Monday, 05 February 2018

Newsday – Sky News



LAURA JAYES: Let's go live to Canberra. The Attorney-General Christian Porter joins us.

Thanks so much for your time, Christian Porter. First of all, will you refer Susan Lamb to the High Court, or is this just a threat?

ATTORNEY-GENERAL: Well, the most desirable position would be if Bill Shorten, or indeed Susan Lamb herself, made that decision, because it seems that the case that she should be referred is very, very strong.

LAURA JAYES: OK, but if Labor doesn't do that, because it seems like a game of chicken at the moment, do you have a deadline in mind? If, at the end of this sitting fortnight, Labor has not referred Susan Lamb, will you make that hostile referral?

ATTORNEY-GENERAL: Well, we're waiting to see whether or not Bill Shorten and the Labor Party do the right thing. I mean, the reality is here that you referred people pursuant to a Section 44 issue if there is a sufficiently strong and reasonable case to believe they were a dual citizen at the relevant time and therefore in breach of the Constitution, and I think that there is a very broadly accepted view that that reasonable case now exists with respect to Ms Lamb.  And really, where that case has existed with people on our side of politics, we've been quick to act. And in this case, you couldn't find a slower effort in terms of taking the reasonable action than that that Bill Shorten's engaged in.

LAURA JAYES:Well, it is slow. You're right.  We were talking about this in 2017 for much of the year. We're now in a new year and we're still talking about it, so I just wonder when the Government stops threatening and starts acting. As you've said, you think it's desirable that they make their own referral, but again, do you have a timeline in mind? Are you going to wait for two weeks, a month, is it a couple of months, what is it?

ATTORNEY-GENERAL: Well, I think the best answer is the answer, Laura, that I've given you previously which is at the moment we're waiting to see whether or not Bill Shorten takes a leadership position and does the right thing and he should refer.

LAURA JAYES: Okay, but if he doesn't, Christian Porter? If he doesn't, what do you do then? Do you wait two weeks or a month?

ATTORNEY-GENERAL: Well, can I offer you this personal observation: I think it's almost at a point now where it's irresistible, the argument that he should refer, and my view is that he likely will in the very near future.

LAURA JAYES: OK. Perhaps you have an inside word that I'm not quite privy to at the moment. Now, if I can go …

ATTORNEY-GENERAL: Well how could he not refer? I mean, how could he not refer? The public pressure, and I think, the pressure of every reasonable commentator for Bill Shorten to do the right thing is utterly overwhelming at this point.

And look, with respect, say, for instance, to Mr Feeney, he took this right up to the courtroom door without sufficient evidence that he required to prove his case in the High Court. Monies were expended by the taxpayer on his legal defence, and the feet were dragged right up, literally, until the last minute, and I think that is a highly undesirable approach from the Labor Party.

LAURA JAYES: OK, but you're obviously worried about setting this precedent of a hostile referral.

ATTORNEY-GENERAL: Well, as I say, what we are doing is hoping that the Labor Party and Bill Shorten do the right thing, and if they don't, and I think that they will, but if they don't then, of course, it may be the case that further action's required.

LAURA JAYES: Okay. Let's look at some legislation. Now, the Government's proposed secrecy laws make it an offence to deal with protected information. The explanatory memorandum attached to this says the intention of the Bill is not to catch journalists, as long as journalists are, quote unquote, fair and accurate, and their work is, quote unquote, in the public interest. Do you concede that that legislation, as it stands at the moment, would have serious ramifications in the way some journalists do their work? If Cabinet papers – leaked - come across their desk, for example.

ATTORNEY-GENERAL: Well, I don't accept every submission that's been made to the parliamentary committee that's looking into this bill as being a perfect interpretation of how the legislation would work, but in answer to your question do I have concerns, I do have a few. I think that there are some areas where obvious improvements could potentially be made to the drafting. So the parliamentary committee process is an important process where journalists and other interested groups put their views about ways in which the drafting could be improved, and I might say that a few of those submissions have hit on some areas where my personal view is that improvements could be made.

LAURA JAYES: OK. On foreign donations, there's another, perhaps, area of improvement. The draft legislation, section 302; I know you don't have it there in front of you, so I'll just talk you through it….

ATTORNEY-GENERAL: Very kind of you.

LAURA JAYES: Any individual who wants to give a donation over $250 would essentially need a statutory declaration. This would greatly affect online donations and, quite frankly, probably minor parties. So, as it's drafted at the moment, to have that need to get a statutory declaration looks like a bit of attack, or could be perceived as an attack, on your political opponents at a donation level. So is that also an area where you think the draft legislation needs to be improved?

ATTORNEY-GENERAL: Well, look, I'm just interested to know whether you're referring there to the Bill that is dealing with foreign donations, or you're now talking about the …

LAURA JAYES: Yes, it's the foreign donation bill. It's the foreign donation bill. Sorry, I should have clarified that.

ATTORNEY-GENERAL: Yeah, that's actually the responsibility of another Minister but I think I can give you a broad answer. That provision is meant to be firm but, of course, is meant to apply to donations of a foreign nature. Now, I think obviously you need to strike the right balance there, and again this would be subject to a range of submissions and committee views, but I think that that is a fair balance in all the circumstances.

LAURA JAYES: OK. Just on the….sorry to jump around, but back to the secrecy laws and journalists, you say that there do need to be improvements. Do you have any specific improvements in mind? Is it what I was referring to there about the fair and accurate - the public interest test, or is it something else?

ATTORNEY-GENERAL: Well, I mean, these are largely to do with the tightening of the drafting to provide certainty, particularly for journalists. But to the extent that amendments might be foreshadowed, what we will do is look at all of the submissions that have come in, seek advice with respect to each of the legal issues raised in those submissions, because some of these are quite complicated issues, particularly that rely on particular definitions that are inside the legislation. So I won't foreshadow with precision what they will be at the moment.

But look, some of the submissions have raised issues which represent, if I might respectfully say, a misunderstanding of how the legislation works.  But there have been a few of the submissions that have gone directly to issues, particularly around the definition and operation of sections that, in my observation, just as a matter of legal drafting, likely could be subject to improvement.

LAURA JAYES: OK, alright. National Integrity Commission; does the Government support it?

ATTORNEY-GENERAL: Well, we've said that we're not closed-minded to the concept of a consolidated body, and as you'd be aware, Laura, we've got a number of bodies that deal with integrity issues; ACLEI is one of them; the Inspector-General is another one of them; the Parliamentary Expenses Authority is another one. So, we have a model where there are distinct, separate, and specific bodies looking at distinct, separate, and specific areas.

Now, whether or not there'd be benefit from consolidating those bodies, we're very open minded to, but I think that we need to engage in a more detailed public process than simply having a media release from the Leader of the Opposition, which proposes setting up a single body with quite extraordinary powers.

LAURA JAYES: Yeah. Does that mean that you don't think there is evidence there at the moment that says that we need such a body?

ATTORNEY-GENERAL: Well, I mean, if you look at Bill Shorten's own media release in announcing his proposed body, to the extent that anyone can work out what it is, it starts off that media release by saying that the Labor Party do not believe that there's any issue of overarching or endemic corruption at a federal level, and we would absolutely agree. And I think that that speaks to the fact that if you are going to do something, which in many of the states has proven to not always be terribly successful, that you should do so cautiously, and that this isn't an area where a rushed job by media release is in the best interests of the Australian public.

LAURA JAYES: OK. If I could ask you one final question about, we’ve seen perhaps an erosion of the judiciary in the eyes of the public, and this has come in the form of public attacks from people in positions of influence on decisions by judges. Now, I think we had Michael Sukkar late last year say the attitude of judges like these has eroded any trust that remained in our legal system; we've had some from Minister Dutton, who said there is a problem with some of the judges and magistrates and some bail decisions that had been made. He also went on to accuse a judge of handing down a soft sentence. Now, these are general areas, but what do you say to those comments from some of your colleagues? Have they got a point?

ATTORNEY-GENERAL: Well, there's a well-known balance that needs to be struck here. It's always been the case that journalists, or members of Parliament or any member of our civil society can criticise judicial reasoning, or an outcome, or a sentence; they can say it's too soft, or the can say it's too hard.  But what people can't do, and particularly politicians need to be wary of, is criticising the integrity of the courts.

Now, in my observation, the debate, particularly around sentencing in Victoria, has been robust, but it hasn't crossed that line into questioning the integrity of courts. In fact, it was the High Court itself which noted that there is a broad difference between the sentences that have been handed down traditionally in recent times in Victoria as compared to New South Wales for quite similar offences, and I think that is a real matter of debate, critique, and public comment, and that's what a lot of colleagues of mine, and others in the media, have entered into. That's part of a healthy, robust system.

LAURA JAYES: OK, Christian Porter, unfortunately we're going to have to leave it there. There's so many other things we could talk to you about today, and we will talk to you about the Family Court at some other stage, because I know that you've noted this is an area of particular interest for you in your new role as Attorney-General. But we thank you for your time today, and we'll speak to you again, hopefully.

ATTORNEY-GENERAL: Thank you, Laura. Cheers.