Sky News: The Morning Shift

Subjects: Marriage equality







TOM CONNELL, CO-HOST: Mark Dreyfus, thanks for your time today. Mark Dreyfus, any pause for thought because it seems we’ve got here either a compulsory plebiscite, everyone has a vote, or a postal one. Is the compulsory one a lesser of two evils?


MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Well it’s not yet clear that – thanks for having me – it’s not yet clear that either of those two events are going to occur. The Senate has already voted down the plebiscite, and it will do so again. Labor’s position is we should have a free vote now, Xenophon has said, and the Greens party have said they remain opposed to a plebiscite. Coming out of this Liberal Party meeting yesterday, we had Senator Cormann threatening the Senate saying the government is going to go ahead with a postal vote if the plebiscite is not agreed to. And it’s not clear how that postal vote can occur without legislation.


CONNELL: We’ll get to that in a second but on that very issue, is there any pause for thought that you’re more of a chance if you listen to most pundits that a postal plebiscite will get a no, that you need to avoid that happening and say, well you know OK we don’t really like this but we’ll go for the regular plebiscite?


DREYFUS: Not at all. There should be a free vote in the Parliament now. The Liberal Party is lost in a maze of their own making here. This is…


SAMANTHA MAIDEN, CO-HOST: It’s quite a maze.


DREYFUS: It is quite a maze. This was a delaying tactic, invented by Tony Abbott in August 2015 to save his leadership. And it’s worked spectacularly well. We’ve had delay now for two years, and further delay is in the offing.


CONNELL: What’s your legal advice here on the legality of a postal plebiscite?


DREYFUS: I’ve had a chance to look at the two separate advices that have been obtained from eminent barristers, one by the Parents and Friends of Lesbians and Gays and the other by the Human Rights Law Centre. Both of them are very very clear, definite advice that it’s not possible to conduct a postal vote without legislation in the Parliament.


CONNELL: Everyone gets different legal advice, often you get what you pay for, it’s a bit like an opinion poll. The government says it has its own advice, wouldn’t you trust the government department as well?


DREYFUS: Well it’s not clear that advice has come from the Solicitor-General or the Australian Government Solicitor. Let the government explain why it is that these very very clear opinions to the effect, following the Williams case, the Pape case, that they are to the effect that you need special legislation. And the government can’t get legislation through the Parliament.


CONNELL: Can you tell us just simply what the actual legal issue is, keeping in mind not everyone out there is a lawyer? What in layman’s terms actually is the reason?


DREYFUS: Sure, simply the government can’t spend money without legislation in the Parliament authorising the expenditure of that money. Unless it’s part of the ordinary activities of a department. On no view could the conduct of a national voluntary postal vote be seen as part of the ordinary activities of any of the Commonwealth departments.


CONNELL: And just a final question from me, are you going to join in the legal action, lend Labor’s support to it in any way that other organisations have already indicated they’re taking?


DREYFUS: Labor would only join litigation if it was felt that we could add something to the case. And if the points are being put adequately by the party to the litigation, we wouldn’t be joining.


CONNELL: So you’d be cheering on from the sidelines basically but not necessarily being a part of this?


DREYFUS: We’d be waiting for the High Court to rule on whether or not the Commonwealth government is proceeding in a valid way. This is an extraordinary step that the government has blocked in the Senate and will be blocked again from conducting a plebiscite. It’s now threatening that it’s going to go ahead with what is probably an illegal activity not authorised by the Parliament, spending somewhere between $40 and $100 million because they’re the various estimates that have been given, simply to achieve further delay and to conduct an activity that they won’t be bound by. It’s an extraordinary state of affairs, it’s the act of an incompetent government to have been spending so much time – months and months in dispute over this – and still not resolved.


MAIDEN: So presumably if your legal advice is that you can’t hold a plebiscite without legislation, you would need legislation to pass the Senate in relation to holding a plebiscite on the republic structure as well?


DREYFUS: Sure. If there’s to be a change to the constitution, which is what the republic would involve, there would have to be a referendum under section 128 of the constitution. If there’s to be a preliminary national vote, which is Labor’s position so that we don’t get into the confusion that we got into in 1999, there would be a need for legislation there. Just like there was a national vote for the Constitutional Convention in 1997. It was supported by an Act of Parliament.


MAIDEN: Because I totally understand that when you change the constitution, when you have a referendum that is different to a plebiscite. But the preliminary stages of that, that Bill Shorten has outlined, they are plebiscites. They’re not a referendum. It is a legitimate question to ask, is it not, why you’re prepared to have a plebiscite on that which is not a change to the constitution. But you’re opposed to this plebiscite.


DREYFUS: Because it’s bound up with the change in the constitution. And changes to the constitution…


MAIDEN: But you accept that it’s not, at the first stages.


DREYFUS: Sure. Absolutely. That idea of a national vote to work out if we should proceed down the republic track, that’s not required by the constitution. But it would be part of a process that all of Australia would have to vote on. It’s a very different thing from a law change, a change to the Marriage Act which of course, as everyone knows, John Howard made a significant change to the Marriage Act in 2004. He didn’t feel it was necessary to have any kind of national vote before that occurred and it’s not necessary now. The Parliament should get on and do its job.


MAIDEN: So what’s your costing on that multi-stage process that Labor has outlined for a vote on the republic? If, as you’re saying a plebiscite costs $40 to $100 million, you’re proposing two plebiscites leading to a referendum, is that correct in relation to the republic? That first of all you decide on the model…


DREYFUS: No, it was a yes or no actually.


MAIDEN: So yes or no to an Australian head of state…


DREYFUS: And not necessarily a vote on the model, but certainly to get out of the way…


MAIDEN: OK so you could have one plebiscite followed by a referendum.




MAIDEN: And a referendum would cost what, $200 million?


DREYFUS: No, the Australian Electoral Commission’s estimate of a national vote, a plebiscite or a referendum would be the same…you use the polling booths, people turn up just like for an election, except that they’re voting on a question. The AEC’s estimate of that was $170 million. I don’t expect it would be any different for a referendum, because it’s the same process. It’s people voting.


MAIDEN: So the whole cost of the Labor Party putting a republic to the voters would be what?


DREYFUS: Putting the republic…


MAIDEN: And the plebiscite, all together.


DREYFUS: When we get to it, because clearly this government is not going to be engaging in anything to do with the republic, if and when we get to it we’ll do the costings then. It will be after the next election.


MAIDEN: OK. A couple of quick questions then. Malcolm Roberts is not providing that citizenship document, that seems to be the word this morning. Will Labor take that to the High Court? Does he need to be challenged?


DREYFUS: I think that all of these uncertainties and challenges to the validity of someone’s election to the Senate need to be examined by the High Court of Australia, just as occurred for Senator Day, Senator Culleton, where the government was in a hurry to put those to the High Court. So too they are referring Senator Canavan to the High Court and these doubts about Senator Roberts should also be cleared up in the High Court.


MAIDEN: OK and just finally, in the space of homeland security and national security, would you unwind that reform to have a Homeland Security or whatever they choose to call it if you win the next election. And what is your reaction to this push by the Australian Federal Police to essentially have greater powers to question suspects when they are held without charge? Is that something you’re prepared to consider?


DREYFUS: Two questions there Sam – I think we’re getting a bit ahead of ourselves on the Home Affairs proposal. It’s a proposal that’s been announced. We’re told, and we’ve now had a briefing on what’s possibly being planned there. But it won’t be implemented until sometime next year. If and when the government gets around to implementing this, because it seems it’s now quite clear they’ve announced it without understanding what details they were going to put in place. We will then examine it and form a final view about it. But it hasn’t yet happened, it’s not going to happen until sometime next year. On the proposals from the Australian Federal Police, as always in the national security arena, we will look at legislation when it is proposed by the government but of course we want to see our agencies, all of them, including the Australian Federal Police in particular, armed with the powers that are necessary to deal with terrorism.


CONNELL: Alright Mark Dreyfus, thanks very much for your time today.


DREYFUS: Thank you.