tag:theconversation.com,2011:/fr/topics/nicola-roxon-2035/articlesNicola Roxon – The Conversation2013-10-20T19:21:07Ztag:theconversation.com,2011:article/193312013-10-20T19:21:07Z2013-10-20T19:21:07ZMoving forward and moving on: Rudd, Roxon and the future of the ALP<figure><img src="https://images.theconversation.com/files/33279/original/jdbrs444-1382178829.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">For the Labor Party to fully put the past behind it, the bloodletting and obsession over Kevin Rudd needs to stop.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>As Paul Keating <a href="http://www.theage.com.au/comment/gillards-fatal-flaw-she-couldnt-do-vaudeville-20131011-2vdxo.html">told Julia Gillard</a> not so long ago, every prime minister is carried out of the job in a box. His fatalistic advice was meant to be comforting, indicating that the party room or the public will inevitably dispose of each prime minister, regardless of how popular they once were. </p>
<p>But Keating’s aphorism covered only part of the story. For governments and the parties that sustain them, the length of tenure in office also matters.</p>
<p>How an ex-government is able to look back on its time in power influences very strongly its capacity to regenerate in opposition. The defeat suffered by the Howard government in 2007 was substantial. John Howard lost his seat, only the second prime minister to suffer this humiliation.</p>
<p>The election loss was imminent almost a year out from election day, from the moment that Kevin Rudd and Julia Gillard became Labor’s new leadership team. The Liberal party room had most of 2007 to respond to this new challenge by replacing Howard with Peter Costello, but it chose not to.</p>
<p>Significantly, once they found themselves out of government, the Liberals didn’t indulge in severe recriminations. Howard wrote a <a href="http://www.harpercollins.com.au/books/Lazarus-Rising-John-Howard/">book</a>. Costello wrote a <a href="https://www.mup.com.au/items/120924">book</a>, in which he included some incidental sniping at Howard.</p>
<p>Tony Abbott wrote a <a href="https://www.mup.com.au/items/120931">book</a>. Abbott’s assessment of the demise of the Howard government was that the public had concluded in 2007 that after four terms and more than 11 years, the Coalition had been in power long enough and it was time for a change.</p>
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<span class="caption">Labour should arguably look at how the Liberals responded after their crushing defeat at the 2007 election for a model of how to move forward.</span>
<span class="attribution"><span class="source">AAP/Alan Porritt</span></span>
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<p>This analysis was crucial to the Liberals’ post-defeat mentality. As painful as the loss had been, the party felt satisfied that it had enjoyed a good go at government.</p>
<p>This contrasts strongly with the position of the Labor Party as it tries to deal with last month’s defeat. Labor’s victory in 2007 was, as already noted, substantial. In terms of seats won and the party’s healthy primary vote, it should have been enough to sustain the ALP in office for three terms, which in modern politics could be regarded as the breakeven point for any party in office. Anything beyond three terms is a bonus, as Howard learnt in his fractious and final fourth term.</p>
<p>But Labor under Rudd, then Gillard, then Rudd again, managed to hang in there for a mere two terms, only the first of them in a majority position in the lower house, lasting less than six years all up.</p>
<p>For all of Labor’s legislative victories – the National Disability Insurance Scheme, education reforms including the national curriculum and the Gonski formula for schools funding, the repeal of WorkChoices, the legislating of a price on carbon – the party will continue to look at the Rudd-Gillard years as a time of lost opportunities.</p>
<p>This was not how Labor looked at the Hawke-Keating era, which saw the ALP win a record five consecutive terms. The Whitlam government, like the Rudd-Gillard government, won two terms, although Whitlam’s period of office was compressed into just three years. The ALP’s method of dealing with Whitlam’s landslide 1975 defeat provides a powerful contrast with the reaction of some high-profile Labor figures to the 2013 election loss.</p>
<p>First out of the blocks was the retiring member for Perth, Stephen Smith. On election night, with the votes still being counted, he <a href="http://www.smh.com.au/federal-politics/federal-election-2013/tony-abbott-claims-victory-for-the-coalition-in-federal-election-2013-20130907-2tbzf.html">declared on national television</a> that Rudd should resign from parliament forthwith because he would forever remain a symbol of the disunity that had wrecked the Labor government.</p>
<p>Soon after, another ex-MP - this time Craig Emerson - launched into a <a href="http://www.abc.net.au/news/2013-09-09/craig-emerson-blasts-kevin-rudd-for-labor-downfall2c-says-he-m/4946380">poisonous personal attack</a> on Rudd, describing the man who had just led the party to the election basically as mad and selfish, an unstoppable engine of destabilisation who should get out of public life immediately.</p>
<p>And then last week came the capper, with yet another newly-departed MP, Nicola Roxon, using the highly-regarded John Button Lecture to recycle her past attacks on Rudd with some <a href="https://theconversation.com/former-minister-tells-bastard-rudd-to-go-now-19261">added material</a>: Rudd was not just chaotic, he was rude (but never, on her own admission, to Roxon) and, simply, a “bastard” who thoroughly deserved to be ditched as leader in 2010.</p>
<p>Her view is that if Gillard, as Rudd’s replacement, had along with ministers such as Roxon at that time run out a detailed public explanation of just how utterly worthless Rudd had been as prime minister, the political outcome for the ALP would almost certainly have been better. Bear in mind, Rudd was still in his first term as prime minister when rolled.</p>
<p>Roxon is another who wants Rudd to resign from his seat of Griffith pronto. She does not suggest that he is a bad representative of his electorate. She even contemplates the possibility that he might behave well as a backbencher.</p>
<p>Roxon’s reason for wanting a by-election in Griffith? Pollsters.</p>
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<p>I believe we must also confront the bitter truth that as long as Kevin remains in parliament, irrespective of how he behaves, pollsters will run comparisons with him and any other leader.</p>
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<p>If Roxon’s political acumen as displayed within her lecture is what Gillard relied upon as leader, then the Australian public has been given a fascinating insight into 1) how Gillard met her political fate by making so many cack-handed pronouncements and 2) the dysfunctional professional attitudes that sit at the very heart of the modern Labor Party.</p>
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<span class="caption">Nicola Roxon has joined the list of ex-Labor MPs to have criticised Kevin Rudd, describing him as a ‘bastard’ who should resign from parliament.</span>
<span class="attribution"><span class="source">AAP/Alan Porritt</span></span>
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<p>By any measure, Rudd must take a big share of the blame for what went wrong, but Roxon’s analysis is that, at root, he must shoulder the lot. It is a ludicrous proposition. Why did his aggrieved, frustrated ministers not confront him? Where was their courage? Were they too frightened of demotion, of losing their status and their salary, and all that power?</p>
<p>The truth is Rudd will never be able to destabilise Bill Shorten or any other future leader. He will never attract support from anyone in the caucus. He had two runs as leader. He is spent. Having led the party to a big loss, he is never again going to be taken seriously as a possible leader or be able to attract widespread popularity.</p>
<p>In the wake of 1975, it would have been easy for ex-ministers to fashion a case against Whitlam over his imperious style, lack of interest in economic policy and strategic fumbles on the day of the vice-regal dismissal. </p>
<p>Senior members of the party could have blamed Whitlam for so much that went wrong. Instead, the party locked in behind him kept him on to fight another election. It looked forward, not backward, and devoted itself to remaking its policies and reaching out to new parts of the community. Only seven years later, with a comprehensive new platform and Bob Hawke at the helm, it swept back into power.</p>
<p>Roxon, Emerson and Smith have taken another tack. They appear to want to keep the fight against Rudd going, trying to hound him out of parliament through character assassination.</p>
<p>All three have enjoyed massive salaries as ministers and are about to access a superannuation scheme that’s vastly more generous than that available to the ordinary workers who are the backbone of Labor’s electoral support base.</p>
<p>In their zeal to denigrate Rudd, do they really want to hand his seat to the Liberals at a byelection? Liberal candidate Bill Glasson is a quality operator who <a href="http://vtr.aec.gov.au/HouseDivisionFirstPrefs-17496-163.htm">scored a higher primary vote</a> than Rudd on September 7, a profound reversal of the <a href="http://results.aec.gov.au/15508/website/HouseDivisionFirstPrefs-15508-163.htm">2010 result</a> in Griffith. The seat is now marginal. Griffith voters would be furious about having to vote again and would punish Labor. </p>
<p>Glasson would win a by-election, and almost certainly win again at the subsequent general election. Labor holds a paltry six of Queensland’s 30 seats. Would these highly-remunerated ex-MPs seriously want to cut that number to five just so that they can feel vindicated in their loathing for one man?</p>
<p>In purporting to diagnose the Labor Party’s malaise, it could be said they have in fact demonstrated it.</p><img src="https://counter.theconversation.com/content/19331/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shaun Carney does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>As Paul Keating told Julia Gillard not so long ago, every prime minister is carried out of the job in a box. His fatalistic advice was meant to be comforting, indicating that the party room or the public…Shaun Carney, Adjunct Associate Professor, School of Political and Social Inquiry, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/119252013-02-03T21:02:34Z2013-02-03T21:02:34ZWould Roxon and Evans have resigned if Labor had greater purpose?<figure><img src="https://images.theconversation.com/files/19805/original/n7npwd6b-1359873124.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Nicola Roxon, Julia Gillard and Chris Evans leave the stage after the press conference announcing the departure of the two former senior ministers.</span> <span class="attribution"><span class="source">AAP/Alan Porritt</span></span></figcaption></figure><p>Much of the commentary surrounding the resignations of Nicola Roxon and Chris Evans <a href="http://www.smh.com.au/opinion/political-news/roxon-evans-shock-resignations-prompt-cabinet-reshuffle-20130202-2dquv.html">has interpreted the departures</a> as yet another episode in the neverending disaster that is the Rudd-Gillard government.</p>
<p>This is Tony Abbott’s “constant crisis” narrative. As government MPs have been at pains to point out, not just this week but this term, the government has been nothing if not stable and will likely run full term, or close to it.</p>
<p>Talk of “crisis” seems hyperbolic. There has, however, been a consistent sense that the government is teetering on the brink. It’s a sense which can largely be put down to the inevitably precarious appearance of minority government, especially when voters and commentators have had few experiences of it, at least at the national level.</p>
<p>Abbott’s crisis narrative has been actively encouraged by business groups and right-wing media particularly hostile to minority government. The common charge from the self-interested corporates is that minority government forces too much “uncertainty” into the system. Not for them parliamentary democracy, it seems. </p>
<p>Given that Labor and Liberal party polices are rarely radically divergent these days, it’s difficult to know what business means by “uncertainty”. It seems likely that minority government has given business just enough rationalisation to go to war on its natural enemy – Labor – despite remaining uneasy about Abbott’s capacities.</p>
<p>Even as the government has strenuously denied accusations of crisis, at least since the alleged source of the crisis, <a href="http://www.sbs.com.au/news/article/1629769/Julia-Gillard-easily-defeats-Kevin-Rudd">Kevin Rudd, was eliminated (twice)</a>, the government has done its best to otherwise feed into the narrative with its own occasionally bizarre behaviour.</p>
<p>An obsessive focus on Abbott has led the government more than once into making reactive decisions, motivated by the need to neutralise the threat. To observers such a focus has been odd, given that Abbott has done little other than bandy about negative slogans. </p>
<p>But from the moment it backed away from its carbon emissions reduction commitment in response to some negative populism from the new Opposition leader, the ALP has lurched from one panicked reaction to another.</p>
<p>It worried about Abbott’s appearance among crazies at a <a href="http://www.abc.net.au/news/2011-03-23/abbott-speaking-at-the-anti-carbon-tax-rally-in/2646170">carbon tax rally</a>. It tried to out-flank Turn-Back-the-Boats Tony on the right with its Pacific Solution Ultra, first by negotiating an unenforceable people-swap with Malaysia and then by making traumatised people not convicted or charged with any crime languish indefinitely on remote Pacific islands. It even decided to announce the election date early in a weird attempt to neutralise Abbott’s campaigning and shift the focus back to “policy”.</p>
<p>Julia Gillard’s <a href="http://www.theage.com.au/opinion/political-news/gillard-rallies-frontline-troops-for-election-20130203-2ds69.html">early announcement of this year’s election</a> date seemed to highlight the government’s dysfunctional internal consultative processes. That was the rationale given for Rudd’s elimination. The question left hanging in the air then was how the Labor party had been hollowed out to the point that one person was left with the capacity to mess up internal processes in the first place. </p>
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<span class="caption">Prime Minister Julia Gillard and her much remarked upon glasses at a Vietnamese New Year festival in Fairfield, Sydney.</span>
<span class="attribution"><span class="source">AAP/Damian Shaw</span></span>
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<p>Complete with new glasses eerily similar to Rudd’s, Gillard is now being tarred with a similar brush: she did not exactly bring her party with her on her recent decisions to announce the election date six months early and to draft in Nova Peris as the party’s Senate candidate in the Northern Territory. That decision should have been applauded as a commendable instance of affirmative action. That it was not is surely evidence of the lack of respect Gillard has within the party. John Howard made executive decisions all the time, but his team took those decisions on faith. Labor has not been prepared to do that for either of its leaders.</p>
<p>Speculation about Roxon and Evans’ resignations is natural, especially given the circumstances surrounding previous high-profile exits. Lindsay Tanner, it seems, became so disgusted with internal dysfunction that he made a swift departure, wrote one book projecting ALP dysfunction onto the media’s 24-hour “news cycle”, and then wrote the book he should have written the first time, complaining of the lack of fundamental purpose behind much of the government’s activity.</p>
<p>Indeed, far more damaging to the government as we kick off this election year is <a href="http://www.abc.net.au/news/2013-01-31/craig-thomson-arrested/4493722">Craig Thomson’s continuing presence</a> in the media for all the wrong reasons, and <a href="https://theconversation.com/keeping-up-with-the-obeids-the-media-and-corruption-claims-in-australia-11896">Eddie Obeid’s appearance</a> at a NSW corruption inquiry. It’s difficult to escape the conclusion that this is the sort of thing that happens when a social democratic party trades away most of its social democracy for the ideology of its opponents – free-market capitalism – and then attracts and rewards highly ambitious numbers-men.</p>
<p>This government enters its second re-election year justifiably proud that it has defeated Abbott’s attempts to bring the house down with his brand of vacuous populism that trades on fear and uncertainty. But what of the once sparkling white, red and blue hopes of <a href="http://www.brisbanetimes.com.au/articles/2007/08/07/1186252664122.html">Kevin07</a> tshirt wearers, now faded to a dull neo-liberal grey? </p>
<p>The hopes of Kevin 07 were largely those of a competent, social-democratic government which would change the conversations of John Howard’s Australia, and invoke pride in a nation of good global citizens. </p>
<p>The Labor party’s structure since the 1980s has not allowed for the promotion of men and women able to run such a government. When a party is struggling to articulate its purpose, it’s no wonder some of its key agents run out of puff early.</p><img src="https://counter.theconversation.com/content/11925/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Russell Marks works for the Victorian Aboriginal Legal Service Co-operative Inc, which is primarily funded by the Commonwealth Attorney-General's Department. The views expressed in this article are entirely his own, and are written in his capacity as a freelance writer and an Honorary Research Associate with La Trobe University.</span></em></p>Much of the commentary surrounding the resignations of Nicola Roxon and Chris Evans has interpreted the departures as yet another episode in the neverending disaster that is the Rudd-Gillard government…Russell Marks, Honorary Research Associate, School of Social Sciences, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/119202013-02-02T03:12:29Z2013-02-02T03:12:29ZRoxon and Evans resign - much ado about nothing<figure><img src="https://images.theconversation.com/files/19800/original/mvthswcn-1359766998.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former Higher Education Minister Chris Evans announces his resignation in Canberra.</span> <span class="attribution"><span class="source">AAP/Alan Porrit</span></span></figcaption></figure><p>The Gillard government has lost two important figures that contributed much to the Labor administration. Chris Evans, leader of the party in the Senate, and Attorney General, Nicola Roxon, both announced that they would not contest the election on September 14.</p>
<p>Furthermore, Roxon and Evans immediately relinquished their positions in Cabinet. Mark Dreyfus will replace Roxon as Attorney General while Chris Bowen moves into the higher education and small business ministies. Gillard favourite Brendan O'Connor takes the problematic immigration portfolio. A <a href="http://www.theage.com.au/opinion/political-news/gillards-new-front-bench-20130202-2dqwt.html">series of other appointments</a> have been made to fill various parliamentary secretary roles.</p>
<p>This has sparked commentary about whether the government is now in a <a href="http://www.heraldsun.com.au/news/national/labor-shock-minister-chris-evans-and-attorney-general-nicola-roxon-resign/story-fncynkc6-1226567059814">full-blown crisis</a> and [speculation](http://www.theage.com.au/opinion/political-news/gillard-in-turmoil-20130202-2dqut.html](http://www.theage.com.au/opinion/political-news/gillard-in-turmoil-20130202-2dqut.html) about the two ministers’ motives.</p>
<p>Evans’ resignation will deprive the party of significant parliamentary experience. He was first elected to represent Western Australia in the Senate in 1993 and became leader of the Labor Party in the Senate in 2004. He was the Minister for Immigration and Citizenship in the Rudd Government and has been in charge of the challenging Tertiary Education portfolio since 2011.</p>
<p>Arguably, however, Nicola Roxon had a higher public profile than Evans, even though she first entered parliament in 1998. Representing the Victorian district of Gellibrand, Roxon was appointed by Kevin Rudd to serve as the Minister for Health and Ageing. She was later appointed by Gillard to her current role as Attorney General - the first women to hold the role - in 2011.</p>
<p>Roxon was credited with pushing through the plain packaging of cigarettes and withstanding the subsequent legal challenges brought about by the major tobacco companies. Furthermore, Roxon weighed into the Rudd-Gillard leadership battle of early 2012, <a href="http://www.abc.net.au/news/2012-02-23/roxon-says-she-couldnt-work-with-rudd/3848056">joining the line</a> of ministers claiming they could not, and would not, work with Rudd as prime minister again.</p>
<p>Moreover, a former minister, Robert McClelland, has also announced his resignation after 17 years in parliament. McClelland, who staunchly supported Rudd’s tilt at a second term as prime minister, will not contest his Sydney seat of Barton.</p>
<p>Adding a further dimension of interest are the machinations within the Labor Party in deciding who will replace the outgoing MPs. McClelland held Barton with a 6.9% margin which would usually be considered safe, but may be in danger if Labor suffers big swings in NSW.</p>
<p>Roxon’s 24% margin in Gellibrand makes it the second safest seat for Labor. This makes it a crown jewel of a seat and will be sought after by many parliamentary hopefuls within the party.</p>
<p>The resignations of ministers and backbenchers in the lead up to an election is not unheard of in Australian politics. Ultimately ministers will, at some point, have to leave parliament.</p>
<p>Prior to the last federal election 14 Labor MPs and 12 Coalition MPs resigned before going to the polls. This group included Lindsay Tanner and Jenny George from Labor and Petro Georgiou and Nick Minchin from the Coalition. In 2007 there were 16 Coalition and 12 Labor MPs that went before the polls.</p>
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<span class="caption">Julia Gillard faces an uphill battle to retain office but the resignations of Evans and Roxon do not constitute a crisis.</span>
<span class="attribution"><span class="source">AAP/Alan Porrit</span></span>
</figcaption>
</figure>
<p>Some departures were potentially more politically damaging that the current crop of resignations. For example, <a href="http://www.smh.com.au/news/national/campbell-quits-over-meeting/2007/03/03/1172868803543.html">John Howard saw his Human Services Minister</a>, Ian Campbell, resign some eight months before the 2007 election under intense pressure from the top.</p>
<p>According to Howard, Campbell’s improper action was having met with former WA Premier, and convicted fraudster, Brian Burke. At the same time, <a href="http://www.smh.com.au/news/national/santoro-set-to-resign/2007/03/16/1173722720321.html">Howard also had to deal with the resignation of Senator Santo Santoro</a> who had failed to disclose his financial interests in over 70 companies.</p>
<p>The current resignations of Labor MPs is not necessarily a symbol that the government is in crisis. These MPs have not left over questions of impropriety, nor have they been sacked by a prime minister who seeks to uphold Westminster conventions.</p>
<p>Furthermore, their resignations now give those who will replace them significant time to get on top of their portfolios and make a stronger contribution to the business of government before the election.</p>
<p>Their departures, however, cap off a week which saw the PM take the unusual step of announcing the date of the election so early in the year. The week also saw Craig Thomson arrested.</p>
<p>Combined with the minority government situation, as well as the lingering fallout from the Peter Slipper affair, the Gillard government has been fighting an uphill battle since the 2010 election.</p>
<p>This means that the resignations of Evans, Roxon and McClelland will elicit suggestions the government is in meltdown, even though it is not.</p>
<p>It is simply business as usual. But, in politics, when is the business ever really usual?</p><img src="https://counter.theconversation.com/content/11920/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Zareh Ghazarian does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Gillard government has lost two important figures that contributed much to the Labor administration. Chris Evans, leader of the party in the Senate, and Attorney General, Nicola Roxon, both announced…Zareh Ghazarian, Lecturer, School of Political and Social Inquiry, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/119012013-01-31T19:44:38Z2013-01-31T19:44:38ZFree speech and other human rights: the clause that almost sank the Human Rights Bill<figure><img src="https://images.theconversation.com/files/19755/original/3tbgtjtj-1359620470.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Three little words in a draft bill threatened both free speech and the bill's existence.</span> <span class="attribution"><span class="source">j / f / photos</span></span></figcaption></figure><p>One news item buried among all the discussion about the early election announcement, Craig Thomson’s arrest and Moses Obeid’s testimony to ICAC yesterday was a <a href="http://www.attorneygeneral.gov.au/Media-releases/Pages/2013/First%20Quarter/31January2013-ConsultationcontinuesonAnti-DiscriminationBill.aspx">statement</a> from the Attorney-General, Nicola Roxon, that a tiny clause of the proposed Human Rights and Anti-Discrimination Bill 2012 will be redrafted (or removed). This is worth bringing to light because the few words in this clause – “offend” and “insult” - have caused alarm and dominated public debate over the broader question of reforming Australia’s anti-discrimination laws.</p>
<p>The question remains as to whether the removal of this clause will address the free speech concerns and allow more debate about the other 154 provisions.</p>
<p>Considering the ambitious and competing instructions they were given, the drafters of the proposed <a href="http://www.ag.gov.au/Consultations/Pages/ConsolidationofCommonwealthanti-discriminationlaws.aspx">Human Rights and Anti-Discrimination Bill 2012</a> have done a remarkably good job, with the exception of that one clause. The “offend, insult or intimidate” clause, 19(2)(b) has been the subject of most of the public debate (along with <a href="http://theconversation.com/love-thy-neighbour-religious-groups-should-not-be-exempt-from-discrimination-laws-11634">exemptions for religious groups</a>), and has led to many accusations that a bill supposedly designed to “consolidate” federal anti-discrimination laws goes too far and needs to be reined in.</p>
<p>The bill itself is the outcome of two-and-a-half years of consultation by the government, after it announced in 2010 that it would “consolidate” federal anti-discrimination laws as part of Australia’s <a href="http://www.ag.gov.au/RightsAndProtections/HumanRights/HumanRightsFramework/Pages/default.aspx">Human Rights Framework</a>. The team’s instructions were to “consolidate” the five existing anti-discrimination acts into one, add sexuality and gender identity as new grounds, and make the law more consistent and less complex.</p>
<p>These goals in turn were designed to make the law easier for individuals and businesses to understand. Two qualifications were made. One was explicit: do not diminish any existing protections. The other was not stated up front but has become clear: do not touch the churches’ exemptions.</p>
<p>While consolidation might have looked easier to the government than introducing a bill of rights (as the <a href="http://www.ag.gov.au/RightsAndProtections/HumanRights/TreatyBodyReporting/Pages/HumanRightsconsultationreport.aspx">National Human Rights Consultation Report</a> suggested), this was never going to be a straightforward exercise.</p>
<p>The reality is that the existing acts – including the <a href="http://www.comlaw.gov.au/Details/C2012C00236">Racial Discrimination Act</a> and the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/sda1984209/">Sex Discrimination Act</a> – are each very complex, containing at least ten different definitions of discrimination (as well as other definitions of vilification and harassment). These acts set out a multitude of prohibitions and are qualified by an extraordinary and inconsistent array of exceptions. They pose a regulatory challenge and there is no doubt that their complexity and inconsistency justify the simplification exercise.</p>
<p>The draft bill that has emerged is a remarkable achievement, containing one definition of discrimination, a simplified prohibition akin to the one used in the Racial Discrimination Act, and a general justification provision to replace a host of specific and technical exceptions. When the bill was released as an Exposure Draft last November and sent off to the Senate Legal and Constitutional Affairs Committee for review, the consultation revealed a few problems, including the one that prompted Roxon’s announcement today.</p>
<p>What does clause 19(2)(b) actually say and do?</p>
<p>It is found in the part of the bill that defines discrimination. The new definition of discrimination is fairly unremarkable, except for this particular subclause. In clause 19(2), the drafters sought to make clear “to avoid doubt” that discrimination includes harassment, as the courts have told us many times over the years.</p>
<p>But here we get to the crux of the problem. Instead of simply saying discrimination includes “harassment”, clause 19(2)(b) adds that discrimination can include “other conduct that offends, insults or intimidates” another person because of their protected attribute.</p>
<p>These particular words appear in both the definition of sexual harassment in the Sex Discrimination Act and the definition of racial vilification in the Racial Discrimination Act, both of which are retained unchanged in the bill. The numerous and vociferous objections to clause 19(2)(b) related to a concern that it could be interpreted as a vilification clause that applies to all 18 attributes in the act, not merely race.</p>
<p>While Roxon <a href="http://www.attorneygeneral.gov.au/Media-releases/Pages/2013/First%20Quarter/10January2013-OpinionpieceAhealthydebateisthekeytogettingourdiscriminationlawsright.aspx">publicly stated in an opinion piece</a> for The Australian in early January that it was not the government’s intention to extend the vilification provisions beyond race to all attributes, the provision could still be interpreted in that way.</p>
<p>A second concern is that it omits the safeguards that are in the racial vilification provisions, such as an objective test of “offends, insults or humiliates”, and the free speech provisions that protect speech or conduct that is reasonable to the average person or is a fair and accurate report or comment on a matter of public interest.</p>
<p>The vilification provisions are designed to curb racial hate speech that undermines the dignity and inclusion of ethnic groups. They have operated since 1995. But as former justice James Spigelman <a href="http://humanrights.gov.au/about/media/news/2012/132_12.html">rightly asserted</a> in his Human Rights Day Oration, if the bill has the effect of making conduct unlawful simply because it causes someone offence, it goes too far. Democracy depends on free speech and, as Spigelman adds, “freedom to offend is an integral component of freedom of speech”.</p>
<p>No-one has defended or supported clause 19(2)(b), so it is not at all surprising that the Attorney-General has finally asked for alternatives, including removal of the clause. We needed to have this debate and ensure this correction.</p>
<p>The question, however, is whether the objections and cries of outrage over this one subclause have tainted public opinion about the bill generally.</p>
<p>Hopefully Roxon’s announcement has doused this fire and can clear the air to allow for good public debate about the other provisions of a bill that would bring significant clarity, consistency and common sense to the field of Australian anti-discrimination law.</p><img src="https://counter.theconversation.com/content/11901/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Belinda Smith made a submission to the Senate Committee hearing into the exposure draft of this bill.</span></em></p>One news item buried among all the discussion about the early election announcement, Craig Thomson’s arrest and Moses Obeid’s testimony to ICAC yesterday was a statement from the Attorney-General, Nicola…Belinda Smith, Senior Lecturer in Anti-Discrimination Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/86802012-08-06T23:44:11Z2012-08-06T23:44:11ZLicensing hate: the possible consequences of Abbott’s racial vilification changes<figure><img src="https://images.theconversation.com/files/13935/original/3t4hr6b2-1344289301.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Was Tony Abbott's speech to the IPA a preview of the kind of government he and shadow Attorney General George Brandis will operate?</span> <span class="attribution"><span class="source">AAP/Mick Tsivakis</span></span></figcaption></figure><p>As politics heightens in the decreasing count down to the 2013 Federal election, the opposition is laying its cards on the table. </p>
<p>Always on the cards since the Institute for Public Affairs, a right-wing think tank, began a fund-raising campaign for Andrew Bolt in defense of his racial vilification case, Coalition Leader Tony Abbott has delivered to his ideological heartland with a commitment to remove key elements of <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">Section 18C</a> of the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/">Race Discrimination Act (RDA)</a>.</p>
<p>Section 18C, known as the racial vilification provision, was introduced in 1996 with opposition agreement in the dying days of the Keating government to make race hate speech unlawful (not illegal). Ever since 1966 when the Holt government signed onto the International Convention for the Elimination of All Forms of Racial Discrimination (ICERD) while filing a reservation on Article 4 (the outlawing of race hate speech), the position of vilifying speech on the Australian political agenda has been contentious and often murky. </p>
<p>The states and the Commonwealth have overlapping jurisdiction, and civil and criminal laws apply in differing ways in different states. It is a mess, and one that the Commonwealth alone cannot clean up. </p>
<p>The specific Commonwealth legislation requires the offended party (who has to be able to show that they are offended, vilified etc.) to seek conciliation with the offending party through the Australian Human Rights Commission (AHRC). </p>
<p>The AHRC cannot act on its own bat in the public interest against racist materials. Only if no agreement can be reached does the AHRC declare it cannot conciliate and refers the case to the Federal Court for arbitration. When Andrew Bolt and the Herald Sun told Pat Eatock and her Aboriginal colleagues who sought conciliation to get lost, they had no other recourse but seek a court judgement. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/13936/original/pmh9mcgj-1344289696.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/13936/original/pmh9mcgj-1344289696.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/13936/original/pmh9mcgj-1344289696.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/13936/original/pmh9mcgj-1344289696.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/13936/original/pmh9mcgj-1344289696.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/13936/original/pmh9mcgj-1344289696.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/13936/original/pmh9mcgj-1344289696.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">News Ltd columnist Andrew Bolt arrives at court during his racial vilification case.</span>
<span class="attribution"><span class="source">AAP/Julian Smith</span></span>
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</figure>
<p>Once they started down the RDA path (with little likelihood of anything other than an apology and costs), they had to put aside any common law actions for Mr Abbott’s preferred option of defamation (with the potential for serious damages). </p>
<p>Under the headline “<a href="http://www.tonyabbott.com.au/LatestNews/Speeches/tabid/88/articleType/ArticleView/articleId/8833/Address-to-the-Institute-of-Public-Affairs-Sydney.aspx">Freedom Wars</a>”, Abbott portrayed himself as a crusader facing the Saracens in the Holy Land. (Note, for hyperbolists, a war for freedom is being fought in Syria, not Australia). </p>
<p>He went on to argue that “Freedom of speech empowers Christians, Muslims, Jews, …. everyone and anyone publicly to affirm whatever it is that is important to their identity.” </p>
<p>True; but Section 18C only restrains them from saying anything they wish about each other, if what is important to them depends on discourses of vilification.</p>
<p>In making his attack on government plans to “regulate” the news media, <a href="http://www.tonyabbott.com.au/News/tabid/94/articleType/ArticleView/articleId/8833/Address-to-the-Institute-of-Public-Affairs-Sydney.aspx">Mr Abbott argued</a>: “The more powerful people are, the more important the presumption must be that less powerful people should be able to say exactly what they think of them”. </p>
<p>Given this logic, the converse should also hold – “the less powerful people are, the more important the presumption that more powerful people should not be able to say exactly what they think of them”.</p>
<p>Abbott’s initiative, licensing as it does people who wish to have no limit on their opportunities “to offend, insult, humiliate or intimidate”, has the apparent full support of his communications spokesperson Malcolm Turnbull. Turnbull’s office told The Conversation that Turnbull was “fully behind the statement” and that he had previewed and approved it.</p>
<p>When John Howard managed to alienate much of the Asian and Muslim communities of Sydney with his perceived support for Pauline Hanson, it took the Liberals under Barry O’Farrell many years to draw them back towards the Coalition. It paid off as the March 2011 state election demonstrated. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/13937/original/828x7x37-1344290450.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/13937/original/828x7x37-1344290450.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=813&fit=crop&dpr=1 600w, https://images.theconversation.com/files/13937/original/828x7x37-1344290450.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=813&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/13937/original/828x7x37-1344290450.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=813&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/13937/original/828x7x37-1344290450.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1021&fit=crop&dpr=1 754w, https://images.theconversation.com/files/13937/original/828x7x37-1344290450.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1021&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/13937/original/828x7x37-1344290450.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1021&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Pauline Hanson created massive community disruption with her comments about Asians and Indigenous Australians when elected to parliament in 1996.</span>
<span class="attribution"><span class="source">Australian Parliament</span></span>
</figcaption>
</figure>
<p>Yet Mr Abbott seems to have decided to potentially alienate these same groups once more. He has offered the added bonus of the Jewish community, the backbone of Turnbull’s Wentworth electorate, who have been the main users of 18C against Holocaust deniers, anti-Semites and racist agitators. </p>
<p>In the Executive Council of Australian Jewry submissions to the Attorney General Roxon’s consolidation review of human rights legislation, and to Race Discrimination Commissioner Helen Szoke’s Anti-Racism strategy, the ECAJ has pointed to the rising waves of anti-Semitism in Australia, the use of the internet for the dissemination of racist propaganda, and the insufficiency of Commonwealth legislation as it stands.</p>
<p>The government’s consolidation process appears rather disconnected and unfocused, with major problems still evident; a significant worry was that 18C would be dissolved [behind a word-wall of obfuscation](https://theconversation.com/a-flawed-and-limited-plan-australias-human-rights-failures-to-continue-5510](https://theconversation.com/a-flawed-and-limited-plan-australias-human-rights-failures-to-continue-5510). </p>
<p>However, in response to Abbott’s speech, <a href="http://www.attorneygeneral.gov.au/Transcripts/Pages/2012/Third%20Quarter/5-August-2012---Transcript-of-interview-on-Sky-Austraian-Agenda.aspx">Roxon has said</a> that the consolidated human rights legislation will be raised to the “highest possible standard”. </p>
<p>However her government recently withdrew its planned accession to the European Cybercrime Optional Protocol on Cyberracism, despite clear evidence Australia’s current regimes were inadequate, <a href="http://www.fecca.org.au/mosaic/articles/cyber-racism-australias-weird-position-of-ensuring-it-can-do-nothing">suggesting</a> that the standards would not be quite as high as many might have hoped.</p>
<p>While Abbott’s speech is clearly a pay-off to the IPA, it also appears as a double-wedge: it places Turnbull in an invidious situation with his own constituency, and it seeks to wedge the government on freedom of speech issues just as the regulation of media debate reaches the boil. It may or may not represent his own viewpoint. It is also not clear whether this is a core promise, or simply rising chatter directed towards the hard edge of the conservative support. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/13938/original/nm9mgxzs-1344291120.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/13938/original/nm9mgxzs-1344291120.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/13938/original/nm9mgxzs-1344291120.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/13938/original/nm9mgxzs-1344291120.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/13938/original/nm9mgxzs-1344291120.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/13938/original/nm9mgxzs-1344291120.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/13938/original/nm9mgxzs-1344291120.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Is Tony Abbott’s move on racial discrimination an attempt to wedge his erstwhile - and potentially future - leadership rival Malcolm Turnbull?</span>
<span class="attribution"><span class="source">AAP?Lukas Koch</span></span>
</figcaption>
</figure>
<p>Removing Section 18C without any replacement will open Australia to an even more thorough critique than that offered in 2011 by the United Nations Human Rights Committee. Of course, as under the Howard government, an Abbott government may well tell the UN to butt out. </p>
<p>What the IPA speech does is to direct public attention to what the rhetoric and the reality of human rights would look like under a returned Coalition government, with Senator Brandis as the potential Attorney General. </p>
<p>This is not something we’ve really seen displayed, and it adds an important dimension to the emerging Australian future being planned by the opposition. </p><img src="https://counter.theconversation.com/content/8680/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Jakubowicz receives funding from the ARC for a project on Cyber-racism and Community Resilience (CRACR). </span></em></p>As politics heightens in the decreasing count down to the 2013 Federal election, the opposition is laying its cards on the table. Always on the cards since the Institute for Public Affairs, a right-wing…Andrew Jakubowicz, Professor of Sociology and Codirector of Cosmopolitan Civil Societies Research Centre, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/83872012-07-24T20:16:28Z2012-07-24T20:16:28ZIf Nicola Roxon doesn’t believe in her own policy, why should we?<figure><img src="https://images.theconversation.com/files/13265/original/swymg9ks-1343006903.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Attorney General Nicola Roxon appears to be in two minds over proposals to widen intelligence gathering powers.</span> <span class="attribution"><span class="source">AAP/Lukas Koch</span></span></figcaption></figure><p>Earlier this month the Hon Nicola Roxon asked the Parliamentary Joint Committee on Intelligence and Security (<a href="http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=pjcis/nsl2012/media.htm">PJCIS</a>) to conduct an inquiry into the Government’s proposals for a major revamp of Australia’s national security regime, including the long-term retention of information about SMS, voice calls, web searches and internet downloads. </p>
<p>The terms of reference and accompanying <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=pjcis/nsl2012/additional/discussion%20paper.pdf">discussion paper</a> for the inquiry featured stronger powers for the Australian Security Intelligence Agency (<a href="http://www.asio.gov.au/">ASIO</a>) and a “one step forward, two steps backwards” proposal involving fewer government bodies directly accessing private information but more being able to share. The proposals also featured mandatory retention by telecommunication providers – and presumably internet hosts and social network services such as <a href="https://theconversation.com/watching-the-detectives-the-case-for-restricting-access-to-your-social-media-data-8218">Facebook</a> – of “traffic” data for a period of two years.</p>
<p>The data would identify that communication had taken place (for example that an SMS had been sent from a specific number to another number at a particular time and place or that an ISP customer had visited a specific site) but would not include the content of the communication such as a transcript of what was said during a conversation. Building a “<a href="http://www.volokh.com/2011/04/05/applying-the-mosaic-theory-of-the-fourth-amendment-to-disclosure-of-stored-records/">mosaic</a>” does, however, offer a picture of relationships and activities and it is accordingly sought by bodies that range from police to the ATO and Centrelink.</p>
<p>The past decade has seen a succession of proposals for business to retain all traffic data for a period of two, five or seven years in a form that is readily searchable by a range of law enforcement and national security agencies. One of the more absurdist proposals of the late 1990s saw the Australian Federal Police request weekly or monthly printouts of all traffic. This was rebuffed by leading telcos with a simple question: where did the AFP propose to park the semi-trailers that would be needed to deliver the tonnes of paper each month? Traffic data retention has not found favour with <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=ec_ctte/online_privacy/index.htm">several</a> parliamentary <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=jscc/cybercrime_bill/report.htm">committees</a> and has been damned by a range of legal and industry bodies. Unfortunately, like the undead, it persists in reappearing when governments want to seem strong.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/13266/original/7c57dbrz-1343007558.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/13266/original/7c57dbrz-1343007558.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=384&fit=crop&dpr=1 600w, https://images.theconversation.com/files/13266/original/7c57dbrz-1343007558.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=384&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/13266/original/7c57dbrz-1343007558.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=384&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/13266/original/7c57dbrz-1343007558.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=483&fit=crop&dpr=1 754w, https://images.theconversation.com/files/13266/original/7c57dbrz-1343007558.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=483&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/13266/original/7c57dbrz-1343007558.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=483&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Do intelligence services really need access to data like personal Facebook pages?</span>
<span class="attribution"><span class="source">AAP Image/Tracey Nearmy</span></span>
</figcaption>
</figure>
<p>Under the heading “Roxon doubts over security plans to store web history” the Attorney-General was <a href="http://www.smh.com.au/technology/technology-news/roxon-doubts-over-security-plans-to-store-web-history-20120720-22fel.html">quoted</a> on Friday as stating that “the case has yet to be made” for retention. </p>
<p>Roxon reportedly acknowledged the financial and privacy costs of such a scheme, commenting that she had some sympathy for the view of national security agencies but is “not yet convinced that the cost and the return - the cost both to industry and the [civil liberties] cost to individuals - that we’ve made the case for what it is that people use in a way that benefits our national security”.</p>
<p>If the Attorney-General is not persuaded of the merits of her proposal, at a time when she has recently <a href="http://www.attorneygeneral.gov.au/Media-releases/Pages/2012/Second%20Quarter/2-May-2012---Privacy-laws-set-to-reform.aspx">claimed</a> to be strengthening the national Privacy Act, why should we support a major erosion of the Australian privacy regime?</p>
<p>If she does not regard the proposal as convincing, why was the time allowed for public comments so short? Speed-dating may be fashionable but speed-policy making is abhorrent in a liberal democratic state. It is particularly abhorrent given the lack of rigour in the discussion paper, replete with statistics that bear no relationship whatsoever to the proposals. (Recitation of the number of homicides and assaults is irrelevant, given that no Australians have been clubbed to death with mobile phones or USB sticks.)</p>
<p>One answer may come from comments by retention-advocate Neil Gaughan of the Australian Federal Police High Tech Crime Centre. He is <a href="http://www.smh.com.au/technology/technology-news/roxon-doubts-over-security-plans-to-store-web-history-20120720-22fel.html">reported</a> as saying that “if we don’t have a data retention regime in place we will not be able to commence an investigation in the first place” and that opposition to retention in Germany has left the German federal police agency a laughing stock. That claim appears to be inconsistent with the fact that German law enforcement agencies are still obtaining warrants, prosecuting alleged offenders and securing convictions. (Laughter is more likely to come from misbehaviour by <a href="http://www.lrb.co.uk/blog/2012/07/20/camus123/drinker-tailor-soldier-spy/">keystone spooks</a>.)</p>
<p>We should not confuse bureaucratic convenience with a fundamental need or allow the laudable enthusiasm of law enforcement personnel to override concerns regarding civil liberties and regulatory burdens. Several years ago the Law Institute of Victoria <a href="http://www.liv.asn.au/getattachment/62c751bc-875f-4ba7-85f8-934fc6394576/The-adequacy-of-protections-for-the-privacy-of-Aus.aspx">commented</a> that neither government nor community would tolerate proposals to place telephone intercepts on all phone lines in Australia and record all conversations, or to open all mail, in case such information may be of use to law enforcement agencies. Such proposals would be unacceptable in a democratic society. There is no demonstrable reason why internet communications should be treated differently to other communications.</p>
<p>Contrary to utopians such as Julian Assange, there is a place for secrecy in national security. But we need to be able to trust the spooks and police. Proposals that are vague, extraordinary and unsubstantiated do not induce trust. Neither does an Attorney-General who confuses kite-flying with an own goal.</p><img src="https://counter.theconversation.com/content/8387/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bruce Arnold has no affiliations with telcos or other enterprises potentially affected by the proposed data retention regime. Submissions about data retention have been cited by past parliamentary inquiries. Mr Arnold is general editor of Privacy Law Bulletin, the national privacy and confidentiality law practitioner journal</span></em></p>Earlier this month the Hon Nicola Roxon asked the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to conduct an inquiry into the Government’s proposals for a major revamp of Australia’s…Bruce Baer Arnold, Assistant Professor, School of Law, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/80512012-07-06T02:57:08Z2012-07-06T02:57:08ZIn praise of Australia’s best minister for prevention<figure><img src="https://images.theconversation.com/files/12606/original/rtkdfsz8-1341383042.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former health minister Nicola Roxon has won numerous awards for the plain packaging legislation.</span> <span class="attribution"><span class="source">AAp/Tracey Nearmy</span></span></figcaption></figure><p>It isn’t often that an Australian minister visits the United States to acclaim, is hailed as a “global champion” and receives a major award to accompany assorted national and international awards already sitting on their shelves.</p>
<p>The first anniversary of the introduction into the Parliament of Australia’s historic plain packaging legislation is an appropriate time to recognise the achievements of former health minister, Attorney General Nicola Roxon. </p>
<p>Despite the well-deserved reputation of the health portfolio as a bed of nails, Roxon achieved international recognition as a leader who carefully and methodically took on the tobacco companies in the area closest to their hearts and promotional capacity, took everything that they could throw at her, and inspired others to do the same around the world. </p>
<p>Roxon will also be remembered as the minister who established Australia’s first <a href="http://www.anpha.gov.au/internet/anpha/publishing.nsf">National Preventive Health Agency</a>, faced down the spirits industry over the alcopops tax, and provided a massive $872 million boost in prevention funding to the states and territories. </p>
<p>Australia’s plain packaging legislation is crucial both because it will help prevent children from starting to smoke and encourage adults to quit, and because the domino theory is nowhere more evident than in tobacco control. Once one country or state acts (whether on tobacco promotion, public education or passive smoking), others follow. As the former CEO of the Philip Morris company pointed out in 1985, “A sneeze in one country today causes international pneumonia tomorrow!”</p>
<p>Tobacco control advocates have long been familiar with the “scream test” – the louder tobacco companies scream, the more impact we know a measure will have. When the National Preventative Health Taskforce published a discussion paper in 2008 canvassing the full range of possible tobacco control measures, tobacco companies devoted 43 pages out of their 142-page response to arguments against plain packaging. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/12616/original/9mpwsh3p-1341448069.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/12616/original/9mpwsh3p-1341448069.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=668&fit=crop&dpr=1 600w, https://images.theconversation.com/files/12616/original/9mpwsh3p-1341448069.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=668&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/12616/original/9mpwsh3p-1341448069.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=668&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/12616/original/9mpwsh3p-1341448069.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=839&fit=crop&dpr=1 754w, https://images.theconversation.com/files/12616/original/9mpwsh3p-1341448069.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=839&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/12616/original/9mpwsh3p-1341448069.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=839&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Nowhere is the domino effect more evident than in tobacco control.</span>
<span class="attribution"><span class="source">Bernard Rose</span></span>
</figcaption>
</figure>
<p>We knew from research evidence and the industry’s own documents that plain packaging would be effective: the screams could not have confirmed it more clearly.</p>
<p>The Taskforce’s final report duly recommended plain packaging as part of a comprehensive approach. But recommendations from expert committees often sit on shelves, especially if they entail taking on massive and ruthless global industries. We knew that Nicola Roxon supported prevention – she had established the Prevention Taskforce with strong terms of reference and filled it with known public health advocates – but we didn’t know whether she would be willing and able to follow through.</p>
<p>The clearest signal came with the media launch of the Taskforce report in September 2009, when in response to a question about action on prevention Roxon said, “We are killing people by not acting.”</p>
<p>She proceeded to pump up the federal government’s tobacco control efforts, with significantly increased funding and the first ever major program to address Indigenous smoking. But in 40 years of anti-tobacco campaigning, I cannot remember a more dramatic moment than a phone call from the federal health minister in April 2010 to say the government would be increasing the tax on tobacco by 25% – and introducing plain packaging.</p>
<p>The tobacco industry response was immediate and ferocious – and that was just the start. They have used every possible weapon, including advertising, lobbying, public relations, personal attacks, smears, campaigns through front organisations, vastly inflated estimates of the extent of the illicit market, distracting freedom-of-information (FOI) requests, legal challenges and international trade dispute mechanisms.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/12618/original/vh558t6k-1341448904.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/12618/original/vh558t6k-1341448904.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=310&fit=crop&dpr=1 600w, https://images.theconversation.com/files/12618/original/vh558t6k-1341448904.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=310&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/12618/original/vh558t6k-1341448904.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=310&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/12618/original/vh558t6k-1341448904.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=390&fit=crop&dpr=1 754w, https://images.theconversation.com/files/12618/original/vh558t6k-1341448904.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=390&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/12618/original/vh558t6k-1341448904.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=390&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The tobacco industry’s nightmare of plain packaging is coming closer to reality.</span>
<span class="attribution"><span class="source">waferboard/Flickr</span></span>
</figcaption>
</figure>
<p>Throughout this, Nicola Roxon steadfastly and methodically took her legislation through the Parliament and drove action on plain packaging so that (subject to a favourable decision by the High Court), it will be implemented in Australia from December 2012. New Zealand and the United Kingdom (where the health minister publicly acknowledged Nicola Roxon’s influence) have made clear their intentions to take similar action, and other countries will then follow, as surely as lung cancer and heart disease follow smoking. </p>
<p>Roxon’s move from health minister to attorney general came at an opportune time, giving her added authority with which to resist the tobacco industry’s legal challenges – and to add legislation ensuring that tobacco smuggling cannot be used by tobacco companies and their allies to circumvent plain packaging.</p>
<p>Importantly, plain packaging was not introduced as one measure in isolation. It is part of a comprehensive approach that includes $100m for media campaigns, a ban on internet tobacco promotion, additional funding for quitlines and cessation supports, increased funding to states and territories for their programs, A$125m for programs on Indigenous smoking, including the <a href="http://www.health.gov.au/internet/ministers/publishing.nsf/Content/mr-yr10-ws-ws012.htm">Tackling Indigenous Smoking</a> initiative, the 2010 budget’s 25% increase in tobacco excise, the 2012 reduction in tobacco duty-free allowances, increased penalties for tobacco smuggling and financial support for international action on smoking.</p>
<p>Small wonder that her shelves must be groaning under the weight of awards – a <a href="http://www.who.int/tobacco/wntd/2011/awards/en/">2011 World Health Organisation Award</a>, the <a href="http://www.cancer.org/AboutUs/HonoringPeopleWhoAreMakingADifference/LutherTerryAwards/LutherTerryRecipients/lta_winners_2012">Luther Terry Medal</a> presented to the <a href="http://www.health.gov.au/">Department of Health and Ageing</a> at the recent <a href="http://www.wctoh2012.org/">World Conference on Tobacco or Health</a> in Singapore, the <a href="http://global.tobaccofreekids.org/en/global_updates/detail/2012_05_16_champion">US Campaign for Tobacco Free Kids Global Champion Award</a>, successive AMA/ACOSH/ASH tobacco scoreboard awards, and the prestigious Australian tobacco control award for individuals, the <a href="http://www.health.gov.au/internet/ministers/publishing.nsf/Content/50E3532F00A42BF0CA2578A10024B401/$File/nr110531.pdf">Nigel Gray Medal</a>. </p>
<p>The recent announcement by the federal government of sponsorship for 12 national sports to promote anti-binge-drinking messages and eschew alcohol sponsorship is a consequence of the campaign Roxon fought to ensure that alcopops would be taxed at the same rate as other spirits-based drinks – despite furious opposition from the spirits industry. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/12617/original/vtb5mspq-1341448604.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/12617/original/vtb5mspq-1341448604.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/12617/original/vtb5mspq-1341448604.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/12617/original/vtb5mspq-1341448604.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/12617/original/vtb5mspq-1341448604.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/12617/original/vtb5mspq-1341448604.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/12617/original/vtb5mspq-1341448604.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Roxon fought to ensure that alcopops would be taxed at the same rate as other spirits-based drink.</span>
<span class="attribution"><span class="source">Katie Lips</span></span>
</figcaption>
</figure>
<p>She won that battle with the support of groups, such as the Australia Medical Association (AMA), which were at odds with her on other policy issues, but supported her stance on prevention – and after the undertaking that $50 million from the alcopops tax would go to programs aimed at reducing binge drinking. </p>
<p>Roxon also oversaw a range of initiatives drawing community attention to the rising tide of problems caused by <a href="https://theconversation.com/topics/obese-nation">obesity</a>.</p>
<p>Nicola Roxon’s successes could not have been achieved without the backing of her cabinet colleagues, all-party parliamentary support (including important contributions from wonderful long-time advocates for prevention such as Liberal MP Dr Mal Washer), meticulous research, continuing advocacy from health organisations around the country and outstanding work in the Department of Health and Ageing. </p>
<p>It is also important to recognise that health ministers from both sides of politics have made important contributions to prevention – such as Neal Blewett’s early action on HIV/AIDS in the 1980s or Michael Wooldridge’s support for the first national tobacco campaign in the 1990s. At the state level, even in the last week Western Australia’s Kim Hames has led the way on obesity through support for a forceful and innovative media campaign. </p>
<p>There is never scope for complacency in tobacco control, and some of the major battles on alcohol and obesity are still ahead of us.</p>
<p>But as the tobacco industry’s nightmare of plain packaging comes ever closer to reality, Nicola Roxon’s historic initiatives mark her out as Australia’s best minister for prevention and the most influential we have had globally. To adapt her own phrase, by acting she will have saved tens of thousands of lives.</p><img src="https://counter.theconversation.com/content/8051/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mike Daube is President of the Australian Council on Smoking and Health. He was Deputy Chair of the National Preventative Health Taskforce and chaired the tobacco expert committee.</span></em></p>It isn’t often that an Australian minister visits the United States to acclaim, is hailed as a “global champion” and receives a major award to accompany assorted national and international awards already…Mike Daube, Professor of Health Policy, Curtin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/47502011-12-18T19:37:01Z2011-12-18T19:37:01ZVive la republique! Why Nicola Roxon’s push for constitutional reform needs supporters<figure><img src="https://images.theconversation.com/files/6467/original/qj586zdk-1323921400.jpg?ixlib=rb-1.1.0&rect=39%2C36%2C580%2C387&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">If the republic is going to be put back on the political agenda in 2012, more will need to step up and talk more about the issue publicly.</span> <span class="attribution"><span class="source">Flickr/GregTheBusker</span></span></figcaption></figure><p>The new Attorney-General, Nicola Roxon, has made her <a href="http://www.theaustralian.com.au/national-affairs/nicola-roxon-says-no-to-bill-of-rights/story-fn59niix-1226220370217">intention clear</a> to reignite the debate on Australia becoming a republic. On taking up the new position, she took the opportunity to stake out her position in stronger terms than any one else in the Labor government, including Prime Minister Julia Gillard.</p>
<p>But republicans should resist the temptation to be prematurely elated by this statement. It’s good to have friends in high places but more high-profile republicans need to step forward in order to get the issue back on the agenda.</p>
<h2>Reform or rhetoric?</h2>
<p>Roxon sounded like a reformer when putting her personal position. On taking up the new role she described herself as “a strong advocate of a republic” and she was “looking for the right opportunity to re-invigorate that debate.” Adding that the time hadn’t come yet but it could come during her tenure.</p>
<p>The new Attorney-General has a republican pedigree and was a good friend of republicans during an earlier stint as Shadow Attorney-General. During the <a href="http://www.aec.gov.au/elections/federal_elections/2004/index.htm">2004 federal election campaign</a>, she took serious steps to call together an informal set of advisers, including people from the <a href="http://www.republic.org.au/">Australian Republican Movement</a> to advise the government on what would be needed for a republican referendum.</p>
<h2>Republican champions</h2>
<p>The republican campaign needs new momentum at the moment, not least because of poor public opinion polls in a year that has featured a <a href="http://www.officialroyalwedding2011.org/">royal wedding</a> and a <a href="http://www.smh.com.au/lifestyle/celebrity/queens-plane-touches-down-in-canberra-20111019-1m7ts.html">royal visit</a>.</p>
<p>One way for such momentum to be generated is for champions of the republic to come forward to put their shoulder behind the cause. By champions, I mean prominent individuals who not only believe in the cause but are willing to stand up and be involved.</p>
<p>Roxon is a possible champion. To become one in a fully-fledged way she now needs to follow up these passing remarks with some considered speeches and actions. She might be encouraged to do so if she realises that she is not alone. </p>
<p>In fact, the past few weeks have seen other equivalent figures step forward, including outgoing CEO of the <a href="http://www.aigroup.com.au/">Australian Industry Group</a>, Heather Ridout and former diplomat and senior public servant, Philip Flood.</p>
<p>Ridout recently went out of her way to close <a href="http://www.aigroup.com.au/portal/binary/com.epicentric.contentmanagement.servlet.ContentDeliveryServlet/LIVE_CONTENT/Publications/Speeches/2011/National_Press_Club_speech-Heather_Ridout-final.pdf">her recent National Press Club address</a> with a personal plea for recognition that a republic, with an Australian Head of State, was crucial for Australian trade opportunities and in the best interests of a modern Australia. In her view Australia will not have its own brand until we allow ourselves to produce our own head of state.</p>
<p>Flood, who was an Australian diplomat to London at the time of the 1999 republic referendum, took the opportunity in his recent diplomatic memoirs, <a href="http://www.scholarly.info/book/9781921875205/">Dancing with Warriors</a>, to express his view that the British monarchy is no longer compatible with Australia’s sense of national identity. </p>
<p>According to Flood, such a change is a natural outcome of the social, economic and political changes Australia has already made in the century or so since federation.</p>
<h2>More action needed</h2>
<p>Isolated voices like these, no matter how prominent, cannot generate fresh momentum on their own. What is needed now is a new dynamic in which prominent individuals like Roxon, Ridout and Flood, work together in the political, private and public sectors to put the republic back high on the agenda of the nation. </p>
<p>They need to not just recognise the force of each other’s statements, but also to take comfort and inspiration from them. They each need to become champions within their sectors and to build networks across them.</p>
<p>Champions can help make it happen, but to do so, as in any campaign, they must be the tip of an iceberg. Other political, business and public sector leaders must take the opportunity to join them. Success will need other ingredients, including a stronger Australian Republican Movement, but the rise of more committed champions is a good first step.</p><img src="https://counter.theconversation.com/content/4750/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Warhurst is Deputy Chair of the Australian Republican Movement and Emeritus Professor of Political Science at the Australian National University</span></em></p>The new Attorney-General, Nicola Roxon, has made her intention clear to reignite the debate on Australia becoming a republic. On taking up the new position, she took the opportunity to stake out her position…John Warhurst, Adjunct Professor Australian Politics, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/47212011-12-15T03:16:17Z2011-12-15T03:16:17ZRoxon got it right: we don’t need a bill of rights because we’ve already got one<figure><img src="https://images.theconversation.com/files/6376/original/rd6hbmjd-1323751905.jpg?ixlib=rb-1.1.0&rect=174%2C93%2C3378%2C2078&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Newly appointed Attorney-General, Nicola Roxon may be surprised to find the bill of rights she doesn't want is already in place.</span> <span class="attribution"><span class="source">AAP Image/Julian Smith</span></span></figcaption></figure><p>The new Commonwealth Attorney-General, <a href="http://www.aph.gov.au/house/members/member.asp?id=83K">Nicola Roxon</a> has said that in her new role she would not push for a bill of rights to be included in the constitution. But many would be surprised to learn she doesn’t need to, the Commonwealth Parliament already delivered one a week ago. </p>
<p>Much publicity was given to the government’s rejection of the Brennan Committee’s <a href="http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report">recommendations</a>, which included a statutory bill of rights. However, on 7 December this year, royal assent was given to a more innocuous sounding act – <a href="http://www.aph.gov.au/library/pubs/bd/2010-11/11bd103.htm">the Human Rights (Parliamentary Scrutiny) Act 2011</a> – which fulfils a number of the Brennan Committee’s recommendations and in one significant way goes much further.</p>
<h2>Under the radar</h2>
<p>The new act establishes a <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=humanrights_ctte/ctte_info/index.htm">joint parliamentary committee</a> to scrutinise Commonwealth bills, as well as existing acts, to ensure that each law passed is compatible with human rights. </p>
<p>It also requires that every bill introduced into the Federal Parliament be accompanied by a compatibility statement which includes an assessment of whether the bill is compatible with human rights. </p>
<p>The Brennan Committee made similar recommendations but the crucial difference between the report and the act is in how they define “human rights”. Curiously, the act does not define rights using the Constitution, the common law or statute. Nor does it define rights by reference to those that can be applied by the <a href="http://www.hreoc.gov.au/">Australian Human Rights Commission</a>. These are all ignored. </p>
<p>Instead, the act defines human rights as those rights contained in seven treaties, many of which have never been implemented in Australian legislation. These include economic, social and cultural rights such as the right to work, the right to a decent living, the right to the highest attainable standard of physical and mental health, and the like. </p>
<h2>Outcome unknown</h2>
<p>These types of rights potentially have huge economic impacts. They require the balancing of different priorities – a task that can really only be undertaken by governments, not the courts. </p>
<p>They also give rise to many interpretative questions. How is one to know whether a law implementing the national competition policy will have a negative impact on the right to work? </p>
<p>Will legislation which limits the scope of the pharmaceutical benefits scheme or bans genetic cloning be incompatible with the “right to enjoy the benefits of scientific progress and its applications” and would Commonwealth laws concerning higher education fees breach the treaty requirement that “higher education shall be made equally accessible to all, on the basis of capacity”? </p>
<p>The financial and interpretative problems with economic, social and cultural rights led the Brennan Committee to be wary about including such rights in any statutory bill of rights. It recommended that if any economic, social and cultural rights were to be included, they should not be justiciable. </p>
<p>It also recommended that any requirement that the courts interpret Commonwealth laws in a manner compatible with human rights should not extend to economic, social and cultural rights. </p>
<p>But the 2011 act took a different turn and now every new Commonwealth Bill will have a statement asserting that the bill is compatible with all the rights in the seven listed treaties. This statement, while not binding on the courts, will form part of the explanatory memorandum to the bill and may be used by courts when interpreting the legislation in the future. </p>
<p>This may lead to the type of exercise of interpreting legislation in the light of economic, social and cultural rights that the Brennan Committee tried so hard to avoid. </p>
<h2>A bill of rights in all but name</h2>
<p>So the Attorney-General already has her own bill of rights. It does not go as far as many bills of rights. It doesn’t allow a person to sue a government for breaching a person’s rights. It doesn’t allow the courts to strike down the validity of a law that breaches human rights or to make a statement of incompatibility and send the law back to the Parliament for reconsideration.</p>
<p>But it does require the Parliament to justify all its new legislation by reference to a very broad range of human rights and it does permit the courts to interpret this legislation in a manner that complies with those rights, however they might be understood in the future. </p>
<p>As shown in the United Kingdom and in Victoria, the most significant and controversial human rights cases often arise in the guise of statutory interpretation. </p>
<p>Australia may not have a bill of rights in name, but we will soon start to feel some of the effects of one.</p><img src="https://counter.theconversation.com/content/4721/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey receives funding from the ARC. She sometimes does consultancy work for governments and inter-governmental bodies.</span></em></p>The new Commonwealth Attorney-General, Nicola Roxon has said that in her new role she would not push for a bill of rights to be included in the constitution. But many would be surprised to learn she doesn’t…Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.