Inside Story

The Brandis agenda

Armed with an ambitious political and legal agenda, the new attorney-general faces a testing time, write Shipra Chordia and Andrew Lynch

Shipra Chordia & Andrew Lynch 4 December 2013 4238 words

Much of George Brandis’s agenda turns on questions of human rights. Alan Porritt/ AAP Image

AS LONG as the political conversation is dominated by “stopping the boats,” the future of Gonski and the fate of the carbon and mining taxes, there will be some truth in the claim that the Coalition is responding to Labor’s policies rather than communicating a positive plan for the country. As these policy controversies continue, the clear air in which Tony Abbott might have articulated his broader legislative agenda appears to have thickened.

Attorney-general George Brandis, by contrast, has signalled his priorities with relative clarity, mapping out an ambitious agenda in which human rights and constitutional reform take prominence. He has also inherited a major problem that will require almost immediate attention: the restrictive approach the High Court took to the Commonwealth’s spending power in its 2012 decision in the Williams case. In that judgment, the High Court declared invalid the Commonwealth’s funding of the national school chaplains program, a Howard government initiative continued by Kevin Rudd and Julia Gillard. The court’s decision signalled that hundreds of programs directly funded by the Commonwealth may be without constitutional foundation.

Together, these matters present Brandis with a full slate of complex legal and political issues that will test his resolve and effectiveness in very public ways.

ACCORDING to the Australian, the new attorney-general’s first legislative act will be to repeal the prohibition, in section 18C of the Racial Discrimination Act, on behaviour likely to offend or insult a person or group of people on the basis of their race, colour, or national or ethnic origin. It may seem an unlikely starting point, but section 18C attracted much critical attention after it was used in a civil action against conservative columnist Andrew Bolt for comments he made about numerous individuals of Aboriginal descent. The claimants won their case, leading Bolt to complain that his freedom of speech had been denied by the law’s prohibition on giving offence.

That view was shared by Brandis, who made no bones about his plan to amend the Act should the Coalition win government. “You cannot have a situation in a liberal democracy,” he said, “in which the expression of an opinion is rendered unlawful because somebody else… finds it offensive or insulting.” Post-election, the attorney-general isn’t ruling out repealing section 18C altogether, which would remove the prohibition on actions that humiliate or intimidate people on the basis of race or ethnicity.

During hearings in late November, a Senate estimates committee discussed whether section 18C has a useful role, given the existence of related provisions in the Commonwealth Criminal Code. The president of the Australian Human Rights Commission, Gillian Triggs, who was appearing before the committee, believes it does. She drew a distinction between the Code, which outlaws the incitement of racial violence, and section 18C, which provides an avenue for civil complaints about conduct that is better described as racial hatred.

The viability of maintaining what would remain of section 18C is something Brandis says he’ll be pondering during consultations about the law. Labor’s shadow attorney-general, Mark Dreyfus, has maintained a strong opposition to the Coalition’s plans for section 18C, pointing to its importance as a civil remedy in multicultural Australia and a tool in combatting anti-Semitic speech. He says that Brandis has admitted that “his ‘engaging in community consultations’ would be limited to ‘private conversations’ with ‘community leaders’ to be selected by him.”

Brandis wouldn’t be surprised by Labor’s opposition, but this debate has some way to go yet, and the outcome will depend greatly on the extent to which ethnic community groups become exercised about the options being put forward by the government. In a sign that the issue may run in unpredictable directions, Chris Merritt, the Australian’s legal affairs editor, has concluded that perhaps the best course is for the Commonwealth to amend the Code so as to expose individuals to criminal sanction for racial vilification. This would indeed be a surprising outcome of the Coalition’s reaction to the Bolt case.

While section 18C might be his immediate focus, the attorney-general is galvanised by what he sees as a need for systemic reform of how Australia respects and protects human rights. He first began to articulate this agenda in response not merely to the Bolt decision but also to the abortive attempt by his predecessor, Nicola Roxon, to consolidate the various Commonwealth anti-discrimination laws into a single harmonious scheme. That wholly sensible endeavour was undone by Roxon’s overreaching on key provisions, and the idea of behaviour giving rise to “offence” was once again at the heart of criticisms of the bill. The episode drew out Brandis as a champion of free speech and an enemy of its legislative curtailment. The new media rules proposed by Labor’s communications minister, Stephen Conroy, only cemented his attitude towards laws that would intrude on a free press.

Anyone hoping that the attorney-general’s views from the opposition benches were mere political posturing can think again. In an interview with the Australian published on 8 November, he revealed that terms of reference were being drawn up for an Australian Law Reform Commission inquiry into “statutory infringements of traditional rights and freedoms.” Governments of both political shades have steadily underinvested in the commission for many years now – and yet the job Brandis is about to give it must surely be the largest in its history.

A lot obviously depends on how “traditional rights and freedoms” are defined, but it is instructive to note that in 2008, the then chief justice of New South Wales, James Spigelman, identified no fewer than eighteen generous presumptions that he described as “the common law bill of rights.” Of course, at its broadest conception, every legislative enactment is a diminution of freedom of some sort. During the twentieth century the common law was effectively brought to heel by the explosion of legislative activity that accompanied the rise of the regulatory state in the Western world. By their nature, with their imposition of duties, obligations and prohibitions, statutes infringe the liberty of individuals.

So it’s a big job. But it is only the start. For where the attorney-general really wants to effect change is in the work performed by the Australian Human Rights Commission, or AHRC. Not unlike the Law Reform Commission, the AHRC’s relationship with the Commonwealth at any time might be best described as neglect teetering on hostility. But while Brandis has been unhappy about the AHRC’s position on some questions recently, his solution lies in a radical broadening of its mandate so as to protect “all human rights.”

The attorney-general has lamented the AHRC’s focus on freedom from discrimination on the grounds of race, sex, disability and other attributes. The consequence, he says, has been that “the classic liberal democratic rights that in my view are the fundamental human rights have been almost pushed to the edge of the debate.” The AHRC’s organisational structure, with its designated commissioners under the office of its president, reflects its focus on certain protected attributes, and there are no plans to change that structure fundamentally. But Brandis has announced that he will appoint at least one “freedom commissioner,” whose job it will be to monitor and guard against infringements of the “traditional rights” – including freedom of speech, religion and association – that he believes have been lost sight of.

On one level, this is heady stuff for the AHRC, and Gillian Triggs has understandably chosen to be receptive. Indeed, why would she not? A broader mandate and more senior staff – and presumably commensurate resourcing – are positive developments for a body that is the frequent target of fierce and influential attack.

But in other respects, it is hard to know for sure where all this might lead. Given that governments tend to drive the creation of legislation – the means through which those “traditional rights” are imperilled – doesn’t Brandis risk creating a serious thorn in his own side, much more so than the AHRC might be in fulfilling its current mission? Take, for example, the vexed topic of anti-bikie laws. In the very same interview in which the attorney-general included freedom of association as one of the “traditional rights” under attack, he also voiced his unqualified support for Queensland’s new laws to deal with bikie gangs. But it is clear that those laws, and equivalent measures in other states, impose restrictions on freedom of association far removed from the standards of traditional criminal justice.

In a later interview, again in the Australian, the attorney-general quite accurately described himself as the “minister for national security” whose department is charged with overseeing how law enforcement agencies use the vast legislative framework created by the Howard government in the wake of 9/11. While Brandis said that “anti-terrorism laws are kept constantly under review,” he didn’t mention the very sharp tension between key aspects of those laws and the “traditional rights and freedoms” that he seems so set on defending.

Indeed, the Law Reform Commission and the new freedom commissioner could do a lot worse than start by looking at this particular area of “statutory infringement.” What they will find is that many previous reviews, including those conducted by Bret Walker SC as the Independent National Security Legislation Monitor, make it abundantly clear how parts of the anti-terrorism law needlessly curtail basic freedoms. The Labor government did nothing in response to those very considered reviews, but if Brandis is to be taken seriously in his concern about overly broad statutory provisions whittling away common law rights, perhaps we may see some sober recalibration of these laws on his watch.

ONE of the more troublesome items on George Brandis’s to-do list will be negotiating the terms of a referendum for Indigenous recognition in the Constitution. There is a broad consensus that those parts of the Constitution – sections 25 and 51(xxvi) – that allow laws to be made on the basis of “race” should be repealed, ridding the document of the last vestiges of the racially charged history from which it emerged. For some years that consensus has extended to the view that symbolic constitutional recognition of Indigenous people would be a significant step towards reconciliation. The contentious nub of the debate, however, is whether recognition should be more than just “symbolic.”

The debate can be broken down into three primary areas of concern. The first is whether a statement of recognition should be inserted into a new “preamble” to the Constitution or whether recognition should go into the body, or operative provisions, of the document. The Expert Panel on the Constitutional Recognition of Indigenous People commissioned by the Gillard government in December 2010 conducted extensive consultations on this and other issues before delivering its final report in January 2012. It recommended that a preambular statement should be inserted into the body of the Constitution, prefacing a new head of federal legislative power to sustain laws made for the benefit of Aboriginal and Torres Strait Islander peoples.

The expert panel considered that while a new preamble would still carry significant symbolic importance, it would not create any new legal rights and therefore would be of limited practical significance. The hurdle for Brandis in adopting its recommendation, however, is the scepticism that a new substantive law-making power is likely to meet from the broader voting public. Historically, Australians have baulked at changes to the Constitution that might expand the powers of government (though the almost 90 per cent “yes” vote giving the Commonwealth power to make laws for Aboriginal Australians under the existing “race power” in section 51(xxvi) is a notable exception). To achieve success it will be crucial to ensure that the “yes” campaign conveys the fact that the new power would actually be a replacement for the existing “race power,” which applies to the people of any race and so has a much broader ambit. The net effect of the changes would therefore be to limit Commonwealth legislative power rather than expand it.

The second major issue in the debate is the question of whether this new substantive law-making power should be limited to the power to make laws that seek to “advance” or “benefit” Indigenous people. Again, the expert panel recommended that the introductory language, at least, of the suggested new provision should acknowledge the “need to secure the advancement of Aboriginal and Torres Strait Islander people.”

The problems with this type of drafting are twofold. First, it is unclear whether such introductory language would be justiciable – whether it could be relied on in pursuing legal action. If the words are not justiciable, it is difficult to see a reason for including the acknowledgement that would be convincing to Australian voters. Second, if it is justiciable, there is often no consensus about whether a particular legislative action might be properly characterised as “advancing” Indigenous interests. Some might argue that the Howard government’s Northern Territory intervention policies advanced Aboriginal communities in that region, for example, by addressing acute issues relating to sexual and substance abuse. Others would hold that the paternalism encapsulated in those policies had the effect of significantly degrading the sense of independence and self-worth of the Northern Territory’s Aboriginal people. The question for Brandis is whether the Australian voting public is likely to support constitutional change that would essentially leave the question of whether such policies are “beneficial” to the seven unelected members of the High Court.

The final major issue is whether, in addition to a substantive provision enabling the federal government to make laws for Aboriginal people, there should be a broader anti-discrimination provision that limits the powers of all Australian governments to make laws discriminating against any particular race. The expert panel proposed this as a new section 116A for insertion in the Constitution. This is perhaps the most contentious part of the Indigenous recognition debate. Although the proposed amendment recognises the diverse, multicultural quality of contemporary Australian society, it also has the potential to introduce a number of anomalies into the Constitution.

The first of these is that while the Constitution divides and allocates power among the legislative, executive and judicial branches of government and between the Commonwealth and the states, it says very little about an individual’s rights and freedoms in relation to the state. There are some exceptions: the Commonwealth cannot forcibly acquire property without providing compensation on “just terms,” for example, nor can it prohibit political communication or make religion a criterion for the appointment of a Commonwealth officer. But these exceptions are few and far between. An anti-discrimination clause would be a fetter on legislative power of a kind broader than so far seen in Australia, and for this reason the provision has been described as amounting to a “one-clause bill of rights.”

At the other extreme, some would argue that an anti-discrimination clause that precludes legislative and executive discrimination on grounds of race, colour or ethnicity doesn’t go far enough and is out of step with the constitutions of most other developed and postcolonial nations. Those constitutions often prohibit discrimination on any grounds, including gender, sexual orientation, age, religion, marital status and disability. Further, an express reference to “race” (rather than to national or ethnic origin) in such a provision has the potential to extend the life of that word in Australian law, running against the longstanding consensus in anthropological and scientific circles that the idea of “race” has no factual grounding in biology or social science.

But an anti-discrimination provision would seem a critical counterpart to any new substantive provision enabling the federal government to make laws with respect to Indigenous people. By its operation, Australian governments would have the power to enact only laws that could be shown to treat everyone equally, regardless of “real, supposed or imputed” race or ethnic origin. In an important exception, however, the provision would not exclude the power to enact legislation that is reasonable, proportionate and designed to achieve a legitimate purpose or to overcome disadvantage or past discrimination. It is ultimately on this basis that the expert panel has expressed its support for the inclusion of an anti-discrimination provision in a referendum bill.

Added to the complexities of the form of recognition itself are the intricacies of the political backdrop against which any referendum might take place. Tony Abbott has declared that Indigenous affairs will take centre stage during his prime ministership and, to that end, has already signed off on the appointment of the Prime Minister’s Indigenous Advisory Council. The council will meet with Abbott and other senior government ministers three times a year to discuss the progress of reform policies. But while this appears to be an important step in achieving substantive improvements in the lives of Indigenous Australians, the government is simultaneously committed to dramatic reductions in spending. In September this year, the Coalition announced that it was slashing $42 million of funding for the Indigenous Policy Reform Program.

While Brandis has insisted that the cuts will not affect the provision of frontline legal services, such as court representation, they will nevertheless curtail the capacity for community and Indigenous legal aid service providers to participate in policy reform – including any referendum campaign – through advocacy. And if Brandis does oversee the repeal of part or all of 18C of the Racial Discrimination Act 1975, that may complicate public debate over whether an anti-discrimination provision should be introduced into the Constitution.

WHILE Brandis’s human rights and Indigenous recognition agendas are both high-profile, perhaps the biggest problem the new attorney-general will need to confront is Commonwealth executive spending. This is almost a non-starter in the community’s consciousness, but the issue is ripe with direct and inconvenient possibilities for recipients, users and employees of many hundreds of Commonwealth schemes.

The whole area of Commonwealth-funded programs was thrown into uncertainty in June 2012 by the High Court’s decision in Williams v Commonwealth, in which a longstanding assumption about the scope of Commonwealth executive power was overturned. The court held that, subject to certain limited exceptions, the Commonwealth executive could not contract and spend public money without prior authorisation from parliament. Before the case, it had been assumed that this legislative authorisation was not required.

The decision cast doubt on the legal validity of hundreds of Commonwealth programs supported by direct executive spending but not underpinned by legislation. These programs, representing up to 10 per cent of federal government expenditure, cover the entire spectrum of government activity, from fields as diverse as mental health, overseas development, Indigenous housing, cybersecurity and counterterrorism, through to the home insulation program and the Australian animal welfare strategy. Not surprisingly, Brandis has described the Williams decision as raising “fundamental issues of Commonwealth powers.”

Spooked by the decision, the Gillard government rushed through “emergency” legislation authorising Commonwealth executive spending in over 400 different areas. But this bandaid measure raised its own problems. It is far from clear that parliament possesses the power to authorise Commonwealth executive spending in all of the hundreds of areas now listed in the amended Financial Management and Accountability Act 1997. And the vagueness with which many of the programs of spending have been listed suggests that they may be invalid because either they are incapable of being brought under a Commonwealth grant of power or they have not passed the level of legislative scrutiny that the majority of the High Court suggested might be necessary to uphold the principles of representative and responsible government.

Prior to the change in government, Brandis denounced the emergency legislation, arguing that it “fails to address the constitutional hurdles to unlegislated executive expenditure raised by Williams.” He observed that the descriptions of the programs listed in the amended Act had been abbreviated to such an extent as to render them “utterly obscure.” He also expressed “grave doubts” about whether the operative provision of the Act provided a “sufficient legislative basis to overcome the decision in Williams,” saying that it attempted to assert the existence of a power that the High Court had made clear did not exist.

These comments put the attorney-general in a curious position. The amended Financial Management and Accountability Act is the subject of a fresh High Court challenge, scheduled to be heard early in 2014, and the Commonwealth must now defend the constitutionality of the same legislation the attorney-general has publicly questioned. All things remaining equal, the Commonwealth is going to have its work cut out forging a victory from the current set of circumstances.

If the challenge to the Act is successful, it won’t be tenable for the Commonwealth to persevere with the existing breadth of expenditure in blithe disregard of the High Court’s recent reproaches. In an interesting twist, the Act is due to be repealed on 1 July 2014 when its replacement, the Public Governance, Performance and Accountability Act 2013, comes into operation. It might have been thought that debate surrounding this new Act would have been a perfect opportunity for a significant rethink by the Commonwealth. The opportunity was not taken up, however, and the new Act is as constitutionally problematic as its predecessor. Designed to leave the exact stipulation of the Commonwealth spending programs to the executive by way of subordinate legislation or “rules,” it runs against the grain of the reasoning of the High Court’s majority in Williams.

The critical question for the attorney-general will be how to restructure Commonwealth expenditure in order to bring it within the bounds of constitutional legitimacy. A couple of options come to mind, neither of them particularly straightforward or politically expedient. The first is to cut back Commonwealth direct spending to the bare essentials, leaving the gaps to be filled by the states as and when they find the capacity and resources to do so. It is highly unlikely that the Commonwealth will want to adopt this course since it will inevitably raise the ire of the electorate, particularly if essential services are affected. Any sudden retraction in federal spending could also have severe consequences for economic growth.

An alternative would be to cut direct Commonwealth spending while negotiating a series of agreements with the states under which they will receive funding in exchange for taking over programs abandoned by the Commonwealth. In both political and legal terms this would be a less perilous option.

It is still far from optimal, however. Under current arrangements, the Commonwealth is able to place significant financial pressure on the states to accept its offers of funding on specified terms and conditions. This imbalance forces the states to act as intermediaries, blindly adopting Commonwealth policy in exchange for funding. It breaks the chain of accountability between the level of government setting policy (the Commonwealth) and the voting public in each state. Despite the High Court’s ambitions for enhancing responsible and representative government, the eventual result might be a system that is no more accountable for the expenditure of public monies than the one we have today.

AS WELL as the unenviable task of dealing with these significant challenges, Brandis will inevitably need to devote attention to the panoply of keenly anticipated High Court cases in which judgment is expected over the next few months. In particular, the Commonwealth’s challenge to the ACT’s same-sex marriage laws and the unions’ challenge to the NSW political funding legislation will no doubt be on his radar. Both cases raise significant questions about Australia’s federal system, and the outcome of the latter, in particular, could drastically alter the contemporary political landscape. With a number of new appointments to the High Court bench radically transforming its composition in recent years, predicting the outcome of these cases will be as challenging as dealing with their aftermath.

In short, George Brandis has a pretty full plate. He has been very candid with the media and public about what he sees as the priorities and challenges facing him in his new job. The former are diverse and the latter substantial. Aside from the pivotal issue of the future of Commonwealth-funded schemes, it is intriguing that so much of the Brandis agenda turns on questions of human rights – their identification and protection. In his work with Indigenous organisations and communities on the consequences of constitutional “recognition” and through his focus on preserving “traditional freedoms,” Australians are going to be hearing a lot more from their attorney-general about the most effective means of protecting human rights in this country. That may be context-specific, or it may not.

But it will perhaps be a more interesting and less abstract national conversation than that we have held in the past. •