22 June 2016
by Richard Ackland
Mark Dreyfus on George Brandis as attorney general: a 'disaster for the rule of law'George Brandis is convinced that most of his time in office has been “largely uncontroversial ... with only boutique controversies that excite academic common rooms
At an election debate between the attorney general and his opposition counterpart, George Brandis brushed off comments that his tenure had been controversial
The attorney general, Senator George Brandis, did not fare well in Monday evening’s much anticipated debate with his Labor party opponent, Mark Dreyfus.
The attorney was variously accused of “lying to the parliament” and “a disaster for the rule of law”, whose term of office has been marked by “attacks on independent office holders”. For good measure, Dreyfus added that Brandis had “failed Australia” and was “delusional” if he thought the attorney general’s portfolio attracted “little controversy”.
The accusation about lying goes to the heart of the attorney’s claim that he had “consulted” with solicitor general Justin Gleeson on a directive that would preclude minister’s seeking legal opinions from the SG without Brandis’ prior written approval.
However, Gleeson wrote to Brandis’ office on 11 May denying he was consulted over the attorney’s self-imposed veto of his independent advisory functions. Indeed, it has emerged that in implementing this change to the briefing policy, Brandis and his office were at pains to instruct the bureaucracy to keep the solicitor general out of the loop.
Dreyfus said this was another instance where Brandis had attacked the independent functions of agencies within his portfolio – including the Human Rights Commission, the Australia Council, and simultaneously starving the Law Reform Commission of important references while plying it with ideological ones.
Brandis reminded us that after the election the attorney general will be “front and centre” on two big issues – same sex marriage and Indigenous constitutional recognition.
Clearly, Dreyfus doesn’t think his opposite number is the right person to manage these important legal and political issues. The Labor party is opposed to the marriage plebiscite and if elected to government would shortly introduce legislation to amend the Marriage Act.
Brandis said it was possible to have gay both marriage and religious freedom (which translates into some churches maintaining bigoted responses to legal equality for same sex couples). It is “not a zero sum game”, he added. Dreyfus said that under Labor’s proposed legislation, “no minister of religion will be forced to marry anybody they don’t want to marry”.
The attorney cast the plebiscite as an opportunity for everyone to have “ownership” of the issue, and for conservative voices “the right to have their say”. The purpose of the conservative voices in the Coalition in deciding to have a plebiscite was somewhat different – to delay the issue, let some of the nastiest voices out of the closet and, maybe, sink the whole thing in a massive smear campaign.
Constitutional recognition for Indigenous Australians garners bipartisan political support, although at this stage we haven’t actually seen the proposed constitutional question. Mark Dreyfus picked up what his leader Bill Shorten said on the ABC’s Q&A, adding that a “treaty is a live debate in the Aboriginal community – it cannot be sidestepped”, and is not inconsistent with with an amendment to the constitution.
The hoary perennial of section 18C of the Racial Discrimination Act was not far from the surface. Chris Merritt, a journalist with The Australian, wanted to know Brandis’ and Dreyfus’ views about a current case in which two non-Aboriginal Queensland University of Technology students are being sued under the Racial Discrimination Act for allegedly racist comments posted on Facebook and whether the legislation needs to be changed.
Dreyfus was surprised that the legal editor of a newspaper would expect an answer about an issue currently before the courts. He would not comment on the case, nor would Brandis. As far as section 18C is concerned, the shadow attorney general said it “sets a standard against racial discrimination in this country” and attacks on it have been “shameful”.
The attorney general said he was “disappointed” in the debate about 18C but it was off the table now and that remains the government’s position.
Senator Brandis also stuck to his guns about the “proper” role of community legal centres – they should not be funded to do advocacy work. His thesis is that the money should go to frontline legal services, ignoring the reality that acting for the disadvantaged is not entirely focused on court proceedings, but entails frequent representations to government agencies and ministers.
Dreyfus said that to make funding conditional on ideological undertakings by community legal centres is “foolish”.
Which took us in the treacherous terrain of commonwealth legal aid funding. Brandis invariably presents a rolled-up figure of $1.6bn for the Coalition’s contribution to the legal assistance sector.
It is a figure that is spread thinly over five years and covers a lot of activity, including all the community legal centres, all legal aid commissions, all Aboriginal and Torres Strait Islander legal services and all family violence prevention and legal services – all around the nation.
From the $1.6bn, community legal centres receive around 11%, or $174m over five years. Their funding will fall from $42.2m to $30.1m in 2017-18, a cut of 30%. The Federation of Community Legal Centres has prepared a fact check on Senator Brandis’ funding claims.
An interesting comparison is that the commonwealth over the same period will spend $3.5bn on its own legal services.
The contest about funding involves plenty of smoke and mirrors. Additional commitments have come from both sides for community legal centres and for domestic violence prevention and case work. The increased funds to some extent offset earlier cuts by the Coalition, but none will be sufficient to counter the cuts that start in 2017-2018.
Both Liberal and Labor have announced more money to address Indigenous domestic violence, but that is money that was already foreshadowed in the 2016 budget or, in Labor’s case, in comes out of its $47.4m domestic violence package. Labor has a plan to reduce the prospect of fine defaulters ending up in prison and the Greens, even though not on at the debate, are talking money for justice reinvestment – ie address the underlying social and economic issues that produce criminality.
Interestingly, two senior judges have entered the fray with calls for the courts to receive at least $6m so they can handle domestic violence cases at the “coal face”. Both the chief justice of the family court, Diana Bryant, and the chief judge of the federal circuit court, John Pascoe, have put their names to a statement emphasising the critical need for family law courts to have the resources to handle the domestic violence caseload.
George Brandis has a history of meddling with independent agencies. He's at it again
Brandis was not entirely comforting when he said: “I wish there was more money for legal aid. I really do.”
As to judicial appointments, the attorney general assured us political considerations do not enter the selection equation. Maybe a non-ideological approach doesn’t figure too largely with appointments to the administrative appeals tribunal, particularly when you consider some of those selected just before the election was called:
- Dennis Dragovic, who sought Liberal preselection for Goldstein;
- Judith Troeth, a former Liberal senator and Brandis’ factional ally;
- Saxon Rice, former Queensland Liberal MP;
- Michael Manetta, a Liberal candidate for the South Australian parliament;
- Adrienne Milbank, who has called for the UN refugee convention to be ditched;
- Anne Brandon-Baker, Scott Morrison’s chief of staff.<.li>
However, the attorney was a little surprised to hear one of his new judges at a recent swearing-in ceremony declare how much her family admired Josip Broz Tito, the former strongman of Yugoslavia.
Brandis is convinced that most of his time in office has been “largely uncontroversial ... with only boutique controversies that excite academic common rooms”.