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Transcript of interview: Sky, Australian Agenda: 5 August 2012: Discrimination consolidation project; James Ashby case; Plain Packaging of tobacco; Indigenous and Local Government Referenda; Australian Labor Party; Tony Abbott's 'turn back the boats' policy; High Court appointments; Julian Assange; access to and use of the courts

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Transcript of interview on Sky Australian Agenda

5 August 2012

TOPICS: Discrimination consolidation project, James Ashby case, Plain Packaging of tobacco, Indigenous and Local Government Referenda, Australian Labor Party, Tony Abbott’s ‘turn back the boats’ policy, High Court appointments, Julian Assange, access to and use of the courts.

PETER VAN ONSELEN: We are joined now by the Attorney-General, Nicola Roxon. Thanks very much for your company.

NICOLA ROXON: Good morning.

PETER VAN ONSELEN: You will be disappointed to know I don’t want to ask you about Piegate.

NICOLA ROXON: Yes, very.

PETER VAN ONSELEN: What I want to start by asking you - in your portfolio, do you consider yourself an activist or a reformist Attorney-General, and assuming so to at least some extent, what are the major reforms that you would like to see in your policy space, the Gillard Government, seen as being embracing when its time has come and gone?

NICOLA ROXON: I think those sorts of terms really end being something that other people determine about you, usually once you’re gone. I certainly don’t think and don’t approach my role as Attorney-General to just sort of take no action and deal with incoming as it arises. There is plenty of incoming when you essentially play a central agency role of providing advice to government and dealing with problems as they arise, but we do actually have quite a busy agenda, some of it that was already underway by my predecessor, others that I’ve instigated.

And so I think that law can be used to positively improve people’s lives. It’s silly or would be, I think, remiss to just say, well, whatever laws were passed twenty years ago should always stay the same. So whether it’s our discrimination consolidation project or native title changes or some important changes to family law to protect people from violence, there is a lot of activity going on. I think the labels will ultimately be for others to assess me about rather than me myself.

PAUL KELLY: Well, if we just continue on from that, though, what are the major areas of achievement that you’d like to see realised in your period as Attorney?

NICOLA ROXON: Well, I’d like to make sure that we do settle a range of processes that are underway. People underestimate the complexity of consolidating our Sex Discrimination Act and Race Discrimination Act and others. Some of them have been in place for ten or twenty years, they all have different standards, they’re very confusing for business and I actually think this whole debate has matured. So being able to say clearly what discrimination means, employers knowing what they have to do to comply with it and actually turning that into a normal part of Australian life, I think, is an important thing to do.

PETER VAN ONSELEN: Can I ask on that. Presumably if you consolidate them all, some of them will, by definition, need to become stronger or more lax, if they’re all consolidated in one space. Where are the changes likely to be?

NICOLA ROXON: Well, we’ve said that we will raise to the highest possible standard. In some instances it’s not practical, there are some differences in disability discrimination and race discrimination, but the sort of overarching philosophy is to simplify and to lift to the higher standard. And we’ve been quite public about that in our discussion papers and that’s been very well received. I think even business here is potentially very supportive because they want the simplification. It may mean that some of the standards are a bit higher, but it means they’ll be able to apply one set of rules within their workplace and that would be good for everybody.

PETER VAN ONSELEN: Isn’t there an irony here that you’re talking about, in a sense, toughening up things like sex discrimination, but at the same time as that the Commonwealth has been pretty strong in its concerns about James Ashby and the way that that particular case is going.

NICOLA ROXON: Well, I mean, I’ve been very clear in every interview that I’ve done about this, that we regard sexual harassment complaints as serious ones. Labor Governments have passed those laws, we’re the ones that have said we need to make sure people can be protected in their workplace, but that doesn’t mean in any particular situation when the Commonwealth is sued that we’re not able to put our case. It doesn’t mean that every complaint that’s made is always going to be proved in court and we really do live in what I think is quite a difficult world now.

You can’t be in a situation where one party can very, very actively use the media and the Commonwealth is not even allowed to say, this is a matter for the courts, but this is what we will argue in court. So it’s difficult because traditionally you don’t want Attorneys to be making that sort of comment along the way, but I think that choices do get made now to very actively use the media, often before a complaint is even filed, and we can’t be required to have no response to explain what it is we would argue in court.

MATTHEW FRANKLIN: No, Minister, but this has gone well beyond that. In Parliament Anthony Albanese has said that Coalition MPs are in this up to their necks in some kind of conspiracy. Isn’t that a case of the government going too far on a matter that’s for the courts?

NICOLA ROXON: Well, some of the language Anthony used I wouldn’t have used, but I think that we need to understand that if something is - if a complaint is made in a very political setting, it’s not unreasonable to be able to ask whether it is for a proper purpose or a political purpose. Now, I’ve made very clear that’s what we’re arguing in court. Ultimately that’s up to the judge to decide, but we can’t say that you’ve got one party to litigation able to use - I mean, I think that we would have been in a much better situation if none of it was in the media, the allegations or the response, but I just don’t think it can go one way.

I think it’s quite a worrying trend and I’m, as the first law office of the country, a bit worried about generally the decision lawyers are making about how they use the media as one component of their litigation. So moving it from this particular case, I think that is actually a trend that has some worrying long-term consequences and I’m sure Chris deals with people all the time. It’s interesting to write those stories, but it does have a bit of a downward spiral.

MATTHEW FRANKLIN: Moving it back into that space if I may just for a moment, your case here is that the media has been abused by the Ashby team; is that right?

NICOLA ROXON: Well, no. Our case that we allege that will be for the judge to decide is that the complaint was not made for the legitimate purpose of wanting to resolve a sexual harassment complaint in the workplace, that it was made for another purpose. And we will detail in court, some of which has been covered, why we think it’s been used for another purpose. And you can’t remove the fact that it’s in a very sensitive political environment and, of course, that means there’s going to be lots of debates swirling around about really what’s involved here.

SPEAKER: Doesn’t this legitimise trial by media? I mean, this is the second big case where you personally have used the media to put the Commonwealth case of a matter that’s before the courts. I’m thinking about the tobacco litigation. You were outside the High Court putting the case that was being put inside the High Court. Is it - has the role of the Attorney changed now?

NICOLA ROXON: Well, it’s interesting. I mean, both of those cases are not our litigation, so we’re a respondent in litigation that’s been taken very proactively in one instance by an individual and another by four big tobacco companies. Do people seriously think that the Commonwealth is not able to say for months or years when these matters are being pursued in court what it is that we will argue in court? Now, we can’t be expected to be completely impotent. I think we have to be careful and measured in how we do that.

And yes, sometimes not all colleagues do that in the measured way that I would like, but on the other hand I think it’s really unfair to expect that every single other commentator, political person, academic, can be out there expressing their view and we can’t even do the simple thing of saying, this is the case we will put and ultimately it’s a matter for the court.

SPEAKER: What sort of restrictions do you think there are on the role of the Attorney in making a political statement about something that’s before the courts?

NICOLA ROXON: Well, I think you have to be careful. I think it is a matter of judgment and I know that plenty of people who aren’t keen on the Labor Party or particularly keen on me think that I’ve gone too far. People have to make that judgment themselves. I don’t think it actually helps promote our legal system if you can have one side of an argument put publicly and you can’t even know what the other side is. I do think it’s very important that our judiciary understand that that debate changes and that there’s not pressure being brought to bear, but I must say I think our judiciary has got a very fine record of doing whatever it is that they need to. And there doesn’t seem to be, I think, any worrying trend that they’re being unnecessarily, you know, affected or influenced by this.

PAUL KELLY: If we just look at the area of constitutional reform, the government is committed to having two referendums, one on recognition of Local Government, one on recognition of the Indigenous people in the constitution. Is it your view as Attorney that these two referendums should, in fact, proceed according to the timetable by the next election?

NICOLA ROXON: Look, it’s my view that we need to take all of the steps to be able to do that. There are slightly different considerations for both of them. I think for the Indigenous referendum, whilst we are absolutely passionate about doing it and believe it’s an important change that we need in our constitution, we also respect that ultimately Indigenous people have to be comfortable, that it’s the right time to do it. And you have seen a bit of debate from many leaders saying, look, we want this to be bipartisan; unless we’re one hundred per cent sure it’s bipartisan, people think it’s a very high risk proposition to put and lose and that that would set back the cause of reconciliation significantly.

PAUL KELLY: Well, can I just ask you what your own views are. I mean, you are completely right, there have been a number of people expressing the view that this is not the right time for a whole series of reasons, that it would be a disaster for this referendum to be put and defeated, therefore it should be deferred. Is that the way you’re inclined to think at the moment?

NICOLA ROXON: No. I’m not quite to that position yet. I think the work that’s now being done in the community awareness campaign that we’ve asked Reconciliation Australia to conduct is actually engaging a broader selection of people and we may find that there is actually comfort and readiness to do this. I think there is a big expectation that Mr Abbott would come to the party on that. It is one social policy area that he’s got a longstanding interest in and I think we could actually together do something really smart here.

So I’m not - I haven’t made a decision in my mind that we’ve got to the point that we can’t put this, but I do think we’ve got a couple of months of this community awareness issue to work through. And we do have to be sensitive to the interests of Indigenous Australians because that’s what this change would be for and their preparedness and determination for it to be put now or at some point into the future. So we are in a little bit of a - as frustrating as that is for your answer - wait-and-see while we do this work with the community.

The Local Government one, I think, is a little bit different. I think there’s good reason to do it. I’ve sort of speculated that it would be an interesting test for our political situation if we had the Liberal Party federally supporting this, but the States, as we know, are passionately against it. So, we’re...

PAUL KELLY: [Interrupts] Surely it can’t get up. It’s been put before, it’s been defeated before. On what basis can you be confident that this would be carried?

NICOLA ROXON: Well, I don’t - that wasn’t the question I was asked. I’m not confident, no-one could be confident ever that a referendum will be carried. I mean, we have had a very poor success rate as a nation in being able to deliver constitutional reform, so no-one has that as the threshold because I think you have to be prepared to have a go in some instances where you’re not confident but you are hopeful that you could get change. Again, I think Local Government needs to make a decision about how engaged they would be to run this. We’re looking at it closely, we’re looking at whether that Chaplain’s case in the High Court affects this in any way and, you know, we will have to make a decision in the coming months.

PETER VAN ONSELEN: It’s the last thing that the Federal Government needs, though, isn’t it, to be putting a referendum forward with an unpopular proposition at the next election given where you’re at in the polls.

NICOLA ROXON: I’m not sure that people do regard the Local Government referendum as an unpopular one; I think the bigger risk is that it might be killed by apathy. I mean, I think the public is not wildly engaged in what sort of constitutional recognition Local Government has. On the other hand, they are the level of government closest to the community. If they were engaged about a change that was to be put, I think they have a lot of direct access and a direct impact on the community’s lives. We all know that every time you have a problem with various different things that you need to talk to the local council about. So I think it still could be an interesting one to put, but I do think they’re quite different and I don’t think you would look to put them together.

MATTHEW FRANKLIN: Minister, may I take you away from the policy and into the pure political realm for just a moment.

NICOLA ROXON: Except that you’re very anxious that Attorneys not do that. But I’m happy to, but I’m breaching your concerns.

MATTHEW FRANKLIN: You got me there, but as Peter just mentioned, Labor’s polling position is diabolical. Are you confident that Julia Gillard will lead Labor to the next election and is it still your contention or your view that you put in February that you would not serve in a government led by Kevin Rudd?

NICOLA ROXON: Yes and yes to those. I am confident that Julia will lead us to the next election and I stand by the comments that I’ve made before.

PETER VAN ONSELEN: So under no circumstance you’d be involved in a Kevin Rudd comeback?


PETER VAN ONSELEN: And I understand that you’re not advocating for one or you don’t want to go into that space, but the point is if it happened in the coming weeks or months, whatever it might be, there is no back-flip from you, you wouldn’t serve on the front bench?

NICOLA ROXON: No. I’ve made my views very clear. I didn’t enjoy making them clear. We did that at a time when there was a challenge. That issue was dealt with in February. There isn’t a challenge that is on now and I think that we are actually doing ourselves credit to say we made a choice, times can be tough, you stick with it and you actually deliver on the things that are really important. I’m absolutely committed to that and to the work that Julia’s doing.

MATTHEW FRANKLIN: I noticed that one of the key criticisms of Kevin Rudd’s government was it was in administrative chaos but there was a proper process, but I also notice that ministers who were on Kevin Rudd’s side in February, like Anthony Albanese, your predecessor Martin Ferguson, Chris Bowen, they didn’t seem to have a problem with the issue of process that stopped them from supporting a Rudd comeback. Can you - was your concern the lack of process, particularly with regard to the portfolio you were in at the time, which was health?

NICOLA ROXON: Look, I don’t think a lot is served by raking back over that. I made my views very clear and, obviously, that was my experience in the health portfolio. I also made clear that despite all of that we’ve achieved what I think were an amazing range of things in this area that are really starting to have an impact for people in health. So I’m proud of that and I think Kevin’s entitled to be proud of that too. But there isn’t a challenge. The Prime Minister, I think, is just doing an amazing job in the face of a huge amount of headwind and that we actually get credit for just sticking with that. I'm not for turning on this.

PETER VAN ONSELEN: Attorney-General, I hope you can stay with us. We’ve got a lot more questions. Not in the leadership space, though. We want to get back to the portfolio discussions, including legality around the idea of turning back boats, but we’re just going to take a commercial break. When we come back, we will continue with the Attorney-General. You’re watching Australian Agenda.

[ad break]

PETER VAN ONSELEN: Welcome back, you're watching Australian Agenda where we're joined by the Attorney-General Nicola Roxon.

Attorney we were talking - I mentioned before the break that I wanted to ask you about the legality or otherwise of turning back boats. Now it's been done before. Tony Abbott is saying that he will do it again. Circumstances are a little bit different but what about the legality side? Is it something that can legally be done?

NICOLA ROXON: I think it's very fraught legally. I think it's fraught legally, I think it's a dangerous option. We have the operational staff staying they couldn't do it. I really do think that this is a serious problem.

I do want to underline though that we have asked this panel headed by Angus Houston to look at options. I'm aware that they have asked for legal advice and I've

made an active decision that that shouldn't be something that I vet in any way or look at - I mean obviously if any of the advice that's ultimately provided I will have access to. But I think it's important that they're able to get that without any sort of political engagement in that process and so ultimately we know that that's something that they are considering, whether there are some serious legal problems involved with it.

I do think the Liberals are being massively hypocritical in this area. Quite apart from any of the technical international legal problems, they make hay saying, we can't possibly send people back to countries that haven't signed on to the Convention, but they're happy to turn boats back to Indonesia who are not party to the Convention. So you can't keep having it both ways here.

We really do need a circuit breaker to look at what might be a sensible option which will provide some relief. And I hope that Angus Houston's committee will give the Parliament those options and that they'll be taken seriously by...

PAUL KELLY: [Interrupts] So much of this issue goes back to the High Court decision on the Malaysian arrangement. How concerned were you about the ramifications of that decision and the fact that the government was clearly caught by surprise because it was contrary to the government's legal advice?

NICOLA ROXON: Well the High Court, being the highest court in the country, is not bound by precedent, it's not bound by its own precedent. That's the system that we have - so yes it was unexpected in terms of the legal directions that had been set in the past, but ultimately we respect the decisions that the High Court makes.

We can take legislative action where that's possible, if that's needed, as we did in the Chaplain's case, to cure the problem that was identified. In other cases you're not able to do that. But really, we have to deal with the decisions that the High Court gives us, that's how our system works.

PETER VAN ONSELEN: But you can have some impact on it in terms of appointments and you've got two appointments to make during this term of government, assuming you go full term. Are you inclined towards less activist and more black letter style people in the High Court?

NICOLA ROXON: I'm inclined to us finding absolutely the best legal brains in the country to be appointed and I have said to all and sundry any government that thinks that they can choose a person who is going to make a decision in their favour in a particular way has always been bitterly disappointed. Like it's not possible, it won't work and we're not trying to do that, we're trying to find the best appointments because this is a serious role. It's not a court that's been politicised and I think actually making sure we have just the best legal brains.

And what's interested me is that the nominations from the States, Liberal and Labor alike, have nominated people across different boundaries. So you might expect a Labor Government and Liberal Government wouldn't nominate the same people. In some instances they have. I think it's just a sign that people are wanting to put before us the best brains in the country and that's who we'll choose from.

PETER VAN ONSELEN: Have you settled on a candidate?

NICOLA ROXON: Well it's getting very close to the timing. Justice Gummow retires in October. And obviously it wouldn't be appropriate for me to make any detailed comments about it other than we've taken the process incredibly seriously as you would expect.

CHRIS MERRITT: Will you be having any talks with any of the candidates directly or indirectly?

NICOLA ROXON: No it's not my intention to do that.

CHRIS MERRITT: Will there be any vetting of candidates, background checks?

NICOLA ROXON: Obviously the candidates, all the candidates that are being seriously considered, obviously the government looks to people's background, they look to what experience they've had. Often we have nominations from the judiciary so we, of course, look at the type of matters they've dealt with. I've made very clear that we look at sort of geography and breadth of experience. We have three out of seven women on the High Court so I don't feel any enormous pressure…

CHRIS MERRITT: [interrupts] Is it time for a fourth?

NICOLA ROXON: Well I think it depends who's the best candidate and that's really what I've always said - look widely and choose the best.

CHRIS MERRITT: Will you be taking one candidate to Cabinet or a shortlist?

NICOLA ROXON: Well we wouldn't discuss how we handle those processes in Cabinet. I mean obviously we as a Cabinet make this decision. I make a recommendation about it. You know, we're shortly in that timeframe and it's a very important decision and not one that I can really speculate on much further here.

MATTHEW FRANKLIN: Minister, speaking of the High Court, I noticed that the Treasurer the other day, in his ongoing attacks on mining magnate billionaires, criticised Andrew Forrest for initiating or seeking to initiate High Court action and he said that this was an evidence of people using democratic institutions as their plaything.

As the nation's first law officer surely you would stand up for people's rights to have access to the courts?

NICOLA ROXON: Sure, look of course people should and are able to take action in our courts. I think the point that he was making, and it's one I've made slightly differently, is that we need to be confident in our legal system that people have equality in being able to actually use our courts. We don't really have that now. It's become so expensive that the people who are most likely able to use it are those with a lot of resources or the Commonwealth.

MATTHEW FRANKLIN: I didn't get that from what Wayne Swan said. It sounded like he was just attacking him.

NICOLA ROXON: Well I think Wayne was making clear that people with enormous personal wealth have options available to them, whether it's to become a shareholder in a media company, or whether it's to take action in the High Court, whether it's to do other things, that that can be abused. I don't make any allegation about whether it is being.

I think that point is true. It's expensive, a lot of people can't do it. A lot - mind you, in the High Court it's a funny jurisdiction because a lot of lawyers do pro bono work. A lot of the refugee cases are run by people on a shoestring and they have a pretty good record of success.

PAUL KELLY: If we can just look at the issue of Julian Assange, what does the Australian Government do if the United States down the track goes for the option of extradition?

NICOLA ROXON: Well it really depends. One, we don't know if they're going to do that.


NICOLA ROXON: If they did do that obviously we will take the same approach we take for any extradition matter.

PAUL KELLY: And what's that?

NICOLA ROXON: And the approach that's taken with that, one thing that's an important proviso here because the requests are only made to us if the person is in Australia. So if Mr Assange was in Australia...

PAUL KELLY: Well he won't be in Australia presumably.

NICOLA ROXON: Well this is the point. The extradition process in Australia is very clear. There's both a judicial process and there's an approval process from government.

PAUL KELLY: Yeah but he won't be here.

NICOLA ROXON: And - but - and we - that's when a request gets made. An extradition request is can you give a person who's in your control to us in order to bring an action? If he isn't in Australia the fact that he's an Australian citizen doesn't give us rights to intervene in the same way in the legal process.

It does give us - of course we would continue all the diplomatic representations. We've been very clear that we've been making those. Mr Assange is entitled to all of that full protection in the way any other Australian citizen is, but he's actually not entitled to more than any other Australian citizen is either and that's the balance that I think is a little bit lost here.

At the moment the last couple of years have been a fight between two European countries about whether or not they should move Mr Assange to Sweden to face criminal proceedings. Now no one is suggesting that England doesn't have a

proper process that we need to fear that he isn't getting his day in court, in fact he's had many.

So the expectations about what the Australian Government can do for an Australian citizen, if they are not in Australia, do need to be moderated somewhat because the legal system just does not allow us to have the same control if he's somewhere else.

PAUL KELLY: How do you feel about a lot of the attacks that have been made on you personally in relation to this matter?

NICOLA ROXON: Oh well I think that people are just a little bit misguided about what our role is here and what we can do. But I think spirits run very high, passions run very high on the Mr Assange case. I don't see him as a hero or a terrorist, do you know what I mean? I see him as someone who did something he believes in.

We now have advice from our authorities that we don't think he's committed any crime against Australian law. Obviously that means it's different than if we were pursuing him for some breach of an Australian law.

So he then is in the situation that we deal with him in the same way we deal with other citizens. We of course argue for protections for citizens as we're doing with a woman in Malaysia now where the death penalty might apply.

But, you know, the bottom line here is, if you travel overseas you are subject to the laws of other countries. And if you get in trouble with the laws of other countries we can help you on a consular basis but we can't actually interfere in another legal process particularly in countries where those legal processes are very strong and our argument I think is a difficult one to mount.

CHRIS MERRITT: On another matter, you made a major speech yesterday on access to justice where you flagged reform or change to court fees.

We've had a number of Chief Justices - New South Wales, Western Australia and South Australia - express concern that middle Australia is being excluded from the justice system. Will you guarantee that middle Australia will not be hit with higher court fees?

NICOLA ROXON: Well what I'll absolutely guarantee is that we are focused on their experience in the court system as well. Because Legal Aid has been, you know, played a very important role but has always been constrained in the amount of money it's been able to spend and particularly in the Howard era that money was frozen. So it inevitably went to those with the absolutely lowest incomes in the direst of circumstances.

The working Australian on a modest income with a serious legal problem often really couldn't get the help that they need. And I am looking to find ways that we can be more creative in using our Legal Aid money, whether we can get some better value from our Community Legal Services who do a great job on an absolute shoestring. Could a small amount of money improve that?

Of course I'm very conscious that these sorts of new investments will be competing in next year's Budget with a very large range of other big ticket items for the Government. So finding some way that we can leverage better buy-in from the professions, we can make sure our courts do recoup a little bit more money.

And our focus has been that high court users, heavy court users - whether it's a big corporation, whether it's the Commonwealth - should contribute more and we want the sort of one-off litigant to be able to realistically have an opportunity, if they need to, to be in court.

PETER VAN ONSELEN: Nicola Roxon, one final question. I want to ask you about plain packaging and go back in a sense to the construct of when you were Health Minister in relation to this.

Now the Government tells us that plain packaging laws will reduce smoking over time, but the forward estimates in the Budget show that the revenue take is going to be roughly the same, if not a little bit higher slowly over the coming years in relation to, you know, taxes on cigarettes. You can't have both can you?

NICOLA ROXON: [Laughs] Well I mean it's a fair question because we've been very clear that we haven't made any estimates about the level of reduction that will flow from plain packaging. We're being challenged in the High Court about whether we can even do it. I suspect if you did see any drop in those Treasury figures you'd say, well hang on you haven't even got the tick off to go ahead with it. So we're caught in a bit of a difficult situation there.

We think this change is one that will have a long term impact, particularly in putting off new smokers and young smokers. So there's quite a long tail because I've never made any pretence that I think this will stop existing smokers. It might make them think again, but the truth is it's about not reaching out making it glamorous for young new smokers in particular.

So really the timeframe for it I think is difficult. Of course as soon as we see any of those trends Treasury would need to make those adjustments. But I think that's why you see what looks a bit contradictory.

We'd get jumped on for the Budget figures if we put something in that was too ambitious and when you're a world leader, we can't look at other countries to say this is how it dropped off. But we can be very confident that the research shows us that this will have an impact particularly for young people not thinking it's cool or glamorous or interesting with, you know, pink or green or gold packages.

PETER VAN ONSELEN: All right Nicola Roxon, Attorney-General, we appreciate you joining us on this edition of Australian Agenda. You've been very generous with your time. Thanks for your company.

NICOLA ROXON: Thank you.