Cox, Eva --- "Restoring liberty, fairness and good legal practice" [2003] AltLawJl 50; (2003) 28(4) Alternative Law Journal 166

• Restoring liberty, fairness and good legal processes

Restoring liberty, fairness and good legal processes

EVA COX^[*]

Eva Cox describes what a social change advocate would do if given the chance to be

Attorney General for just one day.

As an activist in many areas I would be very excited to spend a day in Cabinet.

My first urgent concern would be to repeal those aspects of the Migration Act that provide classes of asylum seekers and put government decisions above any other laws.

Next, I would look at a range of human rights issues and make sure that we have legislation that appropriately protects the rights of minority groups.

Revisiting the native title legislation would also be necessary to grant a right to negotiate as well as claim land where the group has a long connected history with the land, even though in the white man's eyes those links may be seen to have been broken.

Then maybe I'd have a go at the worst aspects of the anti-terrorism legislation, which suspend rights for many of our fellow citizens. And then I'd look at some of the other areas in which this government has shown its prejudices such as refusing to take on gay de facto couples. And then there are all those niggles in the Family Law Act which make the tasks of settling parental responsibilities harder on the women who often are literally left holding the baby.

What a shopping list! In fact, looking back at it, I notice my proposals amount to a program of remedial action for problems caused by the current government with a few hangovers from the last ALP efforts in the migration area.

It is really hard to think past fixing losses of liberty, fairness and good legal processes that have occurred in the past eight years.

But do I want to be a member of the Howard Cabinet and have a brief window of opportunity to put same alternative legislative options on their agenda? My answer is definitely not, because it would be a waste of time and effort. So maybe my fantasy should be stretched to looking at being the AG in a future Labor government. Maybe they would be more prepared to, at least, remedy the gross inequities listed above and other such areas.

I wish! So far there are no indications that the ALP would repeal most of the above legislation as they are worried about standing on principle and are making policy with a firm eye on their spin doctors' briefs. Judging by some of the law-and-order hype of most state government election strategies, the ALP will not be committed to removing unjust laws. It is an interesting comment on the current political climate when being the Opposition means making minor shifts in details in most portfolios, rather than establishing clear policy differences.

We need to deal with the idea that attorneys general are only as effective as the rest of their Cabinet allow them to be. So they can't even pretend to be the fairy godmother who can grant an activist's wish list. Maybe the question should be, what would I do, were I to be dictator for a day, and was able to introduce a legislative program which could not be revoked after my reign was over?

The main political driver for my concerns with the present problems is my background. I was once a child refugee, who fled Hitler just after my first birthday. So the exclusion of others has a particularly personal impact on me. I want to see governments being obliged to treat all people fairly and respectfully and to be held accountable to their own legal system and international human rights protections. I want to make laws that ensure the government is unable to detain children and people who have done no more than ask for asylum. Then we could argue that governance was fair and the law was fairly administered. Breaching the rights of children and the principle of habeas corpus is untenable.

I believe as a non-lawyer that law only sets the framework and that the attitudes and cultures of societies are what count. In a good society law should underpin fairness and equitable processes. Law can sometimes enforce good practice but we need to seek to create fairer, more ethical cultures in which people do the right thing because it is the way things are done round here. So when there is lack of good will and a culture of self-interest, changing laws may not be enough.

As AG I would want to create the policies and legislation that would lead to an Australia we could value, with a government that would put into place the measures we need to effect reconciliation; that would honour and validate diversity; that would make welcome newcomers with legitimate reasons to fear their countries of origin.

As our first law officer I would become the defender of the rights of those without fair and appropriate access to jobs, resources and education. I would be prepared to legislate against companies that act unethically, including somehow managing to lose billions of dollars, but whose directors and senior staff seem to survive quite well. I would remember that my role was to promote justice, not just the politics of fear.

Instead, we see political parties whose desire for power leads them to making laws that even their own back benchers see as bad. The recent ASIO empowerment, the internment and temporary protection for boat people, the proposed changes to HREOC, the lack of interest in reconciliation, the attempts to outlaw IVF for single women ... the list goes on and on. Maybe being AG for a day would allow me to read the memos and proposals and tell the media how we have managed to get into the current mess.

Well, if I were to do it, at least it would offer the public a senior female face in a prominent law-making role for a brief moment. Given they could not find one for the High Court, it may be the only possibility for some time to see some female, even feminist, tracks across the legal landscape. Maybe, this image, in itself, illustrates the problems facing those of us looking for feminist changes: even if we make it to the top, it is still too hard to make changes on our own. We need to recreate commitments from a wider polity to making our society more civil.

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^[*] Eva Cox is a senior academic from the Faculty of Humanities and Social Sciences at UTS. Her 1995 ABC Boyer Lectures were on making Australia 'A Truly Civil Society' and she is exploring organisational ethics as a new way of achieving this.

_{©2003 Eva Cox}