ABC Radio National – Law Report

Subjects: Roe V Wade; National Anti-Corruption Commission; Commonwealth Privacy Act; Whistleblower Protections; Bernard Collaery; Julian Assange; Media Freedom; Freedom of Information; Australian Human Rights Commission; Judicial Appointments; Administrative Appeals Tribunal; Staffing Allocation.

KRISTINA KUKOLJA: Mark Dreyfus, congratulations on your election and return to the role of Federal Attorney-General.

MARK DREYFUS, ATTORNEY-GENERAL: Thanks very much, Kristina. Good to be here.

KUKOLJA: We’ll be speaking today about your vision for the next three years and the Labor Government’s legislative agenda. But we can’t ignore the big news out of the United States over the last few days, the Supreme Court’s ruling to overturn the Roe versus Wade decision. What do you think of that judgment?

DREYFUS: I think it’s a very distressing decision. It’s law that’s remained in place since 1970 and I think we can feel very fortunate in Australia that abortion has, decades ago, stopped being a matter of public debate. I can hear the distress from very many Americans about what has happened here with this decision. It’s a backward step for women’s rights to control their own bodies.

KUKOLJA: Do you think it may embolden the still active anti-abortion movement in Australia?

DREYFUS: I think that the anti-abortion movement in Australia has been for a long time very derivative of the politics of the United States and I do expect that there will be some resurgence of effort, based on this United States Supreme Court decision. It’s really important that people bear that in mind. This is a decision of the United States Supreme Court, based on provisions of the United States Constitution, it’s got very little to do with law or politics here in Australia.

KUKOLJA: In recent remarks, on the [email protected] report, you pointed out that Australia has neither an entrenched Bill of Rights nor even a legislated Charter of Rights. Would you like to see reproductive rights as one of the issues covered by a Bill of Rights or, if that wasn’t possible, by a legislated Charter of Rights?

DREYFUS: We’ve arrived at our own settings here in Australia. And those are settings which see women’s right to control their own reproduction, women’s rights to control their own bodies, the subject of appropriate legislative arrangements here in Australia, and I’m not sure that we need to include reproductive rights as part of any Charter of Rights if we ever indeed get to that in Australia.

KUKOLJA: Let’s now look ahead to the next three years. One of the Labor Party’s central election promises, and one that is at the heart of your legislative agenda, is the creation of the federal anti-corruption commission. And you’ve set a tentative timeline for the legislation, with a view to have the body up and running by mid next year. What will, for you, be a measure of its success, of its impact?

DREYFUS: A measure of its success will be if there is restored confidence in our system of government. We need people to feel that there is integrity at the heart of government in Australia. We need people to have confidence that the rule of law is being respected. That if they see something wrong happening that they can complain about it. That if they complain about it that it will be investigated and that action will happen. So, it’s a very broad measure of course, Kristina, to say I want to restore confidence in our system of government, but we need to have it up and running. We’ve seen the good work that’s been done by anti-corruption commissions in every state and territory. We’ve had an anti-corruption commission in every state and territory, in some jurisdictions, for more than three decades. We’ve seen the good work that they do. We need to have that same good work being done at the federal level.

KUKOLJA: One of the most significant reforms facing Australia is the review of the Commonwealth Privacy Act, and it’s the wide ranging legislation that governs how our personal information is used. It predates the Internet, it’s out of step with the digital age. You’ve inherited the review of the Act, some two years into the process, and public submissions closed six months ago, how soon could that report be handed to government and made public?

DREYFUS: I’m hoping with, as with so many are so many other areas, that the work that’s been done by the Attorney-General’s Department, but not progressed by the former government, can in fact be progressed. As you said in your question then, this is an area of the law which just has not kept pace with the changes in the digital world. Again, when last in government, I brought to the Parliament data breach notification laws. They passed the House of Representatives – I’ve got a very sharp memory of them in the first part of 2013 – and it took the incoming government nearly three years to bring those reforms back to the Parliament and pass them through both houses and that was a pretty straightforward data breach notification set of requirements. There’s a whole range of much more sweeping reforms that are needed to our Privacy Act. I am hoping to bring that final report of reform proposals into the public and having a proper debate in coming months.

KUKOLJA: The Office of the Information Commissioner recommended numerous changes to the Act in its submission to the government discussion paper. What do you consider to be the greatest dangers to privacy and personal information?

DREYFUS: I think that the greatest dangers are people losing control of their own information. That personal information is being used in ways which is invasive, in ways in which people have not consented to the use of their information. So, giving individuals greater control over their own information, making it possible for people to make really informed choices about the way in which information about them is being used. That’s the most important aspect.

KUKOLJA: You’ve said that whistleblower protections are one of the areas you would be working on from day one in office. Have you in fact began working on it.

DREYFUS: I have, and indeed one of the briefings that I’ve obtained earliest from the Department, because it’s something that I’ve got a little bit of a personal stake in. I brought the Public Interest Disclosure Act, that’s Australia’s whistleblower protection scheme, to the Parliament in May of 2013. When it did pass the Parliament I was conscious that we legislated in something of a rush, I provided for a statutory review of the Public Interest Disclosure Act. That review did take place, it was conducted by Philip Moss, a very experienced Australian public servant. Mr Moss reported to the government at the end of 2016 and recommended that there be a substantial number of changes to Australia’s whistleblower protection scheme. Nothing happened. And the Department has in fact been working on implementing those recommendations of Philip Moss’ review. I’m looking forward in coming months to bringing to the Parliament the necessary changes to the Public Interest Disclosure Act, and it’s a significant matter because it’s linked to the National Anti-Corruption Commission that we hope to legislate later this year.

KUKOLJA: So what will be some of the changes, the priority changes that you would want to make, you would want to see happen first?

DREYFUS: Primarily, Mr Moss was concerned that whistleblower protection had got too closely involved with workplace complaint mechanisms. And his recommendations go to the sorting out of, or separating of, workplace complaint mechanisms from actual allegations of wrongdoing. Very often, he says, and we’ve seen this repeatedly, people who are unhappy in their workplaces now have started to use whistleblower protection mechanisms rather than workplace complaint mechanisms. So it’s sorting out that distinction. That’s an important one, making the rules clearer as to how you can complain, making sure that it is clear who you should complain to and what protections are available. That’s a very important part of the reforms as well.

KUKOLJA: It’s inevitable, of course, that we come to the case of Bernard Collaery, the lawyer who faces trial in the ACT Supreme Court over his alleged involvement in revealing an Australian intelligence operation against Timor Leste during oil and gas negotiations two decades ago. Have you made a decision?

DREYFUS: I’m not going to tell you whether I’ve made a decision. I am going to tell you that in the weeks since I was sworn in on the first of June I have received briefings from the Department and am very seriously considering the future of that prosecution of Bernard Collaery.

KUKOLJA: Have you been in contact since becoming Attorney-General with the Director of Public Prosecutions or other officials in that department regarding this case?

DREYFUS: I have been receiving the briefings that I have sought about the prosecution of Bernard Collaery.

KUKOLJA: Former military lawyer David McBride and Richard Boyle, a former employee of the Tax Office, are also being prosecuted for working with journalists to disclose classified information. Will you be reviewing their cases as you did with Mr. Collaery?

DREYFUS: I’ve sought briefings on a range of current cases that are involving the Commonwealth and I’m not going to disclose which of those cases I’m getting briefings about. I will say I’ve sought briefings about Mr. Collaery’s case, obviously. But I think it’s important that people bear in mind that all governments need to protect secrecy. The settings that are in place for protecting government secrets are important to democracies, just as they are important to any government. And one of the things that I’ve talked often about over the time that I’ve been in Opposition is the need to make sure that our secrecy laws have appropriate settings. That goes to questions of media freedom, it goes to questions of whistleblower protection. It goes to questions of the balance of openness in government, where the public interest lies. These are not simple questions. It’s really important that it be understood that there is a system of secrecy. There’s also a system of open government in the form of the Freedom of Information Act. There’s also a system in which we should be seeking to protect journalist freedoms. Now, those are a complex interplay of rights and responsibilities. Let’s hope that, going forward, we can have a mature debate about those things.

KUKOLJA: And I want to get to exactly the conversation about that balance, but we have to mention Julian Assange’s case, and his appeal is expected to continue in the UK courts. One of his advisors, Greg Barns, says that his case should personally trouble you in terms of the extraterritorial reach of laws. And in a recent opinion piece, Greg Barns argued, “to seek to extend the reach of domestic laws to those who have no legal connection to it by way of citizenship, residence or other ties to the jurisdiction, is anathema to the rule of law”. What do you think of that viewpoint?

DREYFUS: The United States has long legislated in an extraterritorial way and I think that all other countries have understood that for a long time. What we have in the case of Julian Assange is an Australian citizen, who is presently held in a British jail, who is subject to an extradition request made by the United States of America, which has an extradition treaty with the United Kingdom. It is not open to the Australian Government to directly interfere with either the jailing of Mr Assange in the United Kingdom, or the extradition request that’s been made by the United States to the United Kingdom. What is available to an Australian Government, and the Prime Minister has made this very clear, and I’ve said this as well, we think that the case of Julian Assange has gone on for far too long. What is available to the Australian Government is making diplomatic representations. But as the Prime Minister has said, those diplomatic representations are best done in private.

KUKOLJA: The government has said that it would like to see this matter brought to an end but hasn’t exactly said how it would prefer to see it come to an end. Do you have a view on how this case should be resolved?

DREYFUS: I’d say again, these representations are best made in private, and it’s about what we can put to the United States Government, which is the moving party here.

KUKOLJA: So that’s the priority? To see potentially, that the charges dropped in the United States?

DREYFUS: I’m not going to canvass what will be the resolution of this case, which has gone on for far too long, other than to say that we are taking such steps as are available.

KUKOLJA: In Opposition, you were critical of what you saw as the failures of past governments to legislate protections for journalists, especially after the Federal Police raids on journalists in 2019, including journalists from this organisation. Where do you see the deficiencies and protections for journalists in Australia?

DREYFUS: We’ve made it very clear that journalists should not be prosecuted for doing their jobs in a responsible way. We think that the role of journalism in our democracy is a very, very important one. It’s almost the lifeblood of our political debate. Without good journalism, without responsible journalism, it’s very difficult for there to be informed citizens, it’s very difficult for people to get the information that they need to have informed debate. So we think that journalism, responsible journalism, needs to be protected.

KUKOLJA: Does that involve new legislation?

DREYFUS: Yes. The former government, in response to the outrage that was the result of a raid being conducted on the home of a journalist, Annika Smethurst, and the result of raids being conducted on the offices of this very broadcaster, the Australian Broadcasting Corporation, commissioned inquiries. I participated in those inquiries. One of them was an inquiry conducted by the Parliamentary Joint Committee on Intelligence and Security of which I was a member and the other was a Senate committee, chaired by Senator Hanson-Young. The government responded to the reports of both of those inquiries by saying that it would legislate to better protect the rights of journalists and – it’s a familiar theme in this interview – nothing happened. Time and again we saw from the former government the commissioning of reports, a government response to reports which said that they were going to act on the recommendations and then nothing has happened. There is a need to put into our secrecy laws better protections for Australian journalists. There’s checks and balances that can be put in place to make sure that the rights of journalists are considered when warrants are being issued, to make sure that the rights of journalists are better protected from government action.

KUKOLJA: One of the most important tools in the pursuit of government transparency for journalists and others is the Freedom of Information Act. Recent years have seen a consistent rise in the number of government documents refused for release and delays to accessing documents, as well as heavy redactions. Do you see that as a problem or something that you intend to address?

DREYFUS: I’m not sure that we need to amend the Freedom of Information Act. There were very large reforms made to the Freedom of Information Act by the former government in 2010 when Senator John Faulkner was the responsible minister. I helped with the drafting of some of those reforms. I think what needs to happen is that there needs to be a different approach and, if you like, an implementation of the existing provisions of the Freedom of Information Act. They start with a direction to government to make information as widely available as possible. That’s actually what’s written into the Freedom of Information Act. And you need to have governments paying attention to decisions made by the Information Commissioner. When the Information Commissioner makes a ruling rather than appealing that ruling off to the Administrative Appeals Tribunal or the Federal Court, a more appropriate response from government would be to simply accept the ruling because she has very often looked very hard at where the appropriate balance is struck. We saw that writ large with the refusal of the former government to pay attention to a decision of the Administrative Appeals Tribunal on the papers of the meetings of First Ministers, which the former government chose to describe as covered by the provisions of the Freedom Information Act that applied to the Federal Cabinet. Justice Richard White, in the Administrative Appeals Tribunal, said that those provisions of the Freedom of Information Act do not apply to meetings of First Minister, because the provisions of the Freedom of Information Act that are there for federal cabinet are for the cabinet, of which I am now the Cabinet Secretary and sitting as a minister in. I think it’s really important that when you have a decision made by a court, by a federal court judge, by the Administrative Appeals Tribunal, rather than ignoring the decision it’s incumbent on governments to pay attention to those decisions and apply them. And what I’d be looking for in the Freedom of Information area is a change of attitude. By governments a change of attitude, by departments – that rather than looking to how little information can be given out, how to maximise the amount of government information that is made available to the public.

KUKOLJA: Let me ask you, then, in Opposition, the Prime Minister Anthony Albanese was critical of the Morrison Government’s decision to keep national cabinet documents secret as were you. Will the Labor Government grant public access to those documents, which as an example would be critical for understanding government decision making during the COVID 19 pandemic?

DREYFUS: There’s a convention that applies to the cabinet papers of former governments, which is that they remain the cabinet papers of former governments and not available for public distribution. And by and large observing that convention, we will continue to apply whatever settings the former government had in place. But going forward, very much, it’s our view that the meetings of First Ministers are ones that, if there is a need to provide protection from Freedom of Information applications, then the exemptions in the Freedom of Information Act that have been there since the first enactment of Freedom of Information in Australia in 1982, which protect Commonwealth-state relations that those exemptions are the ones which should be relied on. What we don’t want to see is the creation of unnecessary secrecy. What we don’t want to see is reliance on an exemption that applies to the meetings of Federal Cabinet incorrectly applied to meetings between First Ministers of the states, territories and the Commonwealth.

KUKOLJA: Attorney-General, you’ve inherited a matter that I imagine comes with some degree of urgency. The Australian Human Rights Commission has been given until October next year to address concerns raised in a review by the global body that accredits human rights institutions or it risks losing its international A-status ranking. Can that be prevented?

DREYFUS: I very much hope so. This was a shocking outcome, a threatened downgrading of Australia’s National Human Rights Commission. That a country like ours, a developed country, which is proud of its human rights record should have the accreditation of our national human rights body threatened with downgrading to B-status. It shocked me and I propose to do something about it. The particular focus of the threatened downgrading was a failure on the part of the former government to use merits-based, transparent, appointments processes for the commissioners. There is a ready answer available to us as the new government which is to reinstate transparent, merits-based, appointments processes and that’s what we propose to do. I’m now setting in-train arrangements to bring back, for all future appointments of the Human Rights Commission, that’s all of the commissioners, who are statutory appointments under the Human Rights Commission Act, a merits-based process.

KUKOLJA: But is there enough time to take the necessary action before it is reviewed again, towards the end of next year?

DREYFUS: Yes, there is and it’s a matter of urgency to me that that threat of downgrading our national human rights institution be removed.

KUKOLJA: It’s been reported that you’re consulting widely about the future court and tribunal appointments, including for the replacement of the High Court Justice Patrick Keane, who retires later this year. Who are you consulting with? Who are you talking to?

DREYFUS: We are consulting, not merely as I’m required to do by statute with the states, but I’ve written to all of the heads of jurisdictions I’ve written to academics. I’ve written to law societies. I’m consulting about as widely as I can with people right across Australia, who I think should have a say, in who should be appointed to the highest court in our country.

KUKOLJA: Why have you decided to consult so widely, beyond what is required of you by the law?

DREYFUS: Because I think that it goes with being a democratic country that we’re prepared to listen to each other. It should go with being a consultative government that we’re prepared to listen to other voices. And the idea that it should just be some whispering system where those who know, those who are in power, get to say who should be appointed – I don’t subscribe to that. I think that we should be a mature and open democracy, in which we seek the advice of others.

KUKOLJA: Now you’re expanding the number of people who are going to be involved in the consultation and appointment process. If I understand correctly, it’s been reported that you’re going to establish a number of special panels. How are you going to appoint? How will members to these panels be appointed? Where will they come from?

DREYFUS: We want to return to a transparent and merit-based appointment system for those courts and for the Administrative Appeals Tribunal. Part of that will be calling for expressions of interest. And part of it will be having panels, usually consisting of the head of jurisdiction, the retired judge or tribunal member from that jurisdiction, and usually a senior officer of the Attorney-General’s Department probably at deputy secretary level. They will sift through the expressions of interest, they will conduct interviews, and make recommendations to me that I will be able to take forward to cabinet for appointment. So there you have a transparent system that people can understand. That there is a system, again, not on a whisper basis, not on disgracefully, as we saw from the former government, where, particularly for the Administrative Appeals Tribunal, they appointed some 90 former Liberal members, failed Liberal candidates, former Liberal staffers, to the Administrative Appeals Tribunal, that is no way to proceed. I’m looking forward to reintroducing that system, which I think is going to improve judicial appointments in this country. I think it’s likely to lead to a more reflective judiciary, one where people can look at the judiciary and see in it the Australian community reflected. Similarly, for the Administrative Appeals Tribunal, we need to see merits-based appointments that will serve Australia better.

KUKOLJA: Do you intend to reverse any of the appointments to the Administrative Appeals Tribunal that there have been made by the Coalition Government?

DREYFUS: I am going to be fully reviewing the operations of the Administrative Appeals Tribunal to make sure that it is fit for purpose, to make sure that it is working at the optimum level. It’s a very, very important part of Australian government that you’ve got the right to merits review of government-decision making. It affects hundreds of thousands of Australians every year. This is not just people who are seeking review of migration decisions, it’s people who are seeking review of disability decisions, people who are seeking review of social security decisions, people who are seeking review of all manner of government decision-making. They deserve to know that the very best people have been selected to sit on those merit-based review processes and, at the moment, you cannot have that confidence in the Administrative Appeals Tribunal.

KUKOLJA: Are you prepared to allocate more funding to the tribunal to help resolve the caseload including the migration caseload, which now runs into the tens of thousands?

DREYFUS: There is a huge backlog of migration cases, there’s also a growing backlog of disability cases. One of the characteristics of the Administrative Appeals Tribunal is that, because it is an executive tribunal which is engaged in merits review of government decision-making, it’s a bit different to the courts where it’s not so easy to control the flow of work to the courts. In the case of the tribunal, changes in government decision-making can have a very substantial impact on the backlog of those cases. So one of the things that Mr Shorten, the new Minister for Disability, has made clear is that he’s going to be looking very hard at the decision making within the National Disability Insurance Agency. So too, has the new Minister for Immigration, Mr Giles, made it clear that he’s going to be looking hard at the decisions that are being made under the Migration Act. And they may have quite a major impact on the backlog in cases in the Administrative Appeals Tribunal. I’m looking forward to working with those two ministers.

KUKOLJA: Are you prepared to potentially allocate more funding to the tribunal?

DREYFUS: I’m engaged right now in a very serious review of the way in which the Administrative Appeals Tribunal is serving Australians – whether or not there are sufficient members, the settings for decision making the reasons why there are such big backlogs in particular areas of the decision making in the tribunal. Part of that, of course, will be whether or not the tribunal’s got sufficient resources.

KUKOLJA: Attorney-General, as our conversation draws to an end, I want to ask you, two Senate crossbenchers were quoted over the weekend as threatening to vote against government legislation because of a decision to dramatically cut the numbers of their advisors from four to one. Does it worry you that it may make it more difficult to get legislation through the parliament and stall the government’s legislative agenda?

DREYFUS: I think it’s always been difficult to be a member of parliament. It’s a hard job. The Prime Minister has announced that previous staffing arrangements where crossbench members of parliament had eight staff have to be cut to five. I’m hoping that that will not be used as an excuse by crossbenchers to disrupt the government’s legislative program. Obviously, they will still have five staff. And they of course will be working hard on all legislation that comes to the parliament. I’m looking forward to working with them.

KUKOLJA: Attorney-General, Mark Dreyfus, thank you for speaking to the Law Report.

DREYFUS: Thanks very much, Kristina.

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