Nicola Roxon, 2012. © Julian Kingma
Australia’s Attorney-General wants a fair go for all. Will she get one herself?
The last thing Nicola Roxon expected when she agreed to address the Commonwealth Regional Law conference on 20 April was a confrontation with Julian Assange’s lawyer. But Jennifer Robinson had arrived in Sydney that morning after initially being denied permission to board her plane at Heathrow for apparently being on an “inhibited” travel list. The svelte young woman, dressed in a purple shift dress, headed straight for the convention centre at Darling Harbour where the new Attorney-General was talking about terrorism. Outside, Assange supporters were staging a small demonstration, in support of the WikiLeaks founder’s claims that the government was doing nothing to prevent his extradition to the United States. Their posters alleged Roxon was lying about her dealings with the Americans.
It could have been a formidable clash but Robinson didn’t wait for the microphone to ask her question. By the time she could be heard, demanding that Assange be given the same consideration by the government as David Hicks and Mamdouh Habib had been, and asking whether Roxon would enquire “more proactively of the US government about their intentions to prosecute Julian”, Australia’s first law officer had regained the initiative.
Dressed in a grey pants-suit with a long jacket, Roxon stared calmly at Robinson from the podium: “We certainly will be continuing representations, particularly to the US government.” She agreed there were concerns “that there might be action being taken that would not be consistent with approaches that we would take here in Australia”. And that was that. There was no murmur of disapproval in the room of lawyers.
Outside, though, it was a different story. Rather than asking about her speech, the media pressed her on what role the government might have had in preventing Assange’s lawyer from coming to Sydney. Only later did it emerge that the airline had acted on instructions from British security. Roxon had had nothing to do with it. Once again, a senior Gillard minister had been unable to tell Australia, via the television cameras, how it was governing.
In February, Nicola Roxon intervened emphatically in the ALP leadership contest between Julia Gillard and Kevin Rudd, declaring that her fellow caucus members needed to “get out of this idea that Kevin is a messiah who will deliver an election back to us. That is just, I think, fanciful.” She detailed Rudd’s chaotic approach to Commonwealth–state relations in the health area, and announced firmly that if Rudd were to return as leader, she would not serve under him.
Roxon was appointed as the country’s first female Attorney-General only last December, having spent four years running the $60 billion Health Department, and she has wasted no time in embarking on a comprehensive agenda of reform. In her first speech in the new role, to the Victorian Bar Council, she joked she’d already been asked to do everything from abolishing ASIO to posthumously pardoning Harry ‘Breaker’ Morant, before going on to outline her plans for a fairer legal system that is accessible to all. Her new role has also given her high-profile responsibilities, such as taking on Big Tobacco in the High Court over the plain packaging laws that she successfully steered through Parliament as Health Minister.
Many observers regard Roxon’s legal pedigree as nonpareil. “She is much better intellectually equipped than [her predecessor, Robert] McLelland,” says Richard Ackland, editor of the legal newsletter, Justinian. “She would be head and shoulders above all recent attorneys – and she’s not embedded in that Bar culture of letting the ancien régime roll on.” Roxon is the only attorney-general to have served as an associate to a High Court judge. She worked for Mary Gaudron, Australia’s first female justice of the High Court, for two years from 1992. “Mary insisted on very high standards of academic excellence in her associates,” says Michael Kirby, Gaudron’s former High Court colleague. Like another Labor attorney-general, Gareth Evans, Roxon won the Supreme Court Prize for topping her year at Melbourne University Law School in 1990. One of her teachers, Ted Wright, now the dean of law at the University of Newcastle, remembers giving her an unprecedented perfect score for an assignment on statutory interpretation. “When she became Attorney-General, I patted myself on the back,” he tells me.
Roxon places herself firmly in the reformist tradition of Labor attorneys-general like HV ‘Doc’ Evatt, Lionel Murphy, Gareth Evans and Michael Lavarch. “The social framework of my whole adult life was shaped by Labor’s agenda,” she said in her maiden speech in 1998 when, at the age of 31, she was elected to represent the working-class electorate of Gellibrand in Melbourne’s inner west. Like former US President Bill Clinton, who wrote in the New York Times in May about his debt to another president, Lyndon Baines Johnson, Roxon is of the political persuasion that “believed government had an essential part to play in expanding civil rights and reducing poverty and inequality”. It’s why she joined the Labor Party, she says.
Roxon is an unusual surname, with just four to be found in Australian phone books. It was invented by Nicola’s aunt in 1940 after the refugee family arrived in Australia and decided they needed to sound more Australian. Roxon’s grandparents, Izydor Ropschitz and his wife Rosa, had led a sophisticated European life after leaving their home city of Lvov, Poland, for Padua, Italy. In 1926, after Izydor had graduated from the world’s oldest medical school, the couple settled in Alassio, on the Italian coast, where the last two of their three children were born. Then came Kristallnacht, and the family was ordered out of Mussolini’s Italy. They eventually found their way to Australia and settled in Brisbane, as Queensland was the only state willing to recognise Ropschitz’s medical qualifications.
It was a bit of a shock, recounts Nicola Roxon. “They were well-educated, urban, socialist Jews who’d spent the last bit of time in the Riviera in Italy.” Although her grandmother never adjusted, the rest of the family, including her then two-year-old father Jacob, renamed Jack, embraced their new home. But in wartime Queensland the family name was a problem. As journalist Robert Milliken tells the story, during a beach outing eight-year-old Lillian suggested, upon seeing a rocky outcrop, merging the word ‘rocks’ with their existing name. Within months the family’s name was formally changed by deed poll and by the 1960s Lillian Roxon, a journalist, had become “the unchallenged queen of the New York rock scene”, as Rolling Stone magazine put it. She was the “Dorothy Parker of Max’s Kansas City”, the nightclub favoured by Lou Reed and Andy Warhol, and where Debbie Harry worked as a waitress. Milliken’s biography of her, Mother of Rock, recounts how Roxon promoted David Bowie and identified a then-unknown Bette Middler. Her massive compilation, Lillian Roxon’s Rock Encyclopedia (1969), became an instant classic. In August 1973, Lillian Roxon died, alone in her apartment, of an asthma attack. She was just 41. Her brother Jack, Nicola’s father, flew to New York to take care of the arrangements.
Although Nicola was only six when she last saw Lillian, her memory is vivid: “She sat down and said, ‘You must write me more letters, so let’s decorate all these envelopes’, and she did these amazing, beautiful decorations and just left a patch where I could write the address.”
When Nicola left school, she thought she’d become a journalist, like Lillian: “I did law because I thought it would give me something extra in my journalism. Then in the middle of it I decided that I really liked law.” Nicola also inherited Lillian’s fervent feminism. Lillian both covered and joined the emerging women’s movement, as well as encouraging one of its early stars. “I don’t think I’d ever have written a song if it weren’t for Lillian,” Helen Reddy, who gave the world ‘I Am Woman’, told Robert Milliken. Nicola Roxon remembers Reddy coming to Milliken’s Sydney book launch in 2002 and how “chuffed” the Roxon women – Nicola, her mother Lesley, her two sisters and their children, all of whom are girls – were to meet her. A few years later, the Roxon women watched a documentary film on Lillian’s life. By then some of the children were teenagers and, says Nicola, “were absolutely gobsmacked that anyone so interesting could be part of our family”.
I meet Nicola Roxon on a blustery autumn day, in the modest set of rooms that make up her ministerial offices in a newish two-storey glass building in an industrial estate in the heart of her electorate. Framed letters from schoolkids whom she visited some years back adorn the walls of one of the offices. “Those chairs are a bit dodgy,” Roxon cautions me as I sit down at her conference table. “The head of ASIO fell off one of them last week.” Over the next hour she talks about her plans for the job. When we finish to make way for the photo shoot, she expresses dismay that we have not gone through all of the issues. She wanted to tell me, for instance, about her work with Defence Minister Stephen Smith on reforms to the Australian Defence Force. “It’s important to have a woman involved,” she says.
Nicola Roxon is a young-looking 45, with a direct, down-to-earth manner and an intellectual curiosity that can scarcely contain itself. Unlike many lawyers, she can convey complex legal notions in simple language. She can speak engagingly on any number of subjects, one minute describing how her seven-year-old daughter can’t understand why all kids aren’t flower girls at their parents’ weddings, as when Roxon married Michael Kerrisk, the next explaining the composition of Australia’s first-ever Military Court. (Defence boffins will be disappointed that she will situate it within the Federal Court and appoint a judge with military experience – “in the same way that we appoint the human rights commissioner” – rather than letting the military run it themselves.)
In addition to changes she has announced in speeches, Roxon tells me about other work in progress. For instance, she needs to assess whether there is sufficient enthusiasm among indigenous Australians for the referendum recognising indigenous people in the Constitution to proceed as promised before the next election, following a $10 million consultation with communities around the country. With Stephen Conroy, the Communications Minister, she needs to consider how to respond to the recommendations in the Finkelstein Report and the Convergence Review, along with the proposed privacy tort, on media regulation. She’s also looking at revoking the Howard government decision to outsource much government legal advice: “It looks to me as if the theory for doing it, which was to save money, has had totally the opposite effect.” (It currently costs $600 million a year.) And, as someone who, 20 years ago, was an associate to one of the High Court judges who supported the historic Mabo decision, she will bring the Native Title Tribunal back into the Federal Court system to “speed up settling the claims” which, it’s projected, will still take 20 years.
Her work is a mixture of new and old. There are inherited items from Robert McClelland, such as the amendments to the Family Law Act that will give greater priority to children’s safety when granting access to non-custodial parents. Others, like her establishment of a children’s commissioner, she developed as a shadow minister under Simon Crean’s leadership. And then there’s gay marriage. Roxon surprised a lot of people when she stated recently that she would vote for the private member’s bill when it comes before Parliament. Previously, as shadow attorney-general, she earned the opprobrium of gay groups for her opposition. She says a greater priority then was to remove discrimination against same-sex couples from all legislation, 84 different laws in all, and now that has been done (by McClelland) and Prime Minister Julia Gillard has given caucus a conscience vote on the matter, she is freed up. “I argued my view within the party, but I always supported the party’s position,” she says. “I’ve always been a team player”.
Unlike Michael Lavarch, the attorney-general from 1993 to 1996 in the Keating government, who spent a good third of his time on business regulation (a function now transferred to Treasury), Roxon says she spends “easily half my time on national security and emergency management”. She is in charge of ASIO, a fact that would no doubt have amused her grandfather, Izydor Ropschitz, who was not able to practise medicine until the Commonwealth Investigation Branch gave him a security clearance.
The CIB was the forerunner to ASIO, Australia’s domestic national security and counterespionage agency, established in 1949. Since 11 September 2001, the national security responsibilities of the attorney-general have expanded vastly. The Howard government went into what the University of New South Wales Law School’s Professor Andrew Lynch has described as “a legislative frenzy”, bringing in scores of bills designed to assure the nation that it was in safe hands. Lynch’s colleague, Professor George Williams, has calculated that between 2001 and 2007, when the Howard government lost office, a new anti-terror statute was passed every six and a half weeks. Mostly they attracted bipartisan support but Roxon, who for much of that time was shadow attorney-general before Kevin Rudd put her in charge of health, used to complain about the way debate was stifled. Lynch notes that, as Attorney-General, she is preparing legislation in “a consultative and considered way”, thereby effectively de-politicising it.
Nicola Roxon has to authorise between 10 and 15 warrants for intelligence collection every week. According to ASIO’s 2011 annual report, the number of counterterrorism investigations and inquiries has grown “from just over 100 in 2005 to almost 300 in 2011”. The ASIO Act sets out the criteria for applying for warrants to permit the organisation to, among other things, employ listening or tracking devices, access computers remotely, enter and search premises or, in the case of counterterrorism, question and detain people.
“I take the warrant process very seriously,” she says. “That all gets done by me, not by staff, so every week I go over every intercept.” At one point she questioned the need for a particular intercept. “The person who was there just could not explain it, so I said, ‘I am not going to sign it now, but can you get me this information?’” Roxon says she was told that this has never been done before.
“Of course it has,” she says, “but in their corporate memory obviously it hasn’t.” We discuss an earlier example from January 1973, around the time Lillian Roxon was drawing flowers on envelopes with her niece, when Gough Whitlam’s attorney-general, Senator Lionel Murphy, was presented with nine intercept requests. Although he agreed to tapping the phones of the USSR embassy and the Yugoslav consul among others, he declined to authorise four requests, including for intercepts of the Australian communist and socialist parties, and of a person whom ASIO described as a “Trotskyist revolutionary”. Murphy requested “further substantiation … to demonstrate the relationship between the target, subscriber and the interests of national security”. ASIO was not accustomed to being challenged in this fashion and documented its anger in files now publicly available. But Roxon hastens to assure me that current ASIO officials “are very professional and most of the things are extremely clear”.
Michael Kirby has described the Attorney-General’s Department during what he referred to as “a golden age of law reform” in the 1970s and 1980s as “magnificent, informed, devoted and energetic”. Today it is a “very dozy department”, according to Richard Ackland, the Justinian editor. A reforming attorney-general needs good backup and it is said that Roxon is not always getting it. Following the revelation that a key 2009 family law amendment dealing with de facto maintenance and property orders was never lawfully proclaimed, she brought in John Cain, a former Victorian Government Solicitor now back at Roxon’s old firm, Maurice Blackburn, to conduct an audit of the department’s processes.
The department is “full of technically really bright people”, says their boss. It’s just that they are not used to being innovative. “When I ask them to do something in a particular way, they produce a wonderful proposal, but they won’t instigate it.” The department is starting to learn that this Attorney-General likes to be involved – as she was in preparing the plain cigarette packaging case for the High Court. “I really wanted people to understand that we were going to be up against a different beast in litigation … the tobacco companies had heaps of money,” she says. “Their people were working all weekend, so we needed to make sure we were doing that too.” In the end, she says, “I think our team did an absolutely fantastic job in the High Court.”
On 17 April, the day the High Court began hearing arguments by the tobacco companies challenging the government’s plain packaging legislation, Nicola Roxon was photographed holding examples of what cigarette packets would look like if the law were upheld. She was grilled by the media as to whether this was an appropriate action on the part of the nation’s first law officer and, in particular, whether this law might lead to others forcing, for instance, McDonald’s to remove their golden arches or to have alcohol sold in plain bottles. Her response was typically forthright: “Tobacco is the only legal product sold in Australia which, if used as intended, will kill you.”
It was a heartfelt rejoinder. Roxon’s father died from oesophageal cancer when she was 10. He had been a smoker. But there were other motivating factors. She was keen to make the world a healthier place for children, and to continue the work of previous ministers who over the years had banned tobacco advertising and imposed large warnings on cigarette packets. And she was angry about the bullying tactics of the tobacco companies. She still is. She tells me that there are currently nearly 50 Freedom of Information requests across government departments from tobacco companies, which she describes as “a rolled-gold example” of how the well-heeled can abuse processes that ordinary people do not have the resources or know-how to use. “It’s not being used for their cause, it’s being used to try to tie up a lot of people,” she says.
Last November, Nicola Roxon, with Opposition support, implemented what previous ministers had been advised was legally impossible: laws to prevent tobacco companies from using their trademarks on their packaging. Having sought a fresh external legal opinion, Roxon and her advisers were confident that the new legal framework provided by Australia signing on to the World Health Organisation’s Framework Convention on Tobacco Control would give them cover. The High Court will soon decide if this confidence is well founded.
Roxon believes that she is here to make a difference. The legal community is one of the most inherently conservative elements of Australian society and she fully expects to have “difficulties” with some lawyers’ groups, just as she was often at loggerheads with doctors’ groups in her previous role. So far, though, the reception has been polite. “The experience of the [Australian Bar] Association has been that the Attorney has been interested, engaged and well across issues in the portfolio,” says its president, Craig Colvin SC. “She is clear thinking and an open and direct communicator.”
If the Parliament runs its full term under Julia Gillard, Roxon will have around 15 months in which to transform the Federal Court system, codify contract law, review digital copyright laws, oversee two referenda, criminalise forced marriages, tighten laws on sex trafficking, review the $1.3 billion legal aid system and modernise security laws – to mention just some of the items on her docket. As well, she may have to cope with some difficult High Court decisions, such as the so-called ‘chaplains case’ – one father’s legal challenge over the federally funded program that has placed 2700 chaplains in schools nationwide – which, as Professor George Williams points out, goes to the heart of executive power and what government can spend money on.
Part of her legacy will be the two appointments she makes to the High Court, when Justices William Gummow and Dyson Haydon retire. Appointments are purely at the discretion of the Attorney-General and she has already engendered excitement by stating that she intends to broaden the selection criteria. More than 50% of all High Court appointments so far have been Sydney barristers, says Andrew Lynch, and all but two of them male. The current seven-member court has three women but there has never been an academic appointed, or anyone from South Australia or Tasmania. “We haven’t done especially well in cultural background, or in professional background,” Roxon tells me. “I just want us to rattle the cage a little and to see what else is around.”
Another significant legacy is likely to be the consolidation of all federal anti-discrimination laws (race, age, sex and disability). At her first meeting with the Human Rights Commission, she told the commissioners, “I am here to do things, I am not here to review things.” At present each of the four federal anti-discrimination laws prescribes different definitions, standards and exemptions; at the same time some groups, such as GLBTI people (gay, lesbian, bisexual, transgender or intersex), are accorded protections under state laws but are ignored by federal statutes. The Human Rights Commission has argued for “a unified test for discrimination incorporating best practice versions of current tests for direct and indirect discrimination”. Roxon seems inclined to agree, telling me her philosophy is to “lift it all to the highest common denominator”, to enable people to make complaints more easily while at the same time to “protect people better and actually give business a simpler outcome”.
She is expected to move fast on this one, with a bill ready for the autumn session of Parliament next year. Roxon describes it as “a really exciting piece of work [that] will require all my political skills”. It is not just that business is antsy about discrimination laws, or that she’s expected to expand their coverage, but she is also readying herself to take on the churches over their exemptions in several pieces of legislation.
Asked for an example where resistance from the churches is likely, she says the issue of access for gay people “came out very strongly in our aged-care consultations … You’ve got openly gay people starting to go into aged care and you’ve got 70 to 80% of aged care run by religious organisations.” These are “delicate issues”, she cautions, adding the government is not yet ready to announce its direction.
“It will take a fair bit of fighting and exceptional political skill, but if she can pull it off, this will be very significant,” says Michael Lavarch, who thinks reformed discrimination laws, together with racial hatred and privacy laws, could enable Australia to bypass the divisive debate about a bill of rights and yet provide much the same outcome in providing protections for Australians. He also believes Roxon is fully capable of achieving it. “She’s got both a good mind and good instincts and values. I admire her and as much as I had a lot of time for Robert McClelland, there’s a bit of steel in Nicola.”
Roxon is not religious, and her parents were non-practising – Jewish in her father’s case, Anglican in her mother’s. But she was taught to be very aware of the history of her father’s family. There may or may not be a connection between how she legislates and that history: her grandfather was prevented from studying medicine in Poland because he was a Jew; her grandfather’s parents and three of his sisters died in the Holocaust; just 3% of Lvov’s 100,000 Jews survived the war. Clearly, she understands the freedoms and opportunities Australia offered to her refugee forebears. In her maiden speech in 1998, she recalled that her parents had taught her at a young age “about fairness and decency, generosity, having a go and helping others” and that, after her father died, “My mother taught me about independence and integrity.” It’s all part of who Nicola Roxon is, and of what she brings to the job as Attorney-General.