The starting gun has been fired on the federal election, and one of the first interest groups to publish its wish list is the Law Council of Australia (LCA).
The LCA is the peak body representing the interests of the legal profession across Australia. But it doesn’t limit itself to commenting on lawyers’ conditions of work, such as legal aid. It also takes positions on a wide range of issues concerning the legal system. Its ‘Call to Parties’ for the 2019 election covers 33 separate policy areas. Some are only of interest to practising lawyers, and some are pretty marginal to the debates likely to occur during the election campaign. However, a few of the LCA’s priorities are of general interest and are worth examining. I’ll highlight two in particular: family law reform and a federal Charter of Rights.
Family law reform
Concerns about how family law works and how the courts deal with issues like domestic violence or child access and custody pop up frequently – Bill Shorten was asked about Labor’s policy on child custody during a Town Hall in Perth in March.
People impacted by family law care passionately about how it works and often have strong views about the strengths and weaknesses of the system. One Nation’s current policy on family law and child support is brief and ambiguous, but previously it was stronger in its support for giving equal rights to both parents in custody battles, whereas the current core principle in custody decisions is the best interests of the child rather than parents’ rights. It claimed credit for the Coalition referring family law reform to the Australian Law Reform Commission and for the government’s proposed bill to merge the Family Court with the Federal Court (both have some jurisdiction over family law matters). Despite One Nation support, the bill failed to pass the Senate in this Parliament.
The LCA has always opposed the merger of the two courts, and repeats that position in its Call to Parties, instead calling for a specialist family court with full coverage of the issues, simplifying the process and better resourcing.
The day before the election was called, the Australian Law Reform Commission report was finally released, and it has proposed a different approach from either of the major parties, recommending that family law matters should be dealt with by state courts. If accepted, that recommendation would leave an incoming government facing a battle with the states, who would argue for additional resources to come with the extra responsibility.
Shadow Attorney General Mark Dreyfus has said that Labor would be guided by the Law Reform Commission and consultations with the sector, but the Commission and the legal profession are now pulling in different directions – a headache for the next AG whether Coalition or Labor.
A Charter of Rights?
The idea of a federal law to protect human rights is unlikely to be prominent in the 2019 campaign. I would describe it as an issue that is ‘bubbling under’.
When Labor was last in power, it reviewed the protection of human rights by the Commonwealth, but the only concrete reform it executed was a procedure for reviewing draft legislation to determine whether it was consistent with Australia’s international human rights commitments. The Coalition hasn’t dismantled the review process, but has been accused at least once by a United Nations human rights body of not acting on recommendations of the review committee.
There is unlikely to be any major shift on human rights laws if Labor is elected – its 2018 national platform document includes only the following weak statement:
A Labor government would ‘Review the Human Rights Framework and consider whether it could be enhanced through a statutory charter of human rights or similar instrument.’
Crucially, however, the policy leaves open the possibility of progress towards a Charter of Rights. The fact that Queensland adopted a Human Rights Act in February of this year indicates that support for laws protecting human rights has moved beyond Victoria and the Australian Capital Territory, both perceived to be more liberal than the rest of the country, although the results of the marriage equality postal survey suggest that Queensland (along with its fellow mining state Western Australia) are more liberal than is commonly believed. It is also worth noting that the man likely once again to be Attorney-General, Mark Dreyfus, has expressed support for a Charter of Rights.
There is also a national campaign for a federal Charter of Rights, but it hasn’t yet achieved much in setting the political agenda. The LCA calls for an incoming government of whatever party to ‘introduce a national human rights charter or bill of rights.’
LCA support for a Charter of Rights helps bring the issue into the mainstream, and strengthens Dreyfus’ hand should he decide to push for that reform in Cabinet.
Other law reform policies
On some issues, the LCA position is shared by pressure groups on human rights and law reform, but not always by the major political parties. Both major parties have accepted at least the principle of a national integrity commission, supported by the LCA and numerous other groups.
Labor shares the LCA’s commitment (and that of many other groups and individuals) to the constitutional establishment of a First Nations Voice to Parliament as set out the Uluru Statement from the Heart. Labor also agrees with the LCA position against mandatory sentences. However, on raising the minimum age of criminal responsibility from 10, the LCA stands with human rights groups like the Human Rights Law Centre but neither major party has committed to change in this area.
Either family law or a charter of rights could become a focus of the campaign if the conditions were right to bring those issues to voters’ attention.
Today both major parties are reminding us that when you change the government you change the country. It’s worth remembering that the principal way that change happens is through law reform. The election will affect everyone’s legal rights. The question of how depends on which party is elected and which voices are heard the loudest. With its early leap into the election fray, the LCA is trying to make its voice heard loud and clear.