HON MARK DREYFUS QC MP
MEMBER FOR ISAACS
ABC MELBOURNE VIRGINIA TRIOLI
FRIDAY, 12 AUGUST 2022
SUBJECTS: Deaths in custody; Optional Protocol for the Convention Against Torture and Inhumane Treatment; Meeting of Attorneys-General; Draft National Principles for Coercive Control; National Anti-Corruption Commission; Victorian IBAC; Visit by NZ Justice Minister; Voluntary Assisted Dying Telehealth; Uniform defamation laws; Bernard Collaery; Whistleblower protections; Moss Review; Julian Assange; Kiribati constitutional crisis.
VIRGINIA TRIOLI: The Federal Attorney-General Mark Dreyfus, who's about to meet his state and territory counterparts in the first big meeting of Attorneys-General here in Australia for a couple of years now. Attorney-General, great to see you and thanks for joining us. Good morning.
ATTORNEY-GENERAL: Thank you very much for having me, Virginia.
TRIOLI: There's a lot on the agenda today and so we'll try and get through it at a clip if we can this morning before we speak to Simon Holmes à Court. But I do just want to pick up that news that was just mentioned in the bulletin there, another Aboriginal man dying in custody. This is at Port Phillip and it took place last night. He was only 32. That's more than 500 Aboriginal deaths in custody since the Royal Commission now. Now the Federal Government signed that treaty a number of years ago which allows for the independent inspection of prisons, but there's been very little movement and most states around Australia, including Victoria, have done nothing to begin better oversight and inspections of prisons. What do you want to see the states do?
ATTORNEY-GENERAL: We want to see, absolutely uniformly across Australia, custody notification services so that Aboriginal people who are in custody are able to talk to a lawyer, able to talk to a family member, able to talk to a service that gives them that contact. We've made a commitment in the election to assist families with coronial inquests with the hope that if these are examined, these deaths in custody are examined, that we will learn more about how they can be prevented. But we're more than 30 years on from the Royal Commission that my colleague Patrick Dodson was the Commissioner for and we are still seeing black deaths in custody.
TRIOLI: So why aren't your state counterparts doing that?
ATTORNEY-GENERAL: Some states have got custody notification services, some states have worked very hard on making sure that there are protections and proper procedures in place and we need to make sure it's national. We need to make sure it's everywhere.
TRIOLI: But we do know that the independent inspections, that's in your portfolio, that's in the Federal Attorney-General's portfolio when it comes to the OPCAT independent inspections, so how many of those are going on?
ATTORNEY-GENERAL: I signed Australia up to the Optional Protocol for the Convention Against Torture and Inhumane Treatment back in 2013. The previous government ratified in 2017, at the end of 2017 and the first inspection under the treaty, a UN committee, is coming to Australia in October.
TRIOLI: October of this year?
ATTORNEY-GENERAL: October of this year. We need to get national protective mechanisms in place in every state and territory because all of the prisons, all of the youth detention centres, are run by the states and territories because it's a cooperative effort. It's on the agenda for today.
TRIOLI: But there is, as I mentioned, federal oversight there. Just a quick last question on that, are you saying that independent inspection, the OPCAT inspection, could have been taking place since 2017 when it was ratified?
ATTORNEY-GENERAL: It's up to the UN to decide when to send its committee to inspect countries that have ratified the treaty. The inspection is taking place in October this year and we, of course, hope that the inspection will produce a favourable report on Australia's prisons.
TRIOLI: What's the best way to get an outcome here? To leave it to that international inspection, or for there to be great agency by the states?
ATTORNEY-GENERAL: Not at all. In order to be fully compliant we need to get nationally protective mechanisms in every state and territory. Some states have got that set up but not all. And one of the things for discussion today is how to make sure that by, I think it's the 20th of January next year, the whole of Australia's prisons and systems are fully compliant.
TRIOLI: Well on the agenda for today, for the big meeting, is the national approach to coercive control and strengthening criminal justice responses to sexual assault. Queensland and New South Wales, they've already moved to criminalise coercive control. Victoria and Tasmania say that existing laws cover the offences. So what do you want to see?
ATTORNEY-GENERAL: We want to see today, and I'm confident that we're going to reach this agreement on releasing Draft National Principles about Coercive Control, which will improve a consistent national approach so that this can be better understood.
TRIOLI: It's notoriously difficult to prove, so will the laws have to have a lower burden of proof in order to be meaningful and to actually get some change? And what's the risk with that?
ATTORNEY-GENERAL: I'm expecting that different states may very well have different responses. As you've just said in introducing this topic, New South Wales has already published a draft law, Queensland indicated that they intend to legislate, other states are saying they don't need to because their criminal laws already covered this situation.
TRIOLI: Do you agree with them on that?
ATTORNEY-GENERAL: We don't have consistent criminal law across Australia. Every state has its own criminal laws and different legislation. So, you can't really make a general statement about Australian criminal law. What you can say is that if we can get national principles agreed, if we can get better community awareness of what coercive control is, we can start to take steps to eliminate this conduct. And part of it might be criminalising, but a big part of it is just getting this behaviour recognised. And everyone that's talked about this, as you've just said, says it's very difficult to recognise.
TRIOLI: Well that's the thing, so just to take you to my question about a lower burden of proof, is that going to have to be codified in criminal laws, in order for any coercive control law to actually be meaningful, to have effect?
ATTORNEY-GENERAL: The states that are talking about criminalising it are talking about adopting some definition that make it clear what behaviour it is that we're trying to criminalise. I'm interested, at the first stage here, in getting these national principles. We've got Draft National Principles. I'm hoping they'll be agreed on and released today for consultation. That's going to be a very good first step.
TRIOLI: Let's move to another matter that I know you're looking at and that of course, is some sort of a federal ICAC. Do you agree with the new New South Wales teal independent Kylea Tink, that the federal integrity commission should have the power to sack parliamentarians?
ATTORNEY-GENERAL: No. To be very direct the Commission should not have the power to sack parliamentarians. The power to sack parliamentarians rests with voters at the election and I think Kylea Tink would probably now regret making this suggestion which has been something of a diversion from what this National Anti-Corruption Commission has got to be about. This National Anti-Corruption Commission is about eliminating corruption in public life in all its forms. It's to concentrate not just on MPs, but on ministers, on senior public servants, on every agency of the Commonwealth and what sanctions to be imposed, if there are charges laid and sanctions imposed by criminal courts, if criminal offences have been committed. But this anti-corruption commission is going to make reports and from reports, we'll get public exposure of corruption and from that public exposure we will get action.
TRIOLI: Not necessarily though. I mean, we've seen that play out just recently here in Victoria with the IBAC and where we saw a recent report from the IBAC Commissioner, and by the Ombudsman, and we're fundamentally, at the end, having found egregious instances that troubled them deeply, they found their hands were tied, that they couldn't actually be assured of any successful prosecution and so they couldn't move forward with anything. Looking at the IBAC situation in Victoria, you would not want to end up duplicating something like this federally, would you, because it does seem inadequate. Does it to you?
ATTORNEY-GENERAL: I don't want to comment on the particular case that you're referring to.
TRIOLI: Why not?
ATTORNEY-GENERAL: Because I want to say generally about the Commonwealth approach that we're going to take..
TRIOLI: Sorry to jump in there Attorney, but the reason I raise it is that we're in Victoria, you're Victorian.
TRIOLI: You're a member of the Labor Party, this is a Labor Government here and I know you don't want to be accused of, you know, of not looking at something that might make you uncomfortable. You have an IBAC, you have a model that exists, a working model right now, looking at that, that kind of outcome would not be acceptable to you?
ATTORNEY-GENERAL: But there are limitations in the Victorian IBAC which you will not see in the Commonwealth model that is about to be introduced in the Commonwealth Parliament, I hope, as early as next month.
TRIOLI: Does that mean that we can't be confident in the Victorian IBAC model? If you say there are limitations of this model we won't see federally, that we can't be truly confident that we've got a proper integrity body here that's been given enough teeth?
ATTORNEY-GENERAL: I think there's been an ongoing debate in every state and territory. We now have eight of these anti-corruption commissions across Australia. In every jurisdiction there's been fine tuning and adjustment of the way in which the anti-corruption commission works in the particular jurisdiction and that's an ongoing debate within every one of these jurisdictions. These are difficult agencies to set up. They're difficult agencies to get the settings right. I know what our objective is federally. Some years back Federal Labor published a set of design principles. We've endorsed them, we've committed to them at two elections. I'm bringing to the Parliament, I hope as early as next month, a bill which will establish a strong anti-corruption commission in line with those design principles. It's going to be very broad-based. It's going to have full powers to conduct both private and public hearings. It's going to have full powers to report. It's going to be able to look at the whole of the Australian public sector and I'm hoping to be able to say we've learned from each of the eight state and territory commissions and I think we're going to be able to pick the best features.
TRIOLI: Just before I move on though, as a Victorian and as a Member of the Labor Party, when you look at the situation here in Victoria, and you hear the Commissioner say that there's disappointing shortcomings in the leadership from the Labor Member who leads the committee here that's looking at the integrity issues, the Parliamentary inquiry that she leads is compromising the IBAC Commissioner's investigation and that the Commissioner actually publicly says this about Daniel Andrews' own MP, how does that make you feel?
ATTORNEY-GENERAL: I think that there are going to be tensions in between the oversight and the Commission. I've seen in a number of states - in Queensland, in Western Australia, in New South Wales - there's been tensions between the Parliamentary oversight body that oversees these anti-corruption commissions.
TRIOLI: Are you saying that's an example of it working well, then?
ATTORNEY-GENERAL: I'm not saying it is but they are inevitable. They need to be worked through and I'd be hoping for respectful approaches by everybody involved because as soon as you've set up oversight of the oversight - and there's another layer as well, in some of these commissions you've got an inspector-general whose job it is to poke around in individual inquiries, and make sure they were done right, that's given rise to tensions as well. This is inevitable, but that's a good thing, that we've got checks and balances in what are, after all, extraordinary agencies with extraordinary powers.
TRIOLI: Do you think this is a check and balance what we're talking about here?
ATTORNEY-GENERAL: I do, I do.
TRIOLI: Or is this the Government, the State Government being obstructive?
ATTORNEY-GENERAL: Well, I haven't seen that and I think that this is the checks and balances in operation.
TRIOLI: With you this morning is the Federal Attorney-General Mark Dreyfus, the Labor MP for Isaacs and a lot to get through with this big meeting that's taking place today, a meeting of State and Territory Attorneys-General and also a visit from the New Zealand Justice Minister too who's going to be monitoring it.
ATTORNEY-GENERAL: The Honourable Kiri Allan, who is the Minister for Justice in New Zealand is attending the meeting. I'm hoping she's going to be able to offer some observations on, for example, the New Zealand experience of the Optional Convention Against Torture, which New Zealand signed up to some years back.
TRIOLI: Dr Nick Carr, a member of Dying With Dignity, has gone to the Federal Court requiring you to explain why he can't use Telehealth in some of his appointments with patients who have been cleared already to use our Voluntary Assisted Dying laws here. Will you change the federal communication laws to allow that in some circumstances?
ATTORNEY-GENERAL: I can't say too much about the case that Dr Carr has brought against the Commonwealth. I can say that a number of states have raised with me the effect of current Commonwealth criminal laws on their Voluntary Assisted Dying regimes and I'm looking very closely at that.
TRIOLI: You see the dilemma?
ATTORNEY-GENERAL: Of course. And there is not complete uniformity of view about the effect of the Commonwealth criminal laws. Some lawyers have suggested that they don't have an impact on established lawful regimes for Voluntary Assisted Dying. Other people, however, are concerned. That's the matter I'm looking at and you'll hear more about this in coming months.
TRIOLI: So, are you feeling optimistic that Dr Nick Carr might get some satisfaction here?
ATTORNEY-GENERAL: I think I would invite Dr Carr to perhaps take a little bit of breathing space in this litigation because he should know, and I'm saying publicly, that a number of states which have Voluntary Assisted Dying laws, have asked me directly to look at this question, that is, the impact of Commonwealth laws on their regimes. It's a matter that's going to be discussed today at the Meeting of Attorneys-General.
TRIOLI: How do you plan to end forum shopping in libel cases? How do you get nationally consistent libel laws? Because that might make you a hero for all time in the Australian legal books, if you have all Attorneys-General manage to get nationally consistent libel laws. You can hear my scepticism there.
ATTORNEY-GENERAL: Well, as you know I used practice in this area Virginia.
TRIOLI: Exactly right, and you know this better than anyone. It's not going to happen.
ATTORNEY-GENERAL: We haven't ever quite got to full uniformity. But since 2006, we've had pretty close to uniform laws. There's been a good effort made by Attorneys-General, led by Mark Speakman, the Attorney-General of New South Wales, in the last four years which have produced one round of uniform changes that all but two states have now legislated. And there's another round of changes to defamation law that's under discussion today. One of them is a very useful reform that will impose liability, or would seek to impose liability, on digital platforms for comments published on their platforms, making them responsible so that they can't get out of it by saying it's not our publication, we didn't make that comment. That's not the way defamation law should work. For centuries liability has been imposed on publishers. The ABC is liable for what you and I say. Even though it's what I say the ABC is running the platform and it's liable. So, this next round of reforms seeks to deal with that problem for the digital platforms and Mark Speakman has very ably led that.
TRIOLI: You ordered the Commonwealth to, famously now, to drop the prosecution of lawyer Bernard Collaery four years after he was charged with conspiring to release classified information about the alleged spying operation in East Timor. So why are you refusing to do the same for whistleblower Richard Boyle who spoke up about unethical debt recovery practices at the Australian Taxation Office? What's the material difference for you?
ATTORNEY-GENERAL: The one very material difference is that the consent of the Commonwealth Attorney-General was needed to bring the charges in the first place against Bernard Collaery.
TRIOLI: Well that's a technicality rather than a principle against whistleblowing.
ATTORNEY-GENERAL: It's a very, very important difference. Bernard Collaery's case was an exceptional case. There's very few criminal prosecutions in Australia that have implications for our international relations, and undoubtedly - and this was one of the major reasons why I intervened in the prosecution of Bernard Collaery to bring it to an end - it did have major implications for our international relations and I'm pleased to have taken that decision. The case of Richard Boyle is one that has been brought by the Commonwealth Director of Public Prosecutions on information provided by the Australian Taxation Office. He has a defence, he has relied on a defence under the Public Interest Disclosure Act, that's the existing whistleblower protection regime and it doesn't raise the exceptional circumstances that were raised in Bernard Collaery's case. So that's my explanation to you, Virginia, for why I am not intervening. Ever since I intervened in Mr Collaery's case I've had, you might not be surprised to hear, many, many requests for me to intervene.
TRIOLI: "What about this and what about that." I get all that, but the thing that unifies all those requests that I'm aware of, and includes, you know, David McBride as well, is that they all come down to whether, as Federal Attorney-General, you believe in some consistent principle and framework around the need for whistleblower protection. Now, I know you've said your Government's committed to reforming the Public Interest Disclosure Act, and we can talk about that, but as Attorney-General do you believe in that principle? Because that's the thing that unites all three of those.
ATTORNEY-GENERAL: Of all the people in the Federal Government today I'm probably the person who most prominently has worked to bring about a proper scheme of whistleblower protection in Australia. That's why, in 2013, I brought the Public Interest Disclosure Act to the Parliament. It's why I provided in that act for there to be a statutory review because I wanted to make sure that the scheme was right. Very disappointingly to me, the statutory review that was conducted by an eminent Australian public servant, Philip Moss, which was given to the government at the end of 2016, was ignored by the former government. And one of my early tasks has been to pick up that review, pick up all the recommendations that Philip Moss made. I'm going to update them and I hope, early next year, to bring a bill to the parliament to reform and improve the scheme of whistleblower protection for Australia.
TRIOLI: I told you there's lots to talk about. Still not done, but I've got Simon Holmes à Court waiting on the line and I don't want to keep him waiting. So, just very quickly, what exactly is the Australian Government doing to pressure the Biden Administration over the continued prosecution of Julian Assange? Where do you and the Prime Minister stand on this right now?
ATTORNEY-GENERAL: The Prime Minister and I stand side by side in saying that this case has gone on long enough. And equally, we stand side by side in saying that shouting publicly is not going to produce the right outcome.
TRIOLI: This is not shouting publicly. I mean, I know you're leading up to saying that you won't tell me exactly what you're doing behind the scenes. I get that. You said that before. But this doesn't constitute shouting, nor would it constitute shouting for example, meeting Julian Assange's father John Shipton when he came to Canberra just the other week to try and either speak to you or the Prime Minister, and you wouldn't do that. Why not?
ATTORNEY-GENERAL: I've had several meetings with Julian Assange's lawyer, Jennifer Robinson, on previous visits that she has made. On the morning that Julian Assange's father was in the Parliament we had 23 divisions on the climate bill. So, it's always very difficult when people come to Parliament House in sitting weeks. I’ve got every sympathy for the work that Julian Assange’s father has been doing and every sympathy for the very difficult situation that Mr Assange is in which is why I, and the Prime Minister, have been saying for a long time, that this has gone on too long.
TRIOLI: Are you confident of actually turning around the thinking of the US Government?
ATTORNEY-GENERAL: I’m not going to comment. I’m going to say, as does the Prime Minister, that quiet diplomacy, by which I mean quiet, is more likely to produce outcomes than talking about it.
TRIOLI: Is the Australian citizen, the senior judge in Kiribati, which is in the middle of a constitutional crisis, Judge Lambourne, is he still being detained? Is the Australian Government doing anything about that? Can you?
ATTORNEY-GENERAL: I know nothing more than what I heard on the ABC before I came on air with you, Virginia. And it’s very concerning, always, to hear of an Australian citizen who is in immigration detention, which appears to be the case.
TRIOLI: You will make enquiries about that?
ATTORNEY-GENERAL: Of course.
TRIOLI: Good luck with the meeting, nice to spend time with you. Thanks
ATTORNEY-GENERAL: Thanks very much for having me.