THE HON MARK DREYFUS KC MP
ATTORNEY-GENERAL
CABINET SECRETARY
MEMBER FOR ISAACS
E&OE TRANSCRIPT
TV INTERVIEW
ABC INSIDERS
SUNDAY, 26 MARCH 2023
SUBJECT: Voice to Parliament; Daniel Duggan extradition.
DAVID SPEERS: Mark Dreyfus, welcome to the program.
ATTORNEY-GENERAL MARK DREYFUS: Thanks very much for having me, David. Good to be here.
SPEERS: So what advice has the Solicitor-General provided the Government on this wording and will it be released?
ATTORNEY-GENERAL: It's not the practice of Australian Governments David, to release Solicitor-General's advice, but I can assure everyone that the Solicitor-General has been fully involved in the process. It's been a very good process and we've now landed on the final wording for the amendment to the Constitution. Mr Dutton wants to keep asking questions. He wants to keep doing what he's been doing all along, which is to not offer anything constructive, not offer any suggestions. If he's got some concerns about the words, he should put them forward.
SPEERS: You said the Solicitor-General has been involved in the process. Does the Solicitor-General support the final wording?
ATTORNEY-GENERAL: I'm not going to reveal the Solicitor-General's advice. I'm going to say very clearly that it's not the practice of Australian governments. Mr Dutton knows this, I think everyone knows this. It's not the practice of Australian governments to release Solicitor-General's advice, but he's been fully involved in the process and he's not the arbiter, the Australian people, David, the Australian people are going to be the arbiter of this change to the Constitution. I can assure the Australians that this amendment to our Constitution is Constitutionally sound and I have the backing in this, I have a huge consensus I would say, of Constitutional experts, including former High Court Judges, the former Chief Justice of the High Court, and Constitutional academic law academics across the country.
SPEERS: The Government has previously released Solicitor-General's advice on other occasions. Most recently, in the Morrison ministries saga, you released the Solicitor-General's advice. There are other examples, there is precedent to do this.
ATTORNEY-GENERAL: The Morrison multiple ministries was secret, David, this constitutional amendment process is public. It starts with the Constitution Alteration Bill that we're going to introduce to the Parliament next week that will be followed, at the end of what has been 10 years of discussion, that will be followed by another Parliamentary committee process and then debate in the House of Representatives and the Senate.
SPEERS: The discussions in the Working Group and the Solicitor-General's advice, that wasn't public. Why can't this if Australians want to know what advice you're relying on? Why can't we see this?
ATTORNEY-GENERAL: We're very confident in the form of words that we've released at a really momentous press conference last Thursday, that we've landed on the right form of words. And there can be further debate. I've just outlined what that process is going to be. But we're confident that where we've got to is Constitutionally sound. It's the right thing for Australia. I'm looking forward to the Referendum succeeding when we get to it at the end of the year.
SPEERS: Just one more on this, Linda Burney, your colleague, the Minister for Indigenous Australians, she said on Radio National on Friday that the Solicitor-General's advice supports the wording that you've landed on. Is she right?
ATTORNEY-GENERAL: The Solicitor-General's advice is private to the government.
SPEERS: She said it supports the wording.
ATTORNEY-GENERAL: Yes, it does support the wording. This is pretty straightforward. The reason for not wanting to talk about the Solicitor-General's advice is I don't want it suggested that we've waived privilege or that it has to be produced where it's not the practice of Australian governments to produce advice. And I can't think of a more public process than the one that we have been undergoing for a decade and are still in now that but we are now at the end of
SPEERS: The important point is he supports the wording.
ATTORNEY-GENERAL: Yes.
SPEERS: Okay. And you won't release this down the track?
ATTORNEY-GENERAL: It's not the practice of Australian governments to release advice, David,
SPEERS: Except for a few occasions that I cited. Will you release it down the track?
ATTORNEY-GENERAL: It's not the practice of Australian governments to release advice.
SPEERS: Let clear up what happened earlier in the month when you and the Solicitor-General attended a meeting of the working group. Well, in fact, you've attended several of them. But this particular one, there were various reports about what was discussed and words that you might have suggested. And even a suggestion, as we heard from Peter Dutton, that you wanted the words executive government taken out. Can you clear up for us this morning exactly what happened?
ATTORNEY-GENERAL: Well, that last one's just wrong. It's been the position of the Australian government at all times that the Voice, the Aboriginal and Torres Strait Islander Voice, should be able to make representations, should have power to make representations to the Parliament, and to the executive government of the Commonwealth. That's been my position, too.
SPEERS: So, you never you never suggested taking out executive government?
ATTORNEY-GENERAL: I have never suggested taking out executive government. There's been a lot of misreporting on this and I don't think that assists us. I'd invite all Australians to be looking at the final wording that we have got to and this kind of poring over the entrails of who might have said what, when, that won't help us at all. We've got to the final wording. That's what Australians are being asked to vote on later this year.
SPEERS: Well you did apparently, though suggest an additional form of words to go into the proposed Constitutional change that were not adopted by the Working Group. Is that correct?
ATTORNEY-GENERAL: Well, I'm not going to go into drafts, suggestions. What I invite people to focus on is the final form of words. And it will be apparent to people that there's been a change from the draft put forward by the Prime Minister at Garma. And that is a change that clarifies and puts beyond doubt, the power of the Parliament, the primacy of the Parliament.
SPEERS: Does that final form of wording achieve the same goal that you were seeking to achieve?
ATTORNEY-GENERAL: Again, I don't think poring over who said what, when matters. I think what matters is where we have landed, and where we've landed is a provision which clarifies the power of the Parliament, the primacy of the Australian Parliament to determine the scope, the functions and the powers of the Voice when it's going about its task.
SPEERS: Let's look at what that's going to mean in practice. So, the executive government, if the Voice can advise both parliament and executive government, that means both cabinet and the bureaucracy. With the wording that you've landed on, will Parliament be able to pass laws that limit, that define what elements of executive government the Voice can advise?
ATTORNEY-GENERAL: That's what those words in the third paragraph mean. They confirm the primacy of the Parliament to describe in legislation - which after this referendum succeeds is the next step - and that's what Parliament will do. Parliament will be able to set out in detail the way in which the Voice is going to operate in its relations with the Parliament and with the executive.
SPEERS: And how do you envisage this working? Just so you can give people a better understanding of how this might work? Would government departments need to seek advice from the Voice?
ATTORNEY-GENERAL: No, that's a misunderstanding of what this Constitutional provision does. What this Constitutional provision does is to set up, permanently, an Aboriginal and Torres Strait Islander Voice to Parliament and the executive, and the power that's given to the Voice is to make representations. Of course we're going to need to make sure that there's, at a mechanical level, the ability for the Voice to make representations. But it's not, as has been suggested, and as your question suggested, that there will be some requirement for government departments to be going off and seeking that advice. It's going to be for the Voice to say ’we're making representations to the Parliament. We're making representations to the government about this proposed law, about this policy, about this proposed policy’. There's a whole range of things, because, as we all know we've had decades of policies that haven't been working. What the purpose of the Voice is, is recognition...
SPEERS: If I can just jump in there, you just said departments won't be seeking advice from the Voice. The design principles that were released on Thursday specifically say the Parliament and executive government should seek representations in writing from the Voice early in the development of proposed laws.
ATTORNEY-GENERAL: Of course, of course, but I was trying to make the point that that won't be a requirement. I'm thinking that Australians are practical people, David and once we've got a Voice of Aboriginal and Torres Strait Islander people put in our Constitution on a permanent basis, making representations to the Parliament we will work out at a practical level, how that's going to operate.
SPEERS: Is it making departments seeking advice or not?
ATTORNEY-GENERAL: Maybe I'm being too much the lawyer and responding to what I think are some needlessly alarmist suggestions that have been put forward.
SPEERS: I'm just quoting the design principles. I don't know if that's alarmist. It's just whether the government should seek representations.
ATTORNEY-GENERAL: And that's an indication of how this is going to work practically.
SPEERS: So how does that work? What does that look like?
ATTORNEY-GENERAL: It looks like government departments or ministers or Members of Parliament making sure that they know what the Voice has to say. When we're about to announce some major change of policy affecting Aboriginal and Torres Strait Islander people, or pass a law that affects Aboriginal and Torres Strait Islander people, of course, we'll be making sure that the Voice, the representations that the Voice has to make on that subject are able to be listened to by the Parliament, by ministers, by senior public servants.
SPEERS: And I guess more of a legal question, if the Voice feels that it hasn't been given an opportunity to provide advice either to a department or to cabinet, will it be able to go to the High Court, point to the words in the Constitution that say they may make representations to executive government and make a case that they've not been heard?
ATTORNEY-GENERAL: That's a possibility. But again I point to the third paragraph of these words, David, which puts beyond doubt the power of the Parliament to regulate how that is to happen. And the reason why those words are there, to make sure that we were going to have certainty, we're going to know how this is going to operate.
SPEERS: Do you think, Attorney-General, the Voice will profoundly change the way that decisions are made by government and by the Parliament?
ATTORNEY-GENERAL: I'm hoping that it does, because we've seen from experience that when Members of Parliament, government departments do listen to Aboriginal communities, we get better outcomes. A key example I've been pointing to is Aboriginal Controlled Community Health Organisations. We know that where you've got those organisations with a voice with a say, right from the start in health operations in the communities where they exist, we get better outcomes. And you can point to examples right across the board where Aboriginal and Torres Strait Islander people are listened to, we get better policies, we get better laws. When they're not listened to, we end up wasting a great deal of money and we end up with failed policies, and that there's all too many failed policies, David, that we can point to over recent decades.
SPEERS: Let me ask you just one final question on another matter before I let you go Attorney-General. Lawyers for the former pilot Daniel Duggan have claimed that he was lured back to Australia from China so that he could be extradited to the United States to face charges for allegedly helping train Chinese pilots. The lawyers are saying that the Inspector-General of Intelligence and Security has launched an investigation into this in Australia. Are you able to confirm that?
ATTORNEY-GENERAL: I'm not going to comment at all other than to say that I have commenced extradition proceedings, as is my role as Attorney-General, at the request of the United States. Those proceedings will now take place in a court and consequently I'm not going to comment further.
SPEERS: All right, Attorney-General Mark Dreyfus, thanks for joining us this morning.
ATTORNEY-GENERAL: Thanks very much, David.
ENDS
