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KARA:

From Schwartz Media, I'm Kara Jensen-Mackinnon. This is 7am.

Australian law is far from perfect.

Not only can it be unjust, in some cases, it can be out-dated and not fit to do what it was intended to do.

The person responsible for maintaining our federal laws is the attorney-general. And since the last election, that has been Mark Dreyfus.

Today, National Correspondent for The Saturday Paper Mike Seccombe – on Mark Dreyfus, what drives him, and why he’s willing to say Australia’s recent treatment of refugees has been ‘deliberately cruel’.

It’s Tuesday, January 31.

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KARA:

Mike, today we're talking about the law. And it's no secret, really, that Australian law is far from perfect in a bunch of areas. So tell me, just how important is it that we're constantly changing and updating our laws here?

Mike:

Well, of course it's important. Laws need looking at from time to time, they need updating because times change, right? Technology changes, attitudes change. So the legal system needs constant maintenance. Otherwise, we can run into substantial problems.

If you think of something like the Privacy Act, for example, that governs our privacy and how, you know, companies and other people handle their information well, it was written in an almost pre-digital world. So, you know, it needs constant maintenance to deal with simple technological change.

Another example of that, the telecommunications legislation was written back in the days of fax machines. It clearly has to be updated because it ceases to be fit for purpose. And the person responsible for that ultimately — and has a finger basically in every legal pie — is the Attorney-General.

KARA:

Right. And that obviously sounds like a huge responsibility. So of course, after the election last year, we have a new attorney general, Mark Dreyfus. And you actually chatted to him recently. So first, what's he like? And I suppose more importantly, what does that tell you about the way he's going to be approaching updating our legal system?

Mike:

What's he like? He's a very interesting bloke. I've spoken to him quite a number of times in the past.

Anyway, I put in the formal request for an interview. His office told me I could have maybe 20 - 25 minutes, you know, he was pretty busy.

Archival tape – Mark Dreyfus:

“We had that odd story this week…we’re talking about the weather, Mike.”

Archival tape – Mike:

“Yeah, I know. I'm wasting our time. But let’s get to you!”

Mike:

As it turned out, we went for more than twice that long because he kept diving into the weeds of all the various things he wanted to do.

Archival tape – Mark Dreyfus:

“You hear the prime minister say," Don't waste the day.” I believe that, I think that it's a privilege to be in government. I think that no government lasts forever. And I'm not going to rush things, but equally I’m going to make sure we achieve things”

Mike:

You know, all attorney-generals need to have a legal background. Dreyfus has a very eminent legal background, was a practising barrister for a long time. And so to that extent he's really not a typical politician. You know, he was 50 years old before he first ran for Parliament. So he isn't someone who came purely to politics through the political machine. In fact, his personal story is fascinating.

Archival tape – Speaker of the House:

“…The member for Isaacs.”

Archival tape – Mark Dreyfus:

“Mr Speaker, we all come to this place by varied paths”

Mike:

His father and grandparents were German Jews, and they fled the Nazis. The story is that Dreyfus's dad had just turned 11, his family decided they had to get out, they sent the children first.

Archival tape – Mark Dreyfus:

“They arrived at Station Pier, in Melbourne, in July 1939. They were cared for in a home for Jewish children. And they did not know if they would see their parents again.”

Mike:

And of course, most of the parents did not ever reunite with their kids, but Dreyfus's grandparents made it out, and they got to Australia about six months later.

Archival tape – Mark Dreyfus:

“Arriving in Australia, as stateless persons, in December 1939. They had failed to convince their parents to leave. Three of my German great grandparents perished in the Holocaust.”

Mike:

Dreyfus says he still has a copy of his grandfather's passport, which has a big “J” stamped on every page. So effectively, a cancelled Jewish passport. And on his immigration arrival papers he wrote “stateless”, so they were stateless people taken in by Australia.

Archival tape – Mark Dreyfus:

“There are many Australian stories like mine.”

KARA:

And that connection to that feeling of statelessness and that uncertainty, I suppose, of being able to stay in Australia, how do you think those feelings will inform how Mark Dreyfus will approach the role of Attorney-General?

Mike:

Well, let me start by saying he expresses enormous gratitude to the Australian state for taking his family. He reckons that he literally would never have been born otherwise, because his father would have been dead in the Holocaust. As you might imagine under these circumstances, Dreyfus is very, very uncomfortable with the way that Australia has treated refugees in more recent times.

Some of the language he used when we're talking, he said it was quote unthinkable, and cruel.

As you would be aware, refugees who arrive by boat are put on this sort of endless cycle of temporary visas. They're never really able to settle properly because their visas expire every few years, which means they could be shipped back whence they came. At any moment, and they don't have the pathway to citizenship that Dreyfus's family had. It's an endless cycle of uncertainty. And he's very concerned about that.

KARA:

And Mike, Labor inherited that system from the last government, a system which, as you say, keeps displaced people in limbo, but eight months after they were elected, there are refugees who are still waiting. So why hasn't Labor made it a priority to change the system?

Mike:

You're right. It was promised. It hasn't happened. It's not strictly his responsibility. The relevant ministers are Andrew Giles and Clare O'Neil, who are respectively the Immigration and Home Affairs ministers.

But he certainly foreshadowed that there would be something coming in the months ahead. So it looks like change is imminent..

As to why there's been a delay, I can't really tell you, but I can tell you this. Mark Dreyfus is clearly going to be pushing it very hard.

KARA:

We'll be back in a moment.

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KARA:

Mike, I want to talk about what Attorney-General Mark Dreyfus has inherited, and what he is directly responsible for, because we've talked about the legal system needing a lot of urgent maintenance. But why is that and how have these particular laws been allowed to become so outdated without being updated?

Mike:

Well, to put it bluntly, it's because the previous government didn't really do much. And this is a point that Dreyfus made. In fact, he drew an interesting distinction, I think, between the Howard Government, which did a lot of stuff, which he didn't like. But at least he says they were competent doing what they did, whereas this previous government was not particularly competent. And I think we can see that in the three attorneys general that preceded Dreyfus. And, you know, this isn't just my opinion. I've spoken to various legal experts who traced a kind of a downward arc of competence.

Archival tape – George Brandis:

“People do have a right to be bigots. You know, in a free country, people do have rights to say things that other people find offensive, or insulting, or bigoted.”

Mike:

We started with George Brandis QC, who was a reasonably competent lawyer. But what Brandis did was he started removing the sort of due diligence processes that surrounded appointments to various bodies for which the Attorney-General is responsible, things like Administrative Appeals Tribunal, Human Rights Commission, things like that.

Archival tape – George Brandis:

“I felt that the political impartiality of the commission had been fatally compromised.”

Archival tape – News Tape:

“Attorney George Brandis there giving his explanation for the some of the hubbub surrounding Commissioner Gillian Triggs.”

Mike:

And then he was followed by Christian Porter, who was not as good.

Archival tape – David Speers:

“Do you now apologise for putting the flawed system in place?”

Archival tape – Christian Porter:

“Well the system was flawed, I’m not going to use that word because there’s litigation ongoing and as Attorney-General I can’t use that sort of language in the context of litigation…”

Mike:

And he was followed in turn by Michaelia Cash, who was not impressive at all.

Archival tape – Michaelia Cash:

“I challenge you to point out which one of those 19 new appointments were not qualified…”

Mike:

And so instead of focusing on what needed to be done, the previous government just spent a lot of time parachuting people into positions on these bodies.

The bottom line was that a lot of the bodies became quite dysfunctional. You know, if you look at things like the Human Rights Commission, the Administrative Appeals Tribunal, they just ceased to function efficiently.

As Dreyfus points out, during the almost ten years that the previous government was in power we had a lot of recommendations and reviews, you know, from parliamentary committees, from the Law Reform Commission, from various experts suggesting what needed to be done, but they just weren't acted on. And so these reviews just piled up unaddressed.

For example, you know, and he gives the former government some credit for this. They did establish — through the Law Reform Commission — the largest ever review of the Family Law Act since it was passed back in 1975. And Dreyfus told me that what the former government got back was, quote, “a terrific, lengthy, detailed report with 60 recommendations. And the government did nothing with it. Just sat on it.”

But the big one, obviously, with the Administrative Appeals Tribunal, was the stacking with partisan appointees, you know, something like 65 - 75, I think it was, you know, ex Liberal Party staffers, people with close liberal links to the party appointed often without legal or even administrative background. So essentially, it became just dysfunctional with a huge backlog of cases.

KARA:

And so just how big of a problem has Mark Dreyfus inherited there at the Administrative Appeals Tribunal, the AAT, and what is his plan to fix it?

Mike:

Well, it's a mess.

It worked very well for two or three decades and was supported on a bipartisan basis. The original legislation I think was drafted by the Whitlam government, which was Labor, brought in by the Fraser government, which was Liberal. And it worked well in dealing with people's problems outside the court system.

So if, for example, you know, you're looking for a disability benefit and you've been denied for some reason, you can take it there. And it's not as legally complex or expensive as taking it to the courts, for example. So it's kind of a clearinghouse for people to have complaints. There's a whole section of it that deals with migration appeals, for example.

But now, because of a mix of factors, you know, the appointees who I've mentioned who aren't up to the job, a lack of resourcing, and also in many cases, what was supposed to be a relatively quick and simple process, the government made it extremely complicated, which contributed to the backlog.

There's something like 58,000, I think it is, pending migration appeals. There's thousands of appeals from people with disability waiting to hear whether they're going to get the care that they’re after.

It's a big one and it has to be fixed.

In the short term, Dreyfus's plan is to appoint 75 new members to the tribunal to help clear the backlog, and to provide additional funds and to make some reforms that will sort of streamline the process. But essentially, the damage that's been done to the body is kind of irreparable.

Once tribunal members are appointed, they can't be sacked. So the only way to get rid of the problem is to essentially abolish the whole tribunal, start over, let people reapply for positions as tribunal members and, hopefully, that will fix it.
It's a big ask, but he's determined to do it and he's assured me that there should be a replacement operating next year, which would be an extraordinarily big undertaking.

KARA:

Yeah, that would be an incredible undertaking if Mark Dreyfus could actually pull it off. But you know, it's clear Mark Dreyfus is someone who's thought long and hard while sitting on the Opposition benches about the kinds of reform our law needs. He certainly got stuck into a lot of that stuff already. But of course at the end of the day, what will decide whether a lot of these reforms happen is politics. So do you think Dreyfus is actually going to be able to pull all of this off in the time that he's got? Or is there a risk that the government just gets caught up in being re-elected? Could things like those better outcomes for refugees, and people with a disability at the AAT, will those things just slip down Dreyfus's to do list as we get closer to the next election.

Mike:

Short answer: I don't think so. But your broader point is correct. You know, we've only talked about a few items on Dreyfus' to-do list. So it's hard to see him getting all of those through in a single term of parliament.

But these are pretty propitious times for reform, you know, progressive forces, not just Labor, but the Greens. Most of the independents are progressive minded. They control both houses of Parliament. So there's not much chance of a big conservative roadblock, I don't think. In things like the AAT, that's going to happen, the National Anti-Corruption Commission — which the legislation went through towards the end of last year — Dreyfus thinks he'll have that up and running by the middle of next year.

No doubt, some things will be pushed off into the future. But he's a man in a hurry, and I mean that in the best sense because, you know, he's terribly committed to due process, and a lot of his reforms go to reinstituting due process that was junked by the previous government. But he's 66 now.

He's in there to achieve as much as he can, while he still can. I think actually he could turn out to be a very significant reforming Attorney-General. And it's been a long time since Australia's had one of those.

KARA:

Mike, thank you so much for your time.

Mike:

My great pleasure.

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KARA:

Also in the news today,

A coroner in Victoria has called for changes to bail laws, saying that the, quote, “Bail Act has a discriminatory impact on First Nations people, resulting in grossly disproportionate rates of remand in custody.”

The coroner was investigating the death of Veronica Nelson, an Indigenous woman who died in a Victorian prison after being refused bail.

Victoria’s bail laws were tightened after a man killed six people in Melbourne’s CBD while on bail. But, according to the coroner, those changes have been an “unmitigated disaster” which result in accused people being held in jail for minor offences.

And…

In the UK, the Prime Minister Rishi Sunak has fired the chair of his own Conservative Party. The chair, Nadhim Zahawi, has failed to declare that he was being investigated by Britain’s main tax authority for underpayments.

Zahawi was briefly the Treasurer of the United Kingdom during the time he was being investigated.

Sunak initially stood by Zahawi, before ordering an investigation and, now, firing his party’s chair.

KARA:

I'm Kara Jensen-Mackinnon. This is 7am.

See you tomorrow.

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