MARK DREYFUS MP
SHADOW MINISTER FOR CONSTITUTIONAL REFORM
MEMBER FOR ISAACS
ABC RADIO NATIONAL BREAKFAST
WEDNESDAY, 8 SEPTEMBER 2021
SUBJECTS: Lorraine Finlay appointment as Human Rights Commissioner; 1,000 days of no anti-corruption commission.
FRAN KELLY, HOST: Opposition is building to the Morrison Government's appointment of Lorraine Finlay as the country's next Human Rights Commissioner. The legal academic has triggered concerns over her views on racist hate speech, religious freedom and the Indigenous Voice to Parliament. Australian Of The Year Grace Tame says the Government has made a grave mistake, given Lorraine Finlay has spoken out against affirmative consent laws, which would require clear consent is actively sought and communicated before sex.
GRACE TAME: And this position of Human Rights Commissioner, this is a power position, and also you know it's a five-year tenure. What could have been a really progressive step has actually been a backwards one amid this summit. So I'm saying that the actions are not lining up with the words that are being spoken at the moment, unfortunately.
KELLY: Australian Of The Year Grace Tame. RN Breakfast did seek interviews with Lorraine Finlay and with the Attorney-General Michaelia Cash but both were unavailable. Mark Dreyfus is the Shadow Attorney-General. Mark Dreyfus welcome to Breakfast.
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Good morning, Fran. Thanks for having me.
KELLY: What's your view of this appointment?
DREYFUS: The Human Rights Commissioner is a really powerful position. It's a position with the ability to achieve great change. It's a position that can advance the rights of all Australians and I think that Senator Cash, the Attorney-General, needs to explain what her aim is in appointing someone to this position who's got views like Ms Finlay.
KELLY: What views are you speaking of?
DREYFUS: She's written opposing Section 18c of the Racial Discrimination Act, the laws that protect Australians from racial hatred. She's written denouncing the Indigenous Voice to Parliament, as it was called for by the Uluru Statement, as “political segregation”. She has denounced serious proposals to improve our sexual assault laws as, using her words “undermining due process and the presumption of innocence”.
KELLY: When you say sexual assault laws you mean the consent laws?
DREYFUS: Yes, and the proposals for affirmative consent. And we have a problem here if they've appointed someone as Human Rights Commissioner who is wanting to get rid of laws that are aimed at making sure everyone is heard, that everyone is respected. That's what human rights should be about. So, I want to hear from Senator Cash - I'm sorry she didn't come on your show - to explain what the Government is aiming at here in appointing someone with these published views.
KELLY: I want to come to the process around appointments like this but let's go to some of those views. First the most pointed criticisms we heard there, and you referred to, of Lorraine Finley is, as Grace Tame mentioned, her views on affirmative consent, which requires a person to explicitly seek and receive permission before having sexual relations. In a piece she co-wrote with a men's rights activist Bettina Arndt Lorraine Finlay argued that "the enthusiastic consent laws undermine due process and the presumption of innocence. They unacceptably blur the line between a bad sexual experience and an unlawful one". She’s said on Twitter since, just in the last 24 hours, that people could have different views about the affirmative consent model and still share a firm commitment to condemning violence. She pointed to concerns raised about these consent laws by the New South Wales Bar Association, Law Society of New South Wales, even Legal Aid in New South Wales. You're a QC, is she right when she says there are significant legal and practical problems with this, you know, "yes means yes" law?
DREYFUS: I think we've got to work on this. I think we've got to work towards changing the laws. I think we've got to work, as Grace Tame has called for, towards uniformity of our consent laws, and I'm looking for a more constructive view and I'm hearing that now from Lorraine Finlay in what she's just said. That's a good thing. But it's concerning that we have a government that has appointed to a very powerful position, a senior position, someone who has expressed views in a whole range of areas that seem to me to be antithetical to human rights ideas, and that's the concern. What is the Government's aim here in appointing someone with these published views?
KELLY: Well just another one of her views that may come into the frame this year because the Attorney-General, Michaela Cash says she hopes to unveil a revised religious discrimination bill by the end of the year. Now the lobby group Just Equal has written to the Government asking that Lorraine Finlay not preside over gay and lesbian complaints in regards to they say, "as a purveyor of the fear-based narrative, that gay and lesbian equality poses a threat to religious freedom". And this is based on her submission to the Ruddock Inquiry back in 2018 when she wrote "there is an unjustifiable imbalance between religious freedoms and anti-discrimination laws, with the balance weighted in favour of the latter. Religious freedoms are being undervalued and eroded in Australia." Does this concern you, in the year that Australia will be, our parliament will be debating a religious discrimination bill? This is potentially such a divisive debate.
DREYFUS: We'll have to wait and see whether or not the Attorney-General does manage to bring forward version three of the Government's religious discrimination legislation. I hope that if it comes forward Senator Cash gets it a lot more right than her predecessor Christian Porter managed. But again, we see an example of previous writings by Ms Finlay that adopt a pretty strident position on a key human rights issue. That's the concern. I say again, what is the Government's aim in appointing someone like Ms Finlay to this powerful position?
KELLY: Let's go to the way the selections of these positions happen. Is it in the ambit of the government of the day simply to make an appointment? Because I note in The Guardian today a spokeswoman for the Human Rights Commission saying that one of the criteria for ongoing successful accreditation was a "clear transparent and participatory selection and appointment process of commissioners". Do we know if there was a process of appointment here?
DREYFUS: I don't believe there was. If there was a process it hasn't been publicly explained. I'm not aware that the position was advertised. It may have been but I agree that it should be as transparent as possible and as open as possible a process. There should certainly be a call for expressions of interest, and there should be clear criteria expressed for the person to fill this kind of position.
KELLY: In the end though should this be an appointment of the government of the day? Would you want a government of the day to hang on to that?
DREYFUS: I don't have a problem with the government appointing to these positions. We've got thousands of positions that governments make appointments to every year. But the more transparent and the more open the process, the better. We will get a better field of candidates, we will get better appointments, out of more open and transparent processes.
KELLY: We do know that Lorraine Finlay was a candidate recommended by the IPA, the Institute of Public Affairs, which is a conservative institution. It's been urging the Government to choose a "suitably conservative person who believes in individual liberties" and to "save the country from another Gillian Triggs" "to prioritise mainstream values like freedom of speech and of religion". That's how the IPA, put it.
DREYFUS: Well, no surprise there. Lorraine Finlay made an ad for the Institute of Public Affairs denouncing the Indigenous Voice to Parliament as "political segregation". Her words. So I'm not surprised that the IPA is promoting her appointment.
KELLY: Just moving on to another issue which a lot of people are exercised about, and that's the issue of a national federal integrity commission. Michaelia Cash has promised the Parliament would have a chance to debate a federal anti-corruption commission by the end of the year. It's now exactly 1000 days since the Prime Minister promised a federal ICAC. Do you think we will see one before the next election?
DREYFUS: I'm certain that we won't. It's been confirmed at Senate Estimates by Commonwealth public servants that there will not be a national anti-corruption commission established before the next election. As you said it's 1000 days since Scott Morrison stood up with his former Attorney-General Christian Porter and promised Australians a national anti-corruption commission and we have seen no bill introduced to the Parliament. Classic Morrison, all announcement, no delivery. Yet another very big broken promise from Mr Morrison. And I think it's actually because he and his government are terrified of what a powerful and transparent anti-corruption commission would reveal about their government. They're terrified of an independent inquiry into their Sports Rorts, into their Car Park Rorts, and I can promise you Fran if Labor is elected at the next election we will establish a powerful, transparent and independent, national anti-corruption commission.
KELLY: As a priority? What would Labor be promising at that election? How soon would Australia have one if Labor won the next election?
DREYFUS: As a priority. We will do this in our first term. You need to bring legislation to the Parliament, you need to, of course, appoint suitable staff, and you need, of course, most importantly, to appoint a suitable Commissioner because a lot hangs on who you get to do these jobs. It'll take some time, but I can absolutely commit to this happening in the first term of a Labor Government.
KELLY: Mark Dreyfus thanks for joining us.
DREYFUS: Thanks very much.