Thursday, 08 February 2018

6PR – Mornings with Gareth Parker



GARETH PARKER: Let's begin the program today with our regular guest on a Thursday, joining us a bit earlier today because there's plenty to talk about and it's all important. The Attorney-General is Christian Porter. He joins me on the line from Canberra. Christian, good morning.

ATTORNEY-GENERAL: Gareth, good morning to you.

GARETH PARKER: Lots to talk about. We'll get to your South Australian colleagues and their position on the GST shortly. But debate continues nationally about the revisions to the national security legislation and you've made some comments in the newspapers this morning, I do have a specific question for you.


GARETH PARKER: That is:  Why it is that journalists and media outlets should be subject to prosecution if they report on government leaks that then might interfere with a criminal investigation - and my question is isn't it the Government's responsibility to keep secret information secret?

ATTORNEY-GENERAL: Well, yes except of course the journalists recognise that they also have responsibilities in the way in which they report - and the shorter answer to your question is there wouldn't be any ability to successfully prosecute in those circumstances that you've mentioned because of what we have instituted as a very broad range in defence for journalists which doesn't even rely based on the instructions that I've now given for the publication reporting to be fair and accurate merely that the journalist reported what information they did report in a way that they thought was, reasonably thought, was in the public interest. That would provide a complete defence to the situation that you raised. But of course as you know I mean it's still the case at the moment that a journalist might do something which interferes with the conduct of a criminal trial and be subject to contempt proceedings. So it's not a new principle in any real fashion.

GARETH PARKER: A trial in contempt proceedings is quite different to an ongoing investigation though.

ATTORNEY-GENERAL: Well, they’re commensurate, we'd argue, but again there is a defence here to the scenario that you've raised and it's a very strong defence and a defence that would only apply to journalists and that is that if you reported the information in a reasonable belief that you were doing so in the public interest you would not be able to be shown to have committed an offence.

GARETH PARKER: OK, so media outlets, particularly the newspapers have been strong on this. You are saying that they have nothing to fear?

ATTORNEY-GENERAL: Well, they don't, but there is a mischief that we are trying to prevent here - and if I can describe it to your listeners this way. A lot of people will act as journalists or call themselves journalists particularly online now. So Julian Assange is a good example of someone who considers himself in the trade, craft of journalism.

GARETH PARKER: Well he's not.

ATTORNEY-GENERAL: Well he's not but on many definitions he could easily be considered to that and he might argue that he should be avail to some of those defences and that would be about who is or isn't a journalist. But if someone is engaging in journalism online - which is a regular theatre of journalism now - does what Julian Assange does and publishes under a doctrine of radical transparency - as I think Assange himself has referred to it as - and has thousands of documents that they've come across and does not vet those documents themselves to work out what is the consequence of their publication and just publishes them, and the publication interferes with the health or safety of the public or uncovers the identity of undercover operatives or of people who inform government and thereby places lives at risk. I think most people reasonably consider that that should prima facie be an offence.

Now, if that exists there should be a proper defence to it of course but that is the type of scenario that we are looking to cover by this particular part of the legislation and this is the ninth tranche…the tenth tranche, 10 pieces of legislation which have thoroughly modernised Australia's laws for espionage and terrorism and modernising these laws actually protects us. And the Deputy Commissioner of the AFP said that their ability to investigate and prosecute the preventative offence of bringing down an Etihad jet airliner full of Australians was underpinned by the types of reforms that this Government- well by the actually reforms that this Government had engaged in to modernise laws around espionage and sabotage. So you've got to do this very carefully and we're obviously trying to strike the right balance.

GARETH PARKER:       Alright. Yesterday in the Parliament Labor's Susan Lamb made an extraordinary and an emotional speech. She revealed essentially that she had no relationship with her mother since the age of six. She said her mum dropped her off at school one day and never returned essentially. Her father passed away some time ago. Now, this story is all relevant because the British Home Office says that it wants a copy of Susan Lamb's parents' marriage certificate so that it can properly determine her citizenship status. Susan Lamb yesterday told the Parliament she simply can't get it. She believes that she's taken all reasonable steps to renounce any British citizenship she may have. Is she right about that?

ATTORNEY-GENERAL: Well she's right that the circumstances are terrible and there's not a single person that's not empathetic and feels for Susan in the situation that she's in, but is she in breach of the constitutional provision of section 44 as the constitution has interpreted - which is very very strictly - I think the legal answer unfortunately for Susan and you know, maybe quite unfairly is; she is in breach of the that section.

And I'd just say a couple of things. One is that what the High Court has said - and this will be argued again soon in the Gallagher case - but we think what they have said is that the reasonable steps provision only applies to a country which makes it impossible or nearly impossible to renounce, which is not Great Britain. I also understand that there are some ways, and they might not be the easiest of ways, but there are ways where you can compel the sort of documents under Queensland law that Susan would have needed to renounce her citizenship, effectively.

But the bottom line is the High Court, in a decision that many people found surprising because of its strictness, has said, in essence; if you are a dual citizen at the relevant time of election and nomination, you cannot be validly elected to the Commonwealth Parliament of Australia. And no one's lacking in empathy, it's a terrible situation, quite similar to the situation that Fiona Nash on the Coalition side had. She was estranged from her father, which made it very difficult for her personally to go through the renunciation process for I think it was British citizenship, but nevertheless, what the High Court has said is clearly unequivocal: that if you're a dual citizen at the time of nomination and election, you can't sit in Parliament, and that's the situation that Fiona Nash was in, that's the situation Susan Lamb was in, and I think that democracy's best served by observing the rules and having a referral here.

GARETH PARKER: OK. Is that something that the Government will do?

ATTORNEY-GENERAL: Well, we're waiting for Bill Shorten to take a leadership position, or indeed, for Susan to make that decision herself, and again, I come back to Fiona Nash …

GARETH PARKER: So if they don't do that, will you refer Susan Lamb?

ATTORNEY-GENERAL: Well, the position's obviously reserved, but the best thing here is not to politicise this process, and to have Bill Shorten make the same difficult decision that we've had to make on our side of politics. And again, I go back to Fiona Nash. She had very similar difficulties because of an estrangement with her father, but she referred herself.

GARETH PARKER: Alright. OK. Let's get onto the GST. It's the front page story in the West Australian today. I believe it was also on the front page of the Adelaide Advertiser yesterday. I want to take you to the words of your Cabinet colleague, the South Australian MP Christopher Pyne, who says this in Sarah Martin and Daniel Emerson's story on the front page of the West: the Productivity Commission writes reports; the Government makes policy. There is no policy to change the GST mix. Is he right?

ATTORNEY-GENERAL: Well, I think the first observation I'd offer you is it probably doesn't come as a massive surprise to anyone that Cabinet ministers from WA fight very hard for WA, and Cabinet ministers from other states fight very hard for their states, and ever has it been thus in federal politics since 1901, and …

GARETH PARKER: So the Coalition has no policy to change the GST? Is Christopher Pyne accurately representing the Government's position?

ATTORNEY-GENERAL: So our position, of course, is that we're awaiting the full report of the Productivity Commission. The interim report made some very strong observations which are not yet recommendations, but those observations were to the effect that there is a national interest in modifying the processes that the Grants Commission engage in at the moment. Because at the moment, what they do, as well as producing results, Gareth, that you and I know are unfair, and that your listeners know are unfair, they produce results which create disincentives across Australia to do important things like reform taxes and other policies in the states; to develop your mining and gas and resources industries; and we are awaiting that report. But of course, that is a report commissioned by us. It's a report in its interim form that the Labor Party didn't merely say that they would wait to consider, they just said they'd rule out any change straight away off the bat.

GARETH PARKER: Well, it sounds to me as though Christopher Pyne's doing the same. His words again: there is no policy to change the GST mix. That's pretty unequivocal.

ATTORNEY-GENERAL: Well, we're awaiting the final report of the Productivity Commission and that's going to underpin anything that Government does..

GARETH PARKER: Christopher Pyne doesn't sound as though he's awaiting it. It sounds as though he's made up his mind.

ATTORNEY-GENERAL: Well, I come back to the first point I make. That's obviously one minister and it's not a surprising thing, as it has been the case for in excess of 100 years, that Ministers and Members from different states fight very hard for their states' interests …

GARETH PARKER: Or do they tell one story in their home state and another story nationally?

ATTORNEY-GENERAL: Well, that's the problem, of course, that you've had with instances such as Pauline Hanson moving from state to state, and she would say one thing in Queensland and a very different thing in WA. I might say that there's been a bit of that in the Bill Shorten-Kevin Rudd-Julia Gillard approach over the years as well. But we're not jumping ahead of this very important final report of the Productivity Commission, and that's an appropriate process to follow.

GARETH PARKER: Just on that point, there's obviously a South Australian state election coming up. That's politically sensitive. If you happen to find yourself in Adelaide doing a media appearance in your capacity as Attorney-General and you're asked about the GST, will you give them the sort of answer that you give on this program, saying that we're fighting to get WA a better deal, or will you say that there's no policy to change the GST, like Christopher Pyne has, as he's quoted in the paper today?

ATTORNEY-GENERAL: Well, my position on it is clear, and I don't think I've ever been accused of having an inconsistent position on the issue dependent on which state or jurisdiction I was in, and that's not going to change.

GARETH PARKER: Alright. Just finally, your predecessor as Attorney-General, George Brandis, gave a very interesting valedictory speech yesterday. He said that elements of the right, the political right have been infected by a belligerent, intolerant populism. He says that classical liberal values and, indeed, the rule of law, are under more pressure from both the right and the left than at any time in his memory. It was a fascinating observation. Do you agree with him about that and do you see it as your job as Attorney-General to defend the rule of law from both the left and the right?

ATTORNEY-GENERAL: Well, I'd certainly agree with his observation that there's more extreme policy positions being taken at either end of the political spectrum now. I don't think those positions are represented in Parliament. I think they're largely represented in groups outside of the parliamentary process, because Parliament does have this fantastic democratic habit of representing the middle.

Yeah, I think that he makes a strong point and there is obviously a very important core role for the Attorney-General to protect process, democratic process, the rule of law, because that's what underpins all of the benefits that we have in Australia compared to many nations that don't have the systems and the rule of law that we have in place.

So I think it's an important role for the Attorney-General, but equally, representing common middle Australian values is, I think, the key to better democratic outcomes, and that's something that the Turnbull Government's worked very hard to achieve.

GARETH PARKER: Alright. Thanks for your time this morning, Christian.

ATTORNEY-GENERAL: Thank you Gareth. Cheers.