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Dreyfus v Brandis: Federal election Q & A

Cover Story

Cite as: August 2013 87 (7) LIJ, p.18

In the lead-up to the federal election the LIJ asked federal Attorney-General Mark Dreyfus QC and shadow Attorney-General George Brandis QC where they stand on 10 key issues for the legal profession.



What reforms will your government introduce to ensure that Australia meets its international obligations when processing asylum seekers?

MD: As a signatory to the Refugee Convention, Australia takes its international obligations seriously and is committed to providing protection to refugees consistent with the obligations set out in the Refugee Convention, and other relevant international treaties to which Australia is party. The government is satisfied that Australia is currently meeting its international legal obligations in relation to asylum seekers. Compliance with these obligations is broader than simply the content of legislation. It involves the totality of Australia’s legislation, administration and practice. In 2011, Australia joined with the international community to renew its commitment to the Refugee Convention.

GB: The most fundamental duty Australia has when it comes to asylum seekers is stopping people from dying at sea. Only the Coalition has a proven strong record when it comes to protecting our borders and also a proven commitment to meeting Australia’s obligations under the United Nations Refugee Convention. When Labor tried to introduce a people swap deal, in its five-for-one arrangement, it was the Coalition which opposed it. We did so for several reasons, including the fact that Malaysia was not a signatory to the Convention, and the Malaysia people swap deal contained no adequate protections for the human rights of refugees who might be sent to Malaysia; it therefore violated Australia’s obligations under the Migration Act.


Stricter VLA eligibility guidelines will see thousands of Victorians, including families and children involved in bitter family breakdowns, attend court without legal representation. How will your government address this to ensure vulnerable people have access to legal aid?

MD: In a tough budget, I fought for additional funding for legal aid. We will deliver an extra $30 million over the next two years to legal aid commissions, on top of $420 million already allocated. Overall, there will be an additional $52.3 million for the legal assistance sector, bringing our total contribution to more than $1.4 billion over four years. Labor knows demand in family, consumer and employment law is still high. That’s why we are reviewing the National Partnership Agreement and considering ways to create a long-term, sustainable funding model for legal assistance in Australia.

GB: State and territory governments rely on the Commonwealth to appropriately resource legal assistance services. The 2013-14 budget confirmed that the government intends to impose a cut in the real value of its support for legal assistance services provided by the states. Subject to overall budgetary constraints, the Coalition will seek to restore legal aid funding levels, while also encouraging alternative dispute resolution, which will encourage early settlement of disputes. We will give the courts sufficient resources to enable them to deal with those who come before them, thereby making proceedings less time-consuming and more cost-effective.


Will your government be committed to, including providing financial support for, achieving national reform of the legal profession?

MD: I am absolutely committed to the creation of a truly national scheme for regulating the legal profession in Australia – and have been since my time as a director of the Law Council of Australia. As the Australian legal profession increasingly reaches towards the new markets of Asia, I think it is very inconvenient that firms still need to operate under multiple professional regulatory regimes.

I’m willing to consider providing commonwealth funding for a national scheme, starting in NSW and Victoria, but have only just received the draft Bill from those jurisdictions.

GB: The Coalition respects the skill and professional reputation of the Australian legal profession. We support the move towards a seamless national legal profession, while nevertheless recognising that the various professional bodies remain state-based organisations, and that the states will continue to have the principal role in professional regulation and discipline. As Australia becomes an increasingly important centre of commerce in the East Asian region, we will support the ambitions of the legal profession to extend its lucrative export industry in legal services, and the growth of the major Australian capitals as centres for international commercial arbitration.


64 per cent of Australians support marriage equality. Will your government recognise the will of the people and legislate to create equal marriage rights for all?

MD: I strongly support marriage equality, but I understand people of good will can have different views. That’s why I am pleased that Labor allows a conscience vote, unlike the Opposition.

This Labor government is arguably the most supportive of gay rights in Australian history. We’ve removed discrimination against same-sex couples from 85 commonwealth laws and, if they marry overseas, same-sex couples can now have their marriage recognised in that country. As I write, the Parliament is considering my Bill for protections against discrimination based on sexual orientation, gender identity and intersex status. That’s a record I’m proud of.

GB: Labor and the Coalition both went to the 2010 federal election committing to maintain their support for the current definition of marriage, as contained in the Marriage Act 1961 (Cth), throughout the life of the current Parliament. However, midway through the Parliament, Labor abandoned that commitment. The Coalition believed it was important to honour that commitment. Looking to the 2013 election, the Leader of the Opposition Tony Abbott has stated that any changes to the Liberal Party’s position would ultimately be a matter for a post-election party room. The removal of discriminatory provisions against same-sex couples in commonwealth law began under the previous Coalition government in 2004 and we strongly supported and strengthened further legislative amendments to eliminate discrimination in 2008.


How far do you intend to take flexible work laws – assisting parents returning from parental leave, for example?

MD: This government has made significant changes to workplace and anti-discrimination laws to make it easier for women to return to the workplace. In 2011, for example, we passed legislation to make breastfeeding a specific protected ground against discrimination.

We have established Australia’s first fully funded, sustainable paid parental leave scheme which has already benefitted 300,000 families. But there is compelling anecdotal evidence that women still suffer workplace discrimination when pregnant or returning from parental leave – that’s why I recently commissioned the Human Rights Commission to study and report on this problem by mid-2014.

GB: The Coalition supported the government’s recent family friendly amendments to the Fair Work laws. A Coalition government will ensure genuine flexibility is available to workers through Labor’s Individual Flexibility Arrangements consistent with recommendations from the Fair Work Review. We will also deliver a real paid parental leave scheme that will deliver greater productivity, participation and population.


What will be your government’s approach to procuring commonwealth legal services?

MD: I’m committed to improving legal services across government. The new Legal Services Multi-Use List improves competition, makes it easier to try new providers, and maximises value for money when purchasing legal services. I will be continuing with this framework, but will consider changes if issues arise.

It is also essential to maintain a strong and sustainable Australian Government Solicitor, with expertise in areas essential to the proper functioning of government.

Suggestions of increasing direct briefing of barristers to lower legal costs are a false economy, and would lead to disjointed and ultimately more costly legal services to government.

GB: Labor promised to reform the rules relating to procurement of federal legal services, but instead costs have blown out by $45 million and now stand at a record $727 million annually.

A Coalition government would ensure that legal services procurement practices of the Commonwealth are examined to provide better value for taxpayers. We will make greater use of private legal practitioners – barristers and solicitors – both to ensure taxpayers receive better value for money and to take advantage of the high level of skill and expertise which the private legal profession offers.


What will your government do to promote greater diversity in the judiciary?

MD: Since becoming Attorney-General, I’ve continued the work of my predecessors Robert McClelland and Nicola Roxon to make the federal bench more reflective of the Australian community. Since 2008, the government has advertised judicial positions in metropolitan newspapers and the National Indigenous Times, and conducted merit-based selection through independent advisory panels. Our advertising makes it clear we are seeking applications from people from diverse backgrounds.

More than a third of this government’s judicial appointments are women, and we appointed the first Indigenous person to a federal court last year. There’s more to do, but we’re moving in the right direction.

GB: The Coalition believes judicial appointments should be based on merit.


Will your government pursue consolidation of discrimination legislation and how will you address: exceptions to discrimination for religious organisations; and balancing freedom of speech and the right to be protected from discrimination?

MD: I’ve made it clear consolidation of federal anti-discrimination laws remains Labor policy, despite occasionally hysterical reaction to an exposure draft of a consolidation Bill last year. Much feedback was constructive, particularly through the Senate Legal and Constitutional Affairs Committee’s report. That report recommended significant amendments, and I’ve asked my department to work through them to develop a comprehensive government response.

In the meantime, I’ve introduced legislation to establish long-overdue protections against discrimination on the basis of sexual orientation, gender identity and intersex status. These were too important to be delayed by being attached to the wider anti-discrimination consolidation project.

GB: The Coalition has strong credentials when it comes to opposing discrimination while also protecting and respecting the personal rights and freedoms Australians enjoy. The Coalition welcomed a conversation about streamlining anti-discrimination laws, but we remain unconvinced that a one-size-fits-all or generic approach would provide Australians who need it most with the same levels of specific and tailored protections as currently exist.

The Coalition will not support legislation which requires, by statutory obligation, a church or religious organisation to conduct its affairs at variance with the tenets of its teachings. The Coalition does not believe anti-discrimination law should be used as a vehicle to impose new limitations on freedom of speech, or to undermine freedom of religious worship or practice.


What will your government do to promote constitutional recognition of Indigenous Australians and provide adequate resources for consultation and education to inform all Australians of the reasons for constitutional reform?

MD: This is not only about government, but what every Australian can do to promote this important reform to our Constitution. That’s why I attended the start of the Journey to Recognition on 26 May – a wonderful start to building community support for constitutional recognition of Indigenous Australians.

The Minister for Families, Community Services and Indigenous Affairs Jenny Macklin and the entire government are treating this proposal with the full respect it deserves. We’ve provided $10 million to Reconciliation Australia to raise aware- ness and build support for Indigenous constitutional recognition, and passed the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 as a step towards a successful referendum.

GB: The Coalition’s commitment to this cause has been longstanding and consistent. It was a Coalition government that was responsible for the historic 1967 referendum and it was a Liberal prime minister, John Howard, who promoted further constitutional recognition in 1999.

In keeping with commitments made at the 2007 and 2010 federal elections, a Coalition government will work to recapture the spirit of 1967 to build community consensus in a careful, respectful and cautious fashion so as to ensure that this amendment does not fail. As deputy chair of the Joint Parliamentary Select Committee on Constitutional Recognition of Indigenous Peoples, I have worked with the Labor chair Senator Trish Crossin, in a bipartisan endeavour to achieve that outcome.

The Coalition has committed to progressing the work of the expert panel, to develop a form of words appropriate to recognise Indigenous Australians in the Constitution, and to take that to a referendum some time in the life of the next Parliament.


Rapid advances in technology and communication, including social media, have significant implications for individual privacy. Protection is inadequate in scope and remedies available. Will your government heed calls for a statutory cause of action to address this issue?

MD: This government has enacted the most significant reforms to the Privacy Act 1988 since its inception. These stronger privacy protections recognise developments in the digital economy and social networking.

I have introduced Privacy Alerts legislation requiring government and private sector organisations to report serious privacy breaches to individuals affected and to the Australian Information Commissioner. 

I’ve also asked the ALRC to consider afresh the issue of a statutory cause of action for serious invasions of privacy. I believe there’s value in reconsidering this issue in light of changing conceptions of community privacy and rapid change in digital technology.

GB: The Coalition has a strong record when it comes to protecting the personal freedoms of Australians, including protecting their right to privacy. The previous Coalition government began the process of privacy law reform in 2007, by commissioning the ALRC to conduct an inquiry into the extent to which the Privacy Act 1988 (Cth) and related laws continue to provide an appropriate and effective framework for the protection of privacy.

The first stage of the review has been completed, with further amendments to be considered. As the ALRC is yet to finalise a further inquiry into the issue, the Coalition will bear in mind those considerations to further strengthen the existing framework for the protection of privacy in Australia.


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