The Attorney who chooses his battles, too rarely

Nov 28, 2023
Minister for Indigenous Australians Linda Burney and Australian Attorney-General Mark Dreyfus react after the introduction of the bill to establish an Aboriginal and Torres Strait Islander Voice in the House of Representatives at Parliament House in Canberra, Thursday, March 30, 2023. (AAP Image/Lukas Coch)

Mark Dreyfus is one of those who gives every appearance of being intimidated by the national security state.

It is one of the tragedies of the life of Mark Dreyfus, KC, twice Attorney-General with scores of legal initiatives attached to his name that he is not acknowledged, even on his own side of politics, as a crusading law reformer, in the manner say, of Lionel Murphy, Kep Enderby, or even Gareth Evans. Paul Keating might remark sourly that this is because it is Labor which writes history – and particularly its own history. Many important Labor constituencies spend more time complaining about some of his measures than in praising him.

It may be that cometh the man, cometh the hour. Politicians can’t take on every challenge. But they show their imagination, character and their values as much by the tests they shirk – often for good political purposes — as those they take on. Dreyfus sets a standard by the tests he walks away from.

He is a champion of human rights who hasn’t done a thing or been heard to say a word about the human rights of asylum seekers. A campaigner for Aborigines and the Voice silent in the face of state Labor law and order populism in Queensland, the Northern Territory and Western Australia. Silent too about increasing restrictions on freedom of speech, rights of public assembly and due process of law, including the right to face one’s accusers, for whistleblowers.

This week, for example, he promised a comprehensive review of criminal secrecy laws. There’s nearly a thousand, and the number would be heavily pared back, with many of those remaining subjected to new constraints, tiny public interest tests, and exemptions for journalists. One might think that even from among those deeply suspicious of the national security state, he would be given points for effort.

The major reason for the hesitation? He wants to create a general, simple, criminal offence covering all public servants of disclosing information where the disclosure “would prejudice the effective working of government, or where the information was communicated in confidence.” It could cover a disclosure of official deceit by a minister doing one thing and saying another, because that sort of accountability might compromise the effective working of government. It might cover the case of a consultant who briefed his colleagues about exciting new tender opportunities over which they could have an inside run. My guess is that this catch-all provision would become a form of oppression of public servants dedicated to the public interest, a whip to hold over journalists, and would be interpreted by a pliant judiciary – which is what at lower levels we have – as being almost without any meaningful public interest exception.

The only defence, I expect, would be the innocuousness of the information disclosed. But even then, there would be powerful interests, not least in the Attorney-General’s department, who would argue that innocuousness “don’t come into it”, because the very act of disclosure was a form of petty treason to be discouraged at all costs. If public servants, other than senior ones virtually beyond any accountability, were allowed to parse the legislation themselves, who knows which high secrets of state might be leaked by someone with selective righteousness, for example, about criminality by our intelligence agents.

That’s not reform. He’s only about making compulsive secrecy laws more effective as a deterrent to public interest leaking.

What we are to have instead of reform is a tidy-up of secrecy laws, to make them more effective. Not more liberal. Not to serve any purpose of exposing government action to criticism or review, or to make officials accountable for their actions. AGs may serve, in its strange way, the government of the day, but in this century has become committed to various permanent agendas. Under recent previous Attorneys-General, for example, anonymous committees of advice warned heavily about the risks of a National Anti-Corruption Commission. Under Dreyfus, a working model was produced, with some input from AGs, but, hello, Dreyfus and the prime Minister decided, of their own initiative to hobble it by making it act in secret. They had made a promise about open hearings and had the numbers to get that through the senate. But Dreyfus, for his own unsatisfactory reasons, decided that doing what he promised might be going too far.

More than 40 years ago, lawyers of AGs drafted the FOI Act, over the dead bodies of many other department secretaries. In unenthusiastic beginnings, one could at least depend on officers of AGs to insist that they controlled the arguments to be put. Now officers of the department are numbered among the enemies of FOI, and the department, far from being the beacon of liberal reform and interpretation of legal matters has become a centre of reaction, even given, in extremis, to “losing” inconvenient records of tasks undertaken for previous Attorneys-General.

On FOI, Dreyfus mouths words about open government and transparency. But his deeds, as opposed to his actions, suggest he is not a fan. It has been more than six months since there has been an FOI commissioner. While funding and staffing for the Office of the Information Commission was increased by about a third at the last Budget, the spin was focused on additional privacy functions, not picking up the emaciated FOI appeal system, often running up to two years late. And the prime minister signalled early that he was a resister of disclosure, even after criticising his predecessors for the same vice. PM&C, who make an art form of resistance and delay, has not found itself under any pressure to improve its game.

Over recent days, Dreyfus ruled out implementation of a recommendation of the Robodebt Royal Commission about dropping the “Rudd trolley” as a claim of exemption. Dreyfus even pretended that no such recommendation had been made. He was being loose with the truth, again a bad sign for a putative crusader.

The Rudd Trolley was invented by a young public servant working in the office of Wayne Goss, Kevin Rudd in the post-Fitzgerald days of early 1980s. As it happens, he was working near another young public servant, Glyn Davis, now secretary of PM&C. ln the fervour of reform, Goss had committed himself to a Queensland FOI Act. In operation, it proved deeply inconvenient to ministers and public servants very used to secretiveness and lack of accountability. The Act was more liberal than the Commonwealth’s, and, as interpreted, embarrassing material was being given out. Then, from the Premier’s private office came a champion wheeze. Put any embarrassing papers on a trolley and wheel them through the Cabinet room. Then claim they were cabinet documents. Naturally, the rort was widely admired and copied by public servants everywhere — especially in PM&C which has in recent decades not been above such chicanery.

A report on transparency, accountability and open government from anonymous public servants.

The recent report on criminal secrecy provisions involved token public consultation, but no outside participation in its private councils. No independents. No experts. AGs has no staff widely known for their expertise in such matters. Perversely, given that the report is about a balance between a need for secrecy and the public’s right to know, the authors of the report – or the membership of the committee – are unnamed.

This committee purports to pay some lip service to a 13-year-old law reform commission report, one Dreyfus, as Attorney at the time did not think to implement. It also devises a set of working principles which, on the face of it, might suggest some liberalisation and commitment to open government, accountability and transparency. In fact, like almost all that has emanated from the department over the past decade, before and during Dreyfus, the anonymous suggestions are deeply committed to the principle that any disclosure is a prima facie serious crime. At the very least a matter warranting the harshest administrative discipline for being some sort of breach of the master-servant relationship.

Then there’s the disappointment of whistleblower laws. I should say that in a previous article, I suggested that the Collaery-Witness K affair had started in 2013, when Dreyfus was Attorney-General. That was wrong; the raids on Collaery’s house and initial charging were in 2015, when George Brandis was Attorney-General. But it was in 2013 that the public became aware of the 2004 bugging of the Timor Leste cabinet during border negotiations. That provoked machinations in the national security bureaucracy, but the earthquake was delayed until well after Labor lost power.

Mark Dreyfus has recently foreshadowed further amendments to whistleblower laws, of which he claims to be a pioneer from his days in the Gillard and Rudd governments. His last legislation has not saved a single whistle-blower, and the general expectation is that the new amendments will not either. They might make safe harbour just a little more tantalisingly close, but all Heroes will drown nonetheless, poor women.

We have seen any possibility of defence for Army whistleblower David McBride collapse after the Commonwealth Attorney-General’s department (the department Dreyfus leads) argued successfully to an ACT Supreme Court trial judge, David Mossop, that there was no scope whatever for any sort of public interest defence. Mossop had earlier adopted submissions from the same representatives of Dreyfus that evidence against him ought to be allowed to be heard without McBride or his legal representatives being present.

This was hardly a surprise because Mossop, no doubt by coincidence the trial judge in the Bernard Collaery whistleblowing cases came to pretty much the same conclusion there. Then Dreyfus responded to public criticism and pressure and halted the prosecution. Perhaps thinking that this step might outrage the national security and anti-leaker establishment, Dreyfus flatly refused to intervene over McBride, a popular hero to many because he drew attention to war crimes being committed in our name before the government, the bureaucracy, and most particularly the ADF was being seen to be doing anything about it.

In thrall to the apparatus of the last government’s national security state.

Dreyfus is one of those who gives every appearance of being intimidated by the national security state, including in his own department. He seems afraid of being accused of being too liberal, too sceptical, too hard to satisfy about claimed needs for drastic measures. Too “soft” and wishy washy, not to be trusted on such matters. Even, or especially after dire warnings from national security showmen and ideologues, of doubtful capacity and judgment in the bureaucracy.

One assumes that Albanese, Richard Marles and Penny Wong demand intelligence advice that supports their political judgments about the US and China. They want to be told what they want to hear, and they are. It would be altogether too confusing for Marles if he was told anything with nuance or scepticism. But even then the Australian defence and intelligence – and security – system has women and men more sound, more respected, more acute, more discerning and more steady than those in service. Albanese knowingly surrounds himself with advisers chosen by Malcolm Turnbull, Morrison and Peter Dutton under previous governments for their capacity to help the government with a partisan and ideological edge against Labor.

As a member of a parliamentary committee supervising the spooks, one could count on Dreyfus always wanting to slightly soften some extreme and authoritarian measure proposed by the then coalition government. But he rarely provided any sort of debate or challenge to the working assumptions of politicians and others deliberately ramping up proposals to seem “tough” and to explore whether there was any limit beyond which Labor would not go. As it turned out, there weren’t any, or very many, and most of even the Labor appointees, all vetted, were tame pussies.

Dreyfus could fend off some of the criticism by pointing out that the constituencies constantly setting tests for him to fail are hardly Labor stalwarts these days. Those most focused on human rights, on refugee rights, on honest and open government, the need for a special focus and responsibility for the disabled, single mothers, the aged, and Aboriginal advancement are as likely these days to be Teals or Greens. There is no longer a left-of-centre engine room generating ideals and ideas for Labor, and many former internal lobbies, such as Labor lawyers are there spruiking rather more for career opportunities than for the rights of the hard done by.

Dreyfus may in fact be more well-meaning and more sentimental about such issues than many of his colleagues, even those who claim to be of the party’s left. But the would-be bold reformer is at heart timid with little concern for outcomes. He’s an articulate warrior, at least until his courage brings him into contact with the enemy. Why have so many of his solid scalps and trophies turned into marshmallow?

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