THE HON MARK DREYFUS KC MP
ATTORNEY-GENERAL
CABINET SECRETARY
MEMBER FOR ISAACS
SPEECH
2024 COLIN TATZ ORATION
BONDI PAVILION, SYDNEY
Sisyphean and meaningful: the task of law reform
Good evening, it is a pleasure to join you here at the Bondi Pavilion.
I am deeply honoured to be delivering the 2024 Colin Tatz Oration, and thank Deborah Stone and The Jewish Independent for the invitation.
I begin by acknowledging the traditional owners of the land on which we meet, the Gadigal people of the Eora Nation, and pay my respects to their Elders, past and present. I also extend that respect to Aboriginal and Torres Strait Islander people here today.
Colin Tatz
Tonight I want to talk about the unending task of law reform – Sisyphean in nature, but with meaning.
I’ll return to that.
First, I want to say a few words about the late Emeritus Professor Colin Tatz.
I first met Colin in 1980.
He was already a much-admired public intellectual who had shaped debate about Australia’s relationship with its First Peoples.
I was a law graduate working as a field officer at the Northern Land Council in Darwin.
Colin commissioned me to write two papers for the then Australian Institute of Aboriginal Studies which I delivered the following year.
The invitation to deliver this oration caused me to reflect on the impact Colin had on my life.
He made me think deeply about the impact of laws on First Nations people, a subject I have maintained a deep interest in ever since.
Colin was special. His expertise was broad, and his impact was great. In fields including Aboriginal and Torres Strait Islander policy, Jewish studies, social and cultural anthropology, discrimination, racism in sport, and Holocaust and genocide studies, Colin’s scholarship made a difference.
His working life demonstrated the enduring power of deep thinking, research, teaching and writing.
Colin Tatz was a force for good.
I again thank you for the privilege of delivering the 2024 Colin Tatz Oration.
I am delighted to join you to honour Colin and his enduring legacy.
A Sisyphean task
As I’m sure many of you know, Sisyphus, a figure in Greek mythology, was not a model leader.
He ruled Ephyra as a tyrant, and in the way of tyrants – mythical and real, ancient and modern – he had a reputation for treachery.
He was arrogant and hubristic.
Worse, he made a habit of killing his guests.
This violated the ancient Greek concept of hospitality known as Xenia, and earned Sisyphus the ire of the Gods.
For his countless misdeeds in life Sisyphus was rewarded with a unique punishment in death.
For all eternity Sisyphus was destined to push a boulder up a hill.
For all eternity the boulder would roll back down the hill and Sisyphus’ task would begin again.
In the Odyssey, Homer describes Sisyphus’ fate like this:
I saw Sisyphus at his endless task raising his prodigious stone with both his hands. With hands and feet he tried to roll it up to the top of the hill, but always, just before he could roll it over on to the other side, its weight would be too much for him, and the pitiless stone would come thundering down again on to the plain. Then he would begin trying to push it up hill again, and the sweat ran off him and the steam rose after him.
Sisyphus’ task is both ceaseless and pointless.
Thus work considered laborious and without meaning is called Sisyphean.
Albert Camus rejected this interpretation of Sisyphus’ fate.
In his 1942 essay The Myth of Sisyphus he wrote:
Sisyphus teaches the higher fidelity that negates the gods and raises rocks. He too concludes that all is well. This universe henceforth without a master seems to him neither sterile nor futile. Each atom of that stone, each mineral flake of that night filled mountain, in itself forms a world. The struggle itself toward the heights is enough to fill a man's heart. One must imagine Sisyphus happy.
So, in Camus’ reasoning, it’s enough to find happiness in the task itself, even if meaning cannot be found.
A task with meaning
Those of us engaged in the task of law reform know something of Sisyphus’ fate – the task is without end. But it is not futile. And is not without meaning.
The “prodigious stone” of Homer’s Odyssey is what confronts everyone – citizen, lawmaker, academic, practitioner and jurist – engaged in law reform.
Few laws – even the best ones – stay fit for purpose for long.
I’m not going to spend your time – or mine – explaining why the Founding Fathers – and they were all men – didn’t get everything right, or why aged laws should not be revered.
If you believe that sort of thing I’m sure there’s a meeting of the Bennelong Society in some men’s club that would welcome you with open arms. Providing you are a man, of course.
Law reform is a task without ending. It can also be very hard.
All of us in this room are aware of the human cost associated with the great civil rights battles in this country – from Indigenous rights to the rights of the LGBTIQ+ community.
Yet each of those battles were worth fighting. They were worth winning. And many of them are not over.
To return to Sisyphus for a moment, law reform is like pushing a boulder up a hill – but it is both purposeful and, when successful, fulfilling.
Whitlam reforms
The 1970s was the great era of law reform in Australia.
In 1972 Gough Whitlam brought Labor in from the political wilderness after an extraordinary 23 years in Opposition.
The new Labor Government came to office with an ambitious reform agenda and pursued that reform for all of its short and tumultuous life.
In 1975, the year the Whitlam Government’s tenure was cut short by acts of constitutional sabotage, many remarkable things happened.
Whitlam poured soil through the hands of Vincent Lingiari, symbolising the return of traditional lands to the Gurindji people.
Papua New Guinea became independent.
A new Australian honours system was introduced.
The Racial Discrimination Act was enacted.
Medibank began.
The Family Law Act became law.
On 11 November 1975 the Whitlam Government was dismissed by the Governor-General, and Labor was trounced at the election held on 13 December.
Notwithstanding the election defeat, much of the Whitlam legacy outlasted the government, and endures today.
Family law reform
Family law reform was one of the signature achievements of the Whitlam Government.
The Family Law Act 1975 introduced no-fault divorce in Australia.
It established the Family Court of Australia as a court of record with original and appellate jurisdiction, and provided for the appointment of a Director of Counselling and Welfare.
It also provided that hearings “shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted”.
It mandated that judges and counsel would not robe.
The reforms also extended Commonwealth jurisdiction to maintenance, custody and property matters.
And established a Family Law Council and Institute of Family Studies.
Attorney-General Kep Enderby appointed Elizabeth Evatt as the Family Court’s first Chief Judge. She was the first woman to lead a federal court.
The Family Court opened its doors on 5 January 1976.
The next day the Sydney Morning Herald reported the Melbourne registry had received 1,000 inquiries on its first day, and 200 people had filed divorce applications.
Whitlam himself said the whole purpose of his reform was to “enable the law and society to face reality – the reality of a broken marriage and the futility of perpetuating a broken marriage”.
The fault-based system ended by the Family Law Act forced Australians wanting a divorce to prove marital fault on one of 14 grounds, including adultery, desertion, cruelty, habitual drunkenness, imprisonment and insanity.
Couples could not consent to a divorce.
Lawyers had to be engaged. Hearings were in open court and the content of divorce proceedings were routinely reported in the media. It was expensive and time-consuming.
Above all, the fault-based system compounded the distress associated with the breakdown of a marriage.
In a reflection on Whitlam’s family law reform, Susan Ryan – herself a great reformer – said the passage of the Family Law Act made it possible for women to leave violent marriages.
She also observed:
This important social reform did not remove the stigma of divorce immediately. My own Senate candidacy earned the headline ‘Attractive 32 year old mother of two – a divorcee’ in The Australian.
Michael Kirby has described the passage of the Family Law Act as “[p]erhaps the most pervading reform of the private law effected during the Whitlam administration”.
With this I agree.
Whitlam’s family law reforms have had an enduring and positive impact on the lives of hundreds of thousands of Australians.
Notwithstanding the success and significance of this Whitlam reform, family law provides a case study for why the task of law reform is unending.
In May this year the Albanese Government’s own landmark reforms to family law came into effect.
These reforms were long overdue.
The former government failed to heed calls for reform from more than two dozen reviews over the past decade.
Some of these calls even came from members of the former government.
The Albanese Government’s Family Law Amendment Act 2023 assists courts to resolve parenting disputes safely, efficiently and with a clear focus on the best interests of the children involved.
This legislation removed the ‘presumption of equal shared parental responsibility’, which has often been misunderstood as meaning parents have a right to equal shared time. The Act makes it clear all decisions about parenting arrangements should be based on what best meets the needs of a child.
The reforms also:
- provide a simple, child-focussed list of ‘best interest’ considerations to streamline the decision-making process for parenting orders; and
- ensure children’ voices are heard more easily in matters under the Hague Convention on the Civil Aspects of International Child Abduction.
The Family Law Amendment (Information Sharing) Act 2023 established an enhanced framework for sharing information relating to family violence, child abuse and neglect risk between the family law courts and other agencies.
The reform introduced new information sharing orders for the courts to quickly seek information from police, child protection and firearms agencies about family violence, child abuse and neglect that could place children at risk.
The changes ensure the courts can have a better understanding of family safety risk in order to prioritise the safety of children, particularly in circumstances where there is risk of child abuse, neglect or family violence.
These reforms are the beginning, and not the end, of the Albanese Government’s commitment to a family law system that is accessible, safe, simple to use, and delivers justice and fairness for Australian families.
While the family law reforms of 2023 focused principally on safety and clarity in parenting orders, we currently have legislation before the Parliament intended to make the resolution of property and financial aspects of relationship breakdown safer, simpler and fairer for separating families.
The Family Law Amendment Bill 2024 will improve the legal framework underpinning property settlements and spousal maintenance matters.
It specifically recognises the economic impact of family violence on the wealth and welfare of Australian families.
The Family Law Act does not currently identify family violence as a relevant matter for the court to consider in a property settlement. This has been left to common law principles. There has been a high evidentiary threshold for establishing the relevance and impact of the violence, and not much evidence meaningful adjustments have been made to the distribution of property in favour of victim-survivors.
The bill will explicitly allow a court to consider the effect of family violence on the parties' ability to contribute to the property pool of a relationship, and to consider the effect of family violence on their future needs.
Significantly, the bill will apply particular considerations in determining the ownership of a pet as part of a property settlement. This will allow a court to make orders giving ownership of a pet to one party following a relationship breakdown. The court will be able to consider factors such as any history of family violence during the relationship, the extent to which each party has cared for the animal, any history of cruelty to the pet by a party, and the relationships of a party or a child with the pet.
Fifty years after Whitlam’s family law reforms, the task of family law reform is not over.
It’s vital that an area of law that touches so many Australians is never left untended.
Alongside these legislative reforms I have appointed two distinguished reviewers – Linda Dessau and Helen Rhodes – to examine the impact of the former government’s merger of the Family Court of Australia and the Federal Circuit Court of Australia.
The decision to abolish the specialist stand-alone Family Court of Australia was opposed by Labor in Opposition. It was also opposed by a coalition of 155 stakeholders, including the Law Council of Australia, Women’s Legal Services Australia, Community Legal Centres Australia and the National Aboriginal and Torres Strait Islander Legal Services.
The merger of the courts was, however, supported by One Nation’s Senator Pauline Hanson and Senator Malcolm Roberts and then-Senator Rex Patrick.
I am looking forward to receiving the report from Ms Dessau and Professor Rhodes in March next year.
Administrative law reform
Administrative law reform was another major accomplishment of the Whitlam Government.
As Whitlam notes in his magisterial book The Whitlam Government 1972-1975 he had first identified the need for a better system to review Commonwealth administrative decisions as early as 1957.
In 1975 the Administrative Appeals Tribunal Bill was introduced alongside the Ombudsman Bill.
The AAT bill passed in that year. The Ombudsman Bill lapsed when Whitlam’s term was cut short by the dismissal, but was later enacted in similar form by the Fraser Government.
Until the establishment of the Administrative Appeals Tribunal, the only avenue to appeal Commonwealth administrative decisions was review by courts for error of law.
The inaugural President of the AAT, Gerard Brennan, described merits review as “a brilliant solution… to the problems of the rapid expansion of administrative decision-making in a complex society”.
Merits review placed the means to challenge government decisions within the reach of all Australians, not just those with the time and resources to go to court.
Like Whitlam’s family law reform, his administrative law reform has had a positive and lasting impact.
But like all areas of law that have a direct impact on the lives of Australians, administrative law must continue to be responsive to changing needs.
The Albanese Government inherited an AAT with an extraordinarily large and growing backlog of applications. It was not on a sustainable financial footing. It was operating multiple and ageing electronic case management systems, a legacy of the former government’s failed amalgamation of the AAT with the Social Security Appeals Tribunal, Migration Review Tribunal and Refugee Review Tribunal.
The AAT’s public standing was irreversibly damaged as a result of the actions of the former government over the previous nine years.
By appointing as many as 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close Liberal associates without any merit-based selection process – including some individuals with no relevant experience or expertise – the former government fatally compromised the AAT, undermined its independence and eroded the quality and efficiency of its decision-making.
This all came at a very real cost to the people who relied on the AAT to independently review government decisions that have major and sometimes life-altering impacts on their lives – decisions such as whether an older Australian receives an age pension, whether a veteran is compensated for a service injury, whether someone receives a protection visa, or whether a participant in the NDIS receives funding for essential support.
For these reasons, in December 2022, I announced the Albanese Government would abolish the AAT and replace it with a new tribunal that better serves the interests of the Australian community.
Last Monday, the new Administrative Review Tribunal received its first application and sat for the first time.
The ART’s President, Registrar and all non-judicial members have been appointed through a merit-based selection process.
It has a responsive, demand-driven funding model.
It has more flexible procedures and greater harmonisation across different case types.
It has mechanisms to escalate issues of significance to administrative law and decision-making.
The Government has funded a new case management system and additional members to reduce the backlog of applications.
Alongside the establishment of the tribunal, the Administrative Review Council is being re-formed to improve the integrity of the administrative law system.
A strong, user-focused administrative review body is critical to protecting the rights and interests of individuals, particularly the most vulnerable members of our community.
The new ART will deliver merits review fit for the 21st century. Together with the Administrative Review Council, the new tribunal will have a systemic effect on the quality and efficiency of government decision-making for the benefit of the whole community.
Reform agenda
The ART is the second Commonwealth body to be established in my portfolio since the change of government in 2022.
The first was the National Anti-Corruption Commission, which commenced operation a mere 12 months after the formation of the Albanese Government.
This was another reform left wanting by the former government, notwithstanding its own broken commitment to establish a Commonwealth anti-corruption body.
After nine years in Opposition, the incoming Labor Government had much work to do.
In a little over two years of government, law reform activity in the Attorney-General’s portfolio also includes:
- reform of the appointment process for the Australian Human Rights Commission, securing its international standing
- a review of the Modern Slavery Act, and legislation establishing a Modern Slavery Commissioner
- implementation of Kate Jenkins’ Respect@Work recommendations, including costs protection
- removing the gag on legal assistance providers
- a review of secrecy offences in Commonwealth legislation
- passage of a first tranche of reforms to public interest disclosure laws
- two tranches of reform to privacy laws
- agreement on a national firearms register
- introduction of legislation to improve oversight of intelligence agencies
- agreement on national principles for coercive control
- banning the Nazi Swastika and other symbols of hate, alongside legislation to strengthen hate speech
- criminalising doxing and the creation and sharing of sexualised deepfakes
- the introduction of digital statutory declarations
- strengthening foreign bribery laws; and
- introducing legislation to extend anti-money laundering and counter terrorism financing laws to lawyers, accountants and real estate agents
We have also:
- established a Royal Commission into the illegal and immoral Robodebt scheme and accepted, or accepted in principle, every recommendation of that commission
- conducted an inquiry into the former Prime Minister’s secret ministries
- introduced real time reporting on deaths in custody
- announced record and ongoing funding for legal assistance providers
- appointed standalone privacy and FOI commissioners; and
- directed the Australian Law Reform Commission to inquire into justice responses to sexual violence and the future acts regime in the Native Title Act
A winding path
I am a reforming Attorney-General in a reforming government.
But law reform isn’t easy.
It’s made harder by a hostile Senate and an Opposition Leader who pursues his political interest at the expense of the national interest at every opportunity.
Not all attempts at reform in this term of parliament have succeeded.
Just over a year ago, Australians overwhelmingly rejected a constitutional alteration that would have established a Voice to Parliament for First Nations people.
I introduced the bill for the Voice referendum in the House of Representatives on 30 March last year.
I told the Parliament:
Recognising Aboriginal and Torres Strait Islander peoples in our founding legal document and listening to their views on laws and policies that matter to them will make a difference.
I also said:
The Voice will enhance our democracy and our democratic institutions.
Most Australians did not share my views.
On the night the referendum was lost, the Prime Minister said that while he had hoped for a different result, he respected the decision of the Australian people and the democratic process that delivered it.
The Prime Minister also said it is “now up to all of us to come together and find a different way to the same reconciled destination”.
The fact is, constitutional amendment is the hardest law reform of all, with just eight of 45 attempts since 1901 endorsed by the Australian people.
Another reform that has not advanced in this term of parliament is a religious discrimination bill.
Rank opportunism by the Opposition, and the Government’s desire to avoid a rancorous debate on questions of faith, has stalled progress on this reform.
Conclusion
Tonight I have presented case studies of two areas of law that were outstanding at conception but became degraded through lack of care or worse.
I have also presented a catalogue of reform already advanced by a government a little over two years into its life, and two reform attempts that did not proceed.
In conclusion I want to quote from Michael Kirby about the essential and unending task of law reform:
[T]he rule of law in our nation requires more than rules. It requires rules that are just, modern, efficient and in harmony with the values of a free and democratic people.
The only way our laws can remain modern, efficient and in harmony with our values is if we remain committed to change.
It’s a Sisyphean task – with meaning.
We must continue to push the boulder uphill.
Thank you.
Monday, 21 October 2024
