Lawyer Victoria
Free speech, independence and separation of powers

Free speech, independence and separation of powers

10 February 2017

Approximately eight to ten Australians die every day at their own hand and it is estimated that another 180 attempt suicide, with almost 50 per cent of those ending up in hospital.

Tragic as this is, it is just the tip of the iceberg.

Psychiatric injury is by its very nature difficult to assess. However, this does not make it any less real for the sufferer.

As a society, we are slowly gaining sophistication in assessing the nature and consequences of psychiatric injury. Nevertheless, tort reform advocates crave restriction or removal of compensation for this type of injury. The challenges of demonstrating that a psychiatric injury is genuine, caused by the defendant, and has the consequences claimed should never be used to justify reforms that would reduce the rights of the injured.

Psychiatric injury is real. It is devastating to all those who suffer it and their families. The impact on everyday activities and relationships are dreadful.

While drafting this page before Christmas, I realised that of course it will be read in the new year that is 2017. I hope all of our members and readers enjoyed a festive season break and have returned recharged with inspiration and energy.

I, on the other hand, ended the year with much exasperation and  rustration over apparent failures to appreciate the importance of the separation of powers, the hysteria over the Racial Discrimination Act, and ongoing attacks on the Australian Human Rights Commission (AHRC) and independent statutory office-holders.

Many commentators appear to have failed to read the relevant Acts.

I recommend a read of both the Australian Human Rights Commission Act 1986 (Cth) as well as the Racial Discrimination Act 1975 ( Cth). Critics of the latter Act have claimed that s18C unreasonably restricts the right to freedom of speech, when in fact s18D incorporates very strong
protections of this right.

Attacks on s18C are therefore unfounded as, together, ss18C and 18D balance the right to freedom of speech and the right to be free from discrimination.

The AHRC has also been criticised for the way in which it handles complaints under the Racial Discrimination Act 1975 (Cth) and other legislation, including that it conciliates spurious complaints.

The Australian Human Rights Commission Act 1986 (Cth) does enable the President of the AHRC to terminate a complaint in certain circumstances.

But it also provides for applications by the complainant to the Federal Court. The role of the AHRC is to conciliate, wherever possible. However, once a complaint is terminated, the complainant can pursue an
application to the Federal Court.

The 2016 Annual Report of the AHRC states that there were 16,836 enquiries and 2,013 complaints, of which 76 per cent were successfully resolved. It is not the President or the AHRC who initiates a complainant's Federal Court application. To suggest otherwise is sheer mischief.

Unfortunately, attacks on independent statutory officeholders who serve us, ideally with fearless independence, have been all too prevalent in 2016. President of the AHRC, Emeritus Professor Gillian Triggs, has been relentlessly criticised for fulfilling her statutory duty to highlight human rights abuses. Former Solicitor-General, Justin Gleeson SC, was gagged by the Attorney-General in circumstances that gave rise to a Senate inquiry. Gleeson ultimately resigned, citing an 'irretrievably broken' relationship with the AttorneyGeneral, while rejecting 'absolutely each and every attack and insinuation' against him and his office.

Attacks on the vital independence of public roles have become a worrying trend and represent a perilous course, undermining the fundamental principle of separation of powers.

Objecting to mischievous misrepresentations of the law, and to the undermining of the separation of powers and autonomy of independent statutory officers are not just casual gripes. They matter.

The integrity of our legal system requires far more from our elected representatives.

By Tony Kenyon
03 8657 8888