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Interview with David Speers: Sky News: 8 September 2015: Senate motion regarding the Royal Commission into Trade Union Governance and Corruption; Kathy Jackson; citizenship bill



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SENATOR THE HON GEORGE BRANDIS QC

ATTORNEY-GENERAL MINISTER FOR THE ARTS

8 September 2015

TRANSCRIPT - Interview with David Speers, SkyNews

Topics: Senate motion regarding the Royal Commission into Trade Union Governance and Corruption; Kathy Jackson; citizenship bill.

E&OE………………………………………………………………………………………………….

DAVID SPEERS: With me now is the Attorney-General, George Brandis. A very good afternoon to you.

ATTORNEY-GENERAL: Good afternoon, David.

DAVID SPEERS: So, even if this had succeeded would it have made any difference?

ATTORNEY-GENERAL: It wouldn’t have made any practical difference but it would have embarrassed the Governor-General. What the motion sought to do was to say to the Governor-General you ought to ignore the advice of your Ministers and act on this resolution. Now even the Labor Party knows that the first principle of constitutional government in this country is that the Governor-General always acts on the advice of his Ministers. The only exception to that is the very rare cases where there is an occasion where the reserve powers of the Crown are exercised. And that’s only ever happened once actually, in 1975, when Sir John Kerr dismissed the Whitlam Government.

DAVID SPEERS: So what you’re saying is that Labor, really, have broken with precedent here.

ATTORNEY-GENERAL: Well, not only have they broken with precedent, David, but they have actually destroyed two generations of Labor Party critique of Sir John Kerr in 1975 because they have said: well we, the modern Labor Party, the Labor Party in 2015 no longer adhere to the principle that the Governor-General should only act on the advice of his Ministers.

But it was worse than that for, two other reasons, because had the motion passed that would have been the view of the Senate, but it’s plainly not the view of the House of Representatives. So what they were trying to say to the Governor-General is you should act

on the view of one house of the Parliament and prefer the view of one house of the Parliament to the view of the other house of the Parliament which is preposterous.

And, if I may finish, as well as all of that, of course, what this was about was an attempt to bring Mr Heydon’s Royal Commission to an end on the basis of apprehended bias. Now if the Labour movement wishes to challenge Mr Heydon’s finding that there were not legal grounds demonstrated why he should disqualify himself, the appropriate place to do that is to bring an application to the court.

So, on top of all the other things that were wrong in this motion, it was as plain an attack on the separation of powers as you can imagine by interfering with a process that could only be resolved judicially.

DAVID SPEERS: Well, indeed, the courts would be the way to appeal this but is there an argument that the Prime Minister can’t actually sack a Royal Commissioner, only the Governor-General can?

ATTORNEY-GENERAL: Look technically a Royal Commission is constituted by letters patent issued by the Governor-General directed to a particular person asking him to conduct an inquiry in accordance with terms of reference set out in those letters patent and the entire scope of the Royal Commission is set out in the letters patent. Now those letters patent, in turn, are issued by the Governor-General on the advice of the Government.

DAVID SPEERS: Can I ask you about the reports in The Australian newspaper today about Kathy Jackson who, of course, appeared before the Royal Commission. The Australian newspaper is saying that the Royal Commission’s lawyers personally gave Kathy Jackson detailed advance knowledge of the sorts of issues that she would be facing in her appearance including tips on the topics to prepare for, suggestions that she use her time in the stand to tackle media critics. Have you established whether this actually happened and do you have a problem with it?

ATTORNEY-GENERAL: I’ve read the report in the Australian. The suggestion that was made by the Labor Party today that there is something unusual about staff of a Royal Commission interviewing a witness before they go into the witness box is preposterous. It’s completely common place and in fact…

DAVID SPEERS: Did this happen with other witnesses?

ATTORNEY-GENERAL: Yes it did. It happened, for example, I wasn’t there during the debate, but I understand my colleague Senator Matt Canavan read to the Senate subsequently in the debate this afternoon, a detailed letter to the Transport Workers Union from the Royal Commission in which it set out chapter and verse the topics that were going to be covered by the Royal Commission in examining witnesses from the Transport Workers Union, and it’s occurred in relation to other unions as well. The suggestion that this constitutes coaching witnesses is ignorant and it was only made, by the way, by people like Senator Doug Cameron and Senator Stephen Conroy and Senator Penny Wong who are entirely ignorant of the law. The fact is that Royal Commissions do interview witnesses - that’s part of their job. In the course of interviewing witnesses they do identify areas of interest to the Royal Commission and they do indicate the topics that the witness is likely to be examined about. That is absolutely standard procedure.

DAVID SPEERS: And suggest how the witnesses should use their time in the stand, to tackle media criticisms?

ATTORNEY-GENERAL: There’s been no suggestion that answers were suggested to Ms Jackson. But the point I make with you, David, is for there to be a pre-hearing interview by staff of the Commission - and this is a witness, by the way, who volunteered information to the Royal Commission - for the staff of the Royal Commission to do a pre-hearing interview in which they mapped out the sort of topics she should be prepared to cover is absolutely standard procedure. This is not the same as a criminal trial, the rules of evidence in relation to criminal trials do not govern Royal Commissions.

DAVID SPEERS: Final issue, Syria. You’re part of the National Security Committee of Cabinet which is meeting tonight?

ATTORNEY-GENERAL: Meeting shortly.

DAVID SPEERS: Shortly. Can I ask two things? The legal footing for extending our air strikes into Syria, the collective self-defence of Iraq, are you satisfied with the legal footing for doing this?

ATTORNEY-GENERAL: I’d rather not pre-empt the decision that has not yet been made.

DAVID SPEERS: Sure.

ATTORNEY-GENERAL: I know that there is an expectation about this but, in fact, no decision has yet been made. I am very certain that whatever decision the Australian Government makes would only be made on the basis that there is a full and proper legal ground for it. I have examined the legal grounds and…

DAVID SPEERS: And they are sound?

ATTORNEY-GENERAL: Let us wait for the decision.

DAVID SPEERS: But can you sit here and say today…

ATTORNEY-GENERAL: I can sit here and say today that as a matter of general principle the doctrine of collective self-defence - which is the doctrine under which Australia participates at the invitation of the Government of Iraq as conveyed in its letter to the UN Security Council of the 20th of September 2014 - the doctrine of collective self-defence as a matter of general principle can extend, in an appropriate case, to dealing with aggressive behaviour from behind the borders of neighbouring states where those neighbouring states have shown an unwillingness or an inability to deal with that aggressive behaviour.

DAVID SPEERS: And that fits what’s happening here?

ATTORNEY-GENERAL: Well, ISIL does conduct aggressive attacks on Iraq from bases within Syria. We know that and we know that the Government of Syria has not dealt with that whether through unwillingness or inability doesn’t matter the fact is that is hasn’t been dealt with.

DAVID SPEERS: And would there be any greater terrorism risk to Australia by taking this step?

ATTORNEY-GENERAL: The terrorism risk to Australia is in not dealing with ISIL. I mean there is abundant evidence that ISIL operatives, including Australian ISIL operatives - the man Neil Prakash whose name is often in the media - there is abundant evidence that ISIL operatives, including Australians within the Middle East, have been actively involved in encouraging terrorist activity in Australia.

DAVID SPEERS: But those here in Australia who sympathise with ISIL, they are not going to be further inspired to carry out any acts?

ATTORNEY-GENERAL: David, we are at war with ISIL. We are at war with ISIL, we are at war on behalf of the people and the constitutional government of Iraq. We are determined to degrade and defeat ISIL, and in doing so, we make common cause with most advanced nations in the world - not just western nations - Middle Eastern nations as well, East Asian nations as well, because ISIL represents a threat to all of humanity and Australia is playing its part, we should be playing our part. We are on sound legal ground in playing our part and at least we have a government in Australia with the spine to take this on.

DAVID SPEERS: Attorney-General, George Brandis, thanks for joining us this afternoon.

ATTORNEY-GENERAL: Thank you, David.

[ENDS]