at the National Press Club in August last year in his last weeks in office, David Irvine expressed his hope of working with the Muslim community in addressing the foreign fighter problem.
He said that the Muslim community had been ‘outstanding’ in its cooperation with the Government. He expressed his hope of building better relationships with that community, and of a concerted effort to recruit Muslim intelligence officers.
Importantly, Irvine made the point that our efforts to stem the flow of foreign fighters to the conflict in the Middle East are directed at protecting the Muslim community. It is, in the main, young Australian Muslims who are being radicalised and ensnared in that conflict, often at the cost of their lives.
Our first priority is to prevent those young people from ever being caught up in radical and violent ideologies. To that end, Labor has been very vocal in calling for the Government to deliver not just stronger laws, but also programs designed to counter violent extremism by working with those individuals and communities at risk of radicalisation.
I would like to see the elected Government express these sentiments as clearly and as loudly as Irvine, a highly experienced and respected Director-General of ASIO, has done. I think that political leadership in this area has the capacity to reinforce our social cohesion at a time when fear and distrust might otherwise pull us apart.
I do not pretend that this is easy. I know that Senator Brandis has consulted with the Muslim community.
I do think that more can be done, though.
And I must say, the Prime Minister’s recent contributions have set us back a good way. Speaking last Monday, Mr Abbott said:
“I’ve often heard Western leaders describe Islam as a ‘religion of peace’. I wish more Muslim leaders would say that more often, and mean it.”
Last August, Michelle Grattan asked David Irvine what he thought of calls for Muslim leaders to do more.
I’ll quote his response, which the Prime Minister should take heed of:
“Well I think they’re based on ignorance, in the sense that I know just how much the leaders of the community are doing. The religious imams, the civilian leaders and so on. What people don’t know is how successful they’ve actually been.”
The Prime Minister ought to tread very carefully in this area. Citizens do not often read the detail of the legislation our parliaments pass, nor the cases decided in our courts. But they certainly hear what their Prime Minister says in areas as sensitive as this.
Mr Abbott’s divisive, throwaway lines could easily undermine the vital work being done to counter violent extremism, and instead undermine the social cohesion that is a foundation stone of our national security.
It is, as I have said, important to make sure that the substance of our laws and the way in which they are made is inclusive of the diversity of modern Australian society.
But we also must ensure that those laws are applied by judges and courts that reflect that diversity. In the exercise of his or her traditional responsibility to appoint judges, the Attorney-General has a key role in ensuring that our country is served by judges who, while not necessarily being ‘representative’ in a crudely numerical sense, nevertheless reflect the diversity of our community.
Before the 2013 election, the Law Institute of Victoria asked Senator Brandis and me how we would promote greater diversity in the judiciary.
I outlined the approach Labor had taken in Government, and the process we employed, to which I will return in a moment. I made the point that more than a third of Labor’s appointments had been women, and that we had appointed the first Indigenous person to a federal court.
I said there was more to be done.
Senator Brandis, however, responded flatly:
“The Coalition believes judicial appointments should be based on merit.”
The debate about judicial appointments tends to generate more heat than light. Often conducted in the abstract, it attracts outsized controversy.
As you can glean from Senator Brandis’s answer to the Law Institute of Victoria in 2013, the debate can be framed with reference to a rarefied debate about the definition of ‘merit’.
But that debate presumes that there is an intrinsic tension between diversity and merit. It also presumes that ‘merit’ is a quality capable of precise and objective definition and measurement.
The late legal philosopher Ronald Dworkin liked to hypothesise a ‘Judge Hercules’. Judge Hercules was possessed of superhuman legal knowledge and skill. Judge Hercules had great stretches of time available to consider the cases before him, a luxury I suspect none of you have enjoyed. With these advantages, Judge Hercules was able to perfectly solve any legal problem through the pure force of reason.
I hope you will not be offended that I do not believe in herculean judges.
But you probably share my opinion that there is no such thing as a herculean Attorney-General, either.
I do not think that there is ever one perfect candidate for a judicial appointment, that an Attorney-General would inevitably discover given enough time and effort. I don’t think that ‘merit’ is capable of exact quantification or measurement.
Australia is blessed with a surplus of talented and principled lawyers and judicial officers. For any vacancy there are a number of amply qualified candidates. To try to divine minute gradations of merit among a handful of the very best candidates seems a very abstract exercise.
It doesn’t need to be like this. I see the appointment of a meritorious and reflective federal judiciary as an eminently achievable outcome.
In Government, Labor adopted a specific process to guide our appointments to the federal courts. In his time as Attorney-General, Robert McClelland established standing advisory panels to consider appointments to the Federal Court, Circuit Court and Family Court.
Vacancies would be publicly advertised for expressions of interest, and the panel would also contact heads of courts and tribunals and various legal bodies to seek nominations. The advertisements made clear that the Government sought candidates from diverse backgrounds. The panel would consider expressions of interest and nominations, and interview candidates as necessary.
Following this work, the panel would submit a report to the Attorney-General with a list of recommended candidates. The Attorney-General would then be well-armed to make a recommendation, to be considered through the usual Cabinet process.
I can tell you from experience that this process can greatly assist the Attorney-General and the Cabinet. The federal courts cover not just the geographical breadth of the country, but also many different areas of law. No Commonwealth Attorney-General could possibly be familiar with the full range of eligible and available candidates for appointment to the various federal courts.
What’s more, this process provides candidates, the profession and most importantly the broader community with confidence that the Government is making appointments from a very well-informed position. It provides an appropriate level of transparency over what remains a very sensitive matter for the Attorney-General and the Government.
Relevantly for our topic today, this process promotes the consideration of a more varied and diverse range of candidates than may otherwise have come before the Attorney-General.
It seems that the current Government has moved away from this process. The current Attorney-General has not, as far as I am aware, clearly articulated his Government’s approach to appointments beyond the pre-election statement I mentioned earlier. However, his answers to questions in Senate estimates indicate that the Abbott Government has abandoned a formal consultation process.
I make no criticism of Senator Brandis’s various appointments to the federal courts to date. Each of the judges Senator Brandis has appointed is eminently qualified.
However, I do think that a transparent, consultative process has great value. If elected to Government, Labor will certainly return to a version of the process implemented by Robert McClelland.
Thank you again for the invitation to address you today. I will be following with great interest the contributions of the many learned speakers at this conference. Again, I would like to say how pleased I am that such a conference has been held. It gives me, and I am sure many Australians, great hope for the future of our legal system as a reflective and constructive element of our diverse community.