Shadow at­tor­ney-gen­eral Mark Drey­fus.

Shadow at­tor­ney-gen­eral Mark Drey­fus talks to Richard Ack­land about the ben­e­fits of a hu­man rights act and why con­ser­va­tive con­cern for cake bak­ers is about re­mov­ing pro­tec­tions not de­fend­ing free­doms.

The Saturday Paper - - Contents The Week - Richard Ack­land

Richard Ack­land Why do you think, for the past few years, we went through this ob­ses­sion with free speech – you know, the perver­sion of 18C. It was al­most a hys­te­ria. Where do you think that came from?

Mark Drey­fus I found it hard to un­der­stand. It seemed to me to be a kind of echo of Repub­li­can pol­i­tics from the United States. What they are re­ally say­ing, of course, is that they want to use racist speech and that these peo­ple on the right of Aus­tralian pol­i­tics feel sup­pressed, but they cover their de­sires to ex­press racist con­cepts and use racist speech in a way that con­ser­va­tives were free to do 30 or 40 years ago.

They clothed it in this free speech claim. I didn’t see them rush­ing in to de­fend Man Haron Mo­nis, for ex­am­ple – not that I’m sug­gest­ing that he should have been de­fended – when he was pros­e­cuted for send­ing dis­gust­ing let­ters to the wid­ows of ser­vice­men who died. I didn’t once hear any of these con­ser­va­tives claim­ing that his free speech rights should be sub­jected to that.

RA In­deed, it was a nar­row fo­cus on one thing in a much broader en­vi­ron­ment or area of free speech, con­cerns that were ne­glected...

MD It was a fail­ure on the part of the con­ser­va­tives to un­der­stand that the ab­so­lutist claim on which they couched their at­tack on 18C … failed to recog­nise the mul­ti­ple re­stric­tions on com­mu­ni­ca­tion that al­ready ex­ist in Aus­tralian law, none of which they were at­tack­ing.

RA Do you think the hu­man rights act, which didn’t get all that far un­der the pre­vi­ous La­bor gov­ern­ment, would be on your agenda for a new La­bor gov­ern­ment?

MD We’ve got, in our plat­form, a com­mit­ment to re-ex­am­ine hu­man rights pro­tec­tions in Aus­tralia, and if re­form is needed, what form that re­form takes is the mat­ter that we will look at in gov­ern­ment … I think we can see from the ex­pe­ri­ence of those char­ters of hu­man rights acts [Vic­to­ria and the ACT] that they have been use­ful. And so too in New Zealand, the hu­man rights act that’s been in place there for some time has been a use­ful frame­work within which to con­sider com­pet­ing rights. And one of the dif­fi­cul­ties – this is not a novel thought, it’s one that I’ve heard ex­pressed very elo­quently by Frank Bren­nan, who of course wrote the land­mark re­port af­ter the largest ever con­sul­ta­tion con­ducted by an Aus­tralian gov­ern­ment inquiry – Frank says, I think with some jus­ti­fi­ca­tion, when we have these tus­sles in Aus­tralia be­tween com­pet­ing rights such as the one that is un­fold­ing be­fore our eyes, with claims on the right of Aus­tralian pol­i­tics that there is in­suf­fi­cient pro­tec­tion of re­li­gious free­dom ... If you have a hu­man rights act you have a frame­work within which to re­solve those com­pet­ing rights. But at present we have – this is Bren­nan’s phrase – a “po­lit­i­cal arm wres­tle”.

RA It’s in­ter­est­ing in the con­text of the postal sur­vey and same-sex mar­riage, the ar­gu­ment that it’s go­ing to im­pinge on free­dom of re­li­gion and free speech. Do you see how that would be so?

MD Well, we don’t have re­stric­tions on free­dom of re­li­gion in Aus­tralia at present. We have a pro­tec­tion against it.

RA What about mak­ing cakes and things like that?

MD Well, at the mo­ment, that par­tic­u­lar claim which I see that Peter Dut­ton is now mak­ing, that there ought to be an ex­emp­tion, is not pro­tec­tion

– it’s an ex­emp­tion from ex­ist­ing an­tidis­crim­i­na­tion law. And what Dut­ton is claim­ing, and other peo­ple like that re­li­gious per­son—

RA The bloke from the Chris­tian Lobby, Lyle Shel­ton…

MD So, Lyle and oth­ers – Kevin An­drews, I think, is an­other ex­po­nent of this – are seek­ing to wind back pro­tec­tions, anti-dis­crim­i­na­tion pro­tec­tions that have been part of Aus­tralian law now for many years. You are not per­mit­ted un­der Aus­tralian law to dis­crim­i­nate in the pro­vi­sion of goods and ser­vices on the grounds of sex­ual pref­er­ence or gen­der, just to take two. There’s a range of other at­tributes de­pend­ing on which state you are in be­cause the law varies: Tas­ma­nia has 14 at­tributes in their an­tidis­crim­i­na­tion law, the ACT has 10.

RA What about the Com­mon­wealth?

MD Less – about eight. But for present pur­poses it’s against the law, at the fed­eral level, and at the state and ter­ri­tory level, to dis­crim­i­nate in the pro­vi­sion of goods and ser­vices on the grounds of gen­der or sex­ual pref­er­ence ... Say­ing that you want to pro­vide an ex­emp­tion from that ex­ist­ing anti-dis­crim­i­na­tion law for bak­ers is mak­ing a naked at­tempt to roll back pro­tec­tions that have been there for the LGBTI com­mu­nity for years … You are not per­mit­ted to refuse to bake a gay cou­ple a cake and nor should you be. If you want to set up as a baker, you’re pro­vid­ing ser­vices with­out dis­crim­i­na­tion.

And again, we’re in an arm wres­tle with­out ref­er­ence to any ex­ter­nal frame­work be­cause there is no hu­man rights act, but there are al­ready ex­emp­tions for re­li­gious bod­ies in a range of ways.

RA A few pol­icy ques­tions… Let’s start with free­dom of in­for­ma­tion and whistle­blower pro­tec­tions – that has had a rocky path… MD It took a long time. I chaired the inquiry in 2009 as a back­bench mem­ber of par­lia­ment. I was the chair of the le­gal and con­sti­tu­tional af­fairs com­mit­tee in my first term and I was very proud of that bit of work, in rec­om­mend­ing a scheme for whistle­blower pro­tec­tion for the Com­mon­wealth public ser­vice ... Again I was pleased to be the min­is­ter to in­tro­duce it in 2013.

RA And is there an idea or thought of push­ing it fur­ther?

MD Yes, we fore­shad­owed in the le­gal and con­sti­tu­tional af­fairs com­mit­tee re­port in 2009 that, like it was al­ways en­vis­aged that pri­vacy act pro­tec­tions would ul­ti­mately ex­tend to the pri­vate sec­tor, and that hap­pened, so too whistle­blower pro­tec­tion is ca­pa­ble of be­ing ex­tended and should be ex­tended to the pri­vate sec­tor.

RA Yes, and FOI seems to have fallen into a bit of a dark space.

MD Well, the gov­ern­ment hav­ing been pre­vented by the se­nate from car­ry­ing out its semi-de­struc­tion of the FOI sys­tem by abol­ish­ing the in­for­ma­tion com­mis­sioner – and we had, mem­o­rably, John

McMil­lan, the in­for­ma­tion com­mis­sioner work­ing from his kitchen with­out staff for some time be­cause they failed to fund this statu­tory po­si­tion in the bud­get in 2014. And what the gov­ern­ment has done on a de facto ba­sis is still try to abol­ish the in­for­ma­tion com­mis­sioner by mak­ing Ti­mothy Pil­grim all three: in­for­ma­tion com­mis­sioner, pri­vacy com­mis­sioner and free­dom of in­for­ma­tion com­mis­sioner. He’s done a great job in dif­fi­cult cir­cum­stances.

RA Na­tive ti­tle – what has hap­pened to the re­port from the Law Re­form Com­mis­sion?

MD That’s an­other one with a bit of in­ac­tiv­ity from the Lib­er­als. I com­mis­sioned the Law Re­form Com­mis­sion in 2013 to do a re­port on what I saw as one of the thorni­est and dif­fi­cult ar­eas … I picked out the con­tin­u­ing con­nec­tion with coun­try, which is a big prob­lem in na­tive ti­tle. It is an ex­cel­lent re­port, it was de­liv­ered to gov­ern­ment in June of 2015 and not a word has been spo­ken by the gov­ern­ment un­til Adani wanted some­thing, which was at the start of this year.

So all of a sud­den the at­tor­ney­gen­eral starts talk­ing about na­tive ti­tle, and we had a wran­gle that ran through the first six months of this year, fol­low­ing on from a de­ci­sion in the full Fed­eral Court case called McGlade, which prompted it. Hav­ing done ab­so­lutely noth­ing and never even mentioning the words “na­tive ti­tle”, all of a sud­den there’s this flurry of ac­tiv­ity and in the two weeks the par­lia­ment is asked to leg­is­late. RA Was it Adani ob­ject­ing to the McGlade de­ci­sion?

MD Yes.

RA How might Aus­tralia be a bet­ter place with you as at­tor­ney-gen­eral?

MD I think this Aus­tralia would be a bet­ter one with a La­bor gov­ern­ment and a La­bor at­tor­ney-gen­eral, whether it be me or some­one else. Just for starters we would rein­tro­duce some level of trans­parency in ap­point­ments, which I think is a use­ful thing to do.

RA In other words, re-in­tro­duce the filtering panel for ju­di­cial ap­point­ments?

MD That’s right. Ad­ver­tise for in­ter­est among those in the Aus­tralian le­gal com­mu­nity who think they are fit for public of­fice and then in­ter­view them for fed­eral, all fed­eral ap­point­ments … It was com­pletely abol­ished and we’ve gone back to the black box where you just don’t know what process is fol­lowed to make an ap­point­ment to a fed­eral po­si­tion … A se­ri­ous pro­gram of law re­forms is what you would get. Pay­ing at­ten­tion to the ALRC [Aus­tralian

Law Re­form Com­mis­sion] re­ports, good ALRC re­ports that have gath­ered dust for years. En­gag­ing in law re­form, con­sult­ing prop­erly, pay­ing proper at­ten­tion to the le­gal as­sis­tance sec­tor. Proper lev­els of fund­ing for com­mu­nity le­gal cen­tres and le­gal aid com­mis­sions around the coun­try. I can keep go­ing but there’s plenty of rea­sons to have a La­bor at­tor­ney-gen­eral. All of these are La­bor poli­cies – so it’s not me, and an­other La­bor at­tor­ney-gen­eral would de­liver the same things. It’s not about me.

RA Just one more thing about refugees. I know it’s not re­ally your area but, in a hu­man rights con­text, do you think La­bor might have a more hu­man­i­tar­ian con­cern for what’s go­ing on in Manus and Nauru? I ask that of some­one who’s com­mit­ted to hu­man rights.

MD Un­doubt­edly. There are two things. It was never our in­ten­tion that the re­open­ing of these two cen­tres, run by the Aus­tralian gov­ern­ment – let’s not hide be­hind the cha­rade that it’s not an Aus­tralian prob­lem, it is – it was never our in­ten­tion that they re­main in­def­i­nitely de­tain­ing peo­ple. We are now into the fifth year of de­ten­tion for the men on Manus and the women and chil­dren who are in Nauru, and that’s point one.

Point two is it is not nec­es­sary to run these cen­tres as places of pun­ish­ment. Not one of the peo­ple who are de­tained there has com­mit­ted a crime – not one. Not one of them de­serves to be treated in the way in which they have been treated.

Shadow at­tor­ney-gen­eral Mark Drey­fus.

RICHARD ACK­LAND is the pub­lisher of Jus­tinian. He is The Satur­day Pa­per’s di­ari­s­tat-large and le­gal af­fairs edi­tor.

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