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Attorney-General calls for transparency

Attorney-General calls for transparency

By Carolyn Ford

Interviews Legal Biography 


The Attorney-General Jill Hennessy wants transparency in the justice system – a belief honed during her time as a lawyer. AG’s Top Priorities Royal Commission into Management of Police Informants Transparency in the justice system OH&S law reform – workplace manslaughter, wage theft and sexual harassment Diversion programs Victim-sensitive justice system Eight weeks into her role as health minister in 2014, data around the preventable deaths of 11 babies years earlier at Djerriwarrh Health Services in Bacchus Marsh landed on Jill Hennessy’s desk. Risking re-traumatising the parents and further fallout, she resolved to tell the truth about what happened – a course of action she credits to ethical legal training at her former firm. “It was a great dilemma,” Ms Hennessy recalls. “Do you go back to someone who lost a baby 10 years ago and say, you thought this just happened or that it was an accident, but in fact it was preventable because of poor-quality care? You think of the grief you will cause. “I had a very ethical partner when I was a young lawyer and I often reflect on the value of that. If you think living your ethics and integrity in law is hard, you should try it in politics. “Having that professional socialisation of not covering things up, to not be dishonest or err on the side of spinning deceitfully, were really important lessons for me as a politician. “As a minister, being able to say to bureaucracies and your staff, if you tell the truth and try to do the right thing, you might be criticised for a while but that is a better option than covering things up. “It was controversial and hard to live through. I had some very difficult conversations. But that drove a fundamental change in our quality and safety structure. One mother wrote to me saying, ‘for the last 10 years I thought it was something I did, that I ate something or didn’t do what the doctor said’. “These are all the decisions you have to make as a politician. I think of that partner I worked for. He was honourable in every sense of the word and I am grateful for those lessons.” Ms Hennessy had another early, explosive ministerial start, this time to her term as Attorney-General, in late 2018. And again, although in starkly different circumstances, it went to ethics. She had only been in the job 72 hours in early December when the call for a Royal Commission came around management of police informants. After an all-consuming election campaign, the mother of two had planned a summer holiday of swimming and fish and chips on the beach with her family but without the work phone. “That all went out the window when I was called in to develop and announce the Royal Commission. I put everybody in the car and said have a good time. “Any sense I was going to have a slow and peaceful transition into the role quickly imploded. [The Royal Commission] has been the focus of my time and energy in the first few months, but it has calmed down a bit.” She describes today’s legal landscape as “issues-rich” or, as she wryly observed recently, more a seven-course degustation menu than a so-called lawyers’ picnic, which may be her way of facing down what she has on her plate. Victoria has seen a proliferation of issues in the legal profession and the justice system. Royal commissions, suppression orders in the digital age and Open Courts era, contempt laws, committals, judge-alone trials, mental health of judges and lawyers, the workplace, training of lawyers, technology challenges, legal aid funding, spent convictions, the list goes on. It’s all a long way from health. Four years there, she admits to missing the giving people – and the budget of $26 billion, one-third of state resources – “but it feels like another part of my brain is being exercised in this role”, which she welcomes. Ms Hennessy is Victoria’s second only female Attorney-General – out of 54 attorneys general – and a first for the state Labor Party in a gender balanced cabinet. She is a graduate of Monash University and completed a Masters of Public and International Law at the University of Melbourne. She practised at Holding Redlich in personal injury and employment law before working as a political adviser to then Premier Steve Bracks then going on to win the seat of Altona in 2010 in a by-election. In March, the state’s first law officer sat down with the LIJ and in a wide-ranging interview talked about her ambitious legislative agenda – “I’m up for it, I’m not afraid of difficult issues or debates” – gave her view of challenges for the profession – “those slow to modernise do so at their peril” and shared thoughts on being a working parent – “I think of it more as work-life collision”. Reputation of lawyers Top priority for the Attorney-General is the Royal Commission into Management of Police Informants. “There are a range of serious and challenging issues that are going to be canvassed, but I’m confident we have processes in place to establish the facts, look at how we came to be in these circumstances and get assurances we will never be here again,” Ms Hennessy says. “Lawyers still deserve to have a strong reputation as people that take their ethical obligations very, very seriously. One of the great challenges of the Royal Commission [is] that it has put a strong focus on the behaviour of a very small group of people, as I understand it. “It always feels unfair when a potentially bad apple defines and taints the rest of a profession. I think that lawyers still have a very strong basis to rightly and proudly have a sense that their integrity and ethics are not sullied as a profession.” She said it was important for the opportunity it brought to assure people there were responsive structures in place, educate the community about lawyers’ obligations and share the “incredible contribution” many lawyers make. “This is the exception and not the rule, but I understand that when your profession is on the front page of the morning newspaper, day after day, it can have a cultural effect around how you feel the community might perceive you. I’m confident that most people understand most lawyers do the right thing and often make an enormous contribution to the general economic and social wellbeing of our community.” The LIV had, she said, played a critical role in the development of the informants Royal Commission. It will also be making submissions. “The role the LIV and others have played in the development of the Royal Commission has been critical around confidence, having people who are able to bring expertise and insight. “It’s very easy for government to believe it can see all angles of an argument, but often it doesn’t. Having the public service supplemented with the voices of others is critical. “Professional associations making a contribution to policy development leads to better public policy and law, but it also helps us learn about other pressing professional issues. All of those things benefit from having the view of a professional association. “The LIV is a credible and respected organisation and institution and their contribution to public policy counts. That doesn’t mean that we will always agree, but I will meet with the LIV regularly and always ensure its view is given probative weight. It’s never a view I would dismiss. “I am accessible and not one to avoid disconfirming evidence. I’m not afraid of difficult issues or debates.” Suppression orders Ms Hennessy "desperately" wants Open Courts reform. “We want to be publicly transparent, to have an open, modern justice system. I want the community to have great confidence in it, and I want to be a great advocate for it.” The hot-button issue of suppression orders is a piece of the puzzle, but on that particular tension, Ms Hennessy anticipates “living with imperfections”. Their “enthusiastic, regular” use by Victorian courts prompted the 2017 Open Courts Act 2013 review by the Hon Frank Vincent. The issue flared up around the George Pell matter and dozens of journalists, editors and publishers face sanctions after alleged breaches. The Law Council of Australia (LCA) has called for national uniformity around their use and a review. “Suppression orders make people suspicious and think that something is being covered up, hidden. People tend to give greater weight to that emotion than to the abstract concept of the importance of a fair trial. “The competing interests of open justice and fair trials are even more challenging in the digital world we live in. People are consuming their news and information from digital platforms in international jurisdictions beyond our regulatory reach. “We are not going to defeat the international digital environment. How do we protect fair trials? How do we not have a culture in the law that says, oh well, we will just let suppression be our automatic response? “We need to have cultural and legal change, but we don't want to do that at the expense of the right to a fair trial. And ultimately, we need a sensible national approach. Seeing something published in NSW but not Victoria is not very effective. “I don’t think we’re going to get a perfect solution. “At some point we may have to live with some imperfections, that people can access information internationally, that people are forced to just trust juries.” The government has accepted most recommendations made in the Vincent Review. It will assess their impact on numbers of suppression orders before deciding on the recommendation of appointment of a Public Interest Monitor. Also, the VLRC is considering contempt laws and committals and departmental work is underway on judge-alone trials. Everything is on the table “I don’t dismiss anything. We have suppression orders, judge-alone trials, the potential abolition of committal hearings to come. They are matters that inter-relate and they are all on the table. “A dilemma around judge-only trials is that we want people to have confidence and trust in juries. I don’t support a patronising view that the lawyer knows best. But at the same time, a judge-only trial might be a way we can achieve a fair trial but have greater openness of that trial. “The risk in public perception, that perhaps only famous people get access to judge-only trials, is a concern. We are looking at models interstate. That is a potential panacea against having suppression orders used with great enthusiasm and regularity, which is the perception in Victoria, fairly or unfairly.” Work on suppression orders is due by the end of the year, when cabinet will consider recommendations and legislative reform. “My ambition is to have the suppression orders and judge-alone matters dealt with concurrently in the next two years. “It's a fascinating topic. It takes in the right to know, the right to a fair trial. The other important aspect is the rights of victims of sex offences. They are prohibited from talking about their experiences until the end of a trial, so an important part of the Open Courts reform is enabling victims to talk about their experiences without offending a suppression order." Under the Judicial Proceedings Reports Act, it is potentially an offence to name a victim of sexual assault – even if they give their permission. Legislation before parliament provides a clear process that would allow victims of a sexual offence to share their experience after conviction of the perpetrator. Committals and spent convictions are also on the radar of the Attorney-General, who puts victims’ rights high on her list of priorities. “My starting position is that there is a baseline compelling case for us to look at the abolition of committals, or a significant reduction in their use. The challenge is, how do you test the evidence? “It's not just around efficiency and how quickly a person – accused or victim – gets access to justice, it also goes to the trauma a victim is exposed to, having their evidence tested at different times, sometimes without right of reply. “We can look to the experience of other states, not perfect, but we are looking at other options. That report is due in 2020.” She said there was more work to be done on spent convictions. The LIV advocates a spent convictions scheme. “The debate is about what convictions, when and who decides. Do I have a cabinet decision in support of that? No, but there is an appetite from the Parliament to look at that issue.” George Pell live to air More generally, the justice system needed to be transparent, Ms Hennessy said, and applauded Chief Judge Peter Kidd for his live sentencing of George Pell. “Chief Judge Kidd’s broadcast was a moment in time where people really started to understand the complexity [of court decisions]. You are on the train and you hear people discussing it. That was a great moment in time for our justice system in terms of building insight and awareness. It was a unique set of circumstances, but the more we are able to demonstrate to the community that no one is trying to hide from public scrutiny on these issues and that actually making decisions in many of these trials is difficult and complex, giving insight and awareness of that, the better. “As well, the Supreme Court has just released a podcast [Gertie’s Law]. I think the Chief Justice has shown some important leadership. “I am supportive of any initiative for the courts to be open and transparent. I know this is an issue that the heads of jurisdiction are very committed to. It's not a simple and easy task but there is strong acceptance that the greater insight we give the community on sentencing decisions the more informed it will be and the less we will have fact-free debate and outrage.” Best in show The legal workplace is also in Ms Hennessy’s sights. She wants to see a modern update that attends to health and wellbeing, is free from discrimination and harassment, gives people fulfilling, lifelong careers recognising parenthood, ageing parents, professional development and graduated retirement. “Modern management needs to do that. I believe you can do that at the same time as you make a buck. Competition for the best and brightest means that those slow to the party do so at their peril. They will lose them to the public sector or consulting firms whose model is more flexible than traditional law firms. “I've got the VGSO targeting people across the sector, saying come and work for us. We’ll give you balanced hours and access to interesting work. “The hard stick around it is Worksafe prosecuting law firms that do not manage workload. We had an example of that in the financial services Royal Commission. We will see a rise in the expectation around those issues as the mental health Royal Commission unfolds. “I think it’s really important that the legal fraternity get involved in the mental health Royal Commission.” Ms Hennessy also wants to strengthen OH&S laws around workplace sexual harassment, and otherwise drive gender diversity. “The government’s legal services panel looks at the OH&S record of law firms, female promotion, the number of female briefs given and the value of those briefs. When government spends the enormous amount of money we do on private sector legal services, we are looking for best in show. Smart law firms are getting ahead of the game. This is not a fad.” Work-life collision “I call it work-life collision, that’s what it feels like to me,” says Ms Hennessy of her experience as a working parent. In her own marriage, she expects shared parenting. “There is a great price to be paid if you are the partner of a politician and my husband pays that price and then some. I don’t demand much more than that except equal parenting when you’ve both got really busy lives. “We want men stepping up to their parenting responsibilities. Until we get people taking equal responsibility for parenting and domestic obligations, the collision between work and life for women will continue to feel impossible.” Imposter syndrome Working as a lawyer had been terrific and demanding. “It’s incredibly competitive when you are doing your articles about who gets kept on. And women often feel like an imposter. Am I meant to be here? Am I smart enough? Am I good enough?” Ms Hennessy says. “I didn't [feel that way], eventually.” With an interest in law and politics [also Western Bulldogs and the Rolling Stones], the young Jill Hennessy hightailed it to Monash University. “I just wanted the opportunity to go to university. I had the expectation that this would be the great escape from suburbia. I got there and I was pretty lonely in my first year. “There were not a lot of people from my ’hood.” At Holding Redlich “I remember walking in and thinking everybody looked so well dressed and proper. “I think success in a workplace is when you find your people, those you can be authentic with. “I was lucky to work with an irreverent, smart group of people and we used humour to cope. We didn’t take ourselves too seriously. I thought they’ll either like me or they won’t. “I mainly worked 8-6 which was reasonable. I have very fond memories, it was a terrific experience.” Man buns and barbers The western suburbs girl married a western district boy (Dimboola). He works in financial services. The couple, their two children and dog and cat live in the western suburbs where, Ms Hennessy says, the gentrification can be measured in man buns and barbers. “It’s an area of great Vietnamese migration. I’ve always lived in great, culturally diverse communities, as have my kids. When I walk into a room that looks and feels very white I notice it. “I have been struck by the lack of cultural diversity around senior levels of the legal profession. There has not been a pipeline of people from different cultural backgrounds going into law so I’m interested in fixing that. How do we build a pipeline of people who are diverse and can contribute not just as judicial officers but as crown counsel or other roles. We have got a way to go with structure and culture. “I bring a great interest in people with different life journeys. I think the era of the legal profession being dominated by a few elite schools is over and that’s not a bad thing.” First female Vic Labor AG Ms Hennessy brings change just by being in the role. She is proud to be state Labor’s first female Attorney-General. “I’m proud of the achievement. I wasn’t one to get out of bed every day to climb the greasy pole and get to the top. I’m humbled and honoured and grateful we live in a community where you can come from an economically challenged background, get the value of education and assume positions of responsibility and trust that have great reform potential. I feel a responsibility around that.”

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