MARK DREYFUS
SHADOW ATTORNEY-GENERAL
SHADOW MINISTER FOR CONSTITUTIONAL REFORM
MEMBER FOR ISAACS
E&OE TRANSCRIPT
TV INTERVIEW
SKY NEWS SPEERS
MONDAY, 21 OCTOBER 2019
Subject: Press Freedom
DAVID SPEERS: For more on this press freedom campaign I'm joined now by the Shadow Attorney-General Mark Dreyfus. Thanks for your time this afternoon.
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Good to be with you.
SPEERS: Just on what the Prime Minister said there this afternoon - and you heard Campbell Reid welcoming it - the PM says I do not believe these decisions on prosecuting journalists should be made on the whim of politicians. What do you say to that?
DREYFUS: Well, I think it just shows the confusion in the Government on this matter. The Government is saying it supports press freedom, but when these raids started back in the first week of June the Prime Minister said he wasn't troubled by them. And then we had a later development, which is that the Attorney-General' has issued a direction to the Commonwealth Director of Public Prosecutions saying its his call, the Attorney-General's call, on whether or not the three journalists or any other journalists are going to get prosecuted. But the Prime Minister says it shouldn't be on the whim of a politician.
So it's all demonstrating confusion in this Government. They don't know what to do. They have no idea what they've done here, which is they set the hounds running, they set this in train, they referred this matter to the Australian Federal Police. Now the Prime Minister is trying to say, oh, it's all a matter for the independence of the police. Well, it's not. It's a matter for the Government. The Morrison Government can bring these prosecutions to an end, rule them out and that's what they should be doing.
SPEERS: Is the difference here that at the moment the Federal Police are still doing their work? The Attorney-General does not have their report or indeed the Commonwealth Director of Public Prosecutions advice before him?
DREYFUS: They've been asked to investigate and what happens with police investigations is there's discretions there that they exercise. They decide whether there's a public interest requirement that they go on.
SPEERS: But shouldn't Christian Porter wait till that's complete?
DREYFUS: He doesn't have to. Of course he doesn't have to. He's the Attorney-General. He's given himself the power to issue a direction. It's not interfering with the investigation. It's just saying, on balance weighing up the factors that always have to be considered.
SPEERS: But shouldn't that be one of the factors, what the Federal Police recommend?
DREYFUS: He can decide - and that's what the media campaign is about and that's what I would say should be happening - that the weight to be given the public interest requirement out of protecting journalists so that we have a free press in our country - we don't have intimidation of journalists, we don't have intimidation of whistleblowers - that requires that there not be a prosecution at all.
SPEERS: Putting aside the three journalists we're talking about here - and you know, for the record, I certainly don't want to see them charged ether but do you think this power for the Attorney-General to decide whether journalists in the future are prosecuted or not is a good idea?
DREYFUS: Well, that's what's available now under existing law, and the Attorney-General has used a power under the Director of Public Prosecutions Act, under which he can give a direction.
SPEERS: Do you support that or not?
DREYFUS: Well, it's all that's there and it's better than nothing but no one should think it's an answer.
SPEERS: What is the answer?
DREYFUS: Well, the answer is to look at the asks there from the Right To Know Coalition. The top ask from the Coalition is saying we want there to be an exemption for journalists, based on journalists work and public interest consideration.
SPEERS: Do you support that?
DREYFUS: We do. And we say that that's an appropriate legislative change, and the Government ought to be bringing in legislation into the Parliament to do that, because clearly this Government hasn't understood the discretions that are there. It hasn't understood conventions that have been in place in Australian law and Australian politics for decades because otherwise we wouldn't have this threat hanging over the three journalists. We wouldn't have had the referral take place in the way that it has.
Let's think: we've had a law in place since 1914, David, that has potentially allowed for journalists to be charged. We've had thousands of leaks since that time, but journalists have not been charged. We haven't had raids on journalists homes.
SPEERS: To be clear you are now saying there should be an exemption for journalists in the course of their day-to-day work? There should be an exemption from those national security laws?
DREYFUS: Yes, and it's not as the Prime Minister's trying to say - further confusing the matter and showing his own confusion a leave pass. It's not a blanket exemption. It's recognising the vital role that's played by journalists in our democracy and saying that it should not be possible to charge someone who is merely doing their work as a journalist and reporting on matters in the public interest. That's what it would look like.
SPEERS: Okay, correct me if I'm wrong, but Labor's position until now has been wait until these committees have had a good look at all of this. You are now of the mind these exemptions are necessary?
DREYFUS: I think that given the way this Government has behaved since the raids took place from the fifth or sixth of June, shows us that it's not just a matter of what the statute says, it's because they don't understand these conventions. They don't understand the value to be given to protecting journalists and their work. We do need to actually make changes to the laws as they are now in place.
I wouldn't have said that two or three or four years ago, but it's apparent where we've now reached that we will need to change the law because this Government cannot be relied on to show that it understands very long standing conventions in Australian law and politics, which says journalists are not a target. We value what they do more than that.
SPEERS: Because Labor supported these laws largely, you're saying you didn't expect them to be used in this way?
DREYFUS: We didn't support the law that was passed in 1914, Id have to go and look back and say whether it was the official government in 1914.
SPEERS: But things like the metadata laws and so on?
DREYFUS: The metadata laws have now got within them a journalists warrant provision, and that's actually an example of a law where there is some consideration given to the special role played by journalists.
The particular concern is with the rewriting of the 1914 Crimes Act provisions, which are now repealed, even though they would be the law applying to the journalists who are in the gun at the moment. And the suggestion that's been made by the Right To Know Coalition is that merely providing a defence - which was put in after a considerable wrangle, through the first six months of 2018 - merely doing that isn't going far enough and we will actually need to have an exemption. In other words, it shouldn't be part of the criminal offence at all, where its a journalist and where they're acting in the public interest.
SPEERS: And to be clear, you're not saying blanket journalist you're saying they would need to prove this is in the course of their employment.
DREYFUS: Doing their work in being the media, playing the role the media plays, a vital role in our democracy.
SPEERS: There's a bunch of other suggestions, recommendations from the Right To Know Coalition. Freedom of information laws - do you agree there needs to be a change here, to, well, the costs, the time delays and the secrecy provisions that blacked out so much of what's ultimately..
DREYFUS: That's a change in culture that's required. That's a change in practice that is required and not a change in resourcing that's required.
Labor in government put in place the largest reform ever in the history of the FOI. They were reforms that John Faulkner as minister brought in in 2010. They expanded what's available, they tightened the requirements for quick responses. What's happened, regrettably, since 2013, is that we've increasingly seen refusals, increasingly seen incredible slowness in answering, increasingly seen massive reductions in documents when they are produced.
All of that is about the attitude that the Government takes to whether or not we should be governing with transparency and I fear this Government doesn't like transparency.
SPEERS: What about defamation laws? Do you see a need for change there?
DREYFUS: I think there's a long standing call for lot of reform in defamation. There's a current process in the Council of Attorneys-General because each state has enacted a uniform defamation act. There isn't a Commonwealth defamation act as it happens, but the Commonwealth could play a leading role in that reform process.
There's obviously a need to bring the 2006 laws that we have in Australia into the digital age. Pretty much they ignore what's happened over the last 13 years. I'll give you a single example which I think makes it obvious. At the moment, there's meant to be a 12 month limitation period on suing for defamation from the date of first publication. Because the law treats the act of uploading as a new publication, there's no limitation period. Every day its renewed. So what the suggestion is that there should be a single publication rule which, in effect says it starts from the date of first publication and you've got 12 months to sue. I think that'd be a pretty healthy change to the law.
There's a range of other reforms that are being suggested in defamation but it's not primarily a Commonwealth matter. That's a matter on which the Commonwealth can play a leading role, but it'd be working with the states.
SPEERS: Just finally, one of the other issues the media companies are after is the right to challenge a search warrant before a court or indeed, warrant for metadata access. I suppose if you're saying the exemption should be built in, we wouldn't get to the point of needing search warrants. But do you agree with that point that there needs to be an ability to contest before a court a search warrant?
DREYFUS: I think that there needs to be contested warrants. There's an issue about where you do the contest and who does the contest.
The British have opted for a system - in some cases where it's a secret investigation by one of the spy agencies, that someone called a public interest advocate takes the role of the media before the judge who is deciding whether or not the warrant is to be issued so the media wouldn't necessarily know in advance, but there will be a contest in advance.
So, there's different ways to do this but all this is about is making sure there is sufficient respect for and sufficient valuing of the tremendously valuable role that the media play in our democracy. At the moment it is absolutely apparent in Australia that we're not getting that valuing of the role of the media. We we've had a lessening of press freedom - enough to attract the attention of the New York Times or indeed the BBC World Service who rang me today to ask me about what's going on in Australia because I think they were pretty impressed by the redacted front page.
SPEERS: Its certainly gained a lot of attention. Shadow Attorney-General Mark Dreyfus we will have to leave it there. Thanks for joining me this afternoon.
DREYFUS: Thanks very much.
ENDS
