KIERAN GILBERT: Foreign interference laws; MP citizenship
With me live here on First Edition is the Attorney-General Christian Porter. Thanks so much for your time. In relation to these foreign interference laws, can you talk us through the protections that are being put in place for journalists, but whistle-blowers as well?
ATTORNEY-GENERAL: If I start with journalists, what we've done is instructed the department to do some redrafting and refining and this is after discussions I've had with the Prime Minister and based on a range of submissions. Essentially, journalists will no longer have to show that any reporting was fair and accurate, so we're going to remove that requirement. So a journalist who did something very serious in contravention and risking lives or the uncovering of information that put our national security at risk, would still have a full defence if they published in the public interest and they reasonably believe that that's what they're doing. So we think that that is a very strong and broad defence for journalists and a considerable strengthening of the defence that first existed in the legislation.
KIERAN GILBERT: So there still needs to be that public interest bar met?
ATTORNEY-GENERAL: That is a belief on the part of the journalist. So that's not an objective test if you like. The journalist would simply have to believe that their reporting, or dealing, or communicating of the information was in their view in the public interest.
KIERAN GILBERT: As opposed to simply a gratuitous release of information, say like WikiLeaks had done?
ATTORNEY-GENERAL: Correct. I mean what the Government is trying to do here is obviously protect Australia's interest, protect Australians from what has been described as an unprecedented era of terrorism and espionage. The fact is that overseas people considering themselves to be journalists or operating under that label, online or otherwise, have engaged in what's been described as radical transparency, where they come by documents – sometimes thousands of sensitive documents – and rather than doing say for instance what the ABC did recently with documents that they acquired, which is go through them all, assess them all for their status, their sensitivity, what effect they might have upon publication - this person, body, group or journalist, simply publishes the whole lot without any attention or care to what the documents contain. And the criticism, say for instance of Julian Assange and what he has done through WikiLeaks is it puts lives at risk. People who have had dealings with diplomats themselves; those people are identified in a way which has put their lives at risk.
KIERAN GILBERT: So you feel as a former practicing lawyer – long-time lawyer, former attorney at the state level and now federal attorney that you've struck the right balance between say the Snowden's or the Julian Assange's of world and people doing their trade here in the Parliament as press gallery journalists and members of the broader journalist community in Australia?
ATTORNEY-GENERAL: Look I do, but the process is one of refinement. So we've brought in and Malcolm Turnbull's presided over a Government that's brought in nine tranches of reform to national security laws. And when you look at that process, they go before the parliamentary committees, the parliamentary committees take submissions, they make recommendations, and I have the…
KIERAN GILBERT: So it wasn't just sloppy drafting to begin with?
ATTORNEY-GENERAL: We've had nine tranches of legislation, 125 recommendations from committees, and the Bills that we've passed have been subject to 273 amendments from the Government. So this is a usual, normal, standard process and refining the drafting of Bills through the committee process is utterly routine, very important, but routine.
KIERAN GILBERT: So it wasn't sloppy drafting of this in the first instance?
ATTORNEY-GENERAL: The drafting at first instance, we've acknowledged, required some improvement, but some of that was due to a lack of certainty around the way that quite complicated legal provisions operated and we've put in effort to make sure that there's greater clarity around those sort of things
KIERAN GILBERT: Now, onto the citizenship matters. The case of Susan Lamb; it was an emotional speech to Parliament yesterday, the Member for Longman…and now the Opposition says it's time for the Government to show some compassion and move on as opposed to demanding the black letter of the law interpretation. And Tony Burke who I spoke to this morning, made the comparison to the way Labor's responded to a similar demand from the Government in relation to Josh Frydenberg's case. What do you say in response to that?
ATTORNEY-GENERAL: The difficulty there is that there's no equivalency between the two matters. I mean as compassionate as anyone can be, and that was a very moving contribution from Susan Lamb, equally I know there was an enormous distress for Senator Fiona Nash, whose difficulties in some large part arose from the fact that she had an estranged relationship with her father. But the law says now what the law says. And it appears to the Government and I think to most rational, independent observers, that Susan Lamb is highly likely to be in contravention of the Australian Constitution as interpreted in the recent High Court case. Now, the most empathetic person in the world can't change that legal fact and her circumstances, more than any other single person in Parliament at the moment, represents the highest level of risk that she's in contravention of the constitution.
KIERAN GILBERT: Mr Burke makes the comparison though, and he's done so this morning on this program, with Josh Frydenberg, in that under the black letter law, potentially he might be in contravention, but they backed off, and given a similar, well I also asked him, I said: it wasn't similar, the circumstances, but he believes in a broad sense the case is similar because they backed off. They're now saying in judgement terms, you should as well.
ATTORNEY-GENERAL: The language that you use and that Tony Burke's used is interesting, because in a broad sense potentially, with respect to Susan Lamb, there is absolutely no doubt that at the relevant time she was a dual citizen – so she was both an Australian citizen and a British citizen - and what the High Court in its recent decision, which came as a surprise to many, what the High Court said was that reasonable steps applies and is activated to a set of circumstances where the foreign country makes it impossible or near impossible to renounce; which is not Britain. And so where someone is a dual citizen of Australia and Britain at the time of their nomination or election, they are in contravention of the constitution. Now that, I think, is the simple, obvious, plain legal view. And in those circumstances, there should be a referral and that referral should be undertaken by Bill Shorten so it does not become overly politicised.
KIERAN GILBERT: OK, right. So you're saying that the others are hypothetical, she's not, so therefore it should be referred. But why not just do that with all of these cases now, including that of Jason Falinski; which, again, Mr Burke has referred to this morning as being a Member with a cloud over him?
ATTORNEY-GENERAL: This isn't going to the High Court like Noah's Ark, two by two. I mean each case has to be accompanied with its individual assessment. And in each individual case the matters are different. A referral should flow where there is a reasonably strong prima facie case that the person is in breach of the constitution. And right here and now, that test and that standard applies almost exclusively to Susan Lamb, and that's very unfortunate. And her circumstances are something that we're all empathic about, but the reality is, of everyone sitting in Parliament, the case to suggest that someone is in breach of the constitution is absolutely strongest in that individual case.
KIERAN GILBERT: You don't feel it's a similar scenario with Jason Falinski, who Labor says; his grandfather arrived here with Polish passports, therefore acquired that by descent?
ATTORNEY-GENERAL: Jason Falinski's got very credible legal advice that says that he is not a citizen of another country. Susan Lamb is known to everyone to have been at the relevant time a citizen of another country. Now those circumstances are utterly different. And if this is approached in a sensible, sober, individual, case by case basis, I think it's irresistible, the proposition that Susan Lamb is in breach of the constitution, or that there's a high enough doubt about that and a strong enough case to suggest that that is correct, that there be a referral to the High Court.
KIERAN GILBERT: Attorney-General, just finally, this case around Barnaby Joyce and his personal life; he says, last night on the ABC he said it's one of his greatest failures – the breakdown of his marriage. Is that the end of it? Should we just …
ATTORNEY-GENERAL: Look, I just cannot really add anything other than my empathy to he and his family and my sympathy to him as a colleague on the difficulties that he's had in his marriage and where that has gone. But I don't have anything other to add than my emotional support…
KIERAN GILBERT: Does it affect his role?
ATTORNEY-GENERAL: Look, I just don't have anything else to add to that and I feel very sorry for everyone involved.
KIERAN GILBERT: Attorney, thanks for your time, appreciate it.
ATTORNEY-GENERAL: Thank you. Cheers.