Wednesday, 5 March 2014
Matters of Public Interest
I rise to talk about rights in the 21st century: what do they look like, what are they, and what should they be? In 2014 in Australia the representation of Indigenous people in prisons is grossly out of proportion with their number. Indeed, they are some of the most imprisoned people in the world. Despite this, they are subject to increasing cuts to Aboriginal and Torres Strait Islander legal aid—the very legal services that will assist in reducing their incarceration. These cuts also extend to the general legal assistance sector, where community legal centres and legal aid commissions are increasingly unable to meet increasing need, with serious consequences for everyday Australians, including poor health and mental health, homelessness and lost productivity—which then of course flow on to the community.
I have worked actively on these issues about ensuring that Australians can have access to justice and access to the legal system that we all rely on to determine our rights, and the ability to influence and enforce those rights. But the concept of 21st century rights is much broader than these issues alone. We have a federal government that has appointed a freedom commissioner as the Australian Human Rights Commissioner, with a mission to advance traditional human rights—but this will be at the cost of the right not to experience discrimination, which is still such an important need for many Australians in 2014. We have state governments introducing laws to restrict traditional rights, like the right to freedom of association, in Queensland, and the right to peacefully protest, in Victoria. We have judges whose judgement and discretion are being increasingly constrained by mandatory sentencing, with no evidence at all that it actually does anything to reduce crime.
Governments must respect and acknowledge the judiciary as an essential and independent third limb of government and be willing to recognise and acknowledge the importance of having a separation of powers to avoid a dangerous concentration of power in any one of the three arms of government—the legislature, the executive and the judiciary.
We have courts in a quandary about how to balance the principle of open justice with the rise of social media, which means essentially that all citizens can now be journalists and all juries are subject and vulnerable to pre-trial publicity.
We have national security laws that have been found to be excessive by the government's own independent monitor and the Council of Australian Governments, but which no government so far has been willing to fix.
I want to turn to freedom and freedom from discrimination. The Attorney-General has appointed a Human Rights Commissioner who will be known as a 'Freedom Commissioner'. In making this appointment the Attorney-General has purported to 'restore balance' to the Australian Human Rights Commission. Tim Wilson, the appointee, made an immediate commitment to refocus the commission on defending free speech rather than focus on anti-discrimination work. Are we now balancing freedom from discrimination with the freedom to discriminate?
Dr Tim Soutphommasane, Mr Wilson's colleague and the Race Discrimination Commissioner, gave a speech on Monday at the Australian National University. He raised the crucial question of what freedom must mean in a multicultural society such as ours. He asked: what are the proper limits of free speech consistent with racial tolerance? In light of the profound harm that racial vilification causes to individuals and families, his view is that the Attorney-General's proposed changes to section 18C of the Racial Discrimination Act are not warranted.
The Greens will oppose any such changes. We do not agree that the balance has tipped too far in favour of those who experience discrimination. Indeed, although the previous government dropped the draft consolidated Human Rights and Anti-Discrimination Bill in 2013, we want it kept on the agenda—and, in fact, broadened. The fact that we still have religious organisations in Australia, particularly schools, that enjoy a major exemption from anti-discrimination law, is not good enough. The fact that students and staff enjoy protections in the community that they do not and cannot enjoy at school or in the workplace is not good enough.
The Greens absolutely agree that freedom of speech must be balanced carefully with people's freedom from vilification and discrimination, and the resulting humiliation, indignity, health impacts and diminution in civic participation. Our international obligations alone demand this.
I also wonder about the implications of the increasing crackdown by states on civil liberties that we are seeing in Australia in 2014. Queensland has thrown freedom of assembly out of the window with a raft of laws, ostensibly aimed at motorcycle gangs, that senior lawyers say breach human rights. The Vicious Lawless Association Disestablishment Act makes the gathering of three or more bikies or their associates unlawful. The laws impose mandatory minimum sentencing, in some cases of 15 to 25 years, and breach our international civil rights obligations.
There have been some recent egregious examples of the application of these Queensland laws. We saw five Victorians who were holidaying on the Gold Coast—ostensibly so-called 'bikies'—who were arrested after dinner one evening because of their association with each other and, on remand, they were required to be in solitary confinement, without natural sunlight, for periods of up to 23 hours per day. These people were on remand. They had not been convicted or found guilty of any offence—indeed, they were not charged with an offence that suggested they would be a risk of harm to others; it was the association offence with which they were charged. So these people, presumed to be innocent because they had not been found guilty under our system of law, were essentially forced to be in solitary confinement for a period of time. This is a very, very disturbing development in the way that laws are being generated in Australia. Although I am certainly no friend of criminals, and no friend of those who would seek to harm others with their criminal behaviour, I am also no friend to laws that have the potential to affect any members of our community who fall into disrepute or those who are impugned by their association with others, in this century, at the behest of state governments.
Another example of the application of these laws, and the great disquiet and concern that they have generated, involves the three cases in Queensland where Supreme Court Justice Peter Applegarth actually refused to impose the maximum penalty on the three defendants involved. These so-called bikies would have been sentenced—as in the previous case—to face solitary confinement without natural sunlight for periods between 22 and 23 hours a day. Rather than the maximum penalty of six months, Justice Applegarth actually commented on and described these conditions as being extremely harsh, cruel and unusual and, as a result, in response to his view about the inappropriateness of these penalties, he reduced the sentences in each of the three different cases to a period of four to six weeks.
These are examples of the way in which there is a risk that governments are seeking to use laws to prosecute their political agendas as much as their professed aim to make society safer—particularly when there is no evidence that these kinds of conditions or mandatory sentencing regimes will actually have the effect of reducing crime. The question we all have to be asking in relation to these anti-association laws is: if they are coming for these people today; who might they come for tomorrow?
In New South Wales we have the government introducing mandatory sentences for one-punch assaults and flagging that it would consider extending mandatory sentencing to other sentences. Again, this takes away the ability of a judicial officer, who is the one person who has the capacity to know all the circumstances of an offence, to weigh those up and to use discretion to come up with what is considered, in the view of that person who has those facts available to them, the best and the most appropriate penalty. Like Queensland lawyers who have opposed Queensland's new laws, the New South Wales Bar Association maintains there will be injustice wherever mandatory sentencing applies, because it is a solution to crime in appearance only.
Victoria has passed laws described as deeply antidemocratic, with massive increases to police powers to move on workers and activists engaged in peaceful protests, pickets and demonstrations. With these 'move on' laws, they have provided a broad range of discretionary powers to the police which give them the ability to move on workers, activists and others engaged in peaceful protests, pickets and demonstrations. Again, this attacks fundamental rights in Australia to freedom of assembly and freedom of association. Again, these laws have attracted criticism from lawyers, community legal centres, the independent media and many, many concerned citizens.
I ask: what has our newly appointed Freedom Commissioner to say, in particular to these 'move on' laws that have been introduced in Victoria? I understand that he has been silent on this specific issue. However, a tweet that he made at the time of the Occupy Melbourne protest is perhaps the closest hint as to what he might think about them. He said that freedom of speech is different from the freedom to be heard. He described the Occupy Melbourne protesters as time wasters and he suggested that the water cannons be sent in.
Legal experts who have the temerity to speak out on these sorts of backward state laws have come under fire themselves. The Queensland Premier, facing criticism of his proposed anti-bikie laws at the time, said that lawyers and the judiciary were living out of touch with society and do not understand what the community wants from the law. I was very interested to meet and have dinner with some concerned people recently. They are friends from Melbourne who are not particularly political. They are probably quite conservative in their thinking. They raised the issue of the five Victorians on holidays on the Gold Coast who were remanded in solitary confinement for associating with each other. My friends expressed their extreme dismay at the way those laws were going. I was interested to think that in fact there is a great deal of disquiet in the Australian community generally about the trend with which these laws are being taken up.
Will the federal government affirm the integrity of the judiciary and its essential role as a third limb of government? Will it acknowledge lawyers' professional obligations to represent people in our system of law—which is an adversarial system and relies on not only a prosecution but a defence so that we can actually have some faith that the end result of the process may be a fair one—and also acknowledge that, in any event, lawyers have an overriding duty to the court not to mislead the court? And will the federal government distance itself from the retrograde legislation that we are seeing around the states that dispenses with some of these long-held legal principles?
Another issue that poses the question 'What are our rights in the 21st century?' is that raised by the Chief Justice of Victoria, Marilyn Warren, in her annual Redmond Barry Lecture last year, when she summarised the dilemmas that all courts are now facing as open justice faces the technological age and the changes that have been made and the ability of people to inform themselves about what has occurred before they are involved in jury trials, for instance.
There are also increasingly important questions about how national security is to be balanced with people's rights, and so we have recommendations from both the government's own Independent National Security Legislation Monitor, Senior Counsel Bret Walker, and the COAG, the Council of Australian Governments, which have serious concerns about preventative detention orders and control orders. These are generally considered to be excessive, but no government has been willing to fix these regimes at this point.
So it is time to refine our thinking about these 21st-century rights: access to justice, freedom from discrimination, nationally consistent civil liberties, how we deal with open justice in the age of technology, and appropriate national security laws and the reforms that are generally agreed to be needed to those. These rights would seem to be a good place to start with for this century.