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ANGE:

From Schwartz Media, I’m Ange McCormack. This is 7am.

The Labor government promised it would return transparency and honesty to government once elected, and more than anyone else, that mission was given to the new first law officer of Australia: Attorney-General Mark Dreyfus.

So how has he measured up to those ambitions?

Today, Attorney-General Mark Dreyfus discusses his essay in the new edition of The Monthly and his vision of a more honest Australian government.

It’s Tuesday, January 30.

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ANGE:

Attorney-General Mark Dreyfus, thanks for coming on 7am.

MARK:

It's a pleasure to be with you, Ange.

ANGE:

In your piece for The Monthly, you talk about your first speech you made to Parliament where you said, what we see and do in our path to becoming elected representatives must affect how we act as legislators. I'm wondering how your life before politics influenced your time in Parliament.

MARK:

I came a bit later to parliamentary life. I won't say politics because I've been in politics all my life...

ANGE:

Sure.

MARK:

…but I came a bit later to parliamentary life than most of my colleagues, and it meant that, I was able to fit in about three decades of work as a lawyer, and I work as a lawyer in lots of different capacities, including starting my working life as a field officer for the Land Council in Top End of the Northern Territory, then on the Land Council, I worked as a community lawyer, I worked as a solicitor, and I worked as a barrister for 20 years.

And in that time, I had plenty of opportunity to see how the law can be made to work better for people. And most importantly, to see how we can change systems, to get, in particular government to work better for the people that is meant to serve.

ANGE:

Well, let's talk a bit more about government accountability. Your piece does talk a lot about Robodebt. And you called the scheme a ‘catastrophic failure’. I think there's no arguing…

MARK:

So did the Royal Commissioner.

ANGE:

Yeah. And there's no arguing around that wording. I think especially among our listeners. What was it about Robodebt that you found particularly egregious? Was there part of that scandal that sticks with you?

MARK:

A lot about this scandal sticks with me because it ruined the lives of hundreds, at least hundreds of Australians. It was illegal decision making by the Commonwealth of Australia to send unlawful debt notices to half a million Australians.

It gives you an idea of the shocking scale of this, and what the Royal Commission found beyond any shadow of a doubt, was that the government knew early on that what it was doing was illegal, and they went on doing it.

And I'm very pleased that we held this Royal Commission. It was excellently and, pretty efficiently conducted by, the former Chief Justice of Queensland, Katie Holmes, who, got it done quickly and with a very sharply worded report, exposed the awful truth about the former government's conduct of this scheme.

ANGE:

So let's talk about the Royal Commission and when it handed down its report and, you know, Catherine Holmes, the Commissioner, outlined dozens of recommendations to basically ensure that Robodebt isn't repeated…

MARK:

Yes.

ANGE:

…which obviously I can hear. You know, that is not something you want to see happen on your watch. At the time in July, your government said, look, there's a lot in this report that's 57 recommendations.

Audio excerpt – Bill Shorten:

“There's a lot in this Royal Commission. I appreciate-...it's 900 pages. There’s a lot to read. There's a lot… 57 recommendations…”

ANGE:

And a few months later, when you provided your official response, you said you would implement all 56 recommendations.

Audio excerpt – Mark Dreyfus:

“The government has accepted or accepted in principle all 56 of the recommendations made by the Royal Commission.”

ANGE:

Why did you say there was one less recommendation than the report does?

MARK:

There's a…it is perhaps terminological, but there's a bit at the end where Catherine Holmes offered an observation about cabinet process, but it's not actually a recommendation that she makes. It's an observation about cabinet process.

ANGE:

But in the report it says the following is a list of 57 recommendations. And that's counted in the list. That's number 57 isn't it?

MARK:

Well, we don't agree with the observation that she made about cabinet process.

ANGE:

Well, senior counsel assisting the Robodebt Royal Commission, Justin Gregory, said there are 57 recommendations and the last recommendation is number 57. I guess he seems to think it's pretty important that one.

MARK:

We’ll have to agree to disagree. But, it's that that bit about cabinet process was not something that really strictly fell within the terms of reference. It was something that arose was really an observation at the end. It's couched as a final observation by Catherine Holmes. We're concerned with her recommendations that go to the way in which governments make decisions, in which departments make decisions, the way in which those decisions can be reviewed.

And I'm working with my colleagues, Katy Gallagher, the Finance Minister. Bill Shorten, the Minister for Government Services, and Amanda Rishworth, the Minister for Social Services, to make sure that, all of those recommendations are implemented and that's what we're about.

Many of those recommendations went to the new system of administrative review that you see in the bill that I brought to the Parliament on the last sitting day of last year, which is now being considered by Parliamentary Committees.

ANGE:

Mm. I do just want to talk about that recommendation or consideration, however we want to phrase it, because it's about a part of the FOI act that the commissioner said should be amended. So basically that cabinet can't just stamp everything with cabinet confidentiality whenever they like.

And the reason why she pointed it out is because that exact thing was something that was abused by the Morrison government to keep key documents from the Robodebt scheme in the dark, right? So I guess I'm wondering why that isn't something that your government wants to take on board.

MARK:

We're very committed to freedom of information.

We do not have secret ministries. We do not have a cabinet committee consisting of the Prime Minister. We have proper cabinet government. And in 2010, the reforms that were made to the Freedom of Information Act - by John Faulkner, as Special Minister of State, and passed by the Parliament - ensured that the cabinet exemption could not be misused properly applied. There is already a restraint in the Freedom of Information Act that ensures that you don't get to say no government gets to say - that's covered as cabinet in confidence, simply because it's a document that was wheeled into…

ANGE:

Right.

MARK:

…on a trolley, if you like, into the cabinet room in order for the cabinet in confidence exemption to apply…sorry to sound like a lawyer, but…

ANGE:

But you are.

MARK:

I am. In order for the cabinet in confidence exemption to apply, it's got to actually be a document that is part of the cabinet deliberative process. In other words, a document created for the purposes of making a cabinet decision.

I’m also the cabinet secretary as well as being the Attorney-General. And I can say that cabinet confidentiality is a really important part of the Australian system of representative democracy. It's been built in to our parliamentary and legal system for over a century, and I think it's served us well. It's something that fits with cabinet solidarity, which means that no matter what disagreements have taken place in the Cabinet Room - I can assure all your listeners that there are disagreements…

ANGE:

I am sure.

MARK:

…in the Cabinet Room, no matter what disagreements take place in the Cabinet Room, we are all bound by the decision that we come to collectively, Labor government takes this really seriously.

And as someone that's been a Cabinet Minister in the former government, in the Gillard and second Rudd government, and now again, I've got the honour of serving Australia as a Cabinet Minister. I can say that cabinet confidentiality is something that serves Australia pretty well, because it means that, you know, when you are having that pretty robust discussion sometimes in the cabinet room, that it is able to be kept confidential and won't be released under freedom of information.

So, I'd be happy to debate this publicly, with Catherine Holmes. But it wasn't something that really came up in the hearings of the Royal Commission. It was something…

ANGE:

But I guess it was something that the former government used to hide key information and I guess there’s a concern…

MARK:

I agree. I'm trying to say that the former government misused a whole range of government processes. The former government was quite prepared to proceed for years after having been told that what they were doing broke the law of Australia and they went on doing it.

What's troubling, perhaps, is that even now, Mr. Dutton's not prepared to own up to that. He's not prepared to admit fault. It gives me cause to think that we should be very worried about the Liberal Party ever returning to power in Australia, because they don't seem to, even now, have acknowledged that what they did was wrong and that they knew it was wrong, and they went on doing it. We need them to actually face up to what they did.

But I can point to a whole range of areas where, the former government ignored the law, ignored conventions, ripped up the fabric of Australian government in a whole lot of really important ways. And we're determined to repair the fabric of government in Australia. We think that, accountable government, government which has integrity, is going to serve Australians better. It's a pretty basic proposition. Government works for citizens.

ANGE:

Coming up after the break, what the Attorney General thinks about freedom of the press, and if more could be done to free Julian Assange.

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ANGE:

Attorney General, you've talked about the importance of public interest journalism before, and the other day on this show, I spoke with Gabriel Shipton - he's the brother of Julian Assange. He basically called for much stronger diplomacy from the Albanese government to step in and advocate for Assange's release.

He said ‘if Australia can't ask its greatest friend and ally, the US, a favour, what's the point of the friendship’ - I'm wondering, should the Prime Minister do more to free Julian Assange, in your view?

MARK:

The Prime Minister has said publicly that he's raised this more than once with the president of the United States of America and has said very directly that it's gone on long enough. Now, I'm not going to go into the details of what else I or other ministers have been able to do. But I think that the way in which the Prime Minister has talked very directly about this very long running case, should tell all Australians how seriously we take this.

ANGE:

Let's just take a closer look at how Julian Assange ended up in this situation. I'm wondering, do you consider what Julian Assange published to be journalism?

MARK:

I should be careful, again about commenting on a matter that even though it's not before our courts, it's before the United Kingdom court at the extradition level. I've certainly seen the arguments that have been raised by quite a number of people in the United States, which is where the charges originate. These are United States charges which the United States seeks to extradite Mr. Assange for.

But certainly more than one person in the United States has put that forward that it's journalism and said that, directly, the free speech constraints of the United States Constitution, the First Amendment, will apply to what Mr. Assange has done. So I'm very familiar with these arguments.

ANGE:

Yeah. Well, let me, maybe…

MARK:

One of the few Australian lawyers that's probably called in aide, what's known as First Amendment jurisprudence in free speech cases in the High Court of Australia. But, I probably shouldn't go further with commentary about Mr. Assange's case.

ANGE:

Well. Maybe, maybe…

MARK:

Australians should know that at the highest levels. We have raised Mr. Assange's case with the United States government and will continue to do so.

ANGE:

If I phrase it differently, perhaps not about what Julian Assange published. But do you think Julian Assange is a journalist?

MARK:

Certainly, some of his activities. Classic journalist activities.

ANGE:

Okay.

MARK:

But I'm not going to say. Is that partly just the case? I'm not going to say that every single thing Mr. Assange has ever done in his life is the activities of a journalist.

ANGE:

Okay, I guess…

MARK:

But of course, he and his organisation have engaged in journalistic activities.

ANGE:

Are you worried about what message it might send if Julian Assange is extradited to the US as a journalist, and he faces on these U.S. charges, 175 years in prison for exposing war crimes? Do you worry about what message that sends to public interest?

MARK:

I'm not going to comment further about Mr. Assange, but I'll say that I'm someone that has worked, repeatedly since I joined the Parliament in the end of 2007 on issues of media freedom. So I'll broaden it out for you.

Ange, and so, I was very concerned at the way in which, the former government pursued, journalists at the ABC with search warrants. I was very concerned at the way in which search warrants were used to pursue alleged leaks to journalists from the government, really to cover up political embarrassment to the former government.

And I've urged and had some success already in getting amendments made to the use of coercive powers to make sure that there is better consideration given to the use of such powers against journalists.

And as the Attorney General. Now, the person who is charged with signing the warrants for, ASIO. So I get to directly apply what I think is appropriate restraint on the use of coercive powers by our agencies. I think that special consideration has to be given to journalists. I think we have to recognise the really important role that journalists play in our system of government, in our system of politics.

And, we should think and then think again. Before we ask police or agencies in any way to use powers against journalists. I think journalists occupy a special place. And the law already recognises this to some extent. And, one of the projects, which is an ongoing project for this government, is to consider whether or not more needs to be done in recognising that special place that journalists have.

ANGE:

Attorney General, a huge theme of your work and of this Labor government. Has been the promise to restore transparency to government. But as we've been talking about, there are some genuine questions about things like freedom of information, whistleblower protections and the Royal Commission response. Are you really being the most transparent, transparent government you could be, or are you just a bit better than the last government?

MARK:

I think we're a lot better. And you might say, you would say that I think we are actually better. I think we're doing a lot better at explaining our decisions and making sure that reasons are available at taking the Australian people into our confidence.

That's why I think that transparency is an important and accountability matter, because it's part of, if you like, the contract between Parliamentarians and the citizens who elect them, that there will be visibility of the way we are going about our decisions. It's part of accountability that we explain ourselves. It's part of accountability that people can understand why we've gone about certain things, and it's part of accountability that they would be methods of challenging the decisions.

And I do think we are doing better at all of that. We are not a secretive government in the way that particularly the last part of the former government was. That is the Morrison government, which was, a particularly secretive government led from the Prime minister down with that prime minister, didn't seem to feel the least need to answer journalists’ questions. He coined the phrase, of course, ‘on water matters’. And I'm sorry to say that the current leader of the opposition is not much better because he was very keen in his last two portfolios, home affairs and defence, to never answer questions.

Now, I think we're better at answering questions, and I certainly take it seriously myself and I watch my colleagues also being a lot better at answering questions. We hold regular press conferences. We put out regular statements, we publish our decisions, we talk about our decisions. We're answerable in Parliament. And I'm hoping that will continue.

ANGE:

You've answered a lot of my questions. Attorney general, thanks so much for your time.

MARK:

Thanks very much. And it's been a pleasure to be with you.

ANGE:

You can read Mark Dreyfus’ essay, ‘After Robodebt: Restoring trust in government integrity and accountability’ in the February issue of The Monthly, which is out today.

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ANGE:

Also in the news today,

The UN has warned that UNRWA - the main UN agency providing aid within Gaza - would have to stop distributing essentials to about 2 million Palestinians unless countries like the US and Australia agree to resume funding the organisation.

Around ten countries have ceased support for UNRWA following accusations made by the Israeli government over the weekend that 12 staff at the agency were involved in or supportive of the October 7 attacks by Hamas.

And

Treasurer Jim Chalmers says the federal government is open to further cost of living relief following changes to the stage 3 tax cuts. However, the Treasurer said that any changes to capital gains tax or negative gearing are off the table.

I’m Ange McCormack. This is 7am.

Thanks for listening. We’ll be back again tomorrow.

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