SUBJECT/S: Brandis’ FOI appeal, political donations, Foreign donations.
THE HON MARK DREYFUS QC MP
SHADOW MINISTER FOR NATIONAL SECURITY
MEMBER FOR ISAACS
TUESDAY, 6 SEPTEMBER 2016
SUBJECT/S: Brandis’ FOI appeal, political donations, Foreign donations.
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: I welcome this decision today of the Full Court of the Federal Court of Australia. It’s a victory for transparency, and accountability. It’s after what has been a far too long battle over a very, very simple Freedom of Information Act request. This is a request that I made of Senator Brandis for his diary in weekly Outlook format. It was a request made back in March of 2014. Senator Brandis’ ridiculous response was to refuse to process this request at all. Not claim exemptions, but to refuse to even process the request. It was necessary, unfortunately, to go right through the processes of the internal review, Information Commissioner, then to the Administrative Appeals Tribunal, where Justice Jane Jagot, sitting as the Administrative Appeals Tribunal, rejected Senator Brandis’ claim, and this is an important thing to keep in mind, his claim was that it would be a substantial and unreasonable interference with his functions as Attorney-General, to even process the request. You only have to state that proposition to see how ridiculous his position was. He claimed at one point that it would take more than 600 hours of officials’ time, of his own time, to process this simple request under the Freedom of Information Act.
Having had his claim rejected by Justice Jagot, Senator Brandis even more ridiculously, appealed to the full Federal Court of Australia. That’s three judges of the Federal Court of Australia, and as late as this morning, Senator Brandis was claiming that this was an important matter of principle, he was claiming that it would determine the scope of the FOI Act, and we’ve now seen, we have the reasons of the full Federal Court, that his appeal has been rejected, with costs. It raised no point of principle, it raised no question of the scope or the interpretation of the Freedom of Information Act. Rather, it was a simple upholding by the full Federal Court of a pretty simple decision by Justice Jagot in the Administrative Appeals Tribunal, rejecting Senator Brandis’ ridiculous stonewalling attitude.
He’s the minister responsible for the Freedom of Information Act. That’s the irony here. He’s the senior minister in the government who should be actually upholding the principles of the Freedom of Information Act, upholding the idea of transparency and accountability, setting an example for other ministers, setting an example for departments of the Commonwealth to follow.
I hope he’s learned a lesson from this. He’s now cost the Australian taxpayer well in excess of $50,000. That’s money could have been far better spent on a Community Legal Centre, providing advice potentially to hundreds of clients who need legal advice, but instead it’s been wasted on this ridiculous appeal. I call on Senator Brandis to now say, definitively, that he will not be wasting further taxpayers’ money by going on to the High Court of Australia, which he could potentially do, and I sincerely hope he does not.
I call on him to say that he won’t, because that would be a further ridiculous waste of taxpayers’ money. Instead he should expeditiously process this request, which was always a simple request. It was a simple request, prompted by the fact that Senator Brandis, despite dishing out massive cuts to the legal assistance sector, to Community Legal Centres, to Aboriginal and Torres Strait Islander legal services, wasn’t prepared to meet with them or their peak bodies before dishing out those cuts.
He should now process this request for his diary promptly, and should get on with it.
JOURNALIST: Mr Dreyfus, what do you think is in the diary? I mean, obviously he’s going to dismiss what you’re doing as a fishing expedition. Is that what you’re doing? Are you trying to find something, or do you know that something is in there?
DREYFUS: I’m trying to see what it is that he was so busy doing in the first eight months, because that’s what the request is about. I want to see what he was so busy doing in the first eight months, that he could not see the very organisations in the legal assistance sector whose funding he was cutting. Who I might say his funding he is still embarking on cutting.
I wanted to see what it is that was so dreadfully important about his activities, that he can’t do what his colleague, Ms Bishop, the Foreign Minister, was prepared to do, which was to simply publish her diary in response to a request from a journalist, or to do what President Obama does, which is to publish on a regular basis his appointments diary, or do what Julia Gillard did as Prime Minister, which was to publish on request excerpts from her appointments diary.
JOURNALIST: Does this decision guarantee you access to Mr Brandis’ diary?
DREYFUS: No it doesn’t. It’s a demonstration of the ridiculous stonewalling that Senator Brandis has engaged in, that all that this decision does, after two and a half years of delay, after a decision by Justice Jagot in the Administrative Appeals Tribunal, and after a decision by three judges of the Federal Court, that now Senator Brandis has to do what he should have done quite quickly in the first place, which was to process this request.
If there are some exemptions to be claimed, and I absolutely that there might be a few national security or related entries in his diary that might be exempt, by all means let him claim that and we won’t be pursuing it.
JOURNALIST: Mr Dreyfus, will you be charging the taxpayer for your legal teams’ costs?
DREYFUS: The court has ordered that the Commonwealth pay legal costs that I have incurred, quite properly, in dealing with this appeal in the full Federal Court.
JOURNALIST: Why not do it pro bono?
DREYFUS: There’s no cost for me, can I make that absolutely clear.
JOURNALIST: Sure, but your legal team, shouldn’t they do it pro bono if this is such an important public interest matter.
DREYFUS: Costs incurred are costs that I should not have been put to, and the full Federal Court, bear in mind that this is the second most senior court in Australia, it expects to have cases that are brought before properly presented, and I in fact think I’ve done the court a service by ensuring that Maurice Blackburn, a very competent firm of solicitors, and counsel, were in a position to assist me, to put that case before the court.
JOURNALIST: So what is that final bill?
DREYFUS: Well that’s a question you should be directing to Senator Brandis, because the court has ordered that these costs be paid by the Commonwealth. The whole of this appeal was created by a ridiculous position adopted by Senator Brandis. He should never have required me to go to the Administrative Appeals Tribunal, let alone drag this matter before three judged of the Federal Court.
JOURNALIST: So what does that come to as a final estimate?
DREYFUS: I don’t know what the precise costs will be, but the estimate that I had provided to me before we appeared before the full Federal Court was that it was likely that the Commonwealth’s costs alone will be in excess of $30,000. That’s already incurred, the costs incurred by Senator Brandis in briefing a Queens Council and a junior, who flew up from Melbourne to do this appeal, plus the costs of the Australian Government Solicitor’s Office. And I’d be surprised if the costs that we have incurred would be much less than $20,000, which is why I’m saying that in excess of $50,000 of taxpayers’ money has been wasted by Senator Brandis in this stonewalling exercise.
JOURNALIST: How many hours have been expended in this whole process?
DREYFUS: I hate to think. There’s a certain bitter irony that Senator Brandis having claimed that it would take 650 hours of the time of his advisers and his department and his own time, to process this very simple request. It was always a grossly and ridiculously inflated estimate, that probably we’ve spent hundreds and hundreds of hours in the dispute about whether he should have processed the request. There’s a bitter irony in that.
JOURNALIST: On another topic, the Sam Dastyari saga rolls on. Do you think that the Leader of the Opposition is doing the right thing by allowing him to keep his job?
DREYFUS: Well I know that Mr Turnbull wants, as you put it, the saga to roll on. Instead of throwing mud, Mr Turnbull, and Senator Brandis had a go at this this morning as well, should actually be responding to Labor’s proposal which we took to the last election that foreign donations should be banned.
The Greens Party has indicated, as I understand it this morning, that they are prepared to agree to a banning of foreign donations. Labor has had that proposal on the table for a very long time, including at the last election. We’ve got a range of other proposals about improving transparency in relation to donations. All of them have been rejected by the Liberal Party for years now, and it’s high time the Liberal Party start grappling with, first of all banning foreign donations, then increasing the transparency of donations themselves, by things like real time disclosure, by dropping the disclosure limit to $1,000, not at the ridiculous level it presently is, where it was put by John Howard, which is $13,000. It’s high time that the Liberal Party engage properly with transparency of donations in the political process.
JOURNALIST: The Acting Prime Minister said he’s happy to do that as soon as some action is taken against Sam Dastyari.
DREYFUS: Well what’s more important is the rules that bind all politiians. The rules that govern our political system. That’s an absurd thing for Barnaby Joyce to have said. It’s not about any particular politican. If we’re going to talk about particular politicians let’s talk about Barnaby Joyce who is practically a wholly-owned subsidiary of Gina Rinehart because of the huge amounts of money that he has received from her over the course of his political career. Let’s talk about Ms Bishop, the senior Liberal minister and deputy leader of the Liberal Party. Her branch of the Liberal Party, the Western Australian branch has received hundreds of thousands of dollars in donations from Chinese-linked companies, some of them not properly disclosed. Some of the companies which had no dealings whatsoever in Western Australia and you might well ask what is going on there? This is the Foreign Minister of Australia I’m talking about in Ms Bishop, not an opposition backbencher, which is Sam Dastyari’s status at the time he received this amount of money w hich he fully disclosed, from the company in question.
JOURNALIST: But if Labor is so intent on reforms, wouldn’t you be willing to negotiate with the coalition?
DREYFUS: We’re absolutely willing to negotiate. I will sit down right now, as will all of my senior colleagues, to negotiate with the Liberal Party of Australia appropriate changes to our political donations laws. If as you say the acting Prime Minister is prepared to negotiate, and is indicating a preparedness on behalf of the Liberal Party to introduce a ban on foreign donations, I absolutely welcome that statement that you say he has made.
JOURNALIST: So do you think that Sam Dastyari will hold his job?
DREYFUS: Well, I don’t think that question even arises. I think that the disclosure was made – bear this in mind – Senator Dastyari disclosed this payment. It has been on the public record for some considerable time. That’s the purpose of public disclosure, is to allow examination, it’s to allow accountability, it’s to allow questions to be raised. When a question was raised, he has considered that he has made an error here and he has taken the steps to repay the money to charity. the Opposition Leader has said very directly and has spoken to Senator Dastyari about it and I am totally confident he will not be repeating this error.
JOURNALIST: Mr Dreyfus do you think Senator Brandis is a man obsessed with secrecy? Why do you think that [inaudible]
DREYFUS: I have no idea, that’s a question you have to address properly really to Senator Brandis. But his conduct is not that of the Minister responsible for the Freedom of Information Act. He should be upholding the principles of transparency and accountability which underlie the Freedom of Information Act and he has behaved in exactly the reverse manner. Bear in mind that this is the Attorney-General who presided over an attempt to abolish the Office of the Information Commissioner, who would clearly like to wind back the reforms to Freedom of Information that were put in place by Labor in 2010 because the Office of the Information Commissioner was part of that package of reforms in 2010. I’m hoping that Senator Brandis will learn a lesson from this decision of the Full Court of the Federal Court of Australia, and from now on actually conduct himself in a manner which is consistent with the principles and spirit of the Freedom of Information Act which is as the Act directs to look for a way to release as much as possible information about the conduct of the affairs of the Australian Government. Not as little as possible, which is the approach he seems to have taken in approach to this request for his diary.
JOURNALIST: Mr Dreyfus just on that, the government still haven’t appointed a replacement for the Information Commissioner [inaudible] should that be dealt with?
DREYFUS: Of course he should. You’re quite right to remind me that it’s a terrible omission. We’ve seen this kind of conduct before. The government tried to abolish the Independent National Security Legislation Monitor back in 2014, then when they couldn’t because it was blocked in the Senate, they took some nine months to appoint a replacement. Here they’ve attempted back in 2014 to abolish the Information Commissioner. We haven’t had a separate Information Commissioner or a separate Freedom of Information Commissioner, both of which are positions required by the legislation for now the better part of 18 months. I call on Senator Brandis to fill those vacant positions. It’s not appropriate that the Privacy Commissioner should still be acting in those positions. Those positions should be filled and properly filled and resourced.
JOURNALIST: Mr Dreyfus just on that, the decision of the Federal Court to rule out the Senator Brandis’s argument against releasing the diary on national security grounds, what do you think of [inaudible] those arguments?
DREYFUS: Well they rejected out of hand propositions made by Senator Brandis in relation to national security, saying that had not been the basis for Justice Jagot’s position sitting on the Administrative Appeals Tribunal, and while I’m on it the Full Federal Court rejected out of hand some other ridiculous propositions that Senator Brandis put before the court, one of them was that every single person named in his diary had to be consulted in order to find out whether or not they should reasonably be consulted. Now that sounds a bit Alice in Wonderland-ish and it is Alice in Wonderland-ish. It’s a ridiculous approach to the Act, it’s a ridiculous approach to the task that every decision maker has got to do, what the Full Federal Court has said is that the Tribunal got it right, you do not have to go off and consult with every single person named in a document, let alone every single person named in a diary in order to work out whether or not they might need to be consulted. And that’s of course, it’s that kind of ridiculous approach that Senator Brandis took to considering my request for his weekly Outlook diary that led to the absurd estimate he put forward of 650 hours.