THE HON. MARK DREYFUS QC MP
SHADOW MINISTER FOR NATIONAL SECURITY
MEMBER FOR ISAACS
ABC RN DRIVE
WEDNESDAY, 9 MAY 2018
PATRICIA KARVELAS, HOST: Mark Dreyfus welcome to RN Drive.
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Thank you for having me.
KARVELAS: Do you owe the Australian public an apology?
DREYFUS: No I don’t think so. Today, the High Court set a new precedent in how section 44(i) of the Constitution should be interpreted.
KARVELAS: It’s not a new precedent.
DREYFUS: It is. And anyone that reads the judgment, anyone who is familiar with the way in which lawyers across Australia have interpreted this provision since Sykes and Cleary in 1992 would see at a glance that the High Court has in fact changed the law.
KARVELAS: No, the High Court does not change the law, they enforce and interpret existing laws. Nothing has changed. Labor simply got it wrong.
DREYFUS: That’s not right Patricia.
KARVELAS: You think your processes have been robust?
DREYFUS: I can tell you that not only has the Labor Party acted on this understanding of the law, reasonable steps before the nomination date is what was required. The Australian Electoral Commission has been acting on that basis right up to today. Their guidance document for candidates for House of Representatives in the Senate actually says – and this is the document they were using in the Batman by-election, it’s still on their website today – it says that candidates must take reasonable steps in accordance with the majority decision in Sykes and Cleary.
KARVELAS: You say that but the High Court clearly stated in its ruling that this is not a new test. Why can’t you accept that your interpretation of Sykes and Cleary was wrong?
DREYFUS: It’s not our interpretation of Sykes and Cleary, constitutional experts have all interpreted in that manner. And all of the constitutional experts who have spoken in interviews over the course of today since 10:15, and I’m thinking Professor George Williams, Professor Anne Twomey, Professor Kim Rubenstein, all constitutional experts of renown have said they didn’t expect this decision, it’s a substantial tightening of the test that’s to be applied for eligibility. And you’ve only got to read the judgments, the three judgments of the High Court that have been handed down today to see that.
KARVELAS: The Attorney-General today accuses you of deliberately misinterpreting the law and misleading the public, not falling on your swords and being transparent with the public. Why didn’t you act earlier? I mean when Katy Gallagher – she was first elected and she knew she was a dual citizen. She was a dual citizen when she was elected.
DREYFUS: It is deeply disappointing that the Attorney-General of the Commonwealth should seek to play politics with the High Court judgment and with the constitution of Australia. It’s almost disgraceful, Patricia what he’s trying to do. The Commonwealth of Australia under the former Attorney-General went to the High Court in the Canavan argument, which was also about Barnaby Joyce, and argued that ignorance of the constitution should let them off the hook. They’d taken no steps to deal with their citizenship. They hadn’t even enquired. It sounds like a pretty ridiculous argument…
KARVELAS: If I think of John Alexander, if I think of Barnaby Joyce, I know their circumstances were different but they went straight to by-elections.
DREYFUS: Barnaby Joyce didn’t go straight to a by-election, you might have apparently forgotten that the Prime Minister of Australia stood up in the Parliament and said Barnaby Joyce is eligible “and the High Court will so hold” was his ringing phrase. And Barnaby Joyce sat on in the Parliament until the High Court ruled on his situation having sent the Solicitor-General of the Commonwealth to put the ridiculous argument that his ignorance, and his failure to even enquire, should let him off the hook. The High Court in that decision, which is called Re Canavan, didn’t look at the situation that arose for Senator Gallagher, which is that she had taken what we regarded as all of the steps necessary to fulfil what the High Court has said in its previous decision.
KARVELAS: You’re right, he referred himself to the High Court immediately which is what I meant to say.
DREYFUS: He referred himself, but he didn’t stand down and he kept on in his seat. John Alexander resigned after Re Canavan was handed down as did Senator Parry, the former President of the Senate. And that’s appropriate. And just exactly the same, it was entirely appropriate for our three members of the House of Representatives and I’d suggest Rebekha Sharkie as well to see what the High Court did in this decision about Senator Gallagher. Having received the decision, and it’s a very clear decision, which we accept and respect having received it at 10:15 today, they have announced that they are resigning from the House.
KARVELAS: How big a mistake was it that Bill Shorten said that Labor’s preselection processes and those of members elected were razor-tight, and the best?
DREYFUS: It wasn’t a mistake at all.
KARVELAS: I just find it unusual that given what we’ve seen now, you can’t look at the benefit of hindsight and say OK, we clearly – some of our processes didn’t interpret the law as clearly as meant. We should have renounced, we shouldn’t have just sent…
DREYFUS: Well you can do lots of things with hindsight Patricia….
KARVELAS: I’m wondering why you wouldn’t take responsibility and accountability for this.
DREYFUS: We do take responsibility, and we were acting on the best advice available from constitutional experts that reasonable steps went right up to…provided you had by the nomination date, done what was required to do renunciation of whatever citizenship you were holding, that was sufficient. The High Court’s now said “not so, if you didn’t actually complete the renunciation process by the nomination date, you are not eligible.”
KARVELAS: So now it’s very clear – now there’s no debate, it’s so clear. So should the constitution change? Should the law change? Are you satisfied with it?
DREYFUS: I think that – and this concern has been expressed by a number of constitutional experts today, that we’ve now got two classes of Australians. People who might have dual citizenship, might not even know that they’ve got dual citizenship but because of an association with another country, they might in fact be dual citizens because of foreign law – they’ll be prevented from participating in the Australian political process if they make a decision, a sudden one at least to stand for election. And of course elections are called suddenly and sometimes people do make a decision…think Phil Cleary in 1992 and more recently David Leyonjhelm or Derryn Hinch or Jacqui Lambie, all of whom made pretty quick decisions to run. Not perhaps definitely expecting to get elected but they did get elected. Unless they have cleared away any possible doubt about their citizenship, they won’t be eligible either and that’s potentially a problem. Whether or not they need to go to a referendum that’s a different question. I’d be thinking that the next referendum should be concerned with something like the republic or recognition of Indigenous Australians. Maybe suggesting that the next topic for a referendum might be the convenience of politicians might perhaps not be the right topic. I’m very concerned along with all of these constitutional experts who have spoken out today about the effect of this decision, because it is a very substantial tightening of the law, on six or ten million Australians perhaps who are either dual citizens or may possibly have dual citizenship and don’t know about it, the clear advice – and I’ll say this to anyone interested in participating in Australian politics or standing for election in the future, make sure you have got your citizenship in order. That might mean starting way back.
KARVELAS: Renounce now.
DREYFUS: Renounce now, and make sure that you’ve set it in train because for many countries that renunciation process is a difficult one, an unclear one, and it might take you quite some time.
KARVELAS: We heard the emotional account of Susan Lamb as to why she was not able to renounce her citizenship – complicated family issues with her parents, her mother. Will she be able to find the documents she needs before any byelection?
DREYFUS: We’re confident that she will be eligible to run at the byelection when it’s held.
KARVELAS: The ACT will be gaining a new electorate and a lower house seat. Will Katy Gallagher run for that new lower house seat?
DREYFUS: Those are matters for the ACT branch of the party, but you heard Senator Wong, our Leader in the Senate, could not have been clearer. Senator Katy Gallagher has made an extraordinary contribution in the Senate already. We want her back. And I’m very very confident that a way will be found for Senator Katy Gallagher to return.
KARVELAS: Can I just pick you up on the Susan Lamb issue. You say you’re very confident. Where is your confidence coming from? Because she hasn’t even renounced yet has she?
DREYFUS: The steps are in train for her renunciation to be completed.
KARVELAS: It’s a tight period isn’t it? The byelection is looming.
DREYFUS: It’s at least 33 days, probably 40 days from now at the earliest. Can I make the point that with the intervention of the Foreign Minister of Australia it proved possible for Senator Fiona Nash to renounce her British citizenship I think within a matter of two or three days and for John Alexander before contesting the Bennelong by-election to renounce his in a matter of five or six days. I’m confident that whatever courtesies the Home Office has been able to extend to coalition MPs will be able to be extended to ours.
KARVELAS: When can we expect this Super Saturday?
DREYFUS: I think that the earliest date if the resignations take effect from Friday would be the 16th of June but it is a matter for the Speaker of the House.
KARVELAS: Mark Dreyfus many thanks for your time.
DREYFUS: Pleasure Patricia.