16 October 2016




BARRIE CASSIDY: Senator Penny Wong, good morning. Welcome.


CASSIDY: Does it come down to that? Simply a different interpretation of what “consultation” means?

WONG: There are serious issues that go both to substance and to principle. The issue of substance is that George Brandis has engaged in a power grab so he’s issued a legally-binding direction that prevents the Solicitor-General from providing advice unless George says it’s OK to do so.

We have already had evidence from the Solicitor-General that there are a number of occasions that Prime Ministers, including Prime Minister Turnbull, have approached him directly for advice. That would not be able to occur without George Brandis’ tick off. We have had Dr Griffith, a Solicitor-General for 14 years, likening this approach to having a dog on a lead, saying the Solicitor-General would be like a dog on a lead.

But the second principle here is a very simple one. Is it acceptable for ministers to be deceptive with our Parliament? It is quite clear from the evidence on Friday that, yet again – I say yet again deliberately because George Brandis has done this before – we have a first law officer of this country who believes he can be deceptive with the Parliament. I don’t think in our system of democracy that is acceptable.

CASSIDY: Would it be wise for Justin Gleeson to ignore the Attorney-General’s direction? He said the direction he must obtain written direction before giving advice, he says that he will. Would that be wise?

WONG: We want our statutory officers to be independent and to be able to do their jobs without fear of interference. What is so disappointing is that, under the Turnbull Government, it appears that if you do your job as an independent statutory officer, then they unleash the dogs of war against you. Whether it’s Professor Triggs of the Human Rights Commission who was treated – whatever your view about her report, the treatment of her before a Senate committee by the same Senators who turned up on Friday to bully, seek to bully the Solicitor-General – was appalling. The same approach is being taken in relation to the Solicitor-General.

Unfortunately, George Brandis is not behaving honourably. He isn’t doing what you would expect the first law officer to do, which is to uphold the independence of this office. We know he’s already been censured by the Senate for his failure to do so in relation to Professor Triggs and he’s doing it again. I think he’s being deceptive. He has been deceptive both in relation to his assurance to the Senate that the Solicitor-General had been consulted, demonstrably false from the evidence on Friday. And his continued assurance to Senators that the foreign fighters legislation, which was quite controversial and given quite a lot of attention, he gave an assurance to Senators about its constitutionality that the Solicitor-General had advised that it was constitutional, which we now know was not the case. The Solicitor-General had not advised in relation to the very substantially-amended Bill.

I think we see George Brandis over and over again behaving in ways which really go to the heart of ministerial accountability to the Parliament. He continues to be deceptive. In our system of government, that is not acceptable.

CASSIDY: Is there fault on both sides? Was it wise for the Solicitor-General to have a conversation with Mark Dreyfus, the Shadow Attorney-General, during an election campaign without first running that past the Attorney-General?

WONG: I thought the Solicitor-General’s answer to that was very clear. He said his primary duty is to the statute. He considered carefully his position and he answered, as I recall, two questions by Mr Dreyfus because he believed that that was what he was required to do under the Act which governs his position.

I know that George Brandis wants people to look at all of these other issues in order to avoid a focus on his continued deception of the Parliament, something which I think goes directly to the heart of our democracy. If ministers are not accountable to the Parliament, where are they accountable?

CASSIDY: On the plebiscite, when the party room decided to oppose the plebiscite, what the public saw was a Labor Caucus celebrating. It looks as if this won’t be resolved now for years. What were you celebrating?

WONG: Well, I’m on the record for a long time now as opposing a plebiscite. That wasn’t a position that I came to easily. I don’t think the decision of the Caucus was one that we didn’t come to without serious consideration. But we did come to the view that the plebiscite would be highly divisive, damaging as well as being expensive and non-binding. All you have to do is speak to the families who were at the press conference, to the advocates in the LGBTI community who spoke to Bill, to Tanya, to Terri Butler, to Mark Dreyfus and put their view. I will continue, Labor will continue, to advocate for a free vote.

CASSIDY: You are saying you advocate for a free vote. That’s not the Labor Party’s position. You won’t give your own people a free vote.

WONG: There is a conscience vote until 2019 but let’s understand what Malcolm Turnbull’s position is once the plebiscite dies down. He is saying to the moderates in the Liberal Party “I want you to continue to vote not to have a vote. I want you to continue to vote to prevent a vote”. I don’t think that’s a sustainable position. What I’d say to him and to the other moderates is, have the courage of your conviction. I have said publicly if there is a Liberal Senator who wants to co-sponsor a Bill with me, I’m up for that. I’m willing to work with Liberals on the other side to achieve this.

But on the plebiscite, even Malcolm Turnbull’s own team, Senator Dean Smith, was not willing to support a plebiscite for the reasons he’s outlined which are very similar to the reasons Justice Kirby has outlined and many of the gay and lesbian groups have outlined.

CASSIDY: You haven’t always supported gay marriage. What changed your mind?

WONG: No, I have been… Well, you are asking a personal question. I have previously advocated in 2010 for the party’s position, for the party’s position, I’d invite you to look at what I said. I have also chosen, for a long period of time, to continue to advocate inside my party to change the party’s position to ensure we supported legislation that prohibited discrimination on the basis of sexual orientation. We got that through. To ensure we went to the 2007 election saying we would remove discrimination against same-sex couples. As you will know from looking at the 2011 conference, I was one of two people along with Andrew Barr – congratulations for a great result – to move a change in our platform so our platform supports Marriage Equality. That’s been my position.

CASSIDY: In 2010, you talked about cultural and historical objections. You said those objections should be given respect.

WONG: I said that the party position’s was that. I’m interested you bring that up because I don’t think anybody watching the last seven years of this debate or six years of this debate would suggest I had not worked along with Anthony, Tanya, to change the position of the party which, as you know – I understand, Simon Birmingham is in the position I was – when you are a Cabinet Minister, you are bound to support the position. But what you should do, and I did, and he is, is change the position because the position is wrong.

CASSIDY: On the South China Sea, as Shadow Minister for Foreign Affairs, have you straightened out your Defence spokesman Richard Marles on that issue because he did indicate the Navy should have some sort of control over certainly the timing of Australian war ships going into the disputed zone?

WONG: I’m not sure there is anything to straighten out. I think Richard was articulating the position Labor’s articulated for some time which is the same position as the Government, that Australia has a national interest in the existing international system, the system of law and norms including the UN Convention on the Law of the Sea. We have a national interest in freedom of navigation and freedom of overflight in the South China Sea where the majority of our trade transits. He also was making the point there are a range of operational details you might not want to go into but the principles remain the same. We support freedom of navigation, freedom of overflight in the South China Sea.

We also say – I have said this just as Tanya did – we don’t take a position in relation to the underlying disputes in the South China Sea. We continue to advocate to all claimants that this be resolved peacefully and these disputes not be escalated.

CASSIDY: Just to be clear because Paul Keating didn’t understand that to be the situation, neither did several former diplomats, have all had a go at him over this. What is the Labor Party’s position? That the government would control the timing, control the whole operation, if the Australian Navy was to go into that disputed zone?

WONG: Well, the principle is we support of freedom of navigation and freedom of overflight in the South China Sea. That is the principle. Of course, governments always authorise activities and you would do so in consultation with our allies, in consultation with your partners and also with a view to the principle I have outlined which is you don’t seek to escalate a situation, particularly where you are asserting others should de-escalate it.

CASSIDY: Why would you even talk about doing something like this? Why be that provocative when that makes you more hawkish than the Coalition Government?

WONG: I am not seeking to politicise this issue. I think it is in our national interest to speak to the principle, to speak as one on this issue. If we were in Government, we would approach this soberly, carefully, considering the strategic issues, consulting with our partners and our allies. That’s how we would approach it.

CASSIDY: Would you ever see it as a good idea for Australia to enter the zone deliberately?

WONG: That’s a judgement a future government would have to make based on the circumstances and considering the principles I’ve just outlined. But like the Government, I think the important issue here is to continue to advocate for the principle, international rules-based system including the law of the sea and to continue to urge the claimants in this particular situation – at the moment, it’s China and the Philippines but there are other claimants in relation to other disputed areas, – to continue to urge them to resolve the matters peacefully.

The world does have an interest in access to the global commons which includes maritime routes. That system has underpinned the economic growth which we have seen in our region. Economic growth demands stability and peace as its foundation. Our position should continue to be to advocate for the system which enables that stability.

CASSIDY: Your leader Bill Shorten said during the week that Donald Trump would be an entirely unsuitable to be President of the US. If he was to win and there was a Shorten Labor Government, how would you deal with that?

WONG: I don’t like hypotheticals too much. It is an unusual situation because you have a Republican candidate that even Republicans are coming out against because of what he says. There are many things Donald Trump says which I don’t agree with, which we don’t agree with. Those are pretty patent.

What I would say is the US Alliance has continued to survive, to strengthen through decades. It is bigger than any single individual or any single person. It is an alliance between two nations and we would always approach it like that.

CASSIDY: Penny Wong, thanks for your time this morning. Good to speak with you.