FEDERAL ELECTION 2010 KEY ISSUES
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FEDERAL ELECTION 2010 KEY ISSUES
LAW COUNCIL OF AUSTRALIA
Federal Election 2010: Key Issues
On 12 July 2010, the Law Council sent a letter to all political parties and independent members in the Federal
Parliament requesting their comments on important Federal issues. We will publish their responses prior to the
Federal Election.
An example of these letters is shown below.
The Hon Julia Gillard MP
Prime Minister From the Office of
the President
PO Box 6022
Parliament House
Canberra ACT 2600
Glenn Ferguson
president@lawcouncil.asn.au
Dear Prime Minister,
FEDERAL ELECTION 2010
key legal issues of importance to the Law
I am writing to seek your views on a number of
profes sion in the lead-up to the 2010 Federal
Council of Australia and the national legal
Election.
lia is the peak national representative
As you may be aware, the Law Council of Austra
profes sion. The Law Coun cil was established in 1933 and is
body of the Australian legal
56,00 0 Australian lawyers through their
the federal organisation representing more than
s, Law Socie ties and the Large Law Firm Group (the
representative Bar Association
“constituent bodies” of the Law Council).
legal profession on the legal aspects of
The Law Council speaks for the Australian
and on the operation of federal courts and
national and international issues, on federal law
of the law and the administration of justice.
tribunals. It works for the improvement
bodies to nominate Federal issues of
The Law Council recently asked its constituent
see addressed by political parties and
importance to them which they would like to
sting the 2010 Feder al Electi on.
independent members conte
legal profession are summarised in the
The key issues of importance to the national
a numb er of questions for response.
attached document which also poses
s and independent members requesting
The Law Council has written to all political partie
their comments on these issues by 28 July 2010.
like to discuss any aspect of the attached
If you require any further information or would
t, Director of Communications and
document please contact Vanessa Kleinschmid 3716 or email
Relations on (02) 6246
Stakeholder
vanessa.kleinschmidt@lawcouncil.asn.au
Yours sincerely,
Glenn Ferguson
12 July 2010
Law Council of Australia Limited
GPO Box 1989, Canberra Telephone +61 2 6246 3788 ABN 85 005 260 622
ACT 2601, DX 5719 Canberra Facsimile +61 2 6248 0639 www.lawcouncil.asn.au
19 Torrens St Braddon ACT 2612
KEY ISSUES • FEDERAL ELECTION 2010LAW COUNCIL OF AUSTRALIA
The Law Council recently asked its constituent bodies in Commonwealth funding of community legal
to nominate Federal issues of importance to them centres and Aboriginal and Torres Straight
which they would like to see addressed by political Islander legal services?
parties and independent members contesting the
hh Will you work towards adequate ongoing
2010 Federal Election.
resourcing of the federal courts and tribunals to
These key issues of importance to the national ensure access to justice?
legal profession are summarised below, along with a
number of questions for response.
Legislative standards
The Law Council has raised concerns with both the
Access to Justice present and previous Government about declining
The Commonwealth Government’s recent increase legislative standards. Some of these concerns relate to:
of $23 million per annum for four years for Legal Aid
• Inadequate timeframes for consultation and
Commissions falls short of the $43 million per annum
debate on draft legislation;
which the Law Council has said is required to restore
per capita funding to 1997 levels. Community Legal • Regular lack of adherence to the
Centres and Indigenous Legal Services also remain Government’s Best Practice Regulation Handbook
underfunded despite increases in the 2010-11 Budget. which recommends 12 weeks consultation
periods for highly significant proposals;
The Law Council asks • Introduction of draft legislation at times
which limit the opportunity for public debate;
hh Do you agree that the legal assistance sector is
at present so underfunded as to prevent it from • Cursory explanatory memoranda and second
providing proper access to justice? If so, what do reading speeches; and
you intend to do in Government to redress the • Summary dismissal of Parliamentary
situation? Committee recommendations.
hh Are you committed to developing a National
Partnership Agreement (NPA) with the States/ The Law Council asks
Territories that is based on national goals, as
distinct from Commonwealth or State goals? If hh What will you do to address declining legislative
so, will you work to ensure that Commonwealth standards?
funds are, under such NPA, made available for hh Will you adhere to the consultation standards in
the legal representation of persons for whom the the Best Practice Regulation Handbook?
Commonwealth has special responsibility such as
indigenous Australians, new migrants and those in hh Will you establish any new mechanisms such as
receipt of Commonwealth benefits? a Parliamentary Legislative Standards Committee
or a Legislative Standards Adviser to report to
hh In 1992, the Commonwealth contributed 50% Parliament on legislative standards?
of the national legal aid commission funding,
it now contributes 32%. Will you restore the hh Will you move to amend the relevant House of
Commonwealth share of Legal Aid Commission Representatives and Senate Standing Orders for
funding to 50% (up from 32%), which would the timetables for Committee inquiries to allow
require an additional recurrent expenditure of for longer time periods for consultation?
approximately $200 million? If you are not hh Will you move to amend the Legislation
prepared to commit to 50% Commonwealth Handbook to allow for longer time periods for
funding what steps will you take in Government consultation on Bills?
to adequately resource the legal assistance sector?
hh Will you ensure that any Commonwealth legal
aid funding increase is conditional on States/
Territories maintaining their funding levels?
hh Will you provide a commitment to recurrent
increases, in line with CPI and increasing demand,
FEDERAL ELECTION 2010 • KEY ISSUESLAW COUNCIL OF AUSTRALIA
Improved Protection for • Require Federal departments and agencies to
develop human rights action plans and report
Human Rights on compliance in their annual reports?
The Law Council is concerned that there are gaps • Amend the Acts Interpretation Act 1901 to
in the legal protections available for human rights at require all Commonwealth legislation to be
the federal level. This gap in human rights protection interpreted consistently with the lists of rights
was confirmed in the 2009 National Consultation on as far as it is possible to do so consistently
Human Rights Report. with the legislation’s purpose?
In its response to the National Consultation Report, • Expand the definition of ‘human rights’ in the
the Commonwealth Government made it clear that it Australian Human Rights Commission Act 1986?
will not enact a Human Rights Act.
• Provide for a ‘Statement of Impact on
Instead the Government committed to a Human Aboriginal and Torres Strait Islander peoples’
Rights Framework including human rights education when legislation is introduced exclusively
initiatives; establishing a Parliamentary Committee on for those peoples, to suspend the Racial
Human Rights and requiring that all new legislation Discrimination Act 1975 or to institute a special
be accompanied by statements of compatibility with measure?
human rights. The Framework is to be reviewed
in 2014.
Other key recommendations contained in the National
Consultation Report were not adopted, including Asylum Seekers
some recommendations that can be implemented in The Law Council considers that mandatory, indefinite
the absence of a Human Rights Act. and non-reviewable detention of asylum seekers
The Law Council is of the view that a Human Rights is a fundamental breach of human rights. While
Act is the best way to address the current gaps in recognising some improvements in Government
human rights protections. If a Human Rights Act is policy in the last few years to redress these aspects of
not adopted, it is critical that all recommendations of detention, more remains to be done to ensure that the
the National Consultation Report are implemented. human rights of asylum seekers are respected.
The Law Council asks The Law Council asks
hh Will you consider introducing a Human Rights hh Will you legislate to implement a policy of
Act as part of the planned review of the Human detention as a last resort and for the minimum
Rights Framework in 2014, if not earlier? period possible to undertake health, identity and
security checks?
hh Will you adopt recommendations in the National
Human Rights Consultation Report, which can be hh Will you legislate to ensure that children are not
implemented without a Human Rights Act? detained in Immigration Detention Centres and
that families with children are not detained in such
hh In particular, will you: centres?
• Immediately compile an interim list of hh Will you legislate to restore full rights of judicial
rights for protection, drawn from Australia’s review for asylum seekers, including those arriving
international human rights commitments, and by boat?
replace this interim list with a definitive list
within two years? hh Will you support legislation in relation to
complementary protection claims by asylum
• Use the lists for the preparation of Statements seekers?
of Compatibility for draft legislation and as
guidance for a Joint Parliamentary Committee hh Will you reverse the suspension of the processing
on Human Rights to review all new of claims by Afghan asylum seekers announced
legislation? on 9 April 2010?
• Amend the Administrative Decisions (Judicial hh Will you provide increased access to legal advice
Review) Act 1975 to make the definitive list and assistance for asylum seekers?
of human rights a relevant consideration in
Government decision-making?
KEY ISSUES • FEDERAL ELECTION 2010LAW COUNCIL OF AUSTRALIA
hh Will you support offshore processing of asylum Recruitment and retention of
claims? If so:
lawyers in rural, regional and
• What protections will you put in place to
ensure that asylum seekers are not returned to
remote areas
a situation where they face persecution? The Law Council is concerned that ongoing problems
in recruiting and retaining legal practitioners in rural,
• Will you detain asylum seekers and what
regional and remote (RRR) areas are negatively
forms of detention will you use, particularly
impacting on access to justice. While welcoming
for families and children?
recent funding of $1.1 million announced by
• What processing regime will you apply and the Attorney-General to implement measures in
will you provide for review of decisions not to collaboration with the legal profession to attract
grant visas? and retain lawyers in RRR areas, the Law Council
• What services will you provide to asylum considers that a whole of Government approach is
seekers and will you provide access to legal required similar to the approach used to ensure health
advice and assistance? services in RRR areas.
The Law Council asks
Reform of Anti-Terror Laws hh Will you support initiatives to:
Since September 11, 2001, over 40 pieces of anti- • Provide legal practitioners with monetary
terror legislation have been introduced to Parliament. allowances and bonuses for working in a RRR
Despite their purported urgency and necessity many area?
of the most extreme measures that were introduced, • Ensure that fringe benefits tax (FBT) liabilities
such as the preventative detention regime, the control on RRR employer payments of employee
orders regime and the provisions granting ASIO benefits are waived?
secretive questioning and detention powers have never
• Ensure that HECS-HELP (or FEE-
or very rarely been used.
HELP) liabilities of law graduates and legal
Several independent domestic and international practitioners who work in RRR areas are
reviews have now been conducted of Australia’s repaid, completely or partially?
anti-terror laws and the list of recommended reforms
• Provide further funding for clinical
continues to grow. With the appointment of an
placements in RRR areas for law students and
Independent National Security Legislation Monitor
graduates?
this appears likely to continue.
While the Government has signaled an intention
to act on some of these recommendations with the
introduction of the National Security Legislation Family Law
Reform Bill, the proposed reforms generally involve Family Law Courts provide a vital resource for those
tinkering at the edges of the current legislative regime members of the community who are unable to
and do not involve the repeal of a single extraordinary resolve the issues which may arise on the breakdown
offence provision or Executive power. of family relationships through non-court-based
interventions. Difficulties continue to be experienced
The Law Council asks in the family law system, particularly in relation to
increasing delays in some regions, and the important
hh Will you allow anti-terror measures – such as
challenges in dealing with cases where family violence
of control orders and secretive questioning and
is an issue.
detention by ASIO – to remain on Australia’s statute
books even though they have attracted widespread
and international criticism and proven unnecessary? The Law Council asks
hh Will you ensure that the Independent National hh Will you ensure that the current number of
Security Legislation Monitor is adequately judicial officers will not be reduced and that
resourced to fulfill his or her mandate and will you retiring judicial officers will be replaced promptly?
undertake to respond promptly and fully to his or
her recommendations?
FEDERAL ELECTION 2010 • KEY ISSUESLAW COUNCIL OF AUSTRALIA
hh Will you act promptly to implement the hh Will you commit to funding the mandatory
recommendations of the Family Violence Courts provision of Indigenous language interpreter
Review conducted by Professor Chisholm, services for Aboriginal and Torres Strait Islanders
including the proposed legislative reforms? subject to police interviews or court proceedings,
where required or requested?
hh Will you ensure that the integration of the two
Family Law Courts is implemented promptly? hh Will you commit to implementing the United
Nations Declaration on the Rights of Indigenous
Peoples in Federal law and policy, if necessary by
legislative amendments?
General Issues hh Will you commit to developing better legislative
protection for Indigenous intellectual and cultural
Improving Protections Against property rights, including rights over traditional
Gender Equality and Discrimination knowledge, artistic designs and communally
owned cultural property?
hh What steps will you take to overcome existing
practical barriers for achieving gender equality in hh Will you commit to considering areas in which
the workforce, and in particular, how do you plan Aboriginal customary law might be incorporated
to ensure Australian men and women enjoy equal into the Australian legal system, where compatible
pay for equal work? with Australia’s international human rights
obligations, as recommended by the Australian
hh Will you conduct a public inquiry into the merits
Law Reform Commission?
of replacing existing federal anti-discrimination
Acts with a single Equality Act and introduce hh Will you commit to greater funding towards
positive duties and other measures to address alternative justice mechanisms directed at
systemic discrimination issues? Aboriginal offenders, including Aboriginal courts,
as a demonstrated effective means of reducing
hh What measures will you take in response to the
rates of recidivism and increasing Indigenous
2009 review of the Equal Opportunities for Women in
community involvement in and ownership of the
the Workplace Agency Act?
justice system?
hh Will you commit to the development of lasting
Workers Compensation equitable settlements between Indigenous
hh Will you commit to including representation of Australians and the Australian Government,
the legal profession, as a key stakeholder, on the including through the negotiation of treaties and
special interest group for workers compensation other constructive agreements?
harmonisation under Safe Work Australia?
hh Will you commit the Commonwealth to
supporting a harmonized workers compensation
framework which ensures fair benefits for injured
workers and reasonable access to common law
entitlements?
hh Will you commit to protecting injured workers’
rights to legal representation in any workers
compensation claims process, tribunal or court
proceedings?
Indigenous Issues
hh Will you support the immediate, full and
unconditional reinstatement of the Racial
Discrimination Act 1975 in the Northern Territory?
hh Will you commit to reform of the Native Title
Act 1993 to provide for a “presumption of
continuity”, or presumption against native title
extinguishment?
KEY ISSUES • FEDERAL ELECTION 2010LAW COUNCIL OF AUSTRALIA FEDERAL ELECTION 2010 • KEY ISSUES
19 Torrens Street Braddon ACT 2601 P. +61 2 6246 3788 F. +61 2 6248 0639 www.lawcouncil.asn.au
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