KEY LEGAL ISSUES 2013 FEDERAL ELECTION RESPONSES
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KEY LEGAL ISSUES
2013 federal election
RESPONSESKey legal issues and responses
Access to justice
All Australians have a fundamental right to access legal advice and services, regardless of their means.
Insufficient funding of legal aid is significantly impacting many Australians, including some of our most
vulnerable citizens.
The Law Council asks:
1. The National Partnership Agreement is an agreement between the Commonwealth and the
states/territories, outlining the roles and responsibilities of respective governments and their
agencies in relation to the delivery of legal assistance services by Legal Aid Commissions.
Will you commit to develop a new National Partnership Agreement with the states and
territories on legal assistance sector funding based on national goals?
responses:
AUSTRALIAN LABOR PARTY
Over the past seven years Federal Labor has achieved a substantial reversal of the Howard Government’s
savage cuts to legal assistance.
Since coming into office in 2007, Federal Labor has worked to boost funding for these vital services.
In the 2010-11 Budget, the Federal Labor Government provided an additional $154 million to legal services.
In the 2013-14 Budget, the Government delivered an additional $52 million for legal aid, community legal
services and Indigenous legal services, on top of the planned increase in the National Partnership Agreement
on Legal Assistance Services. This was a 7 per cent increase to legal aid funding and an 8 per cent increase to
funding for Aboriginal and Torres Strait Islander Legal Services. By reprioritising funding, the Government has
also been able to allocate an extra $33 million to community legal centres – an increase of 25 per cent.
Rebuilding legal services across this country is now well under way, but it is a long-haul task and there remains
unmet legal need. That is why Labor has commissioned a Productivity Commission inquiry into improving
access to justice in Australia, which, along with the current review into the National Partnership Agreement, will
guide Labor policy and investment for the next term.
The review of the National Partnership Agreement will analyse the quality, efficiency and cost effectiveness
of all four legal assistance programs. It will also look at the distribution of legal services being provided by all
legal assistance services (including criminal, civil and family law services).
the coalition
The Coalition believes it is vital to ensure as many Australians as possible have fair access to justice. For this
reason, the Coalition is a strong supporter of the work of Legal Aid services, and we believe that greater funding
for services that improve Australians’ access to justice should always be an objective for Government. The
Coalition will therefore be fully engaged in reviewing the National Partnership Agreement and developing its
successor agreement.
However, the reality is that Labor’s Budget mismanagement makes it difficult for a fiscally responsible
Government to make funding commitments. The Labor Government has turned a $20 billion surplus into deficits
averaging $40 billion-plus every year. They took $70 billion of assets and turned it into record debt which is set
to breach the $300 billion debt ceiling. Peter Costello’s last four Budgets produced the biggest surpluses in
Australia’s history.
Labor’s first five Budgets were the five biggest deficits in Australian history. In these circumstances, the Coalition
cannot commit to increase funding for Legal Aid services, nor can we stipulate a proportion of total legal
assistance funding that will be provided by the Federal Government. The Coalition’s first priority if elected will be
to secure Australia’s future prosperity by getting the Budget back under control.
2 Law council of australia / key legal issues & RESPONSES 2013 federal electionAUSTRALIAN greens
As long-term advocates of proper resourcing for the legal assistance sector, the Australian Greens are
committed to a renewed, improved National Partnership Agreement between the Commonwealth and other
jurisdictions based on national goals. We investigated the current review process for the National Partnership
Agreement in fora like Senate Estimates, and registered disappointment that unmet need and gaps in current
service delivery were not comprehensively examined with reference to funding. The Greens are committed to
ensuring the government robustly investigates the levels of supply and demand in legal assistance services,
including who is missing out because community legal centres are underfunded. We want to advance access
to justice through improving the scope and funding of service provision.
In August 2013, as part of a fully costed election platform, the Greens announced a plan to increase the
Commonwealth’s share of legal aid funding, including via the National Partnership on Legal Assistance
Services, by 50% at a cost of $312.4M over the forward estimates. We are committed to robust funding and
governance when it comes to resourcing the legal assistance sector.
The Law Council asks:
2. Will you, during the life of the next parliament, restore legal assistance sector funding to
a 50 per cent share by the Commonwealth? If not, why not?
responses:
AUSTRALIAN LABOR PARTY
The Rudd Labor Government’s total contribution to legal assistance services over the next four years
is more than $1.4 billion.
A re-elected Federal Labor Government would continue to seek increased funding to improve access to justice
as required.
the coalition
The Labor Government has turned a $20 billion surplus into deficits averaging $40 billion-plus every year. They
took $70 billion of assets and turned it into record debt which is set to breach the $300 billion debt ceiling. Peter
Costello’s last four Budgets produced the biggest surpluses in Australia’s history.
Labor’s first five Budgets were the five biggest deficits in Australian history. In these circumstances, the Coalition
cannot commit to increase funding for Legal Aid services, nor can we stipulate a proportion of total legal
assistance funding that will be provided by the Federal Government. The Coalition’s first priority if elected will be
to secure Australia’s future prosperity by getting the Budget back under control.
AUSTRALIAN greens
The Greens’ 2013 election commitment to double community legal centres’ funding, double funding to
Indigenous family violence prevention legal services and increasing legal aid and other Indigenous legal
services’ funding by 50% would restore government funding comfortably beyond 50% of its share to the legal
assistance sector. We will work with the 44th Parliament to ensure the Commonwealth funds at least its fair
share of legal assistance funding.
Our fully costed commitment will ensure that legal assistance is a right, not a privilege.
Law council of australia / key legal issues & RESPONSES 2013 federal election 3The Law Council asks:
3. Will you ensure that appropriate legal aid funding is available to appoint Independent
Children’s Lawyers to ensure that the best interests of the most vulnerable children are
represented?
responses:
AUSTRALIAN LABOR PARTY
The appointments of Independent Children’s Lawyers are managed and funded by legal aid
commissions. Federal Labor provides funding to legal aid commissions through the National
Partnership Agreement on Legal Assistance Services, which the legal aid commissions are expected
to prioritise to ensure that Independent Children’s Lawyers are available when they are needed.
In the 2013-14 Budget, the Federal Labor Government responded to feedback from stakeholders in
relation to Independent Children’s Lawyers by exempting subpoenas and interim order applications
in family law proceedings from court fees. These changes recognised the integral role of
Independent Children’s Lawyers in complex family law matters and enabled these lawyers to provide
vital independent representation to children in court hearings at reduced cost.
the coalition
Response did not address the specific question
AUSTRALIAN greens
The Greens recognise the vital role of Independent Children’s Lawyers in protecting children’s rights in family
law proceedings. We welcomed the Government’s 2013 budget commitment to exempt them from the high,
cost-recovering court fees it would otherwise apply, in a narrow range of circumstances. The Greens have
costed and committed to restoring federal court fees to 2010/11 levels, to ensure this kind of increased access
to justice extends to all parties in all federal court proceedings. Our 50% increase to legal aid funding will flow to
those who need it most, like Independent Children’s Lawyers and their clients.
Federal Court Resourcing
There have been a range of concerns expressed about inadequate resourcing of the federal courts and
tribunals over recent years.
The Law Council asks:
1. How will you ensure that the Federal Court of Australia, the Family Court of Australia and the
Federal Circuit Court of Australia are appropriately funded to ensure they are able to provide
the services and assistance expected of such national courts?
responses:
AUSTRALIAN LABOR PARTY
In 2012, the Federal Labor Government injected $38 million over four years to put our courts on a firmer
financial footing and ensure they deliver key services, including regional circuit work, which is vital for
disadvantaged litigants, small businesses and families.
4 Law council of australia / key legal issues & RESPONSES 2013 federal electionthe coalition
The Coalition understands that the courts are not an agency of the executive Government and should not be
treated as such. They are a separate institution of Government and must be sufficiently resourced to perform
their constitutional functions and preserve their constitutional integrity.
The previous Coalition Government established the Federal Magistrates Court in 1999 as a measure to
enhance access to justice in the federal jurisdiction. Since its inception, it has been extremely successful in
providing for timely, efficient and less formal adjudication of disputes in the federal jurisdiction.
Despite its impressive track record, Labor tried to abolish the Federal Magistrates Court in 2008. Following
sustained pressure from the Coalition, the judiciary and the broader legal community, Labor eventually back
flipped on this decision and adopted the Coalition’s 2010 election policy of instituting a Federal Circuit Court.
Unfortunately, Labor’s failed approach to accessible justice has been to charge more and provide less. Under
the current Government, court filing fees have increased by $76.9 million over four years, with more than 70 per
cent of this going into consolidated revenue instead of being reinvested in the courts.
The Coalition strongly support the work of these courts and their place within the Constitution. Indeed, the work
of the judges of the Federal Circuit Court of Australia has shown the value and wisdom of the previous Coalition
Government’s vision to provide for the greatest possible access to justice in the federal jurisdiction.
Labor’s abandonment of its intention to abolish the Federal Magistrates Court and, instead, embrace
the Coalition’s proposal to elevate its status and recognise the importance of its constitutional function,
demonstrates the confusion with which the court’s affairs have been dealt with by the current Government.
If elected, the Coalition will continue to closely monitor the resourcing of the federal courts to ensure they are
best able to perform their functions efficiently and effectively.
AUSTRALIAN greens
The Australian Greens value the courts as an essential limb of government, and will stand up for funding them
appropriately. While the incumbent Government introduced cost-recovery measures including higher court fees,
we see the inherent value in properly resourcing courts to administer justice. We are committed to properly
funding the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia to
ensure they are accessible, robust and effective in delivering fair outcomes for litigants.
The Law Council asks:
2. ill you increase the number of judicial officers appointed to the Federal Circuit Court of
W
Australia who have expertise across a broad range of federal law matters?
responses:
AUSTRALIAN LABOR PARTY
The Federal Labor Government funded the appointment of three additional Federal Court judges in the 2013-14
Budget. Federal Labor has also made additional appointments to the Federal Circuit Court.
A re-elected Government will continue to ensure that judicial officers on the Federal Circuit Court
have the necessary experience across a broad range of federal laws.
the coalition
If elected, the Coalition will continue to closely monitor the resourcing of the federal courts to ensure they are
best able to perform their functions efficiently and effectively.
Law council of australia / key legal issues & RESPONSES 2013 federal election 5AUSTRALIAN greens
The Australian Greens believe resourcing courts with judicial officers is a crucial aspect of resourcing them
to administer justice. We will work with the 44th Parliament to resource the Federal Circuit Court with judicial
officers with appropriately broad expertise in federal law matters.
Asylum Seekers and Immigration Detention
The Law Council recognises the complexities of developing and implementing an asylum seeker policy that
promotes orderly immigration; maximizes Australia’s ability to offer protection for refugees; complies with
Australia’s international obligations; and protects the Australian community.
The Law Council asks:
1. Will you continue to pursue regional processing arrangements? If so, what principles will
govern these arrangements and how will legal, financial and administrative responsibility be
apportioned between the governments involved?
responses:
AUSTRALIAN LABOR PARTY
The Rudd Labor Government is committed to an orderly and fair system in responding to the challenges posed
by people movements regionally and globally.
Under new regional resettlement arrangements made with the governments of Papua New Guinea (PNG) and
Nauru, asylum seekers who arrive in Australia by boat without a visa will now be sent to either PNG or Nauru.
Asylum seekers will be transferred to either PNG or Nauru following a short health, security and identity check
in Australia, and will be housed in regional processing centres that are managed and administered by the host
country under local law with support from Australia.
Under this arrangement, if an asylum seeker is found to be a genuine refugee they will be permanently settled
in either PNG or Nauru. Persons not found to be refugees may be returned to their home country or a country
where they had a right of residence.
Under this policy, Australia will continue to take genuine refugees from around the world under the normal
processes of the United Nations High Commissioner for Refugees (UNHCR).
The Federal Labor Government has increased Australia’s humanitarian program to 20,000 places a year, the
largest increase to Australia’s humanitarian intake in 30 years. The Australian Government has also indicated
the desirability of international forums being convened between relevant transit and destination countries and to
review the framework of the United Nations (UN) Refugee Convention. If the new arrangements with PNG and
Nauru, and the international forums that have been flagged lead to a significant change in the number of people
arriving by boat, then the Government stands ready to consider progressively increasing our humanitarian intake
towards 27,000.
The Rudd Labor Government is working with the governments of PNG and Nauru to ensure settlement occurs
where appropriate housing and services are identified. Under these arrangements, the obligations of the UN
Refugee Convention will be adhered to, and the people who are sent to be settled in PNG and Nauru will still
be cared for. PNG has withdrawn its reservations to the Convention with respect to persons transferred by
Australia to PNG under the arrangement.
Under the Convention, this means that PNG will have committed that refugees settled under these
arrangements will have access to wage earning employment in the same way as other non-nationals and that
such refugees will have the opportunity for naturalisation. Nauru is also a signatory to the Convention.
6 Law council of australia / key legal issues & RESPONSES 2013 federal electionthe coalition
The Coalition has always maintained that a strong border protection policy and an orderly immigration system
are essential to safeguard the integrity of our Humanitarian and Refugee Programme. For this reason, the
Coalition’s border protection policy is based on denying the people smugglers the ability to sell permanent
residency to Australia. The Coalition remains committed to policies on refugees which are sustainable, orderly
and fair to those in desperate situations waiting in refugee camps around the world for asylum in Australia.
The cost of the Labor Government’s failures on our borders has been substantial in humanitarian terms. Labor’s
failed border protection policies have resulted in an environment where more than a thousand people have
perished at sea.
The Coalition will restore strong border protection policies to deter the people smugglers. We will re-introduce
the use of Temporary Protection Visas (TPVs) to deny the people smugglers a product to sell. Temporary
protection visas strike an appropriate balance between genuine need for a safe haven from persecution,
disincentive for illegal arrival and a response to changing circumstances in a person’s home country.
As was the case under the previous Coalition Government, persons on TPVs will be given work rights and
access to Medicare and other benefits. Should a TPV holder be unable to find work, they will be able to
access income support through special benefit payments. Access to these benefits will be subject to satisfying
mandatory mutual obligation requirements to undertake work in return for accessing these benefits.
If elected, the Coalition will undertake a rapid audit of the refugee assessment process, drawing on current
reviews, with the aim of removing access to the Refugee Review Tribunal and returning to single case officer
reviews for those arriving by boat with failed claims, as practiced by the UNHCR. We will establish a new fast
track assessment and removal process based on the United Kingdom’s Detained Fast Track system to have
protection claims assessed, immigration status resolved and removals undertaken as quickly as possible.
The Coalition will also reserve Australia’s Refugee and Special Humanitarian Visa quota for genuine applicants
who apply through the proper process. We will decouple the programme from illegal boat arrivals to protect
its integrity and reserve 11,000 of the 13,750 refugee places each year for offshore applications. The Coalition
will also ensure a minimum of 1,000 refugee places are reserved for the most vulnerable refugees, in particular
women at risk of violence and harm.
AUSTRALIAN greens
The Greens have always been, and will remain, resolutely opposed to so-called ‘regional processing’
arrangements, in which persons who have arrived by boat to Australia to seek asylum are denied the
opportunity to do so here, and are instead cast off permanently into harsh offshore detention and inadequate
conditions in Papua New Guinea and Nauru.
While both big parties are supporting offshore detention in their race to the bottom to be cruel to refugees
and asylum seekers, the Greens view these arrangements to be punitive, expensive, ineffective and in breach
of Australia’s obligations under international law. The Greens are deeply concerned at the lack of transparent
oversight and legal responsibility for those who have been sent offshore by the Australian Government, and
as such we moved amendments in the federal Parliament to minimize the harm caused to vulnerable refugees
by establishing time-limits on offshore detention, Australian and foreign media access to offshore camps, and
independent health and expert human rights oversight.
Rather than failed, cruel and expensive deterrence measures such as offshore detention, the Greens support
raising Australia’s humanitarian intake to 30,000, equipping the UNHCR to assess cases more expeditiously,
and urgently resettling genuine refugees from where they are waiting in our region to give them a clear
indication that there are safer pathways than a dangerous and leaky boat.
Law council of australia / key legal issues & RESPONSES 2013 federal election 7The Law Council asks:
2. What legal processes will you apply to the determination of the protection claims for asylum
seekers arriving by boat, including those in Australia or transferred to regional processing
countries, and will these processes include access to merits review?
responses:
AUSTRALIAN LABOR PARTY
PNG and Nauru are independent sovereign states and will assume legal jurisdiction over the processing of
transferred asylum seekers. The offshore processing of claims has commenced and it is anticipated that asylum
seekers will have access to merits review under these arrangements.
the coalition
If elected, the Coalition will undertake a rapid audit of the refugee assessment process, drawing on current
reviews, with the aim of removing access to the Refugee Review Tribunal and returning to single case officer
reviews for those arriving by boat with failed claims, as practiced by the UNHCR. We will establish a new fast
track assessment and removal process based on the United Kingdom’s Detained Fast Track system to have
protection claims assessed, immigration status resolved and removals undertaken as quickly as possible.
AUSTRALIAN greens
The Greens support a fair and reviewable process in Australia for the assessment of asylum claims of those
who come to Australia to seek protection from persecution, without discrimination on the basis of their arrival
by boat or plane. The Greens support merits and judicial review mechanisms for the assessment process.
The Greens do not support the so-called ‘screening out’ process applied to some ethnic and national groups
by the current government as it is a dangerously incomplete and unrigorous assessment without time and
capacity for independent legal advice, proper application processes or adequate review of Departmental
decisions before an appropriate court or tribunal. The Greens have, and will continue, to back the calls of legal
experts for the urgent disbanding of ‘screening out’ on the basis of the very real risk that persons will be, or
have already been, returned to danger in their homeland.
The Law Council asks:
3. What form of legal assistance will you provide for asylum seekers arriving by boat, including
those in Australia or transferred to regional processing countries?
Will this extend to the provision of legal assistance to asylum seekers charged with criminal
offences in regional processing countries and if not, what arrangements do you intend to
make with the respective countries to ensure legal assistance is provided?
responses:
AUSTRALIAN LABOR PARTY
The Rudd Labor Government has agreed to fund all the costs associated with the regional processing of
asylum seekers’ claims in PNG and Nauru. This includes the provision of assistance to asylum seekers to
prepare their claims.
PNG and Nauru are independent sovereign states and will assume legal jurisdiction over the processing of
transferred asylum seekers. The offshore processing of claims has commenced and it is anticipated that asylum
seekers will have access to merits review under these arrangements.
8 Law council of australia / key legal issues & RESPONSES 2013 federal electionAsylum seekers transferred to a regional processing country are not in Australia’s jurisdiction. Australia has no
responsibility for providing legal assistance to asylum seekers accused of committing crimes in PNG or Nauru,
as such assistance has no connection with their asylum claims.
the coalition
Response did not address the specific question.
AUSTRALIAN greens
The Greens do not support offshore detention or any transfers of refugees to other countries under the guise
of so-called ‘regional processing’. We support the appropriate provision of legal assistance for those who
arrive to seek protection in Australia to make their claim here. While offshore detention regime continues to be
in place, we see Australia as having a continuing obligation to ensure that persons charged overseas, who are
living in offshore detention or circumstances funded by Australia and under the Australian ‘regional processing’
regime, have access to legal defence and independent advice.
Australia is spending over $8 billion on offshore detention over the forward estimates and the nation is
effectively managing all aspects offshore detention, as well as all contractual and financial arrangements. As
such, Australia’s obligations to ensure the human rights and entitlements of refugees and asylum seekers
who have been sent offshore by Australia are not displaced by the fact of their forced removal from Australian
territory.
The Law Council asks:
4. Do you intend to employ temporary protection visas or other forms of restrictive visas for
asylum seekers arriving by boat?
responses:
AUSTRALIAN LABOR PARTY
Labor’s approach does not include the use of temporary protection visas.
the coalition
The Coalition will restore strong border protection policies to deter the people smugglers. We will re-introduce
the use of Temporary Protection Visas (TPVs) to deny the people smugglers a product to sell. Temporary
protection visas strike an appropriate balance between genuine need for a safe haven from persecution,
disincentive for illegal arrival and a response to changing circumstances in a person’s home country.
As was the case under the previous Coalition Government, persons on TPVs will be given work rights and
access to Medicare and other benefits. Should a TPV holder be unable to find work, they will be able to
access income support through special benefit payments. Access to these benefits will be subject to satisfying
mandatory mutual obligation requirements to undertake work in return for accessing these benefits.
AUSTRALIAN greens
The Greens do not support Temporary Protection Visas. When they were used by the Howard government,
TPVs were demonstrably ineffective as a deterrent and instead only caused more women and children to board
boats, leading to the SIEV X disaster in which 353 people died. Almost all TPV holders under John Howard
were ultimately accepted permanently into Australia or another safe OECD nation. It is a false, cruel and
ineffective policy which will not be supported by the Greens.
Law council of australia / key legal issues & RESPONSES 2013 federal election 9The Law Council asks:
5. Will you allow asylum seekers who are released on bridging visas to work?
responses:
AUSTRALIAN LABOR PARTY
Under Federal Labor’s policy, only people who arrived by boat prior to 13 August 2012 are eligible to work and
only in circumstances where they have no adverse security, health, identity assessment or behavioural issues.
People who arrived on or after 13 August 2012 and who are on bridging visas will not be given work rights,
consistent with the ‘no advantage’ principle.
the coalition
Response did not address the specific question.
AUSTRALIAN greens
Yes, the Greens fully support the right of asylum seekers who are released on bridging visas to work and we
have campaigned strongly in support of this, including moving a motion in federal Parliament.
The Greens’ policy to allow people to work would lead to healthier lifestyles as people wait for their claims to be
assessed, and take the pressure off thinly-stretched charities and non-government organisations. It would also
save the public purse. Many of the refugees are skilled tradespersons and professionals who are keen to make
a contribution.
The Greens have a plan to treats refugees with humanity in Australia, which would save Australia $3.2 billion
over the forward estimates. Under this plan we would end offshore detention in Manus and Nauru, shut down
the remote detention centres around Australia, establish 30 day time limits on detention in Australia so initial
health, security and ID checks can be done, establish periodic judicial review of any detention after 30 days,
allow full work rights for those on bridging visas so they can support themselves where possible, and provide a
fair rate of assistance for those in the community who are unable to work.
Indigenous imprisonment rates
The over-representation of Indigenous people in the criminal justice system is a serious social problem in
Australia. Many reports over the last 20 years have shown that Indigenous imprisonment rates have been
steadily increasing.
The Law Council asks:
1. What measures will you take to address the increasing rate of Indigenous imprisonment?
responses:
AUSTRALIAN LABOR PARTY
Indigenous Australians are 15 times more likely than non-Indigenous Australians to be imprisoned and have
higher recidivism rates than non-Indigenous Australians.
A Rudd Labor Government will develop a new Closing the Gap target aimed at tackling the high rates of
engagement of Aboriginal and Torres Strait Islander people in the criminal justice system, particularly young
10 Law council of australia / key legal issues & RESPONSES 2013 federal electionpeople. This builds on our commitments since 2007 to build safer Indigenous communities, through increased
investment in police, police stations and night patrols and also initiatives like the Breaking the Cycle initiative,
which assists communities to tackle alcohol and drug abuse.
While rates of Indigenous incarceration are primarily the responsibility of the States and Territories, as few
Indigenous Australians are imprisoned for Commonwealth crimes, the Federal Labor Government has provided
significant funding for programs designed to reduce Indigenous incarceration.
The Indigenous Justice Program, for example, has a budget of nearly $12 million in 2013-14. Its objective is to
support safer communities by reducing Indigenous offending, victimisation and incarceration.
Aboriginal and Torres Strait Islander Legal Services receive more than $70 million per annum from Federal
Labor in recognition of the special disadvantage Indigenous Australians face in dealing with the justice system.
In the 2013-14 Budget, the Federal Labor Government boosted spending for specialised Aboriginal and Torres
Strait Islander Legal Services by $12 million over the next two years. They assist Indigenous people when they
come into contact with the juvenile and criminal justice system and help women escape domestic violence.
In addition, the Government announced an additional $33 million over four years for Community Legal Centres
around the country, a 25 per cent boost to funding. This will assist local Centres whose work includes a focus
on the needs of Indigenous clients.
the coalition
The Coalition is very concerned about the over representation of Indigenous Australians in the justice system
generally. We want to work towards reducing the rate of offending by Indigenous people and will work with
Indigenous leaders to do just that. Poor education outcomes and high rates of unemployment lead to low self
esteem and often to increased contact with the justice system. The Coalition’s strength in Indigenous affairs is
our absolute commitment to quality education opportunities and outcomes and to economic independence
through jobs and Indigenous business development.
AUSTRALIAN greens
The Australian Greens deplore the disproportionate imprisonment of Aboriginal and Torres Strait Islander peoples.
We recently launched our Justice Reinvestment policy, which commits to $60 million over 4 years for Justice
Reinvestment. This comprises:
• $10 million over four years to establish a National Centre for Justice Reinvestment. As recommended by the
recent Senate inquiry, the Centre will provide high-quality information and research, including help to identify
‘high stakes’ communities and advice to States and Territories willing to try a Justice Reinvestment approach
• funding a Justice Reinvestment Grants Program worth $50 million over four years. This will support State,
Territory and local governments and community organisations to initiate local justice reinvestment pilot
programs across Australia. Funded programs will be highly targeted to the needs of a particular local
community. They will be strongly community-driven, they will respond to and strengthen connections with
culture, they will empower people to take greater control over their own lives, and they will build resilience.
This approach will strengthen protective factors and reduce risk factors in the community.
Both the peak body National Aboriginal and Torres Strait Islander Legal Services (NATSILS) and the Aboriginal
Legal Service of Western Australia have expressed their support for this approach.
Law council of australia / key legal issues & RESPONSES 2013 federal election 11National Disability Insurance Scheme (NDIS)/
National Injury Insurance Scheme (NIIS)
Establishment of the NDIS is now a key Commonwealth Government commitment with bipartisan support
leading into the 2013 election.
The Law Council asks:
1. Will you commit to the principle of “no-disadvantage” for those eligible for the NDIS and/or
NIIS, as well as those ineligible for care and support under either scheme?
responses:
AUSTRALIAN LABOR PARTY
Federal Labor is committed to the principle that the cause of someone’s injury should not determine the level
of care and support they receive. That is why the Federal Labor Government appointed the National Injury
Insurance Scheme Advisory Group to assist the Government to establish a National Injury Insurance Scheme
to cover the lifetime care and support needs for all people who experience a catastrophic injury. This work is
ongoing.
the coalition
The Coalition is aware of the issues of interest to the Law Council of Australia and other bodies representing
those who practise in this area. As you would be aware, the final NDIS rules concerning compensation
arrangements for the launch were only released by the Labor Government shortly before the calling of the
election. A Coalition Government would carefully examine the experience in the NDIS launch sites and consult
widely as to whether changes to the currently legislated arrangements are necessary prior to full national
scheme roll out. The Coalition sees an important role for a Joint Parliamentary NDIS Oversight Committee to
study the launch site experiences and to examine design issues that arise over the implementation period.
AUSTRALIAN greens
The Australian Greens believe that all Australians living with a disability should have access to the care and
support that they need, regardless of how they acquired their disability. We supported the creation of the NDIS
and are supportive of a NIIS, but are conscious that the work on the NIIS has not yet been progressed very
far. Yes we support the ‘no-disadvantage’ approach, the NDIS should be about improving care for people
with disability, and people who are ineligible for support under either scheme should still be able to access the
support they need.
The Law Council asks:
2. Will you commit to maintaining common law compensation rights for participants in the NDIS?
AUSTRALIAN LABOR PARTY
The introduction of DisabilityCare Australia does not in any way reduce any individual’s right to claim
compensation where they have a legal right to sue for damages.
DisabilityCare Australia will complement, rather than replace, people’s rights to access existing legal processes
and government-funded legal assistance, state-based or private insurance schemes to seek compensation in
12 Law council of australia / key legal issues & RESPONSES 2013 federal electionrelation to injury or disability. These legal processes and schemes will continue to operate after the introduction
of DisabilityCare Australia.
the coalition
Response did not address the specific question.
AUSTRALIAN greens
The Australian Greens believe that the NDIS should provide for personal care and support, but that NDIS
participants will also face other challenges in maintaining an adequate standard of living if they are unable to
participate in the workforce, and that the NDIS should not replace other legal structures that allow individuals
to seek adequate compensation for loss of earnings and other legal rights, simply because they have become
participants in the NDIS.
The Law Council asks:
3. Will you commit to providing additional legal assistance funding to assist NDIS participants who
are seeking external review of decisions by the NDIS Agency?
AUSTRALIAN LABOR PARTY
The Federal Labor Government’s total contribution to legal assistance services over the next four years is more
than $1.4 billion and NDIS participants will be able to access legal assistance through the existing funding.
the coalition
Response did not address the specific question.
AUSTRALIAN greens
The Australian Greens recommended through the inquiry process into the NDIS legislation that that
Government increase the funding available for legal assistance and advocacy that is conducted on behalf of
a person living with a disability. We strongly believe that funding for such advocacy should sit outside and be
independent from the funding for the NDIS itself.
Adverse ASIO Security Assessments
There are currently more than 50 people held in immigration detention who have been found to be owed
protection by Australia under the Refugees Convention, but who have not been granted a protection visa
because they have received an adverse security assessment from the Australian Intelligence and Security
Organisation (ASIO). This group of people cannot return to their home countries but are also ineligible for the
grant of any visa and release.
The Law Council asks:
1. Do you support a process for the independent review of adverse ASIO security assessments
of people in immigration detention?
Law council of australia / key legal issues & RESPONSES 2013 federal election 13responses:
AUSTRALIAN LABOR PARTY
The Federal Labor Government not only supports, but has implemented, an independent review process for
refugees in immigration detention in respect of whom ASIO has issued adverse security assessments.
In 2012, the Federal Labor Government appointed former Federal Court judge Margaret Stone to conduct
these reviews. Ms Stone’s recommendations have already resulted in the issuing of fresh, non-prejudicial
assessments for some refugees. Annual reviews will take place for those whose ASIO assessments remain
adverse. Bearing in mind the sensitive nature of the materials involved, Federal Labor believes the current
process is appropriate.
the coalition
The Coalition believes the process and procedures of ASIO security assessments are of extreme importance
and must be respected by the Government of the day, and if elected will rely on these assessments absolutely.
ASIO rulings in relation to the security risk posed by a person in immigration detention will not be reviewable
under the Coalition.
AUSTRALIAN greens
Yes, the Greens fully support independent review of adverse ASIO security assessments and have strongly
campaigned for this in and out of the federal Parliament for the past two years. We note and support the UN’s
recent ruling that the indefinite imprisonment of refugees with adverse security assessments is a fundamental
breach of international law.
Senator Sarah Hanson-Young has a bill on the Senate table that would achieve four things: allow asylum
seekers to receive a statement of reasons for adverse ASIO decisions, create periodic six-month internal
reviews of all adverse ASIO assessments, permit the Administrative Appeals Tribunal to hold merits reviews of
ASIO decisions on assessments, and establish the role of a security cleared Special Advocate to appear on
behalf of the refugee in AAT hearings involving sensitive national security matters. The Greens welcomed the
Government’s establishment of an independent reviewer and regret that the Government did not enshrine that
role in legislation, thereby protecting it from Tony Abbott’s Coalition, at the Green’s urging.
The Law Council asks:
2. Do you support people in immigration detention with adverse ASIO security assessments
having access to merits review in the Administrative Appeals Tribunal (AAT)?
responses:
AUSTRALIAN LABOR PARTY
The Federal Labor Government not only supports, but has implemented, an independent review process for
refugees in immigration detention in respect of whom ASIO has issued adverse security assessments.
In 2012, the Federal Labor Government appointed former Federal Court judge Margaret Stone to conduct
these reviews. Ms Stone’s recommendations have already resulted in the issuing of fresh, non-prejudicial
assessments for some refugees. Annual reviews will take place for those whose ASIO assessments remain
adverse. Bearing in mind the sensitive nature of the materials involved, Federal Labor believes the current
process is appropriate.
14 Law council of australia / key legal issues & RESPONSES 2013 federal electionthe coalition
ASIO rulings in relation to the security risk posed by a person in immigration detention will not be reviewable
under the Coalition.
AUSTRALIAN greens
Yes, the Greens view is that it is critical that refugees in immigration detention should have access to merits
review in the AAT and we have a bill establishing exactly that. The Greens’ policy is to restore basic procedural
fairness, including letting refugees and their lawyers access to, and ability to respond to, ASIO’s statement of
reasons for the assessment.
We support the Administrative Appeals Tribunal to hold merits reviews of ASIO’s decision to make an adverse
assessment, as is currently possible for an Australian citizen to do in the AAT. Our position on AAT merits
review for non-citizen refugees with adverse security assessments follows the practice of other countries, such
as the UK and New Zealand, who have established a security-cleared Special Advocate who can be provided
with sensitive information in the tribunal review hearing in place of the affected person.
The Law Council asks:
3. Do you support a policy of conditional release of refugees with adverse ASIO security
assessments? If not, what other possibilities could be pursued?
responses:
AUSTRALIAN LABOR PARTY
The Government is responsible for the protection of national security and any options that might involve the
release into the community of persons who have been assessed by ASIO to present a direct or indirect threat
to security raise complex issues.
It is presently the policy of the Federal Labor Party that asylum seekers who are the subject of adverse security
assessments ought to be detained pending the resolution of their case. The Government continues to explore
third country resettlement options for these individuals.
the coalition
The Coalition does not support the release into the community of people judged by ASIO to be a national
security risk.
AUSTRALIAN greens
Yes, the Greens support a policy of conditional release of refugees with adverse ASIO security assessments.
We note that there are a number of safe and manageable options for allowing this, as made clear in evidence
and expert submissions to the Joint Select Committee on Australia’s Immigration Detention Network in 2011-
2012.
The Greens believe that justifying the incarceration of young children and their parents in the name of national
security doesn’t displace our obligations to human rights and justice. We note that in comparable countries,
this balance of fairness and security is managed carefully. In the UK, Canada and New Zealand, refugees and
asylum seekers can challenge security assessments and live in the community under safe conditions such as
bail reporting to avoid vulnerable individuals being imprisoned indefinitely in detention like here in Australia.
Law council of australia / key legal issues & RESPONSES 2013 federal election 15Anti-Terrorism Reform
The Law Council has raised its concerns over many years about the nature and scope of the national security
laws introduced since 2002.
The Law Council asks:
1. What is your position in relation to the control order and preventative detention order regime
and the questioning and detention powers of ASIO?
responses:
AUSTRALIAN LABOR PARTY
There is no greater responsibility for a Government than protecting its national security and Labor takes national
security matters extremely seriously.
The Federal Labor Government created the Independent National Security Legislation Monitor to review
Australia’s national security laws and counter-terrorism laws on an ongoing basis and determine whether they
remain necessary, effective, proportionate and consistent with our international human rights obligations.
The second annual report of the Independent National Security Legislation Monitor and the report of the
Council of Australian Governments (COAG) Review of Counter-Terrorism Legislation were tabled on 14 May
2013. Key recommendations of the reports include the repeal of the preventative detention order regime, a
more limited control order scheme, amendments to the definition of a ‘terrorist act’ and other preparatory
offences.
In addition to these reviews of counter-terrorism laws, the Government asked the Parliamentary Joint
Committee on Intelligence and Security to examine potential reforms to Australia’s broader national security
legislation including telecommunications interception and access, telecommunication sector security reform,
and ASIO powers.
This was the first step in the Government’s plan to engage more broadly with the community on these national
security issues.
The Inquiry process meant that all options were on the table for the public to see and allowed politicians from
both sides of the Parliament time to scrutinise them in detail.
The public interest in the Inquiry was significant, with the Committee receiving 240 individual submissions and
29 exhibits.
The Committee has given its approval for further work on most of the proposals and the extensive nature of the
recommendations means there is a lot more work to be done.
A re-elected Federal Labor Government will carefully consider the reports before reaching a final position on the
substance of the recommendations.
the coalition
A Coalition Government will do everything it reasonably can to protect Australians from the threat of terrorism.
The Coalition in Opposition took the initiative in legislating for independent review of terrorism legislation, later
adopted by the Labor Government.
Subject to specific recommendations of the Independent National Security Legislative Monitor, which will be
carefully considered, we have no plans to make material alterations to the anti-terrorism legislation introduced
under the former Coalition Government following the September 11 2001 attacks.
16 Law council of australia / key legal issues & RESPONSES 2013 federal electionAUSTRALIAN greens
The Australian Greens are committed to ensuring that anti-terrorism law is reformed appropriately to uphold
fundamental civil liberties. We introduced the Anti-Terrorism Reform Bill 2009, attempting to mitigate some
of the harshest anti-terrorism measures introduced and maintained by successive Coalition and Labor
governments. In May 2013, we welcomed the Independent National Security Legislation Monitor’s (INSLM’s)
Annual Report, and the Council of Australian Governments Review of Counter-Terrorism Legislation. The
government tabled these on budget day, with no will to heed them. We have consulted with key stakeholders,
including the Law Council, about the control order and preventative detention order regime, and ASIO’s
questioning and detention powers. We want to see the INSLM’s recommendations to repeal provisions
prescribing control orders and preventative detention orders legislated, and the recommendations about
questioning and detention powers fully considered.
The Law Council asks:
2. How will you ensure greater transparency and better safeguards in the process of proscribing
terrorist organisations?
responses:
AUSTRALIAN LABOR PARTY
These reviews (the reviews referred to above) are part of Labor’s commitment to protect Australians and ensure
national security and counter-terrorism laws are administered in a just and accountable way.
Under Australia’s counter-terrorism framework, four major terrorist attacks on Australian soil have been
disrupted. In light of the recent terror attack in Boston, it is clear that it is as important now as it ever was to
maintain strong capabilities in the fight against terrorism. Australia’s counterterrorism framework has held us in
good stead so far, but we must remain vigilant.
There is a strict legislative process for listing a terrorist organisation under the Criminal Code and the (COAG)
Review of Counter-Terrorism Legislation recommended that the present method of proscription not be
changed.
Before listing an organisation, the Attorney-General must be satisfied on reasonable grounds that the
organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a
terrorist act or advocates the doing of a terrorist act (whether a terrorist act has occurred or will occur). The
Attorney-General also takes advice from the Director-General of ASIO prior to listing an organisation as a
terrorist organisation.
The Attorney-General’s Department has also developed an unclassified protocol which outlines key factors
considered when determining whether an organisation should be listed as a terrorist organisation under the
Criminal Code. The protocol, which has been published on the National Security website provides transparency
and enhances public awareness of how the listing process works.
Regulations listing a terrorist organisation cease to have effect three years after they commence. This ensures
that there is regular review of all listings.
After an organisation has been listed, the Parliamentary Joint Committee on Intelligence and Security (PJCIS)
may review the listing, and report comments and recommendations to Parliament before the end of the
Parliamentary disallowance period. Should the PJCIS consider that there are insufficient grounds for an
organisation to be listed or have other concerns with the listing, it is open to the PJCIS to recommend that
Parliament disallow a listing regulation so that it ceases to have effect.
Review by the PJCIS provides openness, transparency and accountability in the listing process. The PJCIS has
expertise in reviewing security and intelligence matters and is well-placed to consider listing decisions, including
where classified information may need to be examined. Review by the PJCIS also provides an avenue for
Law council of australia / key legal issues & RESPONSES 2013 federal election 17members of the public to raise any concerns and provide information to the PJCIS with respect to the listing of
particular terrorist organisations.
Judicial review of the legality of a decision to list an organisation is available in the courts under the
Administrative Decisions (Judicial Review) Act 1977, section 75(v) of the Constitution and section 39B of the
Judiciary Act 1903.
Further, the Inspector General of Intelligence and Security (IGIS) is an independent statutory office holder who
monitors and reviews the legality and propriety of the activities of Australia’s intelligence and security agencies,
including ASIO.
The IGIS has own motion inquiry powers and can also conduct inquiries in response to complaints from any
person or requests from Ministers. Should the IGIS decide to conduct an inquiry into ASIO’s role in the terrorist
listing of any particular organisation, the IGIS would consider whether ASIO had followed appropriate processes
when considering the organisation for listing and when providing advice to the Attorney-General.
the coalition
Response did not address the specific question.
AUSTRALIAN greens
The Greens believe the social and economic injustices that contribute to terrorist actions should be
addressed, as a way of reducing terrorism. We view the current process for proscribing terrorist organisations
as completely at odds with this principle and will work to see it tempered with procedural fairness and
transparency.
Mandatory sentencing of people smugglers and
the detention of Indonesian Minors
The Law Council has concerns about the use of mandatory minimum sentences for certain people smuggling
offences. Many of the individuals convicted of people smuggling are young Indonesian fishermen who have not
played organisational or decision-making roles. Some have been found to be minors.
The Law Council asks:
1. ill you repeal section 236B of the Migration Act which provides mandatory minimum
W
sentences for certain people smuggling offences?
responses:
AUSTRALIAN LABOR PARTY
The Federal Labor Government has made it clear it is serious about stopping people smuggling. People
smuggling offences in the Migration Act currently consist of a basic people smuggling offence under section
233A that does not attract a mandatory minimum penalty and a series of aggravated offences that attract
mandatory minimum penalties.
The aggravated offences include an offence of people smuggling involving exploitation or danger of death
or serious harm (s233B), an offence of people smuggling involving at least five people (s233C) and an
aggravated offence for providing false or misleading documents in connection with people smuggling activity
(s234A). Historically, the offence at s233C, or the equivalent offence, has been used in most people smuggling
prosecutions.
18 Law council of australia / key legal issues & RESPONSES 2013 federal electionOn 27 August 2012, following the release of the Expert Panel report and judicial criticism of mandatory minimum
sentences, then Attorney-General Nicola Roxon gave a direction to the Commonwealth Director of Public
Prosecutions not to institute, carry on or continue to carry on a prosecution for an aggravated people smuggling
offence under s233C unless the person had committed a repeat offence, their role in the people smuggling
venture extended beyond that of a crew member or a death occurred during the people smuggling venture.
Federal Labor will continue to reform people smuggling offences to implement the recommendations of the
Expert Panel report and to respond to the changing behaviour of people smugglers.
the coalition
The Coalition is committed to putting people smugglers out of business. As part of this commitment, we remain
fully supportive of mandatory minimum sentences for individuals found guilty of people smuggling or harbouring
illegal immigrants.
AUSTRALIAN greens
Yes the Greens would repeal the mandatory minimums for certain people smuggling offences and indeed we
have a bill on the Senate table to achieve exactly that. The bill went to inquiry before a Senate committee in
which it was strongly supported by the experts from the judicial, human rights and legal community.
The Greens’ bill would abolish the five-year minimum mandatory sentences for convicted people smugglers.
We support it being left up to a court to determine how harshly a person should be punished, based on all the
available evidence. The Greens support the basic human rights principles of judicial discretion, the weight of
evidence demonstrating that mandatory sentencing is ineffective as a general and specific deterrent, and the
importance of upholding the rule of law.
The Law Council asks:
2. Will you implement recommendations that provide for an individual suspected of people
smuggling, and who claims to be a minor, should be provided with an independent guardian
and offered access to legal advice prior to participating in any age assessment interview
intended to be relied on in a legal proceeding?
responses:
AUSTRALIAN LABOR PARTY
The Law Council would be aware of the Federal Labor Government’s December 2012 response to the Senate
Legal and Constitutional Affairs References Committee report into Detention of Indonesian minors in Australia.
Interviews for individuals suspected of people smuggling who claim to be minors are undertaken in the
presence of an Independent Observer who provides support to ensure the well-being of the individual. This
applies whether the interview is to determine a person’s age or identity or to establish information relevant to
their travel to Australia. A legal representative is not present at these interviews.
However, in the criminal investigative context, current practice reflects the need for an independent person or
guardian during a criminal investigation. Under s23K of the Crimes Act 1914 (Cth), if an investigating official
believes on reasonable grounds that a person who is under arrest or a protected suspect is under 18, the
official must not question the person unless an ‘interview friend’ is present while the person is being questioned
and, before the start of the questioning, the official has allowed the person to communicate with the interview
friend in the circumstances in which, as far as practicable, the communication will not be overheard.
Indonesian consular representatives are also able to advocate on behalf of Indonesian crew, given their consular
functions include safeguarding the interest of their minor nationals (Vienna Convention on Consular Relations),
provided that the individual accepts consular assistance.
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