INTERVIEW SHARIA LAW ?: ON AUSTRALIAN AGENDA WITH PETER VAN ONSELEN
UNCLASSIFIED
ATTORNEY-GENERAL
HON. ROBERT McCLELLAND MP
TRANSCRIPT
INTERVIEW ON AUSTRALIAN AGENDA WITH PETER VAN ONSELEN
SKY NEWS
SUNDAY, 22nd MAY 2011
E & O E – PROOF ONLY
PETER
VAN ONSELEN: We're joined now by the Attorney-General, Robert McClelland. Mr McClelland, thanks for your company.
ROBERT
McCLELLAND: My pleasure.
VAN ONSELEN: Can I just go to a story that's in today's Melbourne Age first just to ask you about it and it says, "Labor is poised to lose a cabinet minister at the next Federal election with Attorney-General Robert McClelland failing to win the support of pre-selectors in his blue ribbon Sydney electorate." Is that true?
McCLELLAND: No, not at all. The story reported a purported conversation and that just hasn't occurred and I'm confident that I have the support of pre-selectors in my party so that's…
VAN ONSELEN: And you'll be running at the next election?
McCLELLAND: And I'll be running at the next election. That's a total beat up and entirely false.
PAUL KELLY: But it would still be your ambition to remain as Attorney-General in the next Parliament?
McCLELLAND: Yes, it is. It's a very satisfying position, very broad of course but these things are subject to a number of vagaries, elections and appointments and so forth but I'm very enthusiastic about doing the job.
PAUL KELLY: We heard a submission this week from the Islamic Councils to introduce Sharia law into Australia. What's your response to this as a matter of principle?
McCLELLAND: Look, as a matter of principle the reason people come to Australia is because of our vibrant democracy underpinned by the rule of law - and in terms of multiculturalism, when it comes to the legal system we have one culture and that's the Australian legal system.
So there is no way there will be any change to our legal system. It's based on eight hundred years of heritage and indeed it's why our country is so desirable for others seeking to come here.
PAUL KELLY: So there will be no compromise on this?
McCLELLAND: There will be no compromise on that. That rule of law is so fundamental to our democracy, to our tolerant society, to our engagement and communication and regulation. It is absolutely fundamental.
CHRIS MERRITT: Is it just a separate body of Sharia law that you're against or are you against Sharia principles totally being incorporated in any manner under the Australian legal system?
McCLELLAND: The Sharia principles will not be incorporated into the Australian legal system. There are some groups who have their own informal dispute resolution bodies that are based around their churches in Australia. None of these can surpass or supplant Australian law.
They can't, through those bodies, contract out of Australian law. Now they can have some informal dispute resolution techniques regarding commercial law matter, business law matters and so forth to try and accommodate each other but at the end of the day if there is any conflict at all the Australian law and the Australian legal system prevails.
CHRIS MERRITT: Are you worried that this submission doesn't accept or doesn't appear to understand fundamental basic civics?
McCLELLAND: I think more could be done in the area of civics education generally and I certainly think more could be done in terms of those who are new arrivals to Australia to inform them of our heritage and of the value of the rule of law, the fundamental importance of the rule of law and our legal system, how it operates.
I think there is a case for more resource and more effort to be put in that area but it really – before people comment on these issues they really should do it from a position of information.
PAUL KELLY: But Attorney, there's a deep problem, isn't there, because all this goes to multiculturalism? I mean the submission here is about multiculturalism. There's confusion in the community about what multiculturalism means and the argument here is that because we subscribe to multiculturalism therefore we should be prepared to accept elements of Sharia law. Isn't that the real problem?
McCLELLAND: We have a vibrant multicultural community. When it comes to our legal system however we have only one culture and that's what people need to accept and that culture is at the heart of the operation of our democracy, our thoughts and so forth.
PAUL KELLY: Well does that mean that multiculturalism doesn't apply in the legal system?
McCLELLAND: Yes, it certainly means multiculturalism does not apply in the legal system. We have one legal system, it's based on the heritage we have going back to the period…
PAUL KELLY: Well this is a new doctrine. This is an important new doctrine surely.
McCLELLAND: Our legal system is the legal system we've inherited. We have applied it in the broad through our constitutional principles that go back to the Westminster system. A bit from the United States, a bit from Switzerland, modified and adopted and brought up to date over the past 110 years through our courts.
VAN ONSELEN: What about for indigenous Australians, is the Government more tolerant of Aboriginals having elements of their own sentencing and circle law and so forth than perhaps people coming from abroad that might want to institute something like Sharia law?
McCLELLAND: Again if there is any conflict between customs, even Aboriginal customs and the Australian legal system, the Australian legal system will prevail. Now there…
VAN ONSELEN: But is there a yardstick here where there's more tolerance perhaps because they're indigenous Australians than from people coming from overseas.
McCLELLAND: Cultural – background issues of cultural heritage are specifically recognised in legislation, very relevant of course to the whole native title framework. Not so much relevance in the criminal justice system but in those broader issues of heritage and native title and so forth then the legal system does recognise that.
PAUL KELLY: If we could just go to the Malaysian solution. The Immigration Minister, Chris Bowen, has made it clear that he thinks that this might be challenged in the courts, that the legality of this action of the Government might be challenged in the courts.
Now the Government's proposing to send boat arrivals to Malaysia. Can this be done under existing statute? Are you quite confident of that or might new laws be required?
McCLELLAND: No, we're confident that it can be done on the basis of existing statute. If you can recall after the Tampa incident the Federal Parliament instituted legislation. That legislation was tested in the courts and confirms the legal powers to undertake this program. So we're confident of the legal process.
PAUL KELLY: So that's Howard Government legislation post Tampa? So you're relying upon John Howard's laws?
McCLELLAND: Well those laws as have been adopted. I'm not sure whether those specific provisions have since been modified but certainly they're part of the statute book from that period of time.
Ultimately supported, I might say - certainly the second version that is part of our statute books – was ultimately supported as I recall by the Labor Party in opposition.
PAUL KELLY: Now a separate question. Are you confident that this Malaysian solution is consistent with our own obligations under the Refuge Convention?
McCLELLAND: Yes, we are and documentation that confirms the agreement will reflect that. In particular it will reflect that the people will be treated with decency and it will certainly confirm that there will be no refoulement of these people to a country where they could be placed at risk.
PAUL KELLY: But just what guarantees are we going to get about decency because we know the appalling conditions under which asylum seekers and refugees are held in Malaysia? So what is the quality of decency you're talking about?
McCLELLAND: Well again this is a matter where Chris Bowen has been negotiating. He has also spoken in terms of oversight, a taskforce, a mutual task group from both Australia and Malaysia to look at these issues, to ensure the system is operating fairly not only in terms of those who are returned but in terms of those who are selected to come to Australia. That there is equity and fairness in principle in how they are selected. So they will all be the subject of discussion.
VAN ONSELEN: Attorney-General, you say that it's consistent - the Malaysian solution is consistent with our international obligations but it's not consistent with what the former immigration minister, Chris Evans, first said when he removed the so-called Pacific solution.
Now he's still the leader of the Government in the senate. He said that it was his proudest day in politics when he did that. We're now moving back to a system of not only offshore processing in Malaysia but the solution being even broader than that with offshore processing perhaps in Manus Island and so forth as well.
Which camp do you fall in? Were you as proud as Chris Evans then when that was the policy or are you as proud as Chris Bowen is now as the policy moves in the other direction?
McCLELLAND: It's - when you're dealing with – it's not something that you can necessarily be proud of when you're dealing with issues that apply to acute human distress.
The reality is that people seeking asylum to Australia are in desperate situations however, they are seeking to come here. So it's not something that as a politician or a political leader you gloat about but the reality is this regional solution to which you've referred has arisen from the recent Bali discussions and the region is saying well, what's the draw card?
The draw card is in fact the lifestyle we have in Australia and it's recognised if they are not going to become countries of transit that we need to have this cooperative framework.
VAN ONSELEN: Is it a fair characterisation to say that the Government tried to be compassionate at first but then realised over time that this issue was more vexing than it perhaps thought it was and has to toughen things up as a consequence?
McCLELLAND: As the situation became more acute it's self-evident that stronger measures had to be taken. Now that has applied in respect to penalties, our legal framework but also the region as a whole has come to that realisation I think in particular through the recent Bali accord that this is certainly a developing regional problem, affecting all countries. We therefore need a regional solution and hence these options.
Essentially it is about breaking the market so that the people smugglers don't have a product to sell and we're trying to cooperate to achieve that.
CHRIS MERRITT: If I could just take you to legal aid for a moment. After every budget, state and Federal, the legal profession always complains there's not enough funding for legal aid.
We've had a look at the accounts of one of the funds in Victoria that tops up legal aid and found three groups, asylum seeker lobby groups, getting half a million dollars.
Do you think that's appropriate? Do you think that the states need to address their own funding for legal aid before turning to the Commonwealth?
McCLELLAND: Certainly they shouldn't be applying any Federal funds for that purpose. Our Federal legal aid funds are tied to those areas of work that we identify.
It's our view that the legal aid commissions should prioritise work on behalf of Australians - now that can be from family law matters, child protection matters, domestic violence matters, indeed in the criminal legal system.
So I think legal aid commissions and the legal services need to have services as their primary focus.
CHRIS MERRITT: Would you like to see the restrictions on those state grants brought more into line with the restrictions that apply to Commonwealth grants?
McCLELLAND: Well certainly we have – and last year we gave an additional $154 million to the legal sector generally that – for community services. We gave that with a view to furthering representation of Australians in the litigation – in the court and litigation process. We would like that to be prioritised most certainly by state bodies who, after all, are always at the Commonwealth for more funds. So if they are going to do that they need to be completely transparent as to how these funds are being applied.
PAUL KELLY: In relation to David Hicks' attorney, he was under an obligation not to benefit from book writing. What is the Labor Government doing in relation to this matter?
McCLELLAND: The Australian Federal Police have investigated the [Hicks] matter and a brief has been provided to the Director of Public Prosecutions. The Commonwealth Director of Public Prosecutions is the body that will decide whether action is taken under the proceeds of crime legislation.
CHRIS MERRITT: What's your view on it though?
McCLELLAND: Well, as an attorney it would be unhelpful to his case and any potential action if I expressed that. It is the Director of Public Prosecutions call and I wouldn't think it would be too long before a decision would be made in that area.
PAUL KELLY: If I can just ask you again about David Hicks. There's a new group formed to support him. He's made submissions to the United Nations. As far as the Labor Government is concerned is there any need for a review into the David Hicks matter into how he was treated and does he have any case for monetary compensation at all?
McCLELLAND: No, there is no proposal to undertake any review. We will be responding to the international application he's made to the international human rights body. We will be responding on behalf of the Government but there's no proposal to have any inquiry and certainly no proposal to offer any compensation.
VAN ONSELEN: I'd like to ask you about something that I mentioned in the introduction to the program about the WA royalties issue. There is a constitutional and a legal issue here, given that states have the rights to royalties, yet you've got a Commonwealth Government that's looking to bring in a super profits tax for the mining industry.
I just want to show some words from Julia Gillard during the week and then come back and get your reaction on this.
McCLELLAND: Sure.
PM: This has undermined the Liberal Party's campaign against the mineral resource rent tax. The Liberal Party went to the last Federal election saying to everybody in this nation, but most particularly the people in Western Australia, that mining companies couldn't pay more tax and here they are, the Liberal Party, imposing more tax on mining companies.
What a hollow campaign. This is an own goal by Premier Barnett. He knows how GST works and he knows under the current system that this means that GST money will be moved away from Western Australia as a result of the work that an independent body does, the Commonwealth grants commission.
We will be adjusting infrastructure expenditure for Western Australia to protect the Federal budget. The budget is coming back to surplus exactly as promised.
VAN ONSELEN: Attorney-General, the Prime Minister didn't look too impressed with the moves by the WA Premier and the state treasurer there of course is your counterpart as Attorney-General as well. Is it understandable though? I mean, at the end of the day the Federal Labor Party wrote a blank cheque for states that wanted to increase royalties at one level when it said that it would rebate to mining companies any increases in royalties.
All that's happened here from what I can see of it is that the West Australian Government have called that because they want the money in their budget.
McCLELLAND: We ultimately like all governments to act cooperatively here. I mean, what's the purpose of the resources tax? It is to ensure that the benefits that we currently obtain from mining are available for a future generation.
You mentioned a constitutional issue. There's – there is a constitutional issue about benefits or compensation being paid to the states occurring on an equitable basis.
Now how it's structured, whether it goes to the companies or whether it goes to the states is all a part of that but in the context where all states and the Federal Government know that there are these principles of equity around I would have liked to have thought that the West Australian Government would have engaged more cooperatively.
I obviously don't know any precise conversations but - before embarking on that particular measure or taking that particular measure but again these are the things I think the Australian people would like all governments to sit down and work through.
CHRIS MERRITT: Attorney, I'd just like to ask you about the prosecution policy of the Commonwealth. A document that's leaked out of the AFP makes it very clear that the prosecution of whistleblower Allan Kessing there's some questions about it.
The evidence that could have supported the defence and undermined the prosecution case was never revealed by the AFP.
Are you worried about that?
McCLELLAND: Certainly any litigation on behalf of the Commonwealth needs to be undertaken in accordance with the model litigant principle and that includes an obligation to disclose to all parties all relevant facts that are in possession. So I'm not sure of the full details of it but I understand it’s something that is being examined. I don't know the relevance of it, what judgment was made as to why it wasn't or the extent to which it was disclosed but…
CHRIS MERRITT: Neither do I. I've asked the AFP and they refuse to explain themselves. Does someone need to get on top of this?
McCLELLAND: [I’ve explained] the basic principle is that all agencies need to be aware. Certainly not only Government lawyers but all agencies need to be aware of that model litigant principle that applies across the Commonwealth.
PAUL KELLY: The Government is committed to a constitutional change in relation to the indigenous people and there's a debate and consultation proceeding about this.
As attorney, given the history of constitutional change in this country, given that one of the critical issues will be how ride ranging might this constitutional change be, what is your view on the most prudent way to proceed in terms of either widening the lens or keeping it fairly narrow?
McCLELLAND: In this case the perfect can be the enemy of the good. I think those who are striving to achieve a perfect outcome should be wary of defeating a good outcome.
It's my view that this has got real prospects of getting up. I think it needs to be of substance but not over done is my gut feel. Having said that obviously we'll wait to receive the report of the advisory body.
PAUL KELLY: But just a quick follow up question, how important will be bipartisanship on the question…
McCLELLAND: Absolutely. It would be really unfortunate in this issue if there was any substantial opposition and I've had – in fairness I've had some preliminary discussions with my counterpart, George Brandis, nothing but goodwill and cooperation and I think this has got real prospects.
VAN ONSELEN: Attorney-General, we'll let you go though I just want to ask one last final question.
McCLELLAND: Sure.
VAN ONSELEN: Last night the Prime Minister had a go at humour and she made some observations about Tony Abbott. I just want to play it very quickly and then get your reaction.
PM: The truth is he is acting more like the love child of Sarah Palin and Donald Trump.
VAN ONSELEN: Tony Abbott I think described himself once as the love child of Bronwyn Bishop and John Howard, I'm not sure which is a worst image but a Prime Minister doing that is that all just good fun or should she be trying to look more Prime Ministerial than that at the moment when she's under a bit of pressure in the polls?
McCLELLAND: That's obviously her call. She is taking on big issues and she's driving those big issues irrespective of the controversy and the offset of those but I think that always needs to be the focus.
VAN ONSELEN: All right. We'll let you go. Attorney-General, Robert McClelland, I appreciate your company on Australian Agenda. Thank you.
McCLELLAND: My pleasure.
Ryan Liddell
Press Secretary
Office of the Hon Robert McClelland MP
Attorney-General and Federal Member for Barton
P | 02 6277 7300 | M 0427 225 763
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ATTORNEY-GENERAL
HON. ROBERT McCLELLAND MP
TRANSCRIPT
INTERVIEW ON AUSTRALIAN AGENDA WITH PETER VAN ONSELEN
SKY NEWS
SUNDAY, 22nd MAY 2011
Subject: Pre-selection, Sharia Law, People Smuggling, Legal Aid, David Hicks, Mining Royalties, CDDP and AFP Investigations, Indigenous Recognition in the Constitution.
E & O E – PROOF ONLY
PETER
VAN ONSELEN: We're joined now by the Attorney-General, Robert McClelland. Mr McClelland, thanks for your company.
ROBERT
McCLELLAND: My pleasure.
VAN ONSELEN: Can I just go to a story that's in today's Melbourne Age first just to ask you about it and it says, "Labor is poised to lose a cabinet minister at the next Federal election with Attorney-General Robert McClelland failing to win the support of pre-selectors in his blue ribbon Sydney electorate." Is that true?
McCLELLAND: No, not at all. The story reported a purported conversation and that just hasn't occurred and I'm confident that I have the support of pre-selectors in my party so that's…
VAN ONSELEN: And you'll be running at the next election?
McCLELLAND: And I'll be running at the next election. That's a total beat up and entirely false.
PAUL KELLY: But it would still be your ambition to remain as Attorney-General in the next Parliament?
McCLELLAND: Yes, it is. It's a very satisfying position, very broad of course but these things are subject to a number of vagaries, elections and appointments and so forth but I'm very enthusiastic about doing the job.
PAUL KELLY: We heard a submission this week from the Islamic Councils to introduce Sharia law into Australia. What's your response to this as a matter of principle?
McCLELLAND: Look, as a matter of principle the reason people come to Australia is because of our vibrant democracy underpinned by the rule of law - and in terms of multiculturalism, when it comes to the legal system we have one culture and that's the Australian legal system.
So there is no way there will be any change to our legal system. It's based on eight hundred years of heritage and indeed it's why our country is so desirable for others seeking to come here.
PAUL KELLY: So there will be no compromise on this?
McCLELLAND: There will be no compromise on that. That rule of law is so fundamental to our democracy, to our tolerant society, to our engagement and communication and regulation. It is absolutely fundamental.
CHRIS MERRITT: Is it just a separate body of Sharia law that you're against or are you against Sharia principles totally being incorporated in any manner under the Australian legal system?
McCLELLAND: The Sharia principles will not be incorporated into the Australian legal system. There are some groups who have their own informal dispute resolution bodies that are based around their churches in Australia. None of these can surpass or supplant Australian law.
They can't, through those bodies, contract out of Australian law. Now they can have some informal dispute resolution techniques regarding commercial law matter, business law matters and so forth to try and accommodate each other but at the end of the day if there is any conflict at all the Australian law and the Australian legal system prevails.
CHRIS MERRITT: Are you worried that this submission doesn't accept or doesn't appear to understand fundamental basic civics?
McCLELLAND: I think more could be done in the area of civics education generally and I certainly think more could be done in terms of those who are new arrivals to Australia to inform them of our heritage and of the value of the rule of law, the fundamental importance of the rule of law and our legal system, how it operates.
I think there is a case for more resource and more effort to be put in that area but it really – before people comment on these issues they really should do it from a position of information.
PAUL KELLY: But Attorney, there's a deep problem, isn't there, because all this goes to multiculturalism? I mean the submission here is about multiculturalism. There's confusion in the community about what multiculturalism means and the argument here is that because we subscribe to multiculturalism therefore we should be prepared to accept elements of Sharia law. Isn't that the real problem?
McCLELLAND: We have a vibrant multicultural community. When it comes to our legal system however we have only one culture and that's what people need to accept and that culture is at the heart of the operation of our democracy, our thoughts and so forth.
PAUL KELLY: Well does that mean that multiculturalism doesn't apply in the legal system?
McCLELLAND: Yes, it certainly means multiculturalism does not apply in the legal system. We have one legal system, it's based on the heritage we have going back to the period…
PAUL KELLY: Well this is a new doctrine. This is an important new doctrine surely.
McCLELLAND: Our legal system is the legal system we've inherited. We have applied it in the broad through our constitutional principles that go back to the Westminster system. A bit from the United States, a bit from Switzerland, modified and adopted and brought up to date over the past 110 years through our courts.
VAN ONSELEN: What about for indigenous Australians, is the Government more tolerant of Aboriginals having elements of their own sentencing and circle law and so forth than perhaps people coming from abroad that might want to institute something like Sharia law?
McCLELLAND: Again if there is any conflict between customs, even Aboriginal customs and the Australian legal system, the Australian legal system will prevail. Now there…
VAN ONSELEN: But is there a yardstick here where there's more tolerance perhaps because they're indigenous Australians than from people coming from overseas.
McCLELLAND: Cultural – background issues of cultural heritage are specifically recognised in legislation, very relevant of course to the whole native title framework. Not so much relevance in the criminal justice system but in those broader issues of heritage and native title and so forth then the legal system does recognise that.
PAUL KELLY: If we could just go to the Malaysian solution. The Immigration Minister, Chris Bowen, has made it clear that he thinks that this might be challenged in the courts, that the legality of this action of the Government might be challenged in the courts.
Now the Government's proposing to send boat arrivals to Malaysia. Can this be done under existing statute? Are you quite confident of that or might new laws be required?
McCLELLAND: No, we're confident that it can be done on the basis of existing statute. If you can recall after the Tampa incident the Federal Parliament instituted legislation. That legislation was tested in the courts and confirms the legal powers to undertake this program. So we're confident of the legal process.
PAUL KELLY: So that's Howard Government legislation post Tampa? So you're relying upon John Howard's laws?
McCLELLAND: Well those laws as have been adopted. I'm not sure whether those specific provisions have since been modified but certainly they're part of the statute book from that period of time.
Ultimately supported, I might say - certainly the second version that is part of our statute books – was ultimately supported as I recall by the Labor Party in opposition.
PAUL KELLY: Now a separate question. Are you confident that this Malaysian solution is consistent with our own obligations under the Refuge Convention?
McCLELLAND: Yes, we are and documentation that confirms the agreement will reflect that. In particular it will reflect that the people will be treated with decency and it will certainly confirm that there will be no refoulement of these people to a country where they could be placed at risk.
PAUL KELLY: But just what guarantees are we going to get about decency because we know the appalling conditions under which asylum seekers and refugees are held in Malaysia? So what is the quality of decency you're talking about?
McCLELLAND: Well again this is a matter where Chris Bowen has been negotiating. He has also spoken in terms of oversight, a taskforce, a mutual task group from both Australia and Malaysia to look at these issues, to ensure the system is operating fairly not only in terms of those who are returned but in terms of those who are selected to come to Australia. That there is equity and fairness in principle in how they are selected. So they will all be the subject of discussion.
VAN ONSELEN: Attorney-General, you say that it's consistent - the Malaysian solution is consistent with our international obligations but it's not consistent with what the former immigration minister, Chris Evans, first said when he removed the so-called Pacific solution.
Now he's still the leader of the Government in the senate. He said that it was his proudest day in politics when he did that. We're now moving back to a system of not only offshore processing in Malaysia but the solution being even broader than that with offshore processing perhaps in Manus Island and so forth as well.
Which camp do you fall in? Were you as proud as Chris Evans then when that was the policy or are you as proud as Chris Bowen is now as the policy moves in the other direction?
McCLELLAND: It's - when you're dealing with – it's not something that you can necessarily be proud of when you're dealing with issues that apply to acute human distress.
The reality is that people seeking asylum to Australia are in desperate situations however, they are seeking to come here. So it's not something that as a politician or a political leader you gloat about but the reality is this regional solution to which you've referred has arisen from the recent Bali discussions and the region is saying well, what's the draw card?
The draw card is in fact the lifestyle we have in Australia and it's recognised if they are not going to become countries of transit that we need to have this cooperative framework.
VAN ONSELEN: Is it a fair characterisation to say that the Government tried to be compassionate at first but then realised over time that this issue was more vexing than it perhaps thought it was and has to toughen things up as a consequence?
McCLELLAND: As the situation became more acute it's self-evident that stronger measures had to be taken. Now that has applied in respect to penalties, our legal framework but also the region as a whole has come to that realisation I think in particular through the recent Bali accord that this is certainly a developing regional problem, affecting all countries. We therefore need a regional solution and hence these options.
Essentially it is about breaking the market so that the people smugglers don't have a product to sell and we're trying to cooperate to achieve that.
CHRIS MERRITT: If I could just take you to legal aid for a moment. After every budget, state and Federal, the legal profession always complains there's not enough funding for legal aid.
We've had a look at the accounts of one of the funds in Victoria that tops up legal aid and found three groups, asylum seeker lobby groups, getting half a million dollars.
Do you think that's appropriate? Do you think that the states need to address their own funding for legal aid before turning to the Commonwealth?
McCLELLAND: Certainly they shouldn't be applying any Federal funds for that purpose. Our Federal legal aid funds are tied to those areas of work that we identify.
It's our view that the legal aid commissions should prioritise work on behalf of Australians - now that can be from family law matters, child protection matters, domestic violence matters, indeed in the criminal legal system.
So I think legal aid commissions and the legal services need to have services as their primary focus.
CHRIS MERRITT: Would you like to see the restrictions on those state grants brought more into line with the restrictions that apply to Commonwealth grants?
McCLELLAND: Well certainly we have – and last year we gave an additional $154 million to the legal sector generally that – for community services. We gave that with a view to furthering representation of Australians in the litigation – in the court and litigation process. We would like that to be prioritised most certainly by state bodies who, after all, are always at the Commonwealth for more funds. So if they are going to do that they need to be completely transparent as to how these funds are being applied.
PAUL KELLY: In relation to David Hicks' attorney, he was under an obligation not to benefit from book writing. What is the Labor Government doing in relation to this matter?
McCLELLAND: The Australian Federal Police have investigated the [Hicks] matter and a brief has been provided to the Director of Public Prosecutions. The Commonwealth Director of Public Prosecutions is the body that will decide whether action is taken under the proceeds of crime legislation.
CHRIS MERRITT: What's your view on it though?
McCLELLAND: Well, as an attorney it would be unhelpful to his case and any potential action if I expressed that. It is the Director of Public Prosecutions call and I wouldn't think it would be too long before a decision would be made in that area.
PAUL KELLY: If I can just ask you again about David Hicks. There's a new group formed to support him. He's made submissions to the United Nations. As far as the Labor Government is concerned is there any need for a review into the David Hicks matter into how he was treated and does he have any case for monetary compensation at all?
McCLELLAND: No, there is no proposal to undertake any review. We will be responding to the international application he's made to the international human rights body. We will be responding on behalf of the Government but there's no proposal to have any inquiry and certainly no proposal to offer any compensation.
VAN ONSELEN: I'd like to ask you about something that I mentioned in the introduction to the program about the WA royalties issue. There is a constitutional and a legal issue here, given that states have the rights to royalties, yet you've got a Commonwealth Government that's looking to bring in a super profits tax for the mining industry.
I just want to show some words from Julia Gillard during the week and then come back and get your reaction on this.
McCLELLAND: Sure.
PM: This has undermined the Liberal Party's campaign against the mineral resource rent tax. The Liberal Party went to the last Federal election saying to everybody in this nation, but most particularly the people in Western Australia, that mining companies couldn't pay more tax and here they are, the Liberal Party, imposing more tax on mining companies.
What a hollow campaign. This is an own goal by Premier Barnett. He knows how GST works and he knows under the current system that this means that GST money will be moved away from Western Australia as a result of the work that an independent body does, the Commonwealth grants commission.
We will be adjusting infrastructure expenditure for Western Australia to protect the Federal budget. The budget is coming back to surplus exactly as promised.
VAN ONSELEN: Attorney-General, the Prime Minister didn't look too impressed with the moves by the WA Premier and the state treasurer there of course is your counterpart as Attorney-General as well. Is it understandable though? I mean, at the end of the day the Federal Labor Party wrote a blank cheque for states that wanted to increase royalties at one level when it said that it would rebate to mining companies any increases in royalties.
All that's happened here from what I can see of it is that the West Australian Government have called that because they want the money in their budget.
McCLELLAND: We ultimately like all governments to act cooperatively here. I mean, what's the purpose of the resources tax? It is to ensure that the benefits that we currently obtain from mining are available for a future generation.
You mentioned a constitutional issue. There's – there is a constitutional issue about benefits or compensation being paid to the states occurring on an equitable basis.
Now how it's structured, whether it goes to the companies or whether it goes to the states is all a part of that but in the context where all states and the Federal Government know that there are these principles of equity around I would have liked to have thought that the West Australian Government would have engaged more cooperatively.
I obviously don't know any precise conversations but - before embarking on that particular measure or taking that particular measure but again these are the things I think the Australian people would like all governments to sit down and work through.
CHRIS MERRITT: Attorney, I'd just like to ask you about the prosecution policy of the Commonwealth. A document that's leaked out of the AFP makes it very clear that the prosecution of whistleblower Allan Kessing there's some questions about it.
The evidence that could have supported the defence and undermined the prosecution case was never revealed by the AFP.
Are you worried about that?
McCLELLAND: Certainly any litigation on behalf of the Commonwealth needs to be undertaken in accordance with the model litigant principle and that includes an obligation to disclose to all parties all relevant facts that are in possession. So I'm not sure of the full details of it but I understand it’s something that is being examined. I don't know the relevance of it, what judgment was made as to why it wasn't or the extent to which it was disclosed but…
CHRIS MERRITT: Neither do I. I've asked the AFP and they refuse to explain themselves. Does someone need to get on top of this?
McCLELLAND: [I’ve explained] the basic principle is that all agencies need to be aware. Certainly not only Government lawyers but all agencies need to be aware of that model litigant principle that applies across the Commonwealth.
PAUL KELLY: The Government is committed to a constitutional change in relation to the indigenous people and there's a debate and consultation proceeding about this.
As attorney, given the history of constitutional change in this country, given that one of the critical issues will be how ride ranging might this constitutional change be, what is your view on the most prudent way to proceed in terms of either widening the lens or keeping it fairly narrow?
McCLELLAND: In this case the perfect can be the enemy of the good. I think those who are striving to achieve a perfect outcome should be wary of defeating a good outcome.
It's my view that this has got real prospects of getting up. I think it needs to be of substance but not over done is my gut feel. Having said that obviously we'll wait to receive the report of the advisory body.
PAUL KELLY: But just a quick follow up question, how important will be bipartisanship on the question…
McCLELLAND: Absolutely. It would be really unfortunate in this issue if there was any substantial opposition and I've had – in fairness I've had some preliminary discussions with my counterpart, George Brandis, nothing but goodwill and cooperation and I think this has got real prospects.
VAN ONSELEN: Attorney-General, we'll let you go though I just want to ask one last final question.
McCLELLAND: Sure.
VAN ONSELEN: Last night the Prime Minister had a go at humour and she made some observations about Tony Abbott. I just want to play it very quickly and then get your reaction.
PM: The truth is he is acting more like the love child of Sarah Palin and Donald Trump.
VAN ONSELEN: Tony Abbott I think described himself once as the love child of Bronwyn Bishop and John Howard, I'm not sure which is a worst image but a Prime Minister doing that is that all just good fun or should she be trying to look more Prime Ministerial than that at the moment when she's under a bit of pressure in the polls?
McCLELLAND: That's obviously her call. She is taking on big issues and she's driving those big issues irrespective of the controversy and the offset of those but I think that always needs to be the focus.
VAN ONSELEN: All right. We'll let you go. Attorney-General, Robert McClelland, I appreciate your company on Australian Agenda. Thank you.
McCLELLAND: My pleasure.
Ryan Liddell
Press Secretary
Office of the Hon Robert McClelland MP
Attorney-General and Federal Member for Barton
P | 02 6277 7300 | M 0427 225 763
W | www.attorneygeneral.gov.au
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