If George Brandis won't stand up for the Rule of Law, why is he the Attorney-General?

According to leaked accounts of a May Cabinet meeting the attorney general, George Brandis, declared grandly to his colleagues: “I am the attorney general. It is my job to stand for the rule of law.”

THE HON. MARK DREYFUS QC MP
SHADOW ATTORNEY-GENERAL

MEMBER FOR ISAACS

IF GEORGE BRANDIS WON’T STAND UP FOR THE RULE OF LAW, WHY IS HE ATTORNEY GENERAL?

According to leaked accounts of a May Cabinet meeting the attorney general, George Brandis, declared grandly to his colleagues: “I am the attorney general. It is my job to stand for the rule of law.”

Brandis was right. But for all his high-minded rhetoric, two years into his term as attorney general it is clear that he either can’t, or won’t, fulfil this vital role.

It should be the attorney general who defends human rights, and yet Brandis’s signature policy in his first year in office was the rollback of our human rights law to appease a tabloid commentator.

When he was forced to abandon his attack on the Racial Discrimination Act he then turned on the Australian Human Rights Commission, secretly trying to force the resignation of Gillian Triggs for nothing more than doing her job.

It should be the attorney general who maintains Australia’s commitment to international law, and yet Brandis’s inept handling of Australia’s maritime boundary dispute with East Timor, in which Brandis authorised Asio officers to raid the offices of East Timor’s lawyer, landed Australia in the dock at the International Court of Justice. Australia’s global reputation as a nation that respects the rule of law, established through decades of responsible international citizenship, was dealt a serious blow.

It should be the attorney general who stands up for the courts and who defends the Australian legal system, even against his own colleagues in the executive government of the day.

Incredibly, this last week we have seen Senator Brandis not just complicit in a government attack on the legal system but actually leading the charge. In support of a floundering prime minister desperately in need of a distraction, the attorney general publicly denounced what he embarrassingly called “lawfare”.

The “radical activism” which so incensed Brandis was nothing more than orders of the federal court, something which any federal attorney general ought to treat with respect.

With the attorney general and the rest of the government descending into histrionics, the federal court was forced to take the extraordinary step of making a public statement on its own behalf.

That statement calmly explained that its orders, which related to the Adani Carmichael mining project, “were made by consent, that is, with the agreement of the parties to the litigation”.

As the court explained, the minister for the environment, Greg Hunt, accepted that the government had failed to abide by the Environment Protection and Biodiversity Conservation Act and had actually asked the court to set aside his decision approving the project.

The EPBC Act was passed by those infamous environmental extremists in the Howard government more than 15 years ago, and it served Australia well through the entire resources boom, during which thousands of projects proceeded under its auspices.

Yet Brandis now condemns a community group who have dared to ask that the Australian government comply with the laws of our nation, absurdly condemning that group as “vigilante litigants” – an oxymoronic designation if ever there was one.

As Brandis well knows, it is for the court to determine the merits of claims brought before it, not for the government of the day. It is for the court to decide whether its processes are being abused and whether claims are frivolous or vexatious.

Instead of counselling his cabinet colleagues on the importance of lawful decision-making, as an attorney general should, Brandis has introduced a bill to try and put government decisions on environmental matters beyond challenge by the community.

This bill should alarm anyone who cares about the rule of law in Australia. The government is trying to silence the voice of the community on environmental matters. It is stripping Australians of the right to challenge government decisions which might have profound environmental consequences, including impacts on our food security, the tourism industry, and the health and quality of life of those living in regional Australia.

Ignore the hysterical rhetoric of the Abbott government. If passed into law, this bill will extinguish the rights of local communities and ordinary Australians who care about our environment and who want to make sure that we properly safeguard it for the generations who follow us. If passed, it would take away the rights of farmers, graziers and agribusinesses whose lands and water supplies are often threatened by the impacts of major projects.

This is a lawless and opportunistic government, and its attempt to silence the voices of Australian citizens should be seen for what it is. Under Abbott, the federal Coalition parties are following the example of their former colleagues in Campbell Newman’s Queensland government, whose contempt for the rights of citizens and for the rule of law helped turn the people of Queensland against them in just one disastrous term.

Abbott and his attorney general should learn something from the fate of the Newman government and immediately abandon their attack on the rights of Australians and the rule of law.

This article was originally published in The Guardian on Friday, 28 August 2015.