Member for Isaacs

ABC Radio Melbourne Drive Rafael Epstein 23 August 2022

23 August 2022

SUBJECTS: Solicitor General’s Advice regarding Scott Morrison’s Ministerial Appointments; Nomi Kaltmann.



SUBJECTS: Solicitor General’s Advice regarding Scott Morrison’s Ministerial Appointments; Nomi Kaltmann.

RAF EPSTEIN: Mark Dreyfus is of course Federal Attorney-General, part of the Prime Minister's cabinet. Thanks for joining us.

ATTORNEY-GENERAL MARK DREYFUS: Very good to be with you. Good afternoon.

EPSTEIN: I realise Scott Morrison’s statement’s just come out. Do you read it as willingness to cooperate with an inquiry?

ATTORNEY-GENERAL: Mr Morrison says in terms - I'll read it out to you, it's just been brought to my attention - he says “I will appropriately assist any genuine process to learn the lessons from the pandemic”. Now, we're not talking about lessons from the pandemic. Mr Morrison has been hiding behind the pandemic as an excuse, and not a good one for what he did, but he is saying that he's prepared to assist any genuine process. Well, I'm going to take that as a preparedness to assist with any inquiry that we establish and we're now considering what form this inquiry will take.

EPSTEIN: Will it be a judge?

ATTORNEY-GENERAL: I'm not going to say now, because we are still in the process of considering what form the inquiry will take. Obviously, that's a possibility. I think what's significant here is that, just for today, the Solicitor-General's advice. I cannot remember ever seeing an advice from the Solicitor-General like this. It's so extraordinary that we see the terms in which he's expressed himself. You read out a little bit of it before Raf, saying, the Solicitor-General saying, it's impossible for the Parliament to hold ministers to account for the administration of departments if it does not know which ministers are responsible for which departments. This is the Solicitor-General of Australia. He said elsewhere in the advice that what Mr Morrison did was “inconsistent with the conventions and practices that form an essential part of the system of responsible government”. And another in another place he said “the principles of responsible government are fundamentally undermined”. That's why the Prime Minister and the Government have taken the unusual step of releasing the Solicitor-General's advice.

EPSTEIN: How would you summarise that? What do you think Stephen Donaghue was saying about Scott Morrison?

ATTORNEY-GENERAL: That the former Prime Minister undermined basic principles of our democracy. He trashed parliamentary responsibility. It's hard to think of something that was more just thumbing his nose at our Parliament. We publish lists of who the ministers are. Question Time depends on knowing who the ministers are. Senate Estimates depends on knowing who the ministers are. The whole of the administration of the Commonwealth, Secretaries of departments and public servants depend on knowing who is appointed to administer departments. What Mr Morrison did was appoint himself to administer five of the departments and then kept it secret. He hasn't explained why he did this and his attempts to explain it after the fact are simply things that don't stack up.

EPSTEIN: Can you answer why it occurred if he doesn't give evidence?

ATTORNEY-GENERAL: We can speculate about why it occurred. If he decides that, contrary to what he said in his written statement today that he won't cooperate, then the inquirer will be left to speculate about what his motives might have been.

EPSTEIN: Does that mean, what you said just there, does that mean there won't be the power to compel witnesses?

ATTORNEY-GENERAL: I’m not going to foreshadow, I’m not going to go to the detail of what form this inquiry will take. That is a matter that the government is still considering and it's appropriate that we take time to consider the precise form of inquiry and what's needed. What we do know is that in the eight or so days that this has been in the public eye, every day new details have become apparent. The Solicitor-General did the best he could with what is presently known about what Mr Morrison did in having himself appointed to administer these five departments. But it's highly likely that an inquiry assisted by the full resources of government, with access to the full resources of government and able to interview public servants, who will of course, absolutely assist in this inquiry, will discover more about the circumstances and that's what we need to know. We need to set up an inquiry because we want to know the full circumstances and I am very much hoping that not only Mr Morrison will assist this inquiry, but the former ministers in the government, including Mr Dutton, including the ministers whose departments who we did know were ministers, that they will assist. At the moment, Mr Dutton is just missing in action at the moment. He's failing Australia by not telling us. He has not given an interview for days because he's hiding. He doesn't want to say anything.

EPSTEIN: If I can bring it back to some of the things that the Solicitor-General said. You mentioned public servants there, though. That would mean at the moment that the inquiry would like to speak to public servants in the Prime Minister's Department and also public servants who work with the Governor General. Is that correct?

ATTORNEY-GENERAL: I'm not going to single out any particular public servants. We need to hear from public servants with whom this secret appointment by the Prime Minister to five departments interacted. All of them, not just the Secretaries, but every public servant in Australia was affected by these appointments, or at least certainly those in the five departments. The whole of Australia was affected by these appointments and that's why we need to be hearing, not just from Mr Morrison, but from the ministers of the former government. We saw an extraordinary muddled interview on Insiders on Sunday morning with the former Deputy Prime Minister, twice Deputy Prime Minister, Mr Joyce, who simply wasn't able to explain when he knew or even what he knew, let alone explaining why Mr Morrison had done this. Mr Joyce's focus seemed to be on the Coalition Agreement, which he feared that the advantage he'd wrung out of Mr Morrison - always thinking of political advantage, that's what we've come to learn about the Coalition. Instead of worrying about the government of the Commonwealth, Mr Joyce was worried about losing the additional ministry that he'd extracted in some negotiation.

EPSTEIN: That was Sunday though. If I can try and bring it back to the Solicitor-General.

ATTORNEY-GENERAL: It’s only two days ago Raf, and it's relevant.

EPSTEIN: I understand. The Solicitor General's opinion, if I can bring you there as the Attorney-General, I just wanted to play something because one of the best constitutional law experts we've got is Professor Anne Twomey. She wanted to know why the Solicitor-General wasn't given some idea about what normally happens, and then what happened this time. Here’s Professor Anne Twomey earlier.

TWOMEY: The Prime Minister should be able to say to his department, okay, tell me. I want to know precisely how this is ordinarily done, and how it was done on this occasion and why was there a difference between the two? That should not be a hard thing to find out. You should be able to get someone to tell you the answer to that in an hour, I would have thought.

EPSTEIN: Have you got a good answer for why the Solicitor-General wasn't able to ask that question already and why we don't already know that?

ATTORNEY-GENERAL: The Solicitor-General's commented on the fact that, as known at the time that he was instructed to advise, he knows that Mr Morrison had himself appointed to administer five departments and he knows when he's giving the advice, and this is what he's advised on absolutely appropriately, that the former Prime Minister disgracefully kept this secret.

EPSTEIN: That's not an answer to my question.

ATTORNEY-GENERAL: You're wanting to know what will inquiry look at, and Anne Twomey is appropriately saying that interviews with public servants and fine grained analysis of what processes have been used in the past, fine grained analysis of the processes that are used, that surround appointments. all of that will be the subject of the inquiry. The Solicitor-General, quite rightly, was looking at the known extraordinary facts of the Prime Minister who had himself appointed to administer five departments and kept it secret. And the reason we can see why he kept it secret is because there was no proper explanation for what he did. And there's tremendous potential damage done to our democracy in our system of responsible government by what he did. That's the problem here and that's what the Solicitor-General was advising on and now every Australian who chooses to inform themselves about this can read what the principal legal adviser to the Commonwealth has had to say about it.

EPSTEIN: There’s a number of texts. Some people are very excited and want to know more. Others think this is a witch hunt. If I can read one text. “I think I just lost respect for the usually excellent Mark Dreyfus, histrionics don't suit him”. But there are a lot of people saying this is a waste of time. Scott Morrison didn't exercise most of the powers. He did in one case. What's your point to the people who say this is a waste of time and a waste of money? What do you say is the point of inquiry?

ATTORNEY-GENERAL: We need to make sure this never happens again. We need to make sure that no Prime Minister in the future can swear themselves – sorry, have themselves appointed, it's not a swearing in – have themselves appointed to administer five departments and keep it secret. Because, as the Solicitor-General has pointed out today, this is a fundamental undermining of the principles of responsible government. And it is absolutely serious. I don't accept people that are saying, well, nothing seems to have happened. Plenty could have and you don't need much imagination to understand what some person seeking to be a complete dictator, someone seeking to replace responsible government, to replace cabinet government in Australia with something that more resembles a dictatorship..

EPSTEIN: Are you saying that is what Scott Morrison did?

ATTORNEY-GENERAL: I'm talking about the potential, and I'm trying to answer your point Raf of saying the people who say this doesn't matter. Scott Morrison says that he didn't use the power that he had given himself by having himself appointed to administer five departments. Well, that's what the inquiry is going to look at, and the inquiry should appropriately look at what the potential is if a future Prime Minister would choose to do what Mr Morrison did. It's a huge undermining of our democracy that has potentially occurred here. The fact that he did it in secret tells you that he himself must have known that this would be very poorly received by his Cabinet colleagues and very poorly received by the Australian community once it did come out. And that's, of course, what has happened and we've seen the reaction of some of his former Cabinet colleagues, in particular, Karen Andrews, the former Minister for Home Affairs, who said that Mr Morrison should be resigning. I would like to ask you, I want to hear from Mr Dutton over the phone.

EPSTEIN: As an MP - you're an elected representative here in Melbourne - your colleague, Richard Marles MP of Corio, he thinks there should be severe consequences for Scott Morrison. Do you agree? Severe consequences?

ATTORNEY-GENERAL: I think there have already been severe consequences for Mr Morrison. I think that he is going to be ashamed in future, if he's not already, by having been found out for these five secret appointments that he put in place that he hasn't satisfactorily explained. There have already been severe political consequences for him and there may be more still to come. But that's a matter for his own party, and it should be a matter for Mr Dutton. Mr Dutton is the Leader of the Liberal Party. He's the Leader of the Coalition, and we need to be hearing from him. He's gone into hiding over this.

EPSTEIN: He said it was wrong. He can't kick him out of the Liberal Party. He doesn't have that power. What do you want him to do?

ATTORNEY-GENERAL: Sorry, who said it was wrong Raf?

EPSTEIN: Mr Dutton.

ATTORNEY-GENERAL: Well, he needs to be saying what the consequences are.

EPSTEIN: Are you asking him to kick him out of the party? He has condemned it a few times, Peter Dutton, so I'm just curious what you wanted him to say?

ATTORNEY-GENERAL: That was some days back. I want to hear from him today. Now that the Solicitor-General has made clear just what a dreadful breach of the conventions that underlie our government this is. And to say it's wrong and I wouldn't have done it, that's not enough. We need to hear directly from Mr Dutton. We need to hear from him as the Leader of the Liberal Party in the Australian Parliament and we need to hear what he's going to do to make sure that there's full cooperation from former ministers with the inquiry. We need to hear from him as to his suggestions how to make sure as to how to make sure this never happens again.

EPSTEIN: Just a quick one. There's a new independent candidate in the state seat of Caulfield, Nomi Kaltmann, I think she worked in your office. Do you remember anything about it? Do you remember her working for you?

ATTORNEY-GENERAL: I remember that Nomi Kaltmann worked extremely hard in my electorate office and writes and thinks and speaks exceptionally well. Nomi worked for some years in my electorate office, and I wish her well as I wish anyone well who participates in our parliamentary democracy. I'm sorry, of course, that she's no longer going to run for the Labor Party. But that's her choice. But I can only commend Nomi’s talents, energy, and commitment to working in our political environment.

EPSTEIN: Thanks for your time.

ATTORNEY-GENERAL: Thanks very much.