THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
2022 Seabrook Chambers Public Lecture
Melbourne Law School
Thursday 13 October 2022
It is a great pleasure to be invited to give the 2022 Seabrook Chambers Lecture. As an alumnus of Melbourne Law School, I am particularly pleased to be back here at the University of Melbourne this evening. I thank the Dean of Melbourne Law School, Professor Matthew Harding, for extending this opportunity to speak with you.
I begin by acknowledging the Wurundjeri people of the Kulin nation on whose ancestral lands we are gathered tonight. I pay my respects to their Elders past and present.
I would like to extend that respect to any Aboriginal and Torres Strait Islander people present tonight.
Given the theme of this lecture series relates to the rule of law and judicial independence, I would like to begin by acknowledging the contribution of former High Court Justice, Sir Gerard Brennan.
Sir Gerard was a giant of the law generally, and champion of the rule of law in particular, calling its maintenance the very raison d’etre of the judiciary.
On a personal note, he presided over the first matter in which I appeared before the High Court, and I went on to appear before him on a number of occasions. I admired and respected the manner in which he ran his court and his respect for the parties, the staff and, above all, his respect for the law.
Fittingly, Sir Gerard routinely spoke of the fundamental importance of judicial independence.
Speaking at the 1996 Australian Judicial Conference he said: ‘Judicial independence does not exist to serve the judiciary; nor to serve the interests of the other two branches of government. It exists to serve and protect not the governors but the governed.’
Tonight, I would like to share some of my thoughts on the need to strengthen the rule of law in this country. I will also speak on the critical role of an independent judiciary as a mechanism to promote and protect the rule of law.
I will talk about the findings of the recent Australian Law Reform Commission report on judicial bias, Without Fear or Favour: Judicial Impartiality and the Law on Bias. I will also outline how the recommendations are aligned with the government’s broader vision to restore and repair the rule of law by strengthening the integrity of our institutions.
In the spirit of the international flavour often brought to this lecture series, I will then turn to Australia’s role in upholding the international rule of law, including through the International Court of Justice.
RULE OF LAW
As Attorney-General, I have an important role to play in safeguarding and promoting the rule of law.
There is of course a long running debate among theorists as to precisely what the rule of law might encompass.
For our purposes tonight, I think it suffices to say that the rule of law requires at least the following:
- first, that all are governed by the law, including and especially the government;
- second, that the institutions charged with applying and upholding the law do so, and are seen to do so, impartially and with integrity;
- third, that the operation of the law is appropriately open and transparent.
Unfortunately. there have been some threats to the proper operation of rule of law in Australia in recent years – and it is important that we reflect on these challenges, so that we can do better.
With that in mind:
- we must reflect on the culture of unaccountability that was allowed to flourish under the previous government, perhaps most shamefully displayed in the issuing by the Australian Government of hundreds of thousands of unlawful debt notices to its own citizens;
- we must reflect on the damage done to our institutions and their reputation by the abuse of political appointments, perhaps most grievously in the case of the Administrative Appeals Tribunal;
- finally, we must reflect on the quite shocking revelation that the former Prime Minister secretly appointed himself to a number of ministries, a matter going to the very heart of the functioning of our system of government.
The damage done to the rule of law in recent years must be repaired, and doing so has been one of my priorities as Attorney-General.
A number of the key initiatives in my portfolio are directed to this end. These include:
- restoring integrity to the process of appointments, including the Administrative Appeals Tribunal and the Australian Human Rights Commission
- the establishment of a royal commission into the unlawful Robodebt scheme
- and, perhaps most significantly of all, the establishment of a National Anti-Corruption Commission.
- While I have an ambitious policy agenda as Attorney-General across the breadth of my portfolio, repairing and promoting the rule of law is a consistent theme in these and other initiatives.
It should be clear from my remarks so far that I think that all branches of government have a role to play in promoting the rule of law.
But I think it is fair to say that no public institution is more integral to the rule of law than the courts and the judiciary.
The ALRC’s report, Without Fear or Favour: Judicial Impartiality and the Law on Bias, observes that judicial impartiality is ‘a foundational norm in any legal system aspiring to conform to the rule of law’. The judicial oath recognises the fundamental importance of impartiality to the judicial role, calling upon judicial officers to ‘do right to all manner of people according to law without fear or favour, affection or ill will’.
The Commission found that judicial impartiality must be underpinned by appropriate procedures, practices and the right institutional structures.
Australia has a proud history of being well-served by our courts and judiciary, and public trust and confidence in the administration of justice in Australia’s courts and legal system more broadly is high.
It is therefore essential that our courts reflect the trust that has been placed in them by the Australian people.
The ALRC has made a significant contribution to that essential task and I would like to again acknowledge that contribution and thank the ALRC for its work on such a significant topic.
I was pleased to announce the Government’s formal response to the report on 29 September at an ALRC webinar, and to hear responses from the bench, the legal profession and academia.
The report presents us with an opportunity to further consider ways to strengthen the rule of law in Australia.
The Commission’s inquiry was prompted by the application of the law on bias arising from a decision of the then Full Court of the Family Court of Australia, which eventually came before the High Court for consideration and determination.
Pleasingly, the report confirms that the Australian judiciary is highly respected internationally for its integrity and its impartiality, and public confidence in the courts and the judiciary is generally high.
However, the ALRC did identify ways to strengthen the administration of justice. I commend the ALRC for adopting a broader approach to consideration of reforms to support judicial impartiality and public confidence in the federal courts.
The majority of the ALRC’s 14 recommendations are directed at the federal courts for their consideration and further action.
These include recommendations to enhance transparency of the law and processes by which the courts manage potential judicial bias, as well as improving the education and guidance available to judicial officers on these issues.
There are three recommendations expressly directed to the Australian Government. These are:
- that the Government should develop a more transparent process for appointing federal judicial officers on merit;
- that the Commonwealth Attorney-General should collect, and report annually on, statistics regarding the diversity of the federal judiciary;
- that the Government should establish a federal judicial commission.
- I will now address those three recommendations in more detail.
The first of these recommendations relates to the appointments process.
On the unavoidably human element required in the administration of justice, Sir Gerard Brennan once said:
‘In the ultimate, judicial independence rests on the calibre and the character of the judges themselves.
Judicial independence is not a quality that is picked up with the judicial gown, or conferred by the judicial commission. It is a cast of mind that is a feature of personal character honed, however, by exposure to those judicial officers and professional colleagues who possess that quality, and on fortunately rare occasions, by reaction against some instance where independence has been compromised … being human institutions, continual vigilance is needed to ensure that they are isolated from impermissible influences, and strengthened by the pressure of a peer group devoted to impeccable standards of independence’.
The ALRC also acknowledged that ‘judges are human, and the public knows it: Judges, and the public they serve, have recognised that human decision-making can never be completely neutral. But this does not mean that judges are biased in the legal sense, nor that they cannot be impartial in a meaningful way.’
One of the tasks of the Attorney-General is to select judges of the appropriate calibre and character. Who we appoint to our courts matters, and I assure you I consider judicial appointments to be one of the weightiest responsibilities of my role.
Of course, the Parliament and the Executive have a responsibility to ensure the personal integrity of the judiciary is not continually called upon to ‘hold the line’ as the sole defence against threats to the rule of law.
In a 2005 speech titled ‘The Right to an Independent Judiciary’, former Chief Justice of the High Court of Australia, Justice Murray Gleeson noted:
“Judges take an oath to do right by all persons, without fear or favour, affection or ill-will. Their capacity to honour that obligation does not rest only upon their individual consciences. It is supported by institutional arrangements. Citizens are not required to have blind faith in the personal integrity of judges; and judges are not required to struggle individually to maintain their impartiality.”
Our public institutions must reflect the same integrity and strength of character required by the judicial officers entrusted with the administration of justice.
Nevertheless, in this context a transparent, robust, and merit-based appointments process can be said to contribute a ‘preventative’ approach to safeguarding independence in the federal judiciary.
The ALRC report recommends the Australian Government develop a more transparent process for appointing federal judicial officers on merit.
It is my intention to foster a return to the rigorous, accountable and transparent appointments process, as first introduced by former Attorney-General and now Deputy Chief Justice of the Federal Circuit and Family Court of Australia, Justice Robert McClelland.
I was pleased to recently announce the appointment of Justice Jayne Jagot as a Justice of the High Court of Australia.
Justice Jagot is the 56th Justice of the High Court and the seventh woman appointed to the Court. Her appointment marks the first time since Federation that a majority of Justices on the High Court will be women.
I consulted extensively in the lead up to this decision. Not just with the Attorneys-General of other jurisdictions in our federation, as I am required to under the High Court Act, but also with the Shadow Attorney-General, the heads of jurisdiction of the Federal Courts and State and Territory Supreme Courts, state and territory Bar associations and law societies, National Legal Aid, Australian Women Lawyers, the National Association of Community Legal Centres, and deans of law schools.
I am certain that Justice Jagot, as a widely respected and eminent jurist, is the best possible person for the appointment, and will serve with distinction.
This Government will ensure integrity is embedded in appointment processes.
I have recently instructed the Attorney-General's Department to fill current and emerging judicial vacancies in the federal courts using a merit-based process.
This process involves extensive consultation with the legal community to identify suitable candidates. These include the heads of jurisdiction of the federal courts, the legal profession, and other key members of the legal community.
It also involves a merit-based assessment of nominated candidates by independent advisory selection panels.
For future processes, I will consider additional features to ensure integrity and transparency remain a cornerstone of the appointments process. This may involve requiring vacancies to be advertised.
DIVERSITY OF THE JUDICIARY
The second of the ALRC’s recommendations mentioned earlier speaks to diversity within the judiciary.
For the Australian people to see that integrity and the rule of law underpin our democratic society at large, each branch of Government should be representative of the diversity within our community.
Australians should be able to look to the parliament, executive, and judiciary, and see themselves reflected in it.
On a personal note, I am proud to be part of the most diverse federal parliament in Australia’s history.
The ALRC report recommends that I, as Attorney-General, collect and report on statistics regarding diversity of the federal judiciary, with a view to increasing transparency of the extent to which judicial diversity exists and is being promoted.
Improved data collection on judicial diversity will help identify potential barriers to appointment. It will also allow us to better understand the over or under representation of particular groups of people within the judiciary.
FEDERAL JUDICIAL COMMISSION
The ALRC report also recommends the establishment of a federal judicial commission.
That recommendation reflects wide support of a transparent and independent process for handling complaints, and the Australian Government has given in-principle support to this recommendation.
Consideration of a federal judicial commission builds upon the Government’s strong commitment to integrity, fairness and accountability across all areas of government.
Tackling corruption and promoting integrity in government institutions go to the heart of the rule of law in our nation.
I am a longstanding supporter of a federal judicial commission to deal with complaints against judges.
Consistent with the separation of powers, heads of jurisdiction can currently deal with complaints about the conduct of serving federal judges internally.
Under the Constitution, complaints against federal court judges, including heads of federal jurisdictions and serving judges of the High Court, can be considered by Parliament if they warrant consideration of removal from office on the grounds of proved misbehaviour or incapacity. Parliament may establish a Parliamentary Commission to investigate allegations and inform Parliament in considering whether the alleged misbehaviour or incapacity is proved.
I fully appreciate that any judicial commission which is empowered to investigate complaints against federal judges must be consistent with the independence of the judiciary.
Judicial independence is enshrined in the Australian Constitution.
This independence is fundamental to the maintenance of the rule of law and our democratic society.
The Government will consult closely with the federal courts and other key stakeholders to consider the merits and proposed design of a federal judicial commission.
I would like to take a moment to highlight related work the Government is undertaking in relation to the establishment of a National Anti-Corruption Commission.
You may recall that in 2021 31 retired judges penned an open letter to Australia’s political leaders calling for the establishment of a National Integrity Commission as a matter of urgency.
Every Australian state and territory has now established its own anti-corruption commission.
That the Commonwealth remains the last jurisdiction without such a body is unacceptable.
There is overwhelming public support for an anti-corruption commission at the federal level.
I was proud to recently introduce legislation to establish a powerful, independent and transparent National Anti-Corruption Commission.
The Commission will operate independently of government and will have broad jurisdiction to investigate serious or systemic corruption across the Federal public sector, including corruption that occurred before its establishment.
This includes power to investigate ministers, parliamentarians and their staff, statutory officer holders, and employees and contractors of government agencies.
It will also include the power to investigate any person who seeks to corrupt a public official, by engaging in conduct that could adversely affect the honest or impartial performance by an official of their functions or duties, or the exercise of their powers.
With all the independence, resources and powers of a Standing Royal Commission, the National Anti-Corruption Commission will have discretion to commence inquiries on its own or in response to referrals from anyone, including whistleblowers and members of the public.
Importantly, it will have the power to hold public hearings where the Commissioner determines it would be in the public interest and exceptional circumstances justify doing so.
The Commission will operate with procedural fairness and its findings will be subject to judicial review.
And ultimately, the Commission will be empowered to make findings of fact, including findings of corrupt conduct, and to refer findings that could constitute criminal conduct to the Commonwealth Director of Public Prosecutions.
The legislation provides strong protections for whistleblowers against reprisal and other adverse consequences, including immunities from criminal, civil and administrative liability.
I will also be introducing separate reforms to the Public Interest Disclosures Act 2013 to improve whistleblower protections, with the aim of having these reforms in place when the Commission commences operation.
The legislation to establish the Commission has been referred to a multi-partisan Joint Select Committee of the Parliament, led by Senator Linda White as Chair and Dr Helen Haines as Deputy Chair, for public inquiry and report by 10 November.
My sincere hope is this Bill will benefit from public and parliamentary scrutiny, and ultimately gain broad support across the parliament, and from the Australian people.
I look forward to continuing to work with key stakeholders from all sides of politics to ensure we get this done, and finally establish a National Anti-Corruption Commission worthy of its name.
INTERNATIONAL RULE OF LAW
Australia has a deserved reputation for adherence to and promotion of the rule of law at the international level.
The rule of law is the bedrock of the international system. It is central to the maintenance of international peace and security, political stability, justice, and the protection and promotion of human rights. The international rule of law is a precondition for Australia’s ongoing prosperity and the safety and security of all Australians.
The international rule of law is founded on states upholding their international obligations in good faith.
We have a long history of championing the international rule of law, having been deeply involved in forging a new international system in the aftermath of the Second World War. One of my predecessors as Attorney-General, Doc Evatt, was a leading figure in the establishment of the United Nations and the fourth president of the General Assembly. Australia is committed to the rules-based international order, and to standing against challenges to it. Australia works with partners and institutions to promote and reinforce the international rule of law.
A fundamental pillar of the international rule of law is a robust system for the peaceful resolution of international disputes. The International Court of Justice is vital to this system as the principal judicial organ of the United Nations. The ICJ strengthens the rule of law through the peaceful judicial settlement of disputes between States in accordance with international law. In doing so, the ICJ clarifies the content and application of international law, which is essential to the enduring nature of the international rules-based order.
It is in this context that Australia recently intervened in the proceedings brought by Ukraine against Russia in the ICJ in response to Russia’s unilateral, illegal and immoral invasion of Ukraine. Australia filed its
Declaration of Intervention with the Court on 30 September.
Australia has been an active participant in proceedings before the Court. Indeed, a 2021 Special Issue of the Melbourne Journal of International Law chronicles and examines Australia’s ‘national encounters’ with the ICJ, as well as those of other states. But this is the first time that Australia has intervened as a third-party before the ICJ. Australia is the 17th state to intervene in the case so far, with more states expected to join in the coming weeks and months.
This strong show of support demonstrates the commitment of Australia, and like-minded nations across the world, to upholding the international rule of law and ensuring that Russia is held to account for its egregious violations of international law.
Ukraine has initiated proceedings before the Court under the Genocide Convention, as Russia has used false allegations of genocide as a pretext for its unlawful use of force, occupation and attempted annexation of Ukrainian territory.
In its submissions, Australia will assist the Court by providing our views on the interpretation of a number of key provisions of the Genocide Convention which will be in question as this case progresses.
Australia has a long history of supporting efforts to promote the Genocide Convention. Australia was one of the first countries to ratify the Convention in 1949.
Since then, it has been a steadfast supporter of the establishment of international courts and tribunals with jurisdiction over genocide and other serious international crimes.
Consistent with this support, our intervention will assist the Court in upholding the integrity of the Genocide Convention. Australia will not stand by while the Convention is misused and abused in an attempt to justify the most serious breaches of international law.
JUDGE HILARY CHARLESWORTH
In order to support the ICJ’s important function as an international accountability mechanism that supports the peaceful resolution of disputes, it is essential that the most meritorious and highly-qualified candidates are elected to serve as judges of the Court.
Australia is very pleased to support the candidacy of Judge Hilary Charlesworth for re-election as a Judge of the ICJ in 2023.
This follows her successful election in 2021, to serve the remainder of fellow Australian James Crawford’s term after his untimely death.
Judge Charlesworth, is an alumna of the Melbourne Law School and a world-leading jurist who is globally renowned for her academic work in international law.
She was previously a Laureate Professor here at Melbourne Law School.
Since joining the ICJ bench in 2021 Judge Charlesworth has drawn on her exceptional expertise and acted in accordance with the highest standards of independence and integrity.
As one of only five women elected as permanent judges in the ICJ’s 77-year history, Judge Charlesworth brings valuable gender diversity to the ICJ bench.
She is also a serving judge from the Indo-Pacific region with experience working with diverse legal systems.
Judge Charlesworth has already made a valuable contribution to the important work of the Court, and is an outstanding candidate for re-election.
It should bring all of us immense pride as Australians that our country provides the international legal system with jurists of the calibre of Judge Charlesworth and the late James Crawford. That we do so is a reflection on a deeply felt commitment to the international rule of law in this country, and indeed in this country’s legal profession.
Of course, it is not only courts and other tribunals of a purely judicial nature that have a role in upholding the international rule of law.
International organisations play a crucial part in ensuring accountability for breaches of international law by states and safeguarding the integrity of the international rules-based order.
The initiation of legal proceedings by Australia and the Netherlands against the Russian Federation in the International Civil Aviation Organisation for its role in the downing of Malaysian Airlines flight MH17 on 17 July 2014 is one such example.
ICAO was established in 1944 by the Chicago Convention.
The ICAO Council, a permanent body of 36 States elected every three years, is expressly endowed under Article 84 of the Convention with the responsibility of resolving states’ disputes concerning the interpretation and application of the Convention.
The downing of MH17 was a clear breach of the Chicago Convention. In bringing our case to the ICAO Council Australia and the Netherlands have taken a major step in the ongoing fight for truth, justice and accountability for this horrific act of violence, which claimed the lives of 298 victims, including 38 Australian citizens and residents.
Russia’s war on Ukraine has underscored the need to continue our efforts to hold Russia to account for its actions.
Challenges to the international rule of law are continually arising. However we will remain steadfast in protecting and promoting the international rule of law.
In conclusion, I would like to commend Melbourne Law School for its work, through the Seabrook Chamber Lecture Series, in creating a forum for discussion on our collective and enduring responsibility to promote and protect the rule of law, and the continuous diligence and scrutiny this goal requires.
Thank you again, Professor Harding, for inviting me to speak tonight. I was honoured to be able to present my thoughts and I look forward to working with many of you in your professional capacities.