Legal columnist HUGH SELBY looks down the checklist to see how Attorney-General Mark Dreyfus is performing. The results are underwhelming…

IT’S reporting season: today’s report looks at the Commonwealth Attorney General, Mark Dreyfus KC. What, if any, KPI’s did he set for himself in his early 2008 maiden speech?

In that speech he wanted, inter alia, ”to offer some reflections on the work ahead and the contributions I hope I will be able to make”.

He spoke of a key value: “Tolerance lies at the heart of our Australian multiculturalism. It is a vital democratic value. 

“Tolerance of others-tolerance of different cultural and religious values and tolerance of different political positions-produces inclusiveness and not division.”

But this week his government opposed the end of “indefinite detention” for some would be immigrants. Those keen to see and hear the proceedings can do so by going to the audio visual recordings of the High Court for November 8.

It’s usual to wait some time for High Court decisions. Not on this occasion. The court gave its decision on the spot: ending indefinite detention for some 90 fellow humans. 

Some of us have not forgotten how Labor lost its way on Tampa. It – Labor – is still adrift. Could it be that the tolerance for “tolerance” becomes more brittle and jaded with successive applications of political expediency over 15 years in the parliament?

He ended his maiden speech: “First speeches are full of hopes. I hope that on the day on which I last sit in this place I will be able to reread this first speech and recognise its themes in what I will, by then, have done here.”

Apart from the shifting sands of tolerance there is nothing in his maiden speech by which to assess his performance as our attorney-general in the Albanese government.

Let’s look then for relevant comments in his more recent speeches outside of parliament 

In a late 2022 address, at Western Sydney University, talking about the National Anti-Corruption Commission, he said: “The legislation provides strong protections for whistleblowers against reprisal and other adverse consequences, including immunities from criminal, civil and administrative liability.”

Actions speak somewhat louder than words. Here we are, one year later, and he has not withdrawn the prosecutions of an ATO whistleblower or a Defence whistleblower, nor has he supported a pardon for Witness K who blew the whistle on reprehensible conduct by Australian officials in Timor Leste and was convicted and punished for so doing.

Speaking earlier in 2022, then as shadow attorney, to the Australian Bar Association conference, he said: “Mr [Bernard] Collaery and the intelligence officer he was acting for, Witness K, were… charged with a number of criminal offences under the Intelligence Services Act.  

“Those prosecutions were only allowed to proceed because Mr Porter [then the Attorney General] authorised them. While Witness K pleaded guilty and received a non-custodial sentence, Mr Collaery is still defending himself against the criminal charges”.  

He went on to say: “The very manner in which the [Morrison] government has sought to conduct the prosecution appears to me to be an affront to the rule of law.”

To his credit, as attorney-general, Mr Dreyfus stopped the prosecution of Mr Collaery; however, he has done nothing to restore Witness K’s reputation – so easy, and proper to do by way of an unconditional pardon. 

In his December 2022 “Inaugural Michael Kirby Address” he said: “Sometimes… ministers have to stick their heads above the parapet and be brave… I know that if I finish my time as attorney-general without pursuing things that are brave I will have failed.”

There was no bravery in his incorrect claims in mid-2023 that the Higgins payout (made in the lead up to Christmas 2022) complied with the standard directions for settling litigation. 

The extent of the departure from approved practice was set out in my “CityNews” column of June 29. Months later we still have only silence – that favoured tactic in our current political life to consign unwelcome truth to a dustbin on the edge of the news cycle.

Nor is there any bravery in the proposal for a Federal Judicial Commission. It would have been brave to have seized the chance to lead a national (rather than parochial) approach to complaints about litigation decision makers, to ensure that the actions of tribunal members as well as judiciary could be investigated. It was not brave to opt for “same old, same old”. It was pedestrian, uninspired and uninspiring, as I argued in a column in October.

Returning to “the rule of law”, once upon a time there was a real interest in having a Federal Human Rights Act. Those with longer memories will recall the efforts of Father Frank Brennan (among others) during 2008 and 2009; ie, during Mr Dreyfus’ first term in Parliament. That was during the Rudd Government. All for nought. The concept doesn’t even rate a mention these days, a comfortable space for those – whatever their politics – who want human rights to be mere concepts, not a part of the rule of law.

Mark’s take-home report is brief: “Shows promise, makes promises, but needs to work harder on worthwhile deliverables. Bravery would be welcome. There’s still time”.

Hugh Selby is a former barrister. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.