SUBJECT/S: Senator Day’s resignation, Solicitor-General, Kimberley Kitching
THE HON MARK DREYFUS QC MP
SHADOW MINISTER FOR NATIONAL SECURITY
ACTING SHADOW MINISTER FOR JUSTICE
MEMBER FOR ISAACS
SKY NEWS TO THE POINT
MONDAY, 17 OCTOBER 2016
SUBJECT/S: Senator Day’s resignation, Solicitor-General, Kimberley Kitching
KRISTINA KENEALLY, HOST: We have the Shadow Attorney-General, Mark Dreyfus. Mark Dreyfus thanks for coming on the program.
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Thanks for having me.
KENEALLY: We’ve got some breaking news that Senator Day has apparently resigned - your reaction?
DREYFUS: That comes as a shock to me, we didn’t have any prior warning of that and not surprisingly perhaps, because he is in quite a different party. But, it is ringing something of a bell for me because on Friday we learnt in the Senate Inquiry that is looking into Senator Brandis’ disgraceful treatment of the Solicitor-General, that urgent advice had been sought from the Solicitor-General about the composition of the Senate, I think is the way it was put, and it’s now apparent that the government was already perhaps pre-warned and I think looking into this possibility of what would happen after Senator Day leaves the Senate.
KENEALLY: Can you elaborate a bit on that? What do you mean by the composition of the Senate?
DREYFUS: Well I don’t know what the advice was and all I know is that we learned that that advice had been sought on an urgent basis and it came up because of course there has been a change in the way the Solicitor-General advises, there now of course has to be written consent from the Attorney-General. Presumably what is meant by the “composition of the Senate” is who is to replace Senator Day, whether there is perhaps some way around – sorry I’m having trouble with my earpiece – whether there is some way around what the constitution says which is that the party of the person who has retired or who has resigned has to replace that Senator.
KENEALLY: So you are suggestion there might be somebody trying to work out if it had to be a Family First Senator or if there was another way to replace a retiring Senator Day?
DREYFUS: Oh yes, well that’s what I’m assuming. The provisions are very in fact very clear, they were put there in the constitution in 1977 to get over the problem that was caused by Bjelke-Petersen appointing really an anti-Labor person to fill a vacancy caused by a Labor Senator, and that of course gave rise to the circumstances of the dismissal, and everyone agreed, that was the last time we’ve had a successful referendum, everyone agreed to change the constitution to provide the process which is now there which is that the party from which the retiring or resigned Senator came gets to nominate to the state parliament and the state parliament signs off on the nomination of the party concerned.
PETER VAN ONSELEN, HOST: Mark Dreyfus we will come back to you in a moment I just want to let you get that earpiece sorted out of Canberra, I just want to talk to you, politically speaking, about the issue he was just raising. I can’t for the life of me imagine that the government is considering a change to casual senate vacancies beyond the simple structure that Family First gets to choose the replacement for Senator Bob Day. I’ve seen reports already emerging that Bob Day’s Chief of Staff, you can call that, she is looking to put her name into the ring to be a candidate – I think it’s a she. We will see if others emerge David Crowe is following this on The Australian blog. But politically speaking, surely, surely, you wouldn’t want to create some sort of scenario when you are accused of, dare I say it, branch stacking the Senate by doing some sort of swifty on casual senate vacancies, which you wouldn’t be able to do anyway, because it gets approved by the South Australian Parliament, which of course is a Labor government.
KENEALLY: I think it would be ridiculous and ill-advised of the government to see if it could try and politically manipulate the membership of the Senate to get their legislation through. But nonetheless you know this is a government that has been reforming the Senate, maybe that’s…it’s a red herring, and the Solicitor-General let’s talk about that, please continue your questions for Mark Dreyfus.
VAN ONSELEN: Mark Dreyfus, I just wanted to ask how would you feel, you are a former Attorney-General, how would you feel as the Attorney-General, put everything else aside that led up to this because on each of these counts, whether you’re on the government or the opposition’s side vis-a-vis the changes that George Brandis made, but what we found out at the hearing on Friday, how would you feel as the incumbent Attorney-General albeit during the caretaker period, if you found out your Solicitor-General had met with the other side without your prior knowledge?
DREYFUS: Well there was no meeting, there was a single phone call, from me to the Solicitor-General, and I would have felt totally relaxed as the Attorney-General because of the subject matter of the call, in the sense that me making this call-
VAN ONSELEN: But you wouldn’t have known the subject matter and you wouldn’t have been informed even if it were over the phone rather than in person. I’m talking, I get that your subject matter that you had might not have been inappropriate, but having said that, how would you have felt, you wouldn’t have known for example, what that subject matter was. At the end of a period of disagreement, one that I’m not - Well I’m certainly sympathetic of your criticism of the AG. I just wonder how you would’ve felt not being made aware of that at the time, as AG.
DREYFUS: Perfectly relaxed. Unlike this Attorney-General, who is secretive and grabs for power at every turn, I actually think there need to be limits on ministerial power, and I don’t believe in secretive government. I believe in transparent government. I actually think that senior public servants should be encouraged to talk to members of the opposition, I regularly arranged briefings as Attorney-General for then opposition members and Senators and I would continue that practice and for me as the former Attorney-General, calling the Solicitor-General, I don’t think the Attorney-General should think anything of it. Of course, this Attorney-General is so nervous, so incompetent in his role, and has committed so many acts of just outright dishonesty, that of course he jumps at every shadow, of course he thinks that somehow he can say, quite falsely, that it’s a breach of the caretaker convention for the Solicitor-General to be talking to the Shadow Attorney-General during the caretaker period. So it again shows that Senator Brandis’ grasp of the law and grasp of convention, and grasp of the system of government we have here in Australia is pretty tenuous. The caretaker convention says nothing at all about communications between opposition spokespeople and senior public servants and in fact in the caretaker period it is very, very common for senior public servants to give briefings to people who could be the incoming cabinet.
VAN ONSELEN: So just to clarify, was that the only time you and the Solicitor-General spoke during the election campaign period?
VAN ONSELEN: And what was the nature of that conversation? You did mention that it was not something that would have concerned you, knowing it. You’ve probably spoken of this before but I haven’t heard it. What was it about?
DREYFUS: I was asked this at a press conference on Friday and I confirmed what the Solicitor-General said to the Senate inquiry, that I called him, I asked him two questions, he answered those two questions truthfully, and that was that. And the two questions were: was it true that you were consulted? And, what do you think of this Legal Services Direction? And he told me, he said he was not consulted and he said that the Legal Services Direction is something that he believes should be removed. And that is still his position. And it’s absolutely my positon, which is why Labor is moving to have this Legal Services Direction disallowed in the Senate. It’s an extraordinary grab for power, and its –
VAN ONSELEN: I don’t disagree with you about that, I do not disagree about that, but on that caretaker convention, the convention is that it is with the knowledge of the Government, isn’t it? So you rang the Solicitor-General, not the other way around, wouldn’t it have been incumbent on him to immediately inform government that he had had this discussion with the Shadow AG? That’s the convention.
DREYFUS: No. The convention, the caretaker convention says nothing at all about communications after the election is called by senior public servants with opposition frontbenchers. What the caretaker convention is directed at is preventing major decisions being made after the election is called, which may not be able to be undone by an incoming government. It’s got a long history, it started with a half-page letter by Menzies to his ministers, in the early 1950s, it hasn’t got a lot longer since, if you consult the cabinet handbook, I wrote the previous version of the cabinet handbook. The Abbott government hadn’t changed the caretaker conventions in that handbook, they’re pretty clear that it is about the prevention of potentially outgoing government making decisions which can’t be changed.
KENEALLY: Mark Dreyfus let’s move to the issue as it plays out today. You have written to the PM to try and ascertain whether the Solicitor-General’s advice was sought on these laws that would allow terrorists beyond the duration of their prison sentence. What prompted you to write to the PM? Did you have some assurance that the Solicitor-General had given advice on those laws?
DREYFUS: No, none. And I’m looking for that assurance from the Prime Minister. I’ve written the Prime Minister directly because I can no longer trust George Brandis, the Attorney-General, to tell the truth on this kind of matter and the reason for that is, and this has also emerged in the Senate Inquiry hearings last week, and the reason for that is that Senator Brandis is now known to have misled the Australian Parliament, misled me and the Intelligence Committee at the time of the citizenship legislation being considered by the Intelligence Committee. And of course, that’s in the news today because the government indicated, or there is reports, that the government is proposing to use that very same citizenship legislation and the reports include the very strong suggestion that there is going to be a constitutional challenge in the High Court. Now this next counter-terrorism bill which is before the Intelligence Committee, before the Parliament, is also, has had doubts raised as to its constitutionality, it’s an extraordinary piece of legislation, unprecedented in Australia and unprecedented just about anywhere in the world because it proposes that there should be detention of convicted terrorists after they have served their sentences. So it empowers the Attorney-General to make an application to a Supreme Court judge to have people further detained. Now, because of those concerns about constitutionality, we want an assurance that it has been looked at by the Solicitor-General. He is the appropriate person to be dealing with matters of the highest level of importance, such as this post sentence detention bill.
KENEALLY: Let’s go back to the stripping of citizenship from dual citizens, at the time Labor supported that legislation, would you have made some type of change if the Solicitor-General had made recommendations? Is your concern about the constitutionality or are you concerned about the very subject matter, the ability to strip citizenship from dual citizens?
DREYFUS: We made a number of recommendations, all of which the government accepted, which were to put additional safeguards, additional review processes around that extraordinary power of stripping citizenship. The government accepted all of those conditions of safeguards, the government accepted that there should be a review of that law in a few years to make sure it is in fact warranted. But the constitutionality point goes to this: we don’t think that Parliament should ever legislate in a way that is constitutionally doubtful. There were serious doubts raised about the constitutionality of that legislation. The Attorney-General sought to allay these concerns by writing to me and the Intelligence Committee saying that the Solicitor-General has looked at this bill, and in effect given it the constitutional bill of health - I’m paraphrasing there – and it turns out that the Solicitor-General was never shown the bill as introduced to Parliament by the government. Now that’s a shocking misrepresentation of the Solicitor-General’s advice, and on this bill which is now on the floor of the Parliament, we have sought for assurance that this time around the Solicitor-General is going to be looking at it. And I’ve asked the PM to say that, rather than the Attorney-General who now, as we have seen from his records has misled the Parliament on what the SG has done.
KENEALLY: Let’s just run with that a bit. How does this situation resolve itself? Can the two most senior law officers in the country work together, based on what we’ve seen on display last week in the Senate, in the Estimates, and assuming they continue to do so, what’s the next step on the disallowance of the directive that the Attorney-General has given? What are you proposing to do to disallow that in the Parliament?
DREYFUS: Well that will come before the Senate, that has within its power to disallow that law that’s been made by the Attorney-General, and that’ll be considered in the coming weeks. And I am very confident that enough of the Senators, that is the 26 Labor Senators and enough of the crossbench Senators will be prepared to disallow that new law because it is an outrageous grab for power by the AG. The Solicitor-General, not only the SG but his predecessor Dr Gavan Griffith have explained in no uncertain terms why this is a bad law, or regulation that has been made by the Attorney-General. Dr Griffiths, who was the Solicitor-General for 14 years under Hawke, Keating and Howard, said it brought to mind a “dog on a lead” and that gives you an idea of the seriousness of what George Brandis is trying to do here, to the Solicitor-General.
VAN ONSELEN: One final question on Kimberly Kitching, the likely replacement for Stephen Conroy. Do you have concerns about Andrew Landeryou’s factional influence behind the scenes here? There has been in interesting article here written in The Age newspaper that you no doubt would’ve seen, about the inappropriateness of what might be going on behind the scenes and why Bill Shorten should’ve cleared - stayed well clear of this one.
DREYFUS: Oh look I respect the preselection processes of the Labor party. I’m not personally a member of the public office selection committee. But I think Peter you’d want to be very careful about making a criticism of a female politician because of the actions of her husband. Might I say echoes of Trump in that?
VAN ONSELEN: Well as I say I’m not aware of it myself but I’ve just been reading through this comment piece of The Age newspaper suggesting that it’s sort of a, not a good look for Bill Shorten is what the comment piece is suggesting. But you’re basically rejecting that as unreasonable and don’t start judging people by their partners? Is that right?
DREYFUS: Indeed, indeed.
VAN ONSELEN: Fair enough.
KENEALLY: And that’s where we will end it, Mark Dreyfus thanks for coming on.
DREYFUS: Thank you for having me.