In a major interview, Mark Dreyfus details his ambitions as attorney-general and the history that drives him to make an impact in the portfolio. By Mike Seccombe.
The Dreyfus interview: Action coming on refugee ‘inhumanity’
Twenty minutes into our interview and Attorney-General Mark Dreyfus has built to an emotional crescendo. Suddenly, he pulls himself up.
“Sorry,” he says. “I’m getting too passionate here, and I’m not allowed to get passionate.”
He has been telling the story of how his German Jewish family fled the Nazis and came to Australia. They sent the children first, just a couple of months before the start of World War II.
“And they landed … as unaccompanied children. My dad had just turned 11, in July 1939.
“They went to live at an orphanage in Melbourne, along with 17 other Jewish children who arrived on the same boat, all of them from Germany. They didn’t know whether they were ever going to see their parents again.
“The only parents who arrived were my grandparents.”
They came in December that year, well after the war began, having delayed their departure to try to convince their own parents to leave, too. They failed and Dreyfus’s great-grandparents perished in the Holocaust.
“They arrived as stateless persons,” the attorney-general says. “I’ve got a copy of my grandfather’s passport, which has a ‘J’ stamped on every page – so, effectively, a cancelled German passport. On his immigration arrival papers, he wrote ‘stateless’. He became an Australian citizen after the war.”
Had Australia not given haven to his family, Dreyfus says, his father and grandparents would most likely have died. “So, yeah, I’m very grateful. I wouldn’t exist if it wasn’t for the Australian state…”
How does he feel, then, about Australia’s more recent treatment of refugees? Does his personal history make him uncomfortable?
The question animates him more than his personal story. It is, he says, “unthinkable” that we should continue as we have for a decade, leaving “tens of thousands of people who live in Australia in a state of migration limbo”, on revolving temporary visas, never able to settle.
“For many years, when you arrived you were on a path to permanent residency. And because people have already uprooted themselves and changed their lives beyond recognition, you want them to settle. Settlement used to be a word that you found in the immigration context.
“We’ve got to do better than the inhumanity that has been shown to the tens of thousands of people whose lives are in limbo. It’s not necessary to engage in deliberate cruelty, which is what we saw from time to time from the former government.
“And I’m expecting some decisions to be announced by Andrew Giles and Clare O’Neil [respectively the Immigration and Home Affairs ministers] in the coming months about enabling those people to rebuild their lives.”
Ten minutes before Dreyfus apologised for becoming too passionate, he was apologising for being dispassionate. Then, he was talking about his role as cabinet secretary.
The job involves scheduling cabinet meetings, determining what is on the agenda, ensuring appropriate documentation of ministerial proposals and other logistical matters. The cabinet secretary is therefore present at every meeting, as a kind of gatekeeper for orderly government. It is not a sexy role, and its importance is really only apparent when the process fails.
Dreyfus was first appointed to the position by then prime minister Julia Gillard, after the party coup that installed her in place of Kevin Rudd. Part of the reason the party dumped Rudd was that the cabinet process was not working under his leadership.
Thus, says Dreyfus, he spent two-and-a-half years “working very hard for Gillard on restoring the operation of proper cabinet function in Australia”.
He considers it a “great privilege” to have been given the role again by Albanese, although he concedes “not everyone” would think it so, given its low profile.
“Properly functioning cabinet meetings and cabinet committees mean we will have considered legislation, an even pace of government and proceed with care,” he says.
“I’m deeply interested in the fabric of government. I used to do a great deal of constitutional and administrative law when I was a barrister. I’ve had a lifelong interest in the functioning of government.
“Perhaps that makes me a terribly boring person.”
Actually, it doesn’t. The mix of passion and dispassion, big vision and meticulous attention to detail make Dreyfus a very interesting person. He is the mostly quiet, high achiever of the Albanese government.
In seven months since the election he has ordered an end to the outrageous secret trial of Bernard Collaery, who blew the whistle on the Howard government’s spying in Timor–Leste. He has seen a handful of major reforms through parliament, most notably legislation providing for a national anti-corruption commission, long promised by the Morrison government but never delivered.
He has announced the abolition of the Administrative Appeals Tribunal – which the previous Coalition government had stacked with scores of political appointees, many without relevant qualifications, and which had become dysfunctional, with a backlog of almost 70,000 cases. It will be replaced with a new body with members selected on merit.
In a similar vein, Dreyfus has legislated to ensure all future appointments to the Australian Human Rights Commission are made through a merit-based and transparent process. It, too, had been stacked under the former government and had degenerated into an internally riven, demoralised organisation, effectively insolvent, and in danger of losing its “A status” international accreditation, meaning it would be downgraded from participant to observer status at the United Nations Human Rights Council.
Just last week he began the process of establishing a judicial commission – as recommended by the Australian Law Reform Commission – to ensure transparency in appointments of federal judges and address complaints about their conduct, as a “complement” to the work of the national anti-corruption commission.
He provided the terms of reference for the robo-debt royal commission. He has moved to dramatically increase the penalties for companies that fail to adequately protect people’s data, among other privacy-related matters.
He has also moved to more closely control the surveillance activities of intelligence agencies, to give greater protection to whistleblowers and to media reporting relating to national security issues, and to reinstitute regular meetings with state attorneys-general, which had been abandoned under the Coalition, in pursuit of more uniform laws around defamation and other hard issues.
These are only the highlights. Dreyfus, by virtue of his roles as attorney-general and cabinet secretary, has some involvement in almost everything the government does. He will be part of the Voice referendum and other key reforms. His combination of idealism and attentiveness to legal detail, says his cabinet colleague, Environment Minister Tanya Plibersek, makes him uniquely valuable to the smooth functioning of the government.
“He’s capable of delivering in a way that most other people aren’t because he is meticulous, because he’s got this prodigious knowledge and memory,” Plibersek says. “It’s the balance between his values and his capacity that makes him so effective.”
He is also, she says, without dangerous ambition. “He doesn’t need the money. He doesn’t need the kind of public recognition. He had that before he came into parliament. He’s here to make a difference.”
A colleague would say that, of course, but Dreyfus gets strong reviews from legal observers outside the parliament as well.
“When he was a QC at the Victorian bar, he was doing a lot of the big cases,” says one. “When you look back, his name’s there, particularly on the free-speech cases – Theophanous, Lange et cetera. Dreyfus is a stickler for doing things properly.”
In that respect, and in terms of experience and legal weight, the observer says, the current attorney-general is “head and shoulders above” the three who preceded him: George Brandis, Christian Porter and Michaelia Cash.
He is anything but a career politician. He was 50 years old before he ran for parliament, comfortably winning the Melbourne seat of Isaacs in the 2007 “Ruddslide” election. Prior to that he spent most of his working life as a barrister.
The superficial observer might still mistake Dreyfus, KC, for a member of the conservative Melbourne establishment, with his wire-rimmed glasses, urbane manner, good looks, neat tailoring and the last-will-and-testament legal precision of his speech. He’s certainly plugged in to the legal establishment, through his involvement in various professional bodies, including Victoria’s Bar Council.
But that would be a serious misreading of Dreyfus and he pronounces himself “taken aback” when people occasionally wonder how he ended up in the Labor Party.
“I’ve always been committed to Labor. And I’ve always been committed to social justice,” he says.
“My very first job out of university was to go up to the Northern Territory to work – not as a lawyer, although I had a law degree – to work as a field officer for the then embryonic Northern Land Council.
“And I have spent a great deal of my working life working on social justice issues. I have been committed to progressive change in Australia.”
It was therefore “entirely natural” that he would at some point go into politics.
“My objective,” he says, “was always to be a senior cabinet minister in a Labor government.”
He had no ambition to be prime minister, or even attorney-general, although that clearly suits his skill set, but simply to serve the forces of progress in some form.
“I think people don’t rate the idea of serving as highly as they should. I think not everybody should aim to lead. Not everyone should aim to be prime minister.”
Dreyfus rose quickly after entering parliament. In his first term he made a mark through various parliamentary committees, covering areas of particular interest to him – climate and the environment, intelligence and security, and, in particular, through his work as chair of the house legal and constitutional affairs committee.
After the 2010 election, Julia Gillard made him not only cabinet secretary but also parliamentary secretary for climate change and energy efficiency, essentially understudy to the minister, Greg Combet. Then, even more than now, climate policy was a matter of enormous contention, and it gave Dreyfus, even in the junior role, some public profile.
By the time Dreyfus ascended to the portfolio he now holds, that of chief law officer, the Rudd/Gillard/Rudd government was in its death throes. He had less than six months in the job before Labor was voted out.
He remained shadow attorney-general throughout the wilderness years and found it “extremely difficult” – as much because of the things the Coalition government failed to do as the things they did do.
The Abbott/Turnbull/Morrison government, he says, was not at all like the previous conservative regime led by John Howard. Dreyfus couldn’t fault Howard for competence, because he actually achieved the “corrosive change” he set out to make. The most recent conservative government, in contrast, achieved little at all.
“If your measure is competence, they were undoubtedly the worst government we’ve seen,” he says.
“This former government just got worse and worse, not getting much done. And one of the striking things to me in my portfolio is how much there is to be done at a simple level of governing, just attending to the maintenance of our legal system, attending to needed reform, because most laws need looking at from time to time. They need updating.
“That’s why we have reviews. That’s why we have parliamentary inquiries. That’s why we have a Law Reform Commission.”
Dreyfus inherited a long list of such reports, “not merely not acted on but not even responded to”. The backlog has been a significant part of his first months in office.
“The Privacy Act is a really good example of that,” he says. “I think that there’s a lot of change needed to the Privacy Act, not for any partisan reason, not because I’m on one side of an ideological debate or another, but simply to bring into the third decade of the 21st century an act of parliament that is almost pre-digital.”
He cites another example, where legislative action has not kept up with rapid technological change: “We’ve got in the Telecommunications (Interception and Access) Act references to fax machines.”
And yet another: the Family Law Act.
“The former government, to give it credit, did establish through the Law Reform Commission the largest-ever review of family law since the act was passed in 1975,” he says.
“And it’s a terrific, lengthy, detailed report, with 60 recommendations that the former government did nothing with. There’s a whole lot in there that is not – it’s not a matter of partisan contention.”
Then there were the cases of what might be called malign neglect, such as with the AAT, which was allowed to become increasingly dysfunctional even as it was stacked with partisan appointees.
As envisioned by the Whitlam government and brought into existence by Malcolm Fraser, it was a “fantastic” innovation, according to Dreyfus, an accessible way for citizens to challenge the merits of government decision-making. “It’s only under the former government that it’s fallen into some disrepute,” Dreyfus says.
It was not just stacking. A second problem was that the AAT was insufficiently resourced. A third was the way the government unnecessarily dragged out proceedings, such that the National Disability Insurance Agency, for example, “will be represented by a private firm of solicitors and senior counsel and junior counsel,” Dreyfus says.
“I would query the appropriateness of that as a way of responding to a request for merits review by a person with a disability decision that affects them,” he says.
“We shouldn’t have 58,000 pending migration appeals, we shouldn’t have 6000 or 7000 pending disability appeals, and so on.”
In the short term, 75 new members will be appointed, to help clear the backlog, and additional funds provided.
But the damage done by the stacking is irreparable. Tribunal members can’t be sacked. The only way to truly fix the problem, Dreyfus says, is to abolish the whole thing and start over. That reform will be a priority this year, along with setting up the national anti-corruption commission.
Getting it up and running, he says, is not a small thing. “This is a substantial, medium-sized Commonwealth agency that will have some 260 staff and will need to have offices throughout the Commonwealth.”
Still, he offers an assurance that it will be operational by midyear.
The list goes on. Dreyfus is so excited by the work ahead that the interview runs for more than twice the amount of time his minders have allocated.
He’s 66 years old now and wearing well. Still, the clock is ticking, and he’s already suffered a decade of frustration. He is determined not to waste a day.
“I’m not going to rush things,” he says, and then: “It’s a privilege to be in government, but no government lasts forever.”
This article was first published in the print edition of The Saturday Paper on January 28, 2023 as "The Dreyfus interview: Action coming on refugee ‘inhumanity’".
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