Mark Dreyfus on a human rights act
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 anti-discrimination 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 anti-discrimination 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 attorney-general 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?
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.
This article was first published in the print edition of The Saturday Paper on Nov 4, 2017 as "Dreyfus affairs". Subscribe here.