Australian Agenda program, SkyNews

16 August 2015

Topics: Same-sex marriage; Dyson Heydon; environmental laws; constitutional recognition of Indigenous peoples; ALRC Freedom Inquiry; welcome to country ceremonies; workplace relations; leadership.


Peter Van Olsen: Live from Brisbane, Senator George Brandis, appreciate your company, thank you.

Attorney-General: Good morning Peter, good morning Paul.

Peter Van Olsen: Can I just build on something that Paul Kelly mentioned just then in his editorial – the idea that Cabinet will hopefully come to a decision sooner rather than later on the Government’s perspective on what form of free vote will be had. Can you give us any sort of update in that space? Is that due, for example, to happen when Cabinet next meets?

Attorney-General: I’m not sure that it will happen at the Cabinet meeting scheduled for tomorrow, but I do agree and expect that this is a decision that the government should make very soon.

Paul Kelly: Minister, can I just clarify, I think in terms of what you’ve been saying, as far as you, Attorney-General are concerned, a referendum on this issue is simply not on, it’s not tenable?

Attorney-General: It’s not that it’s not tenable, it’s that it’s not necessary because there is no doubt that the marriage power in section 51.21 of the Constitution as it is currently written would enable the Parliament to legislate for same-sex marriage were it to choose to do so. My colleague Scott Morrison gave an interview on Wednesday night in which he thought that there was some lack of clarity about the marriage power, and if there were a lack of clarity it would be perfectly sensible to have a referendum. But he was, I imagine, unaware that as listed two years ago the High Court had made a decision in the ACT same-sex marriage legislation case in which it had unanimously, and without any qualification whatsoever, concluded that the marriage power, as currently written, would enable the Commonwealth Parliament to make a law in relation to same-sex marriage. So given that there is no area of legal doubt there is no need for a referendum. You don’t have a referendum for the purpose of not changing the Constitution. The Constitution allows for same-sex marriage so the right way to test the public opinion on this issue, given that it doesn’t raise a constitutional question, is to have a plebiscite.

Paul Kelly: Can I clarify then, do you support a national plebiscite?

Attorney-General: I’m satisfied with the outcome we’ve achieved as long as there is a plebiscite because, although it has been reported that I was one of those who argued that there ought to be a conscience vote, nevertheless it’s hard to argue with the proposition that when it comes to an institution as fundamental to societies sense of itself and the nature of what that society is, as marriage, then the whole of society needs to own that decision. Now the result we have arrived at is that the Labor Party says the Parliament should make this decision, which means that it’s a decision that would be made by politicians, and the Coalition has said that this is a decision so fundamental to the nature and characteristics of our society that it should be made by the people. I am perfectly happy with that outcome.

Paul Kelly: Okay. Now if it’s a plebiscite should it be voluntary voting or compulsory voting?

Attorney-General: No, I think it should be compulsory voting because for the very reason I mentioned a moment ago Paul, that everybody in Australian society, every adult member on Australian society, needs to have ownership of this decision.

Paul Kelly: Now, as Attorney-General, can you give us a guarantee that if there is a plebiscite it will be a process of integrity and that there won’t be some form of trickery involved designed to deliver a particular outcome?

Attorney-General: Well certainly not from this government. I mean in a plebiscite they’ll no doubt be a vigorous campaign because people on both sides of the argument feel very strongly about this. But I can certainly assure you that there will be no trickery as far as the government is concerned. What we want is a clean and pure opportunity for the expression of public opinion.

Peter Van Olsen: Can I ask you a question about the timing around the plebiscite, assuming that’s what it ends up being. It strikes me that there seems to be two sets of concerns here. There is the internal concern from some members of the government, I think including Malcolm Turnbull, that this becomes an ongoing issue that perhaps takes away attention and political oxygen from other factors, we have got this plebiscite hanging until sometime in the next term of government. There is some concern as well from, you know, advocates of same-sex marriage and even someone like a Patrick McGorry who witnessed from afar the campaign and how vicious it got and divisive it got in Ireland before it was ultimately a pretty obvious result in the end, that the time and the framing of this could be a bit of an issue. I guess with all of that what I’m asking, Senator, is why not just do it this term of government, is there a reason to have to wait until sometime next term?

Attorney-General: I think there is a variety of views about when the plebiscite should take place. That’s a discussion we are yet to have. It’s, to be honest with you Peter, not a decision about which I have made up my own mind so it wouldn’t be appropriate for me to pre-empt the discussion. I think that it’s an issue that ought to be dealt with once and for all reasonably soon but that being said, we have the reality that there will be an election sometime within the next twelve months and there will be much more important issues at that election than the question of same-sex marriage. I think the genius of having a plebiscite, in fact, is that it compartmentalises, somewhat, the conversation so that people can focus their minds on the question of whether they support or oppose same-sex marriage at the plebiscite and leave the election campaign to deal with the other important issues of jobs and growth and community safety which are the top of mind issues for most Australians.

Peter Van Olsen: wouldn’t you think though, that an election about so much more than this issue, the best way to ensure that this issue doesn’t get clouded in the mix would be to get it out of the way beforehand rather than sometime into the future where, as Paul Kelly mentioned in his editorial, you’ll end up with two different campaigns developing from the Labor Party and so on?

Attorney-General: I hear what you say, Peter. As I said before, in all candour it’s something that I have thought carefully about in the last 48 hours and haven’t resolved my own view on the matter. I can see the desirability of having the matter out of the way but, you know, a referendum or a plebiscite costs an enormous amount of money. That’s another consideration to be born in mind as well and the public I think would be a little weary of being taken to the ballot box twice in twelve months so all of these considerations have to be factored into the ultimate decision that is made.

Peter Van Olsen: Just one quick one on this as well, would you have any concerns about it being coupled with the referendum, as opposed to plebiscite, on the issue of constitutional recognition for Indigenous Australians? On the one hand that saves costs obviously to do it together, but it potentially blurs two different issues in two different styles of votes as well, obviously, if one’s a plebiscite and the other is a referendum.

Attorney-General: I have thought about that. I would be disinclined to do that partly for the reasons you’ve just suggested and also because, you know, there is a special place in Australia, in the Australian Constitution and discussion about the Australian Constitution for the recognition of Indigenous peoples. That issue, the terms in which Indigenous people are recognised in our Constitution, has an enormous significance and emotional significance for the Australian people and I think it would be, it would treat the significance of that issue with appropriate dignity to have it dealt with as a stand-alone matter rather than run together with a plebiscite on an issue, which means a lot to a lot of people on both sides of the argument, but in my opinion, doesn’t have quite the historic significance of recognising in our Constitution the first peoples.

Paul Kelly: Attorney-General, isn’t the reality here that a plebiscite won’t necessarily resolve this issue permanently which seems to be the desire of the Prime Minister, and if in fact the plebiscite voted no to same-sex marriage, for example, that, in fact, wouldn’t end this debate at all?

Attorney-General: Well I don’t agree with that Paul because the reason you have a plebiscite is to let the public determine the matter once and for all. Now that’s not to say that the matter couldn’t be revisited in years to come, but I think for the foreseeable future at least a plebiscite would resolve the matter. Every Australian has a right to an opinion about the definition of marriage, every adult Australian has a right to that opinion that’s why I think there should be compulsory voting and a society defines its fundamental institutions. One of the fundamental institutions of society is marriage and if society defines marriage to be between same-sex partners then I think those who have the opposite view should accept that. If society decides to retain the status quo then the minority view should accept that as well.

Paul Kelly: Can I just clarify that in any plebiscite, the question would simply be yes or no to same-sex marriage? That you wouldn’t have other options on the table such as civil unions and so on which means that instead of just a yes/no choice, you might have a range of options? Can you give a guarantee that that won’t happen?

Attorney-General: Well two things Paul, first of all the actual drafting of the precise question is something that will take a lot of careful thought so I’m not going to, as it were, publish on your program this morning what will be the question. As to the mode in which the question is put, it should be, in my view, and this is what the Prime Minister has said, it should be a question about same-sex marriage not a question, as you’ve suggested, that proposes a variety of options. I think plebiscites are basically an up or down, yes or no vote on a proposition.

Peter Van Olsen: What about though, Senator, including perhaps, for example, a notation about the need for this to also protect religious freedoms or something to that effect? Obviously this is an issue that a lot of people have raised, Paul Kelly has written about it, has been something that needs to be determined and clarified?

Attorney-General: I would favour that, Peter. I read Paul Kelly’s piece in yesterday’s Australian, I agreed with it and I also read the opinion piece that Tim Wilson, the Human Rights Commissioner, published the previous weekend in The Australian. I think he makes a very powerful case that there’s not just one issue here, that is whether there should be same-sex marriage recognised on this country, there are two. There is that, but there is also the question of the protection of religious freedoms. I don’t think we should countenance any proposal that would oblige priests or ministers of religion to act at variance with the teaching of their faiths.

Paul Kelly: What’s the best way then of furthering that particular set of guarantees that you’ve just talked about, Minister?

Attorney-General: That could be accommodated in the question to be put in the plebiscite as qualifying words and, by the way, I followed this debate pretty closely over the years, I have not heard from any mainstream advocate for same-sex marriage the assertion that ministers of religion should be forced to marry gay couples were Australia to adopt same-sex marriage. I think that there may be some people at the fringe but, frankly, what the same-sex marriage lobby wants is recognition of same-sex marriage. I don’t believe that they are seeking to or trying to inhibit religious freedom.

Peter Van Olsen: Senator, can I just start on the Dyson Heydon situation. From a political perspective, irrespective of the arguments about whether it is or isn’t a fundraiser that actually raises any money, the concern I would have thought for the government now would be that the politics of the impact of the Royal Commission are now tarnished now aren’t they, just simply because of a silly decision by the NSW Liberal Party to invite a royal commissioner to a fundraiser?

Attorney-General: It would have been better had it not have happened but that’s not the question. The question is the conduct of Mr Heydon and I think Mr Heydon’s conduct has been unimpeachable. The moment he found out that there was a Liberal Party association with this lecture, the Garfield Barwick Lecture, he immediately pulled out so I don’t think this gets anywhere close to the legal test for ostensible bias. The fact that Mr Dreyfus personally attacked Mr Heydon during the week, Mr Dreyfus being a Queen’s Counsel, he knows Dyson Heydon’s reputation for stainless integrity. I think there was a terrible overreach by the Labor Party, it was quite disgraceful. What Jason Clare said in the House of Representatives was a despicable, a contemptible thing to say but perhaps one can be a little forgiving of him because not being a legal practitioner he may well be unaware of the eminence and stainless reputation of this man. But Dreyfus did know better and he, nevertheless, played the man in a way that I think he will carry as a mark of shame for the rest of his professional life.

Troy Bramston: Senator Brandis, are you concerned at all that the ACTU or other unions may challenge in court any of the findings that come out of the Royal Commission on the basis of the allegation that Commissioner Dyson Heydon is biased against organised labour?

Attorney-General: Well he is plainly not biased, he is not a party political person. What the ACTU may choose to do is a matter for it but the conduct we have seen from the labour movement, both the trade union movement and the Parliamentary Labor Party this week through their spokesmen has been plainly a campaign designed to smear a person who, frankly, doesn’t deserve it. This man has been a servant of the Australian people as a judge of the NSW Court of Appeal, and of the High Court of Australia, and now as a Royal Commissioner, for decades. It would be very hard to find a more distinguished Australian and I think the Labor Party, whether it be the industrial wing or the political wing, really shows how low they are capable of sinking in throwing mud at this man.

Troy Bramston: But can I just quickly follow up to that answer, Senator? Is there a risk though that any of the findings could be challenged in court by the ACTU or other unions, is that a live risk, a live concern that may worry you at this time?

Attorney-General: As I say I don’t know what stunts the ACTU or a trade union may get up to. Findings of royal commissions by the way, are not decisions, they are findings. A royal commission, having examined a matter, will produce a report. Now others, for example the Director of Public Prosecutions, may, on the basis of those findings, choose to institute prosecutions but you don’t, as it were, set aside findings of a Royal Commission because it’s a report.

Chris Merritt: Senator, given that there seems to be legally no grounds for asserting that Dyson Heydon is legally biased, do you think it’s legitimate or illegitimate to take a political issue like this and transfer it into the courts? I’m thinking about the threat by the ACTU to take action to have him actually removed from the Royal Commission.

Attorney-General: I think it is dangerous when political disputes are agitated through the courts. And I know, Chris, you’ve read, you’ve written I should say, about this, about the concept of ‘lawfare’, that political disputes are increasingly being converted into litigation. I think we’ve seen that in America for some years, I think it’s a bad development. I think that we should keep political disputes in the Parliament and leave the courts to resolve legitimate, bona fide legal disputes.

Chris Merritt: This seems to be growing though. We saw this with the Adani Carmichael Mine being delayed and I think the Commonwealth’s main environmental legislation also leaves the way open for exactly this sort of concept.

Attorney-General: Well it does and I don’t think that the public have quite appreciated this, that there is a provision of the EPBC Act, the Environment Protection and Biodiversity Conservation Act, section 487, subsection 2, which is a very sweeping provision which says that in challenging determinations made under the Act in the Administrative Appeals Tribunal, any person who is an Australian citizen or resident who has been engaged in conservation or research into the environment at any time in the last two years automatically has standing. Now that means virtually anyone. The statutory language is extremely loose and what section 487 (2) of the EPBC Act does is provides a red carpet for vigilante litigation…

Chris Merritt: Do you want to see that changed?

Attorney-General: Yes I do, yes I do. And I think the Adani case has shown why it’s very important that the courts not be used as a forum for vigilante litigation by people whose aim is to game the system, who have no legitimate interest other than to prosecute a political vendetta against development and bring massive developments, on which in this case some 2600 jobs depended, to a standstill.

Paul Kelly: Just on that point Minister, then do you think that you’ve got the support of your Cabinet colleagues for that change which is a pretty significant change and when wold you like to see action on that front?

Attorney-General: I think that my Cabinet colleagues would have been as appalled as I was at the Adani decision. I’m not impeaching the legal basis of the decision, what I’m saying is that the result of the decision was very damaging to the economy. I come from Queensland and I am conscious of just what a big deal this was. It’s almost like this was the Olympic Dam of Queensland. The effect on the state’s economy, particularly in central Queensland, where the economy is not doing very well at the moment in central Queensland, was devastating. The people who challenged this are people who are determined to wipe out Queensland’s biggest industry – the coal industry – and no government can sit idly by and let people do that. So I am urging, and I have been urging, my colleagues to deal with this matter.

Peter Van Olsen: George Brandis, can I just briefly go back to the Dyson Heydon situation, just to clarify. You said in the Senate, I believe, or intimated in the Senate, that it wasn’t a Liberal Party fundraiser it was simply an event. The Prime Minister intimated in the House of Representatives at about the same time that it was a Liberal Party fundraiser before seeming to move away from that. What exactly does the event constitute? I noticed that Tony Nutt released a statement saying that the wording on the invite which said funds raised will go to state campaigns was just simply a requirement by law, rather than necessarily anything more than that. Can you give us some insight into the standing of the event?

Attorney-General: Yes I can, Peter, because I, in fact, gave this address myself in 2010 so I know about it. For a start it can hardly be a fundraiser if it raises no funds. The event was run at cost price so, as you fairly and correctly point out Peter, the words on the invitation were a statutory requirement, not an indication that, in fact, funds would be raised and, in fact, no funds, in the sense of profit, would have been raised. Secondly the Liberal Party connection here is that there is a group of barristers in Sydney who constitute what is called the Legal Professionals Branch of the NSW Division of the Liberal Party and they were the promoters of this function. It’s a function that is advertised within the NSW Bar. Invitations went to members of the NSW Bar, not just Liberals but at large, and the nature of the function, as I know having been a lecturer myself five years ago, is that it is a lecture. It’s a lecture usually on a dry legal or perhaps constitutional topic but it is not a political lecture, it’s a lecture that doesn’t have a political character. So, for example, last year the former Chief Justice of Australia, Murray Gleeson, was the lecturer. I think it’s a shame that if a political party of members of the legal profession within a political party decide to promote, within their profession, what is essentially an academic lecture, that it should be mischaracterised as some kind of event which is plainly what it wasn’t, that is an opportunity to raise funds for election campaigning – that was not what this is about.

Troy Bramston: Senator Brandis, can I ask a more broader question about the Liberal Party’s philosophy, which I know you have a deep interest in, and that question is simply that the once leader of the Liberal Party, its principal founder Robert Menzies, argued the party should enable its MP’s to exercise conscience votes if they felt it was necessary. This is a view that has been echoed this week by the Victorian Liberal leader, Matthew Guy. Is that bedrock principle still relevant in the Liberal Party today?

Attorney-General: Yes I believe it is and, you know, in the Liberal Party all of us have a right of conscience, all backbenchers have a right to cross the floor on an issue of conscience and all frontbenchers do too if they are prepared to relinquish their frontbench position. But there are certain issues, issues of personal morality, on which that latter requirement is not imposed so that there isn’t a party position. That’s been the case in the Senate three times in the time I’ve been a member of the Senate - on RU486, on euthanasia and on stem cell research. We still respect that principle but if, obviously, what you have in mind is the decision on the same-sex marriage debate, there was this complication Troy, as I’m sure you will acknowledge, that we have gone to the last election promising that we had a particular position on this matter and the Prime Minister took the view, quite honourably I think, that given the promise that had been made at the last election it wasn’t appropriate to move from that position during this Parliament. But where we have landed with a national plebiscite, I mean that’s the ultimate conscience vote, by the entire nation.

Peter Van Olsen: What about though the idea that it’s a form of direct democracy when we are a representative democracy? I mean you’re a student of history and political philosophy, I’m sure you’d well know that one of the concerns in the construct academically of representative democracy is that if you then bite into piecemeal examples of direct democracy that can actually undermine representative democracy itself?

Attorney-General: One can argue the philosophical point until the cows come home but the fact is that the definition of marriage is not primarily a political question, it’s a social question and I think every member of the community has an interest and a right to have a say in how modern Australia defines marriage and particularly on the issue of whether same-sex couples should be as it were admitted into the institution of marriage. That’s not just an issue for same-sex couples, that’s an issue for everyone because marriage is a fundamental social institution so everybody in my view is entitled to have their say.

Paul Kelly: Attorney, I’m assuming that you would like to see the Indigenous referendum carried…

Attorney-General: Yes.

Paul Kelly: And given that can I ask you how concerned are you, therefore, that all the options on the table from the select committee involved a racial non-discrimination clause being inserted into the Constitution and is it your view that Aboriginal leaders should be counselled on this issue in terms of the great danger that any such proposal will in fact be defeated and will have many unintended consequences.

Attorney-General: Look Paul, we are on a journey here. We’re on a journey to find the form of words that is acceptable to all Australians and, in particular, acceptable to the first Australians. But I think we would all agree that the worst outcome in the world would be for a proposal to be put up and then to be defeated. As I have said many times in the course of this discussion, what we want to recapture is the spirit of 1967 which was the most successful constitutional referendum in Australian history where the yes vote was almost 90 per cent. Now if we overreach, if we include words that are going to raise concerns or which more conservative Australians will feel threatened by, then this is unlikely to succeed and as I’ve also said many times, the constituency, above all, whom we have to reassure here are the more conservative members of the community because we know that the Australian people don’t like tinkering with the Constitution. I think there have only been six out of 44 successful constitutional referendums since 1901 so we do need to be careful that in our ambition to deliver a meaningful result that will be celebrated by indigenous people, we don’t lose the rest of the population which is why I do urge conservatism in the ultimate choice of the words.

Chris Merritt: Senator, on an associated but slightly different matter, the Law Reform Commission’s Freedoms Inquiry has heard that there is a constitutional gap when it comes to property protection. The states, but not the Commonwealth, can expropriate property without just terms compensation. Now we’ve seen in New South Wales, the government of Barry O’Farrell, take away or cancel mining licences worth $140 million infuriating Japanese and American institutional investors. Has the time come for a referendum to extend that federal protection on private property to the states?

Attorney-General: I think that’s primarily, Chris, a matter for the states…

Chris Merritt: No it’s a referendum…

Attorney-General: But each of the states have their own laws in relation to compulsory acquisition of property and they each have their own regime in relation to the terms of compensation for compulsory acquisition or injurious affection or other consequences of the acquisition of property. Now I don’t want to raise a false issue which is a matter for the states. The Commonwealth has that protection as you rightly say in section 51 of the Constitution. There ought to be, in my view, like provisions in relevant state legislation.

Chris Merritt: But from the perspective of international investors, the federal government is encouraging trade with Australia and signing free trade agreements that guarantee private property rights in Australia, yet the states are able to take away that property leaving the federal government looking pretty strange from international perspectives.

Attorney-General: I’m sorry to be tedious, Chris, but I do think this is a matter for the states.

Chris Merritt: Fair enough.

Peter Van Olsen: Can I get your opinion on something on something else, George Brandis. The Opposition Leader, Bill Shorten, has said that he would like to see Welcome to Country performed at the start of each Parliament in the chamber itself. One prominent conservative commentator has described that in the headline of a blog that he wrote as - Bill Shorten demands apartheid in our Parliament. What’s your view on that?

Attorney-General: I’ve seen neither Mr Shorten’s remarks, nor the remarks of the conservative commentator. I think that there is an appropriate place for Welcome to Country ceremonies but until I’ve actually looked at what Mr Shorten specifically had to say I’ll withhold my commentary, Peter.

Troy Bramston: Senator Brandis, can I ask you about an important legal question that goes to workplace relations reform in this country? There is a Productivity Commission report out there that is proposing some modest reform around weekend penalty rates. As the Attorney-General, and as this is a key legal question, would you like to see the government take a suite of reforms to bring greater flexibility to the labour market at the next election?

Attorney-General: The policies that we take to the next election, Troy, will be policies designed to back Australia’s strengths, to ensure that we provide economic security for our people, national security, community safety that would build on the achievements of the Abbott Government which have been very considerable achievements in the last two years, and I’m hardly going to pre-announce specific policies on your program this morning.

Paul Kelly: Senator, how concerned are you, as a senior member of the Cabinet, about the abject disarray in the government over the course of the last week? Ministers shooting their mouth off saying different things, newspaper headlines about the chaos and confusion in the government, and repeated speculation about Tony Abbott’s leadership. How concerned are you about all this and what sort of trouble is Tony Abbott in as Liberal leader?

Attorney-General: I think you’re being a little rhetorically colourful when you use terms like ‘abject disarray’. It was a boisterous week, there’s no doubt about that, but the suggestion of disarray is, with all due respect, nonsense. This is a very good government. This is a government in which the members of the Cabinet, the members of the Ministry enjoy good personal and professional relationships. That doesn’t mean we always agree on everything, you wouldn’t expect that to be the case. The way a Cabinet system is meant to work depends upon a variety of views being expressed around the table and arriving at the best view having heard the benefit of the contribution of all nineteen members of the Cabinet. That’s the way this government does work, we run a proper Cabinet process, unlike the abject disarray of the Rudd and Gillard governments, and we will continue to do so, and we will continue to make the right decisions to secure Australia’s future prosperity and to protect our people.

Paul Kelly: And what about the leadership?

Attorney-General: I don’t think there is a leadership question. We resolved that in February and I do not expect it to re-emerge.

Peter Van Olsen: All right Senator Brandis, Attorney-General you’ve been very generous with your time this morning on Australian Agenda. We really appreciate it, thanks for your company.

Attorney-General: Thank you very much, Peter.