THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
ABC PERTH MORNINGS
MONDAY, 28 AUGUST 2023
SUBJECTS: Voice to Parliament; Privacy Act review.
NADIA MITSOPOULOS: Well, as I mentioned earlier, the Prime Minister is in town and has brought his cabinet ministers with him, for the second time, I think in about seven months. So they are paying a lot of attention to Western Australia, something that we haven't been used to in the past when it's come to federal governments. Now among them is Mark Dreyfus. He's, of course, the Federal Attorney-General, and he's found, very kindly, some time to pop in to the studio. Good morning, and thank you for coming in.
ATTORNEY-GENERAL: Great to be with you, Nadia.
MITSOPOULOS: Let's start with the Voice, which has certainly been dominating a lot of the discussions you've been having recently. Now, our Liberal and National Party Leaders here have reneged on their support for the Voice. Do you concede it will be hard to get it up in WA?
ATTORNEY-GENERAL: I think we can get this up in every state of Australia and in both territories. And we're going to be campaigning, along with the tens of thousands of Australians who volunteered for the Yes23 campaign, we're going to be knocking on doors, standing on street corners, making phone calls and that's the way this referendum is going to be won.
MITSOPOULOS: Opponents often say they still aren't really sure what they're voting for because of the lack of detail. What are they voting for?
ATTORNEY-GENERAL: They're voting for a really simple but significant change to Australia's Constitution. It's going to put 92 words in the Constitution which will say, in summary, that in recognition of Aboriginal and Torres Strait Islander People as the first peoples of Australia there shall be an Aboriginal and Torres Strait Islander Voice. The purpose of the Voice is to make representations to the Parliament and the executive government about matters concerning Aboriginal people. And, most importantly, it's left to the Parliament to make a law about how the Voice is going to work, what its functions are going to be. It's a very simple change.
MITSOPOULOS: And that's what people, I guess, still don't understand, like how it will work, that's the unknown and that's the kind of detail people were wanting.
ATTORNEY-GENERAL: Yes, and that's what Parliament is going to resolve. After the referendum decides that we put this principle in our Constitution it's like how the rest of the Constitution works. I'll give you an example, Nadia. The Constitution says we have to have elections in Australia, and I think most Australians wouldn't be surprised to hear that . We're a democratic country. But the Constitution leaves it up to the Parliament to decide whether elections are going to be compulsory, whether we're going to have preferential voting or first past the post voting, proportional representation. All of those are decisions left for the Parliament. Whether we're going to have an Australian Electoral Commission, all of this, the Parliament has made laws about since Federation.
MITSOPOULOS: Can I just put some of the questions that are coming through on the text line, and particularly from those who are still either undecided or voting No. People say that it will divide Australia, there'll be an us and them and that it undermines the principle of equality because you're going to have one set of rules for one group and one set for another.
ATTORNEY-GENERAL: And I'd say it's the contrary. This will be a unifying moment for our country. It's a chance for us, after decades of talking about it, to recognise Aboriginal and Torres Strait Islander People in the Constitution and to do so in the way that Aboriginal and Torres Strait Islander People have asked for with this Voice. We know that we need to start doing things differently and this is a way to do things differently. I am very confident that it's a unifying moment because no longer will Aboriginal and Torres Strait Islander People be left out of the Constitution, which is what happened when we, at Federation, adopted this Constitution. Aboriginal and Torres Strait Islander People were explicitly excluded from the Constitution.
MITSOPOULOS: Shane Love, the Nationals Leader here, says that it can't be truly representative because it won't be able to represent every indigenous group in Australia and their views.
ATTORNEY-GENERAL: I don't think that's right. It's going to be a matter for the Parliament to devise the final form of the Voice. But we've shown repeatedly in Australia that we've got the capacity to work out ways to represent diverse views, work out ways to represent diverse regions of our great continent and I'm confident that we can do that again.
MITSOPOULOS: How will it lead to practical outcomes?
ATTORNEY-GENERAL: We know that when you listen to people who are affected by laws and policies, about those laws and policies, you get better outcomes.
MITSOPOULOS: And you could argue you can do that now.
ATTORNEY-GENERAL: Oh, well, I can give you a couple of practical examples of why listening gives us better outcomes. A really good example is Aboriginal Community Controlled Health Organisations where we can see that when you get the health services provided by an Aboriginal community control organisation, you get better outcomes. Another would be Indigenous Rangers where we've got something that came out of local communities right across Australia. As an employment program this has blossomed into a very large program that now employs more than 2000 Aboriginal and Torres Strait Islander people across remote and regional Australia, doing work that is caring for country, that uses traditional knowledge, provides really worthwhile employment. And again, that's an idea that came from Aboriginal and Torres Strait Islander People. So it's pretty simple Nadia.
MITSOPOULOS: And you're able to do that without a Voice.
ATTORNEY-GENERAL: We need to make sure that its going to be on a stable basis. And that's the reason for putting in in the Constitution, this Voice of Aboriginal and Torres Strait Islander people, which is going to be able to provide advice on a stable basis to the Parliament, to the executive government, and won't be susceptible to being abolished on the whim of some future Parliament. This, sadly, is what has happened over the past several decades where we've started off, we've got an Aboriginal organisation that's been legislated and then a new government comes along and abolishes it. We're looking for the level of stability that putting something in the Constitution does.
MITSOPOULOS: And the only way to remove it would be then to go to another referendum.
ATTORNEY-GENERAL: That's right. The Constitution can be changed. I'm not saying it's not difficult to change our Constitution - we need this double majority, a majority of Australians voting and a majority of the states - but of course, it's possible to change our Constitution and that's what the people that wrote the Constitution put in.
MITSOPOULOS: I had a listener call me before nine o'clock on that very point, and I told him I would ask you about it, and the long-term consequences. And his argument was, well, what if we get to a point in 40 or 50 years’ time where Aboriginal people are at an equal point as the rest of the country, is it then needed or does it then give them an unequal advantage?
ATTORNEY-GENERAL: I so hope that in 40, or 50 years’ time, we get to a position where there isn't the massive level of disadvantage that I think all of your listeners would know, is experienced by Aboriginal and Torres Strait Islander People. In five decades time, if we decide we no longer need a Voice, that will be a matter that the Australian people can decide on in between then and now, if, as I very much hope, the Voice is put in our Constitution by a referendum later this year. Between then and now we will have the Parliament deciding exactly how the Voice is to operate. I think it's pretty unlikely that in 20 or 30 years’ time it would be required to operate in exactly the same way as we presently envisage it. If the referendum succeeds the Parliament is going to have a debate, probably quite a lengthy one, about how the Voice is to be structured.
MITSOPOULOS: Federal Attorney-General Mark Dreyfus is my guest this morning. I want to get on to privacy data. Just a couple of quick questions, a lot of these coming through on the text line and there are quite a few people asking you about what happens if the government ignores the advice from the Voice? Could that lead to a legal challenge in the courts?
ATTORNEY-GENERAL: Absolutely not. The Solicitor-General was asked to give advice on this and said that this will enhance our system of government. Robert French, great Western Australian former Chief Justice of the High Court of Australia, has said very, very directly that it's not going to lead to a whole lot of litigation. It's about advice. The Voice is going to advise. It won't have a power of veto. It won't be able to direct the government on spending. It won't be able to direct the government to make particular decisions. It's simply there to give advice and of course, we'd hope that the Parliament and the executive government will listen, but it won't be under a legal obligation to do so.
MITSOPOULOS: Will you be under an obligation to consult with a Voice on virtually every possible issue, as some people think?
ATTORNEY-GENERAL: No. There will be no obligation to consult. What there will be is the opportunity for Aboriginal and Torres Strait Islander people to give advice to the Parliament and to the executive.
MITSOPOULOS: But is it up to the Voice to say we want to have a say in this issue?
ATTORNEY-GENERAL: That's exactly right.
MITSOPOULOS: So it could be every issue?
ATTORNEY-GENERAL: It's up to the Voice and up to the Parliament to decide how the Voice is to go about doing this. And I'd say again, people can be very reassured that this Constitutional provision retains the power for the Parliament to decide how the Voice is going to work.
MITSOPOULOS: Are you relieved that the new Cultural Heritage laws here in WA have been scrapped? Was that feeding into the No vote in your view?
ATTORNEY-GENERAL: I can see that there's an ongoing need to reform Western Australia's Cultural Heritage laws. But to the extent that it was being used by the No campaign to cause immense confusion, it's a good thing that that confusion's at an end and I think people can now see that the two things have nothing to do with each other.
MITSOPOULOS: Did your government ask the Cook Government to scrap it?
ATTORNEY-GENERAL: Certainly not. It was entirely a decision of the Western Australian state government. But it's been a feature of the No campaign that it has wanted to talk about every other thing under the sun and not about the simple change to our Constitution that the Voice involves.
MITSOPOULOS: It is 18 minutes past nine. I've got the Federal Attorney-General, Mark Dreyfus with me. Just a few minutes left. I know you've got a fair bit to do today, but Coles and Woolworths have announced major investments into surveillance following a surge in shoplifting, and they're watching us all through their stores at the checkout. But the privacy advocates are becoming increasingly concerned about the large amounts of biometric data being collected. Do you share that concern?
ATTORNEY-GENERAL: I do share that concern. Our government has embarked on the biggest review of the Privacy Act since it was first enacted decades ago. We're committed to protecting Australians' personal information in all forms, which includes biometric information such as facial images.
MITSOPOULOS: But it's also looking at your iris. It also now can recognise the way you talk, the way you walk.
ATTORNEY-GENERAL: Yes, that's right.
MITSOPOULOS: Highly invasive.
ATTORNEY-GENERAL: Indeed, it is. Biometric information can be considered sensitive personal information, and under the Privacy Act individuals can complain to the office of the Australian Information Commissioner if they believe that facial recognition or biometric recognition technology has been used without their knowledge, or consent. And clearly we need to look really hard at the way in which the Privacy Act which, when it was first enacted, predated all of the technology that we now see in operation. We need to look hard at the way those provisions work.
MITSOPOULOS: So in the changes that will come up in the Privacy Act, which you are in the process of working on at the moment, could you have restrictions, for instance?
ATTORNEY-GENERAL: There are already restrictions on use of your personal information.
MITSOPOULOS: Use is one thing, but actually getting it is the problem, the fact that they can actually obtain it.
ATTORNEY-GENERAL: Obtaining information without your consent is also regulated already by the Privacy Act. And I know that the Information Commissioner and the Privacy Commissioner are both going to be looking hard at these new uses of biometric information, such as the example you've given at Coles and Woolworths.
MITSOPOULOS: What about the right to be forgotten? Is that something that will be in your new legislation?
ATTORNEY-GENERAL: The European Union has already moved to, as a legal right, provide for what's called the right to be forgotten. It's something that's been raised in the course of the review of the Privacy Act and it's something that we're going to have to look at simply because there's a very large jurisdiction, namely the European Union, where that's already the law.
MITSOPOULOS: So that could force you to act? Would you support it?
ATTORNEY-GENERAL: I can see why, given the long lasting nature of digital information, some people are calling for the introduction of a right in Australia, like that right in the European Union, called the right to be forgotten. It's not a simple matter and that's why we're looking hard at whether or not it should be introduced here.
MITSOPOULOS: I'll leave it there and appreciate you coming in. Thank you.
ATTORNEY-GENERAL: Thank you very much Nadia