Polly Peck delves into the salmagundi of law & justice policies on offer by the two major parties … May 18 election … Policies that have been missing in action during the campaign … Rights … Integrity Commissions … Family law reform … Judicial and quasi-judicial appointments … Legal aid … Indigenous Australians … Prosecuting Banks and finance companies … Whistleblower protections … Catching more crims … Take your pick
Porter is a freaky conservative law ‘n’ order man from the the seat of Pearce on the outer fringes of the most remote capital city in the country. Dreyfus, who represents Isaacs in Melbourne’s south-east, is an altogether more nuanced politician with a wider social justice agenda.
Here they are facing off in an election dominated by money, taxes and what’s-in-it-for-me? Law and justice has received hardly a mention in all the miles of bloviation and carnival barking.
Usually there is an election debate with candidates sparring for the job of attorney general, but there’s no word of such a fun event this year.
To find out the policy details, Polly Peck, our political affairs correspondent, has trawled through a mire of press releases and policy documents so you don’t have to.
Neither major party invest their justice policies with an over-abundance of inspiration or vision. It’s mostly nuts-and-bolts … so here goes.
Recent developments include Philip Ruddock’s review of religious discrimination, brought into focus by a misconduct finding against footballer Israel Folau over his religiously-motivated homophobia.
We’ve also seen increased concerns about white supremacists and hate speech in the wake of the Christchurch massacre. How free speech can be balanced with the rights of minorities, and where religious discrimination fits in, is far too complicated a topic for election soundbites – so it has been ignored.
Essentially, in its dark heart, the Coalition wants to allow churches and religious schools to discriminate against LGBTI people, not hire them or, if they are in the ranks, to be able to fire them. It is just not saying so while the country is in election mode.
Labor, we know, defends s.18C of the Racial Discrimination Act. Shadow AG Mark Dreyfus says that, if elected, his party will ramp up enforcement of the controversial provision, which makes it unlawful to offend, humiliate or insult on the basis of race. To do so, the Australian Human Rights Commissioner and the Race Discrimination Commissioner will receive more funding.
Dreyfus also says he doesn’t see a need for a Religious Discrimination Commissioner, but will introduce an LGBTQI Commissioner.
However, a Bill of Rights or Human Rights Act gets a mysteriously opaque treatment in the ALP’s policy document.
In government Labor says it would consolidate federal anti-discrimination laws into a single Act “to remove unnecessary regulatory overlap and make the system more user-friendly”. It then says it will …
“Review legislation, policies and practices for compliance with the seven core UN Human Rights treaties to which Australia is a party (which are listed in the framework); and review the Human Rights Framework and consider whether it could be enhanced through a statutory charter of human rights or other similar instrument.”
For the Coalition, a charter of human rights is nowhere on the horizon. In fact, they actively oppose such an initiative.
Instead, the Coalition remains focused on religious discrimination. Porter says a standalone Religious Discrimination Act, one of the Ruddock review’s major recommendations, is still government policy.
Both parties have promised their own version of a federal anti-corruption commission – the NIC and the CIC. The Liberals had to be dragged kicking and screaming to do something, as the polls showed overwhelming support for an integrity commission in the face of unremitting Coalition scandals (Great Barrister Reef funding, water mismanagement and AAT appointments are three starters).
Labor is promising to establish its National Integrity Commission (NIC) within 12 months of winning office. There will be a commissioner and two deputy commissioners, each serving five year terms. NIC will be empowered to investigate serious and systematic corruption by Commonwealth parliamentarians or their staff, public servants, statutory office holders, the Commonwealth judiciary and the Governor-General.
The presumption will be for in camera proceedings, but NIC will have discretion to hold open hearings, when in the public interest. Otherwise, the commission will have the full powers of a Royal Commission, including the power to search, to compel witnesses and to issue warrants. NIC will make findings of fact and, if necessary, refer corrupt officeholders to prosecutors.
The Coalition has its own plans for what it has dubbed the Commonwealth Integrity Commission (CIC). Again, there’ll be a commissioner plus two deputies and the CIC’s job will be to investigate “serious and systematic corruption”.
Note that the judiciary won’t fall under the CIC’s remit and its jurisdiction is confined to investigating corruption that takes place after the legislation comes into force. Porter has floated a last-minute idea for a federal judicial commission, having identified constitutional problems for judicial officers to be subject to an anti-corruption watchdog.
Similarly, the CIC won’t be able to make arrests or hold public hearings when it comes to the public service, but can do both those things during law enforcement investigations.
The CIC will accept complaints from Commonwealth employees, and from the general public. However, on its own, a public complaint about a politician or their staff won’t be enough for the CIC to start an investigation.
All of the CIC’s findings will be secret.
In its 2019-2020 budget, the Coalition promised $104.5 million of funding over four years of the CIC.
The funding for NSW’s ICAC is $106 million over the same period.
Family law policy and family courts are a hornets nest – lots of angry little creatures in a buzzing frenzy.
The overburdened family law system has long been in reformers’ sights. Now, following sweeping recommendations from the ALRC, family law is certain to be on the post-election agenda.
Labor’s Mark Dreyfus has labelled the issue a “top priority”. Concrete proposals are so far lacking, but he flagged a boost in judge and registrar numbers as one possibility.
The Coalition is sticking with the plan. In March, Porter withdrew his long-threatened Family Court overhaul, which faced certain defeat in the Senate. He’s saying that if the Coalition is returned he will try again to get his preferred family court arrangement through parliament.
In its final form, his proposal was to fuse the Family Court with the Federal Circuit Court, creating a separate family law division in the merged court. After some serious thinking about the matter, Porter changed the appeals structure and now under his scheme appeals from this division will go to a new appeals section of the merged FCFCCA, and not to the Federal Court of Australia.
The Coalition has made an art form of jobs for the boys and girls – not that Labor governments were slouches in this department.
Labor’s promises to end all the fun. If elected, it will introduce a “transparent” mechanism for filling AAT vacancies. All vacancies will be publicly advertised, and a panel of worthies will draw up a shortlist of candidates.
The AG and Cabinet will ordinarily pick from this list, though they can ignore the recommendations with impunity. If they do, the AG will have to give reasons to parliament.
Note this policy only applies to the AAT, so it’s unclear what mechanism Labor will use to fill spots on other government bodies.
Whether the Coalition will keep up its current habit is anyone’s guess but since it has made no promises to do mend its ways, we can expect it will continue prefering mates and party hacks.
The major parties’ law and justice policies touch indigenous Australians in a few different areas:
Labor is promising $40 million over four years to the Aboriginal and Torres Strait Islander Legal Services (ATSIL). It is also offering funds to other Aboriginal-run services, including $20 million for safe house programmes and $21.5 million to Family Violence Prevention Legal Services
In this year’s budget, the Coalition increased community legal funding from $350.3 million to $370 million per year. This money goes to ATSIL plus state legal aid commissions and community legal services. An undefined “national mechanism” will decide how the money is carved-up.
In 2017, Australia’s indigenous leaders issued the Uluru Statement from the Heart on indigenous recognition. The statement calls for a constitutional indigenous body, the Voice, which will advise federal parliament on indigenous issues. The statement also calls for a truth-telling body, Makarrata, to help create treaties between indigenous people and Australia.
Labor promises it will hold a referendum on the Voice to Parliament by 2022. It also says it will work with indigenous leaders to establish Markarrata.
Under Malcolm Turnbull, the Coalition rejected the Uluru Statement from the Heart. Instead, the Coalition now says it will investigate other options for recognition. April’s budget earmarked $7.3 million for that process.
If elected, Labor will create a compensation scheme for members of the Stolen Generations. Survivors will receive $75,000 ex gratia payments and, when they die, their family will be able to access $7000 for funeral costs.
Labor is also promising a $10 million healing fund. This will be an indigenous-run organisation, helping with counselling, family reunion and elder support.
The Coalition has made no announcements in this area.
Both parties say they will enact all 76 recommendations made by Kenneth Hayne’s Royal Commission on the banks.
The Coalition’s response involves a compensation scheme administered by the Australian Financial Complaints Authority (AFCA). Consumer complainants can access up to $500,000 in compensation, while small businesses and farmers can claim $2 million. There is also a $5,000 cap on non-economic loss. Compensation is paid by the offending bank or financial service outfits.
Labor is promising a beefier scheme. Consumers will be able to claim $2 million and farmers $4 million. There will be no separate cap for non-economic loss. And, if a bank or financial service provider has gone out of business, the government will pay the compensation itself.
A related Labor policy is a new $160 million tax on Australia’s nine biggest banks. This money will go into a fund totalling $640 million by 2024. From this $120 million will go to helping victims of bank misconduct make compensation claims. The measure will include 200 new government lawyers.
Whistleblowers
Labor is keeping an eye on stronger protections for whistleblowers. It has promised a standalone Whistleblowing Act, a rewards scheme to encourage whistleblowing, and a dedicated whistleblower protection authority. There is no clear indication whether the proposed protections apply to both corporate and government whistleblowers.
Labor does say that skilled migrants and temporary visa holders who are being exploited will have “whistleblower status”.
The Coalition passed in parliament new whistleblowing laws in February, expanding the definition of protected whistleblower and the type of disclosures that are lawful. No other whistleblowing policies have been announced. After all, AG Christian Porter is notorious for dropping whistleblowers in the proverbial (here and here).
It wouldn’t be an election if the one side of politics wasn’t outbidding its opponents on new law ‘n’ order policies and expenditure.
Labor has announced a $25 million task force to investigate corporate crimes. It also promises a special prosecutor to put suspected corporate criminals through the wringer.
The Coalition’s big corporate crime announcement came earlier in the year with $35.5 million set aside in the budget to help the Federal Court get more meaningfully into the corporate crime business.
The Coalition is promising to beef up the National Anti-Gangs Squad. Since 2014, the squad’s operations have resulted in 1,270 arrests, the seizure of 2.5 tonnes of illicit drugs and precursors and the confiscation of nearly 6,000 illegal firearms. If the Morrison government is returned, the squad will get an extra $90.6 million in funds.
The Coalition has also announced an injection of money into the Safer Communities programme. This programme awards grants for enterprising crime fighters, who can spend the money in their area on things like CCTV cameras or school security. At the moment, the programme has $35.1 to distribute in 2019-2020. The Coalition is keep to sprinkle another $20 million on this programme.
The Coalition‘s promising to get tough on cyber crime, particularly abuse, harassment and online grooming. If re-elected, the Coalition will introduce a new Online Safety Act. The Act will impose new reporting requirements on telcos and other service providers. There’ll also be tougher penalties for online abuse and harassment.
Legislation will also increase maximum sentences for child sex offences, including online grooming. It will also be made illegal to facilitate the online grooming of a child.
Already this year there have been quite a number of national security laws added to the books, including:
Standby for more of the same as the securities agencies push their agenda, whoever takes the Treasury benches from May 18.
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