SUBJECT/S: Foreign interference legislation; citizenship
THE HON. MARK DREYFUS QC MP
SHADOW MINISTER FOR NATIONAL SECURITY
MEMBER FOR ISAACS
SPEERS ON SKY NEWS
MONDAY, 5 FEBRUARY 2018
SUBJECT/S: Foreign interference legislation; citizenship
DAVID SPEERS, HOST: With me now is the Shadow Attorney-General Mark Dreyfus, thanks for your time this afternoon.
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Thanks for having me David.
SPEERS: There are some obvious areas where improvements can be made to the legislation. Do you welcome that?
DREYFUS: I do welcome that. You could hardly say anything else after the outcry that we’ve had from across the country, from media organisations in relation to the secrecy laws, from charities, from universities, from business organisations in relation to the Foreign Interference Transparency Scheme. It’s pretty obvious from their submissions that they think that it’s been very badly drafted legislation, and rushed into the Parliament.
SPEERS: I should point out the media organisations – there is most of them. We’re talking about Fairfax Media, News Corp, which owns Sky News. Bauer Media, SBS, Astra, FreeTV, MEAA, the West Australian. A long list. They are concerned that journalists are going to be caught up in this. The way it’s written at the moment, what would happen to a journalist – take last week’s example, with those cabinet files.
DREYFUS: Potentially 15 years in jail for innocent receipt of a classified document. That’s extraordinary. And it’s the first time any Australian government has proposed something like that. The example last week of the cabinet of cabinet leaks, someone not knowing what was in the cabinet, receiving it – on opening it, would if these laws had been in place then, have potentially been exposed to 15 years in jail.
SPEERS: So the bloke who drilled open the cabinet and went “oh my goodness” – he could have actually been jailed.
DREYFUS: Yes – innocent receipt. So to take it to the journalist – because more ordinarily it’s journalists receiving these kinds of documents – the journalist is potentially exposed to jail. The journalist’s editor, when the editor is consulted and the journalist’s lawyer. When the lawyer is consulted.
SPEERS: What about the, as I mentioned in the explanatory memorandum, as long as it’s fair, as long as it’s in the public interest reporting – they’d be fine.
DREYFUS: There’s a defence provided which, again the media organisations have severely criticised, that suggests that it’s a journalist’s reporting, if it’s fair and accurate reporting, then that will be a defence. But the onus is on the journalist, and I think, just to take a current example – President Trump and the editor of the New York Times probably don’t agree on what is fair and accurate reporting….
SPEERS: I mentioned earlier it’s a very subjective thing.
DREYFUS: A defence that depends on what is ‘fair and accurate’ reporting is problematic. There’s a serious problem about setting up criminal offences in this way.
SPEERS: The Attorney-General had previously flagged some sort of veto power for himself, for the Attorney-General of the day. To actually make the final call on whether a journalist should be prosecuted or, I suppose, jailed.
DREYFUS: I describe that as a pathetic band-aid and an Attorney-General who doesn’t understand why the Director of Public Prosecutions systems were set up in Australia in the early 80s in the states and at the Commonwealth level. It’s to get politicians out of prosecution decisions, and particularly to get politicians out of decisions where they might have a conflict of interest. And I actually can’t think of a better example of a situation where an Attorney-General of Australia would have a conflict of interest in deciding whether a prosecution should take place, than a leak of a government document.
SPEERS: So what should the law say here, or the legislation say here in your view? If we still want to be able to stop those who have the wrong intention towards Australia. Handling these sorts of national security documents?
DREYFUS: We already have secrecy laws in Australia that protect government documents and government information. They’ve been in place since the First World War. They were put in the Crimes Act in 1914, amended in 1960, they’ve been the subject of a very detailed Australian Law Reform Commission report in 2009 – it’s been a long time coming, this reform. To rush it in, without consultation, is the wrong way to go. Of course we need secrecy laws….
SPEERS: Secrecy laws make it an offence to actually disclose that information – so the person who has actually leaked it – so you’re saying we don’t need any actual law that would target the recipient?
DREYFUS: I am not saying that. I am saying that we need to treat the leaker and the recipient differently. We need to make sure that any secrecy laws mesh with public interest disclosure or whistleblower protection laws which are very important. We need to make sure that the laws mesh with what the ombudsman does, which is receiving complaints and acting on them.
SPEERS: They’ve expressed concern as well, the Director-General of ASIO, they’re worried their staff might be in trouble themselves.
DREYFUS: Well they’ve made a different point, the Ombudsman and the Inspector-General both said they weren’t consulted about this legislation. They’re concerned that in doing their ordinary…they are themselves integrity agencies, and in doing their work, that might be criminalised. So, the government seems to have rushed this in. I’m very pleased to hear that the Attorney-General is conceding that redrafting is needed. And the sooner the government can get about that process, the better.
SPEERS: But getting back to what it should say. You agree there needs to be some law, in addition to the secrecy laws, about the recipient of this sort of information. So what should that be? If you’re not going to target journalists?
DREYFUS: I’m not going to draft on live TV…
SPEERS: OK but tell us have you, are you thinking about proposing…
DREYFUS: We are thinking about how this legislation as presented can be fixed. We are thinking about how to pay attention to what the Law Reform Commission said in 2009, which said that you need to treat the leaker and the recipient differently. And said you need to have a secrecy regime that looks at the harm, that’s actually been done. There’s a problem in the way the government has gone about this. They sought to criminalise for the first time, release of a classified document simply because it is a classified document. And the Attorney-General in this bill will be able to certify that it is a classified document, it would be a strict liability offence. You couldn’t look behind it – that seems to us to be problematic and a number of the submissions have drawn attention to that.
SPEERS: You’d hope for bipartisanship around this. Are you talking to the Attorney-General? Do you plan to, about your approach?
DREYFUS: I certainly plan to. As always in the Intelligence Committee, Labor has worked very hard with the government, with the numerous bills that have come forward since 2014 to make sure that the primary objective of the Intelligence Committee, which is our national security, and keeping Australians safe is served by legislation that comes forward. That’s why we’ve, with the government members of the committee, recommended to government over the six bills that have been dealt with so far more than 100 recommendations for change. We are already working hard in the Intelligence Committee. We had four days there last week working on these bills which is why I’m, I suppose, so up on the detail. Of course we’ll be working with the government. Of course we’ll be constructively recommending change.
SPEERS: Let me turn to the citizenship issue. Is Labor’s Susan Lamb a dual citizen?
DREYFUS: The issue for Susan Lamb, as with others in the Parliament, is whether or not she took reasonable steps. That’s the question. Whether or not she has disclosed the steps that she took in order to renounce her British citizenship and if there is further dispute about it, the question will focus on whether what she did amounted to reasonable steps.
SPEERS: Is that also a question as to whether she is a dual citizen?
DREYFUS: No, it’s a question of reasonable steps. That’s what the High Court has said in more than one decision now, both back in 1992 in Sykes and Cleary and in the recent bunch of decisions around Senator Canavan. The other six that were considered last year, the High Court confirmed again that the question is reasonable steps.
SPEERS: Did she take reasonable steps?
DREYFUS: Well obviously, she stood for Parliament. We think she’s eligible not only to have run for Parliament but to be a member of Parliament. We think that about our other two members of the House of Representatives who have been named as well. And Labor’s had a process in place for many years to make sure that…
SPEERS: With respect Mark Dreyfus, that process has been shown up now, so are you satisfied with what you now know, that Susan Lamb took reasonable steps?
DREYFUS: Well, I won’t, I don’t accept David that it’s been shown up.
SPEERS: Well you just said that David Feeney resigned.
DREYFUS: Yes, on the basis that he was unable to provide documentation.
SPEERS: So, these Labor vetting procedures have been shown up.
DREYFUS: In the case of the three that are sitting in the House of Representatives, all of them have made complete disclosure of the steps that they took and they’ve produced documents. The problem that David Feeney had, which led to his resignation, was that he didn’t think that the High Court would find it acceptable that he couldn’t produce documentation. But in the case of the three who remain, the Labor members who the government want to keep talking about, they have taken reasonable steps and they’ve shown the documents.
SPEERS: Alright, let me turn to Jason Falinski. Labor wants him referred to the High Court. Why?
DREYFUS: We say that the Australian people are completely sick of this citizenship wrangle, which first came up in June last year –
SPEERS: No doubt, but why do you want him referred?
DREYFUS: Because in order for us not to go on talking about citizenship issues way into this year, for many months, everyone in the Parliament about whom there is doubt and that certainly must now include Jason Falinski –
SPEERS: I’m just asking why it is. Why is there doubt about him?
DREYFUS: Because contrary to what he told the Parliament in the disclosure process here in the last sitting week, which is that his grandparents and father had arrived in Australia not as Polish citizens – documents have now come to light which show that they entered Australia in 1958 bearing Polish passports. He also asserted to this Parliament that his grandparents were not married and it appears that his grandparents were married because they describe themselves as married when they entered Australia. So on both those bases, he is a Polish citizen because Polish law is that the child of a Polish citizen is Polish. It’s a matter of the foreign law always David. That’s the position as it appears…
SPEERS: There’s mixed views legally on this, as it does get to a murky area around his grandfather actually fleeing the Nazis.
DREYFUS: No, it doesn’t. It’s a simple matter of what occurred in 1958. His grandparents and his father entered Australia as Polish citizens. Whatever might be the background.
SPEERS: OK but there is some legal dispute as to whether that is automatically inherited, that Polish citizenship.
DREYFUS: Well not as it appears to us. I’m not a Polish lawyer. I’m going on what Polish lawyers have told us. Some of them reported in the media. Polish lawyers have said Polish law is clear on this point. Someone born to a Pole, is a Polish citizen.
SPEERS: Mark Dreyfus, no doubt this issue hasn’t gone away just yet, thanks for joining us this afternoon.
DREYFUS: Thanks for having me David.