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Transcript of interview with Fran Kelly: ABC Radio National: 21 June 2012: Williams High Court Case; Julian Assange

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Attorney-General Minister for Emergency Management


TOPICS: Williams High Court Case; Julian Assange


FRAN KELLY: Commonwealth funding for a variety of programs has been thrown into doubt by a High Court judgement yesterday on school chaplains. In a split decision though six to one, the Bench has ruled the funding agreement between the Commonwealth and the service provider, Scripture Union Queensland, was constitutionally invalid because the Commonwealth was exceeding its executive power.

Constitutional expert Professor George Williams says the consequences of this decision will be far reaching. He says any program directly funded by the Federal Government could be affected and that includes funding for private schools, universities, libraries, child care centres and Roads to Recovery.

The Attorney General Nicola Roxon has probably spent a few hours last night digesting the implications of this High Court ruling. She's in our Parliament House studio now. Attorney General, welcome to Breakfast.

NICOLA ROXON: Good morning.

FRAN KELLY: This poses a dilemma for the Commonwealth. How does the Government fix this problem?

NICOLA ROXON: Well it is an important decision and it does obviously change a range of assumptions that our Government and previous Governments for many decades have made about expenditure. I think that we have done a reasonable amount of preparation because obviously once this decision was being challenged we looked at the contingency arrangements that should be in place.

The difficult, I think, part of the decision is that there is a majority that says that this spending is invalid, but the majority that agrees on a particular reason is much smaller and in fact there are...

FRAN KELLY: So what was the numbers on the Court for that? I'm sorry, I...

NICOLA ROXON: Well, so six out of - all of the judges said that this program could not be funded in the way that it was and we have already taken steps yesterday to formerly waive the debts which

therefore would accrue so that no school will have to pay back any money that's been paid and we already have some steps in place for how we'll make sure we'll be able to continue with the program and continue to fund it, but it does mean we now need to look at whether legislation would be required for some of our programs, whether different negotiations with the States might be required in some places, or whether we might need to indeed structure funding for some programs in an entirely different way.

FRAN KELLY: Okay, let's go to that because you've called for calm while you work that out and have given the impression as you have now that the Commonwealth has been looking at this, putting contingency arrangements in place. As I mentioned, constitutional expert Professor George Williams said that any program directly funded by the Federal Government could now be affected. Do you agree with that analysis, it's that widespread, the implication?

NICOLA ROXON: It does have wide implications. It's not that wide. It is not correct and I don't think George Williams was saying that any money that we spend on any program is under threat, because of course many of our programs are under legislation, are under intergovernmental agreements with the States, are under defence and emergency powers, all of which have not had - all been in question so I think that that is an overstatement.

But it is serious and it is a change from the previous decisions of the Court. The difficult issue which none of us will be able to grapple with immediately is that a smaller number, not a majority, of the Court have flagged some things that might indicate in the future that there'll even be more serious problems.

Now we can plan for this decision and we have done that. We will be taking steps that will ensure all the programs that we fund can continue, but we can't predict where the High Court might go at a future challenge in another two or three or five or ten years’ time and...

FRAN KELLY: And that's significant isn't it? Some are suggesting particularly looking at funding to private or independent - private and independent schools could be challenged. Can the - are you confident that the funding for those institutions can be put beyond a challenge?

NICOLA ROXON: I am. I don't think that they're at issue. I think that the sort of programs that have been talked about by others like the Roads to Recovery program—it's been long known that those payments to local councils do have some challenges. They're also heavily supported by every single stakeholder in the community, so I think the Government will easily be able to find a way to make sure that those payments can continue. But can I just...

FRAN KELLY: How easy - because there is a suggestion of a referendum to deal with this uncertainty.

NICOLA ROXON: Just before I deal with that can I just emphasise for your listeners the only program that is directly affected by this decision is the chaplain's program and whilst we will want to take other proactive steps for other programs, none of them have been found to be invalid. There is no requirement that we stop making payments under those, so that's why I have a call for calm.

It's sensible for us to look at the implications but they are not immediate ones and people don't need to be in a panic that programs that they receive funding under or work under are under threat.

FRAN KELLY: I understand, so as you try to get ahead of the curve and anticipate problems, can we go to the issue of a referendum? Is the Commonwealth planning a referendum and what would the question be?

NICOLA ROXON: Well we've already been looking and we've been public and we've consulted about the need and our desire to recognise Local Government in the constitution. The panel that was chaired by Jim Spigelman identified the uncertainty around financial payments directly to local councils in the absence of them being in the constitution as one of the key reasons that you would have that referendum.

I think this case has now given weight to the need to do that, but of course that will be considered in the coming weeks. But it's a publicly announced position that we've had. I think this gives it a kick along and obviously it's one of the ways but we don't believe the only way that you could cure some of the problems that have been identified by the Court.

FRAN KELLY: And on the issue of chaplaincy the Government immediately said it would continue this funding of the chaplaincy program. Plenty of people think you shouldn't do that and ask, why fund chaplains and not put the money into more school counsellors, social workers in schools, that kind of thing.

NICOLA ROXON: Well we've been very clear about the value of this program and I think many of your listeners would be aware that we have made and expanded the program so that more schools can access it and so that as well as chaplains there are school and student welfare officers and counsellors who can be employed under this program and many schools have taken the opportunity to do both.

And anyone who has children at school knows that there is an increasing complexity of what teachers are being asked to deal with at schools and that, whether it's counselling support, pastoral support, mental health support - this is increasingly important for the complex issues that teachers are expected to deal with and we intend to make sure that that program can continue.

FRAN KELLY: It’s twenty minutes to eight. Our guest this morning is the Federal Attorney General Nicola Roxon. Nicola Roxon, on another issue, Julian Assange says he's been abandoned by the Australian Government and that's why he's sought protection in the Embassy of Ecuador.

Are you embarrassed that an Australian citizen is holed up in Ecuador's Embassy in London, not the Australian Embassy?

NICOLA ROXON: Well it's obviously a matter for Mr Assange where he might want to seek asylum. I totally reject that he has been abandoned by the Government. I think that the coverage of this issue and some of the claims made by Mr Assange fundamentally misunderstand the role of a Government in being able to protect its citizens when they are in another country and when there are allegations made by another country that those laws have been breached.

We've provided more consular support than we have to other people in a comparable situation and that's because it's been a complex case.

We don't in any way begrudge that, but I think to say that he has been abandoned just doesn't look at the reality of the representations that have been made to other countries and doesn't actually really properly deal with the issue that when you're in another country, if allegations are made against you, then their legal system applies and I don't think people could have any view that the United Kingdom doesn't have a credible and functional legal system and that's the one he's been in.

FRAN KELLY: Nevertheless this is an Australian citizen and the charges are in another country, a third country, Sweden. If he'd come to the Australian Embassy would you have turned him over to the British authorities or honoured that extradition agreement with Sweden?

NICOLA ROXON: Well look, I think that's a totally unreasonable hypothetical to ask. He hasn't done that. We've offered support to him through consular services. We've made representations to the British Government, to the Swedish Government, to the US Government and I think that everyone is entitled to their views about what they fear is going on, but we are also entitled to say that we want Australian citizens to have the law applied properly to them, for them to be fairly and appropriately treated and that's what we've argued for at every point along the way.

FRAN KELLY: And just finally in terms of that argument, the Prime Minister says the Government has no evidence - that's a quote - of any American attention - intention to charge and extradite Julian Assange. Has the Australian Government asked directly the American Government if they have a plan, a move to do that?

NICOLA ROXON: We have. I've made clear that I've made representations, not just to the...

FRAN KELLY: And the answer was?

NICOLA ROXON: … let me tell your listeners who those have been made to because it's not just the Ambassador, the Minister for Homeland Security, the Deputy Attorney General in the US.

We have from all of those conversations no indication that they are about to take any action and of course we have made repeated representations about this issue and we have also said that we don't believe, now having taken advice from the Federal Police, that we have any evidence of Mr Assange having committed any offence that would breach an Australian law.

FRAN KELLY: Nicola Roxon, thank you very much for joining us.

NICOLA ROXON: Thank you.

FRAN KELLY: Nicola Roxon is the Federal Attorney General.

- ENDS -

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