Thursday, 08 February 2018

Doorstop Interview 8 February 2018



Subjects: MP Citizenship; Espionage and foreign interference laws; Defamation laws

QUESTION: The United States has… ban Members from having relationships with staff. Should the Australian Government follow suit?

ATTORNEY-GENERAL: I must confess I'm not familiar with that particular proposition. My view is that, that would be a very unwieldly law, in general terms.

But, I'll read what you've read, but I don't have a particularly well informed view about what they have done.

QUESTION: Will the Government be waiting for the Gallagher case to finish in the High Court before you move on Susan Lamb?

ATTORNEY-GENERAL: Well, the significance of the Gallagher case is that, what the High Court said, what the Government considers the High Court should be interpreted as having said, is that this idea of someone having taken necessary and reasonable steps to renounce citizenship applies only to the circumstances where a country – a foreign country- makes it impossible, or near impossible to renounce citizenship. Now Britain is not such a country.

So, in those circumstances we consider, and we are arguing in the Gallagher matter that Senator Gallagher was ineligible to sit in Parliament, and on that quite strict reading of the law – but that is the reading of the law that the Constitution and the High Court now requires – we also say Susan Lamb is sitting in Parliament in a way that is unconstitutional, and that referral should occur and we are presently leaving that decision – the appropriate decision – to be made by Bill Shorten, so that this does not become overly politicised.

QUESTION: So you'll wait until the case is finished, or would you push further now?

ATTORNEY-GENERAL: We are pushing for the referral to come, as it should come, from Bill Shorten through an act of leadership.

Keep in mind that when other, equally difficult circumstances arose, such as Senator Fiona Nash whose difficulties in some significant part arose because she found difficulties associated with the fact that her relationship with her father was estranged. She referred herself and the ultimate result was that she was no longer able to sit in Parliament. But that was the best and appropriate process in all the circumstances.

QUESTION: Susan Lamb was clearly quite upset about the whole situation yesterday. Does the Government feel any sympathy for her case?

ATTORNEY-GENERAL: Enormous sympathy for her. Enormous sympathy for Fiona Nash. The fact that we have a constitutional provision that's been interpreted in such strict fashion, that people who have had estranged relationships with their parents are placed in very difficult situations is a matter that no reasonable person is not going to be unsympathetic to But, the present Members of Parliament of the Government didn't write the Constitution, and we certainly didn't produce that very strict interpretation of it that was recently produced by the High Court, but it is unfortunately what it is.

QUESTION: Can you take us through your current thinking on the foreign interference laws, have they been badly drafted? What changes will you seek? And do you still think they are (inaudible)

ATTORNEY-GENERAL: I think the drafted has required, evidently, some improvement. But that is not an unusual process in matters pertaining to national security laws. So this is the ninth of nine tranches of legislation. Each of those goes through the Parliamentary Committee stage, recommendations are made.  I mean to those nine tranches are very important legislation there have been over 270 Government amendments based on recommendations of committees and other insights into the original drafting – so it's not an unusual thing for there to be changes. These changes specifically that I've discussed at great length with the Prime Minister now at the point of instruction at the Department, what we are doing is tightening the definitions around the type of conduct that would apply to a Commonwealth Officer and create an offence. And, we are also strengthening the defence for journalists so that if they publish what they consider is reasonably – in their view – the public interest, they will have a very strong defence against anything in this Bill, and we think that they're appropriate, given all the submissions, but also the Bill preserves the fundamentals of the offences which are designed to keep Australians safe.

And I'll just reiterate what I said earlier this morning, the Deputy Commissioner of the AFP, in talking about the ability of our fantastic law enforcement agencies to prevent disasters, such as the plot to take an Etihad Airways jet out of the sky, packed full of Australians, that ability has, in significant part, derived from this Government's attention to reforming and modernising the laws that apply to espionage, domestic terrorism and national security.

We haven't accepted that there should be a blanket exemption for any category of Australians – whether they be lobbyists or journalists or lawyers – but what we do accept is that there is a delicate balance to be struck here between freedoms of political and media based communication, but also the need to keep Australians safe.

QUESTION: On this new public interest defence for journalists, do I have to be an employee of a major Australian media company? Or does this protect me, can I access this if I am a blogger or posting as an individual on social media? How do you define a journalist?

ATTORNEY-GENERAL: The term 'journalist' is not something specifically defined in the legislation, which is not unusual, but when you go to the Explanatory Memorandum it says that journalist has its plain and ordinary meaning. There have been a number of judicial considerations of the term 'journalist' – if I could give you this …. here and now – it's a very broad term. So someone who is operating online could well be considered a journalist, but it would depend on the circumstances.

But what this legislation, fundamentally, seeks to prevent and criminalise – and so stop – is the type of situation where you get someone who considers themselves to be a journalist, and may well be acting in a journalistic way online and they receive large amounts of information – some of it of no potential harm whatsoever – but some of it which could cause great harm to Australians' safety, to the safety and security of Commonwealth employees, including agency employees of our intelligence and domestic security services, and that journalist determines to, based on a philosophy of radical transparency, put it all out for publication without duly considering what affects might attach to any single one of the documents.

And the criticisms that are made of Julian Assange and organisations like WikiLeaks is without scrutinising individual documents and simply publishing them all at once – sometimes thousands of them  – they have done things that have put lives at risk, and that is what this legislation seeks to avoid.

QUESTION: Could such a person access the public interest defence? I they had a genuine belief that that radical transparency was in the public interest?

ATTORNEY-GENERAL: Well that is a test which is subjective. So if they genuinely had a reasonable belief, but there are limits, of course, to that defence. It can never be in the public interest to do something which endangers the lives of Australians, or the lives of intelligence officers, or the lives of security officers. So the way in which the legislation is drafted is such that whilst the defence of publishing in the public interest is very broad, there are some limitations and exclusions which we think all Australians, and indeed the overwhelming majority of responsible journalists would agree, could never be in the public interest.

QUESTION: Isn't one of the big problems at the moment – the existing defamation laws? The committee now has before it, as evidence, a book that's not being published because of the defamation laws in Australia. The ABC [INAUDIBLE] is being sued by someone over what was clearly in the public interest over these matters – so do you have a view on Clive Hamilton's book? Should it be published and are you looking at defamation laws as a way that people are stopping others from having a conversation?

ATTORNEY-GENERAL: Well, there has been a recent report, with respect to the matter in which defamation laws operate in Australia. I'm not going to engage in policy on the run in respect to that. We will read it – I will read it – and give it careful consideration. I've not yet had the benefit of reading Mr Hamilton's manuscript, although I understand it is very interesting.

But of course, this is another area where there is a very delicate balance between appropriate need to protect people's reputation from untruths and falsehoods and the need to have freedom of political communication and a free press. But it is a difficult area, no doubt.

If we can, as a Government, deal with each issue separately on its merits, and the issue here is the best way to strike that balance between freedom of communication and the press and the need to ensure Australians and our security and intelligence agencies' safety – that is being done at the moment in the context of a very important singular Bill.

QUESTION: Should the committee publish the book, or do you think that would be a dangerous precedent?

ATTORNEY-GENERAL: That is absolutely up to the Committee. And the committee's has had the benefit of hearing submissions – they have obviously got the manuscript, they understand their own procedures and they will take advice – no doubt – from the secretariat on that. I'm just not in a position – nor would it be appropriate for me to make that judgement for them.