Sunday, 20 October 2019

ABC TV - Insiders with Fran Kelly



Subjects: Press freedoms; religious freedoms; Syria, ACT cannabis laws; racehorse slaughter

FRAN KELLY: Attorney-General, welcome to Insiders.

ATTORNEY-GENERAL: Good to be here.

KELLY: She's got a point hasn't she, about the sign-off. What if the journalist is investigating you or your office? It's not much of a reassurance is it, it's not much of a safeguard?

ATTORNEY-GENERAL: The Attorney-General has the ability to send a direction to the Commonwealth Director of Public Prosecutions and request that they seek the Attorney-General's consent. There are also a whole range of statutory offences where that consent has to be sought as a matter of statute. So this is a long standing part of the system. I might note that journalists, when previous legislation were going through, were calling very strongly for my consent to be required on a whole range of offences, so it's a slightly different position than that which was adopted by journalists not more than a year or 18 months ago. But I distinctly did that because I thought that in all of the circumstances on balance, that was an extra and appropriate safeguard in the context of the warrants that we know have been executed. But if I might just make one point about that - and that is that these warrants, and the execution of them and the determination as to who may or may not be charged and what the brief of evidence is, is always conducted at extreme arm's length from government by the AFP. And sometimes, those investigations do take a while to run their course.

KELLY: Yeah, but how long? I mean, how long can this go on? You, for a number of times since the raids, have said that you're seriously disinclined to approve prosecution of journalists, except in the most exceptional circumstances. You've instructed the DPP, as we just discussed, to seek your consent before a prosecution proceeds. You couldn't be signalling more clearly, could you, that you're unlikely to sign off on the prosecution of these journalists? I mean, why? How long are the police going to keep investigating if they're not going to get a prosecution?

ATTORNEY-GENERAL: If I could answer that question for you, that would indicate that there's a breakdown of the independence of the AFP. And I just can't answer that question. That can only be answered by the Commissioner, I presume, of the AFP because they...

But it's fair to say isn't it that you're signalling, you will not sign off on the prosecution of these journalists?

ATTORNEY-GENERAL: I said that I would be seriously disinclined to consent to the prosecution of a journalist where they've done no more than pursue public interest journalism. I can't though give anything more definitive than that, because my role in this process is to assess a brief that may or may not come up and a recommendation that may or may not come from the Commonwealth Director of Public Prosecutions, and it wouldn't get to that point until the AFP had concluded their investigation and delivered a brief if they are minded to the DPP for their consideration. So I can't abide by the law and give a definitive view without seeing what may be the evidence, if it ever reaches that point. But the fundamental point, I think, is that investigations, whether they be of any Australian, are conducted by the AFP completely at arm's length from Government, as it should be. But these are extra safeguards put in place in that process.

KELLY: So the ABC and Nine later in the week urged you to explain or demanded really that you explain the status of the two cases. They say it's gone on for a long time. How long are the journalists going to live under the threat of jail? Are you troubled by the length of time that this is taking?

ATTORNEY-GENERAL: I can understand the frustrations, absolutely. But again, I'm not privy to all of the elements of the investigation; what it may or may not be uncovering. These are matters that are investigated by the AFP at arm's length from Government. But can I just say generally, all of these must necessarily be balancing exercises. We have a great commitment to the freedom of the press. It's a bedrock cornerstone of our democracy. But it's always been a freedom and a policy value that's been balanced against other things. Whether or not that is defamation or the protection of identity of witnesses, or the ability to investigate criminal offences - there's always been a balancing exercise. And I think, as a Government, the reason why we commissioned the Intelligence and Security Committee to look into the issue of warrants that might affect journalists is because we should always be mindful about whether or not that balance is perfect and whether or not it can be improved.

KELLY: The media companies have come clear and this is what the campaign will be about, that the balance is not right, it's imperfect. The FOI laws are too clunky. Too many documents are stamped "top secret", they are demanding contestable warrants so that media has a say in that, more protections for whistle-blowers. We've had a number of inquiries since these raids, but heard almost nothing from the government yet about what's going to happen, where you stand on these demands for change?

ATTORNEY-GENERAL: I think many of those demands are sensible things that can be considered in the context of the Intelligence and Security Committee inquiry, and that's what is happening and that is the best-placed parliamentary body to consider those types of issues, but equally Fran…..

KELLY: So sensible changes, sensible demands?

ATTORNEY-GENERAL: I think that they're sensible things to be considered. But equally, there have been demands from the Right to Know Coalition that journalists have a blanket exemption from all national security and secrecy laws, or that journalists have a blanket exemption from laws relating to warrants on metadata. And I'm not so sure that those demands aren't sort on out on the outer edge of workability and credibility. Some of the demands, I think, are sensible things that are being considered in a sensible way by the right body, but some of the demands, I've got to say, are right at the outer edge of workability.

KELLY: Let's go to the religious discrimination laws. The draft law, you want it to come before the Parliament before the end of the year. Religious organisations want more – they're calling for faith-based businesses to be able to hire and fire people if they don't adhere to the religious doctrines. Will you give them more? Will you expand the rights, not just of schools, but hospitals, aged-care and other faith-based businesses?

ATTORNEY-GENERAL: Yeah, I guess this is another balancing process.

It sure is.

ATTORNEY-GENERAL: Big business have basically said that they don't want any kind of regulation or limit on their ability to tell staff what to do and say in their spare time. I think religion would like to expand those organisations that are exempt from the operation of this Act so that they could hire on the basis of faith and at the moment, that exemption goes to churches and religious charities and schools, but they've also…

KELLY: Just on that, you mentioned so they could hire on the basis of faith. Would it also mean that a hospital could, for instance, refuse to hire a gay nurse or an aged-care home could refuse a bed to an older gay person?

ATTORNEY-GENERAL: No, those would be matters that would be pursuant to the Sex Discrimination Act. This would be an issue as to whether or not a religious school for instance, an Islamic school, or a Jewish  or a Catholic school, could have a reserve-ability to hire people of the same faith as that taught by the school, and which parents have chosen for their children to be taught at the school. And I think that most people think that's reasonable. Of course, where the outer edge of that might exist, questions do arise with respect to hospitals and aged-care.

KELLY: So you expand the rights?

ATTORNEY-GENERAL: Well, what we've said is that in our draft, it did not include hospitals and age care at first instance, because we wanted to learn more about how those organisations actually operate, and we have learnt a great deal during the consultations that I've conducted. And I think that there are going to have to be some refinements of the drafting in that area. But those exemptions can't extend too far, clearly.

KELLY: Rights groups and others have a number of objections, but in the area that covers health professionals, do you accept there is nothing in this law that would prevent a health practitioner refusing to treat somebody, not just because they've got a conscientious objection to the type of treatment, procedure, but because they disagree with the lifestyle, the sexuality or the gender identity on religious grounds?

ATTORNEY-GENERAL: I don't think that's right. I think, again, that conflates the Sex Discrimination Act, and this religious discrimination bill, which might become an act. All we've said is that in determining whether or not some rule might be indirectly discriminatory to someone of faith, there are considerations about conscientious objection to procedures based on faith.

KELLY: I give you another example, if a person because of their religious belief, has a conscientious objection about homosexuality, could a health professional for instance refuse to give somebody the PREP pill for HIV?

ATTORNEY-GENERAL: I don't think that that would... First of all, there would have to be a rule that compelled the medical professional. This is about whether or not that rule that might otherwise compel the medical professional, is a discriminatory rule because of the person's religion. So I'd have to know what sort of rule it is that compels that sort of service to be delivered.

KELLY: OK. On another matter, Minister, on Syria, the Government's resisted bringing home women and children in the refugee camp in Syria for domestic security concerns. There are 46 Australian children stuck in northern Syria because the Government hasn't brought them home. Do you accept that Australia has a legal obligation to investigate these alleged terrorism crimes and a duty to protect Australian civilians who are affected by a non-international armed conflict?

ATTORNEY-GENERAL: There's two issues. One is about what our legal obligation might be.

KELLY: That's what I'm asking you.

ATTORNEY-GENERAL: One might be what our obligations are to try to assist Australians overseas. The third issue is just what is capable of being achieved in now what is perhaps one of the most dangerous places that exists on the face of the planet. We obviously receive briefings about what is happening because of the Turkish move into Syria. And it is unbelievably dangerous.

KELLY: Of course it is. But up until this point, that hasn't been the situation.

ATTORNEY-GENERAL: The ultimate answer is that there is nothing that we actually can do in Syria at the moment without placing Australian lives at enormous risk and peril, which is just something that we would not do.

KELLY: Would the answer have been different two weeks ago before these hostilities broke out?

ATTORNEY-GENERAL: Well, it was always...

KELLY: Do you have a legal obligation?

ATTORNEY-GENERAL: It was an extremely dangerous place three weeks ago and now it's an unbelievably dangerous place.

KELLY: Do we not have laws and mechanisms in place in this country, if it was possible to bring these people out safely, do we not have the laws to detain, to monitor, to keep tabs on these women if they are brought home and ultimately charged. I'm thinking of things like control orders for instance, to keep track of them

ATTORNEY-GENERAL: All of those regimes exist, but again, I circle back to the point that there isn't a practical capacity to do what is suggested, what you're suggesting should be done.

KELLY: I'm saying if it was possible to get them out.

ATTORNEY-GENERAL: But it's not. It's just not. Not without putting Australian lives at enormous peril. And we are just not prepared to do that in the present circumstances.

KELLY: Minister, on another issue, the Federal Government has been critical of the ACT's new laws legalising personal cannabis use. Are you going to use Commonwealth laws to strike out that ACT law, or override that Territory law?

ATTORNEY-GENERAL: I think that they're terrible laws for a variety of reasons. I've written to the ACT AG today, simply stating what is the best advice we've received about the legal situation created. But that advice, which I whole-heartedly agree with, is that the Commonwealth law that criminalises possession of cannabis in amounts under 50grams, is still valid law in the ACT. The ACT laws removed the criminal component at a Territory level, but didn't establish anything that is a positive right to possess, which means there's no defence to the Commonwealth law that criminalises amounts under 50 grams. So my advice, and the advice that I've provided to the ACT Attorney-General is that it is still against the law of the Commonwealth to possess cannabis in the ACT.

KELLY: If the ACT leaves its law as it is, will you move, will the Federal Government move to use the Territory's power to override it?

ATTORNEY-GENERAL: If they leave their law as it is, why would there be any need to override a law which is effectively to no effect?

KELLY: OK, what if they translate it into a positive right?

ATTORNEY-GENERAL: Well, what they do from here is up to them, and we'd consider the situation into the future. But at the moment, their law has not done what they think it does, which is provide some kind of defence or out for people who would be possessing cannabis in the ACT. It doesn't do that.

KELLY: You've told them how to do it.  If they change it, if they make it a positive right, would you consider using the Territory's law?

ATTORNEY-GENERAL: What they do from here is up to them. And that is a strictly hypothetical question.

KELLY: But you're not ruling it out? The use of the Territory's power?

ATTORNEY-GENERAL: We'll see what they do from here. But they've not achieved what it is that they set out to achieve, legally.

KELLY: Minister, on another issue, the ABC report into the slaughter of race horses this week has provoked outrage and calls for Government intervention. Some of the cruellest treatment of the animals we saw in that report happened in an abattoir which is licensed to slaughter horses for export meat - the international market. That export abattoir comes under Commonwealth jurisdiction. Is the Federal Government investigating how these practices were allowed to occur? As I understand it, under the law, Commonwealth appointed vets are supposed to be overseeing the slaughter in these places?

ATTORNEY-GENERAL: Well, yes. And the footage is just beyond terrible. Obviously, animal welfare is essentially a state matter, and obviously we want to see fulsome investigations at a state level for the substantive animal welfare offences that may have been commissioned here. You're right - there is an oversight by the Commonwealth with respect to organisations that need certification for export. One of these abattoirs is one of those organisations. It's probably something that the Agriculture Minister will have more to say on during the week, but I understand that at least one part of that footage demonstrates a potential breach of the standards that are required under the Commonwealth supervision, and I understand that's something that will be looked into.

KELLY: Have you seen it? Did you see the show?

ATTORNEY-GENERAL: I've seen excerpts of the footage. I must say, I haven't got to see the full footage as of yet.

KELLY: What was your reaction to it?

ATTORNEY-GENERAL: I think it's just astonishingly terrible behaviour, the excerpts that I saw.

KELLY: Attorney-General thank you very much for joining us on Insiders.