Subject/s: Peter Dutton, Liberal leadership and the constitution, press freedom
SHADOW MINISTER FOR CONSTITUTIONAL REFORM
MEMBER FOR ISAACS
SKY NEWS SPEERS
THURSDAY, 27 JUNE 2019
Subject/s: Peter Dutton, Liberal leadership and the constitution, press freedom
DAVID SPEERS, HOST: Mark Dreyfus joining us now, thank you very much for your time this afternoon. Let me get your thoughts on a couple of things here. Firstly that breaking news that Peter Dutton’s got rid of any ownership stake in this family trust that owns the childcare centre. Does that put him in the clear constitutionally now?
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Well I’d have to see the detail, David, of what exactly Peter Dutton has done. But it confirms, I think pretty clearly, the fact that he’s done this, or claimed to be doing this, that there were serious doubts and that there were serious problems about his eligibility to sit in Parliament, eligibility to be a minister, and certainly his eligibility to be Prime Minister. And what’s really shocking is the depth of dispute and conflict in the Liberal Party which we’re now seeing on full show. It’s not even a year ago that all these events happened. And it’s shocking, it’s shocking that they almost caused a constitutional crisis, it’s shocking that they got to this level of division, and they’ve been covering it up ever since.
SPEERS: Let me get your thoughts on this constitutional question. As I say it’s a little academic now that they went with Scott Morrison rather than Peter Dutton, but who’s right and who’s wrong? Malcolm Turnbull or Christian Porter? Would the Governor-General have had to consider whether Peter Dutton was eligible to be in Parliament?
DREYFUS: I think we can approach this by looking perhaps at an extreme case - what if someone who was outside the Parliament, not a member of Parliament, went to the Governor-General and said ‘I command the support of a majority of the members of the House of Representatives. I want you to commission me as Prime Minister’. There’d be a matter there that the Governor-General would have to consider. Let’s say the same person was in the Parliament, and someone coming to the Governor-General said ‘I’m a member of Parliament, I’ve got the support of the majority of the members of the House, and I’m a New Zealand citizen’. Now they’re extreme cases obviously, but there the Governor-General would have to make a decision, David - so of course the Section 44 eligibility question is a matter for the High Court. The Governor-General can’t substitute his opinion for that of the High Court, but if there’s a doubt, it might very well be that the Governor-General has to do something else. And I heard Professor Anne Twomey talking about this earlier today, saying that perhaps what would be appropriate there is for the Governor-General to set a condition on this hypothetical Dutton Prime Ministership by saying ‘you have to agree to go back to Parliament and show me by a vote of the House that you’ve got a majority and you’ll have to agree to refer yourself to the High Court for adjudication on the question of your eligibility. Because to do anything else would be for the Governor-General to condone a state of uncertainty of instability which is clearly not healthy for our democracy. So, of course it’s all hypothetical. But I don’t think you can say that there’s no role here for the Governor-General.
SPEERS: Now let’s just hope that we don’t end up in that sort of situation, Mark Dreyfus, because you’re right, it’s complex and a little unclear, the duty of the Governor-General at that point. Look let me turn to the press freedom issues. You were there at the National Press Club yesterday listening to those media bosses make their case, listening to their demands for the changes they want to protect press freedom. Can I just go through some of them. They want an ability for media companies to contest search warrants before a raid is carried out. At least have the opportunity to mount their argument, to say ‘here’s why we don’t think this search warrant should be granted’. Is that a good idea?
DREYFUS: Well you’ve got to look here at what happens in like countries in Australia, like the United Kingdom, and the United States, where they’ve got much more openness about any kind of engagement between the government and the press. There’s much more contestability, there’s obviously different processes in those different countries - I think we have to look seriously at changes to the law, which make much clearer that the public’s right to know is protected, that press freedom is protected, and obviously when we’ve had the situation of raids on a journalist’s home, raids on the headquarters of the national broadcaster, you’ve got to be concerned that the public’s right to know and press freedom is not being protected properly in the country at this moment.
SPEERS: And you point out, similar jurisdictions, the UK, media companies can contest search warrants. So just to be clear on that - you’re saying you are open to that discussion?
DREYFUS: We’re open to all of the suggestions that have been put forward by three of the most senior media executives in the country yesterday at the Press Club. It was very disappointing to see that, although Kristina Kenneally and I were in attendance, not a single Liberal MP chose to attend and no representative of the government. We’ve had complete silence from the government on all of these requests from media companies. We’ve had almost complete silence from the government about protecting press freedom and the importance of protecting the public’s right to know since these raids happened. And I’d say it’s simply not good enough David. I think that the government could rule out prosecution of journalists arising from the two raids. That’s something that’s within the power of the government to do, but they haven’t done that. They’ve ducked that question, just as the Prime Minister, Mr Morrison, has been ducking any real comment. His first comment about it was to try, as he always does, just to brush it away and pretend that it didn’t happen.
SPEERS: Let me just ask you on that - you’re saying that either the Prime Minister or the Minister should step in and say that these journalists should not be prosecuted. Is that not, at this stage, a matter for the law enforcement agencies themselves to do?
DREYFUS: The Attorney-General of Australia is a law enforcement agency, under the Crimes Act 1914 which are the provisions that are being used against the journalists and media organisations under these search warrants. So it’s not open to the government to say, as they’re trying to do, oh we can’t do that, this is a matter for the police. Yes it’s a matter for the police but it was the government that decided to refer these matters in the first place and it remains a power to be exercised by the Attorney-General of Australia, because of the provisions in the Crimes Act 1914 as to whether prosecutions occur. So that’s why it’s perfectly appropriate for the government to be called on to say, if you’re serious about protecting press freedom, if you’re serious about removing the intimidation and the chilling effect that’s occurred here, then you will rule out prosecution of journalists in these two cases.
SPEERS: Well, I’ve got to ask though, I appreciate what you’re saying about the Crimes Act, but the more recent changes to national security legislation which Labor has largely supported - yes with changes along the way - but these are the laws the media bosses yesterday are saying now need to be re-examined to ensure that journalists’ can’t be prosecuted themselves for things like handling classified documents.
DREYFUS: Well let’s be clear about those laws too. The complete re-write that occurred of Australia’s security laws was, and passed through the Parliament in June 2018, was originally introduced as a bill at the end of 2017 in a very, very different form David. And it’s only because of the immense efforts made by Labor to put that law in a much better form, with proper protections for journalists, that it even looks like the way it is today. I’m perfectly open to suggestions that there should be further changes made to it. But I don’t think anyone should be suggesting that, or trying to, that because Labor ended up passing the Espionage and Foreign Interference Bill in June last year, that we didn’t make immense efforts - and some of them successful - to improve the protections for journalists. We’d also - and this is something that came up at the Press Club yesterday - bear in mind that the press, to some extent, have got to bear some responsibility for the environment in which the debate about national security laws and protection of journalists occurs. If every time anyone speaks up for the public’s right to know, or protection of journalists, they’re accused of being soft on national security, and it’s put as this false binary, then it becomes very difficult, David, to have the kind of nuanced discussion that needs to take place about what our secrecy laws should look like. I’m hoping that this campaign that the media executives have said that they are going to now mount, for proper reform to Australia’s laws as they affect the public’s right to know, I’m hoping that the debate around that can occur in a much, much better environment than has been the case for the past several years now.
SPEERS: Just a final one, Mark Dreyfus, defamation - there’s been what most media companies agree is a fairly ridiculous ruling that they are responsible for Facebook comments about their stories. Is there a need for legislation to clear that up?
DREYFUS: Well there’s a decision by Justice Steve Rothman of the NSW Supreme Court, for the first time a ruling on who is responsible for comments posted on a public Facebook page. And without ruling on anything else about the case, or whether there’s a defamation that’s occurred, Justice Rothman has said the media companies which maintain public Facebook pages, pages that they can take down comments from, are responsible as publishers. Now that’s something that obviously is an application of law that probably you can say came into existence in the 19th century when print media was the only media that we had - whether that’s an appropriate setting for Australian law in the digital age, I think should be open to debate. I’m hoping that the current reform process that’s taking place in the Council of Attorneys-General led by Mark Speakman, the Attorney-General of NSW, will be looking at that along with a whole range of other I think inadequacies in defamation law. The single publication rule would be another example. And there’s a whole lot of ways in which Australian defamation law simply isn’t fit for the digital age. The decision of Justice Rothman throws into discussion that particular aspect.
SPEERS: Just before I let you go, while we’ve been talking we’ve got this statement from Peter Dutton, I’ll just bring it up. He says he’s received two unambiguous opinions from leading barristers specialising in constitutional law, including former Solicitor-General David Bennett, which advised he was not in breach of section 44. These opinions are supported by the Solicitor-General, whose legal advice, in his opinion, the better view was the minister was not in breach of section 44. Here’s the key bit - ‘nonetheless, to silence those who are politically motivated’- maybe he’s talking about you there Mark Dreyfus - ‘and continue to raise this’, he says, ‘prior to nomination at the May election he formally renounced any interest in the trust in question'. Does that clear it up?
DREYFUS: Well I look forward to reading any further advice that Mr Dutton has obtained, and I stress that my concern at all times has been the upholding of the Australian constitution, and in particular making sure that people who run for Parliament are in fact eligible to be in Parliament.
SPEERS: Alright Shadow Attorney-General Mark Dreyfus thank you so much for joining us this afternoon, appreciate it.
DREYFUS: Thanks David.