THE HON MARK DREYFUS KC MP
ATTORNEY-GENERAL
CABINET SECRETARY
MEMBER FOR ISAACS
Address to the National Press Club of Australia
Wednesday, 12 October 2022
ACKNOWLEDGEMENTS
Good afternoon and thank you for the introduction.
It’s a pleasure to be here at the National Press Club.
I begin by acknowledging the Ngunnawal and Ngambri people, the traditional custodians of the land on which we are gathered.
I pay my respects to their elders past and present.
On behalf of the Australian Government, I recommit to the implementation of the Uluru Statement from the Heart in full.
20th ANNIVERSARY OF THE BALI BOMBINGS
Earlier today I attended a memorial ceremony at Parliament House to mark the 20th anniversary of the Bali Bombings.
88 Australians and 38 Indonesians were among the 202 victims who were murdered on this day in 2002.
Hundreds more were wounded and live with the trauma of that day.
I acknowledge the enduring grief of those whose lives were forever changed.
I also want to acknowledge the work of those who ran to the scene to help - among them many ordinary people, tourists and bystanders who made an extraordinary contribution.
I especially want to thank the Australian Federal Police for the extraordinary work they did helping the victims, identifying the dead, and assisting Indonesia to bring to justice those responsible for this atrocity.
Those suffering horrific burns and other injuries were quickly flown to Darwin for life saving treatment in what was Australia’s largest aero-medical evacuation since the Vietnam War. The fact so many survived is a testament to the work of our Australian Defence Force personnel, and our wonderful doctors and nurses.
Twenty years on it remains a day marked not only by the senseless pain humans can inflict upon each other, but also the good we can all do when confronted with another’s anguish.
INTRODUCTION
In September 2019 I stood at this podium as Shadow Attorney-General and delivered an address titled: Time’s Up - Why Australia Needs a National Integrity Commission.
We needed one then, and we should have had an anti-corruption commission long before now.
The former government promised one, but failed to even bring a bill to the Parliament.
At this year’s election, Australians put their faith and trust in Labor.
I have been working every day since then to deliver the anti-corruption commission Australians so clearly want and deserve, doing the detailed design work, consulting widely and in good faith, and working to demonstrate this is a government people can trust.
NATIONAL ANTI-CORRUPTION COMMISSION
On 28 September, I introduced legislation into the Parliament to establish the first National Anti-Corruption Commission.
This legislation is the single biggest reform to the Commonwealth integrity framework in decades.
We said we would legislate a powerful, transparent and independent National Anti-Corruption Commission by the end of this year and we are honouring that commitment to the Australian people.
The legislation gives full effect to the design principles we took to the election; principles developed with some of Australia’s leading integrity advocates and endorsed by Australians when they elected the Albanese Labor Government.
Shamefully, the Commonwealth is the last Australian jurisdiction to establish an anti-corruption commission.
But this delay has allowed us to draw on the best elements of state and territory models.
We have brought to the Parliament an anti-corruption commission with independence, powers and resources equivalent to a standing royal commission.
To use the parlance of Senator Lambie, it’s got “chops bigger than Jaws”.
The Albanese Government has committed substantial funding of $262 million over four years for the establishment and ongoing operation of the Commission.
This funding will ensure the Commission has the staff and capacity to triage referrals and allegations it receives, conduct timely investigations, and undertake corruption prevention and education activities.
The Commission’s jurisdiction
The Commission will investigate serious or systemic corrupt conduct affecting any part of the federal public sector.
It will have the power to investigate ministers, parliamentarians and their staff, statutory office holders, employees of all government entities, and contractors.
Its jurisdiction will extend to conduct by any person who corrupts, or seeks to corrupt, a Commonwealth official.
The Commission will have discretion to commence inquiries on its own initiative, or in response to referrals from anyone.
It will be able to act on referrals from the public, referrals from whistleblowers, and referrals from anonymous sources.
It will be an offence to take reprisals against those who refer matters to the Commission.
The Commission will investigate both criminal and non-criminal corrupt conduct, including conduct that occurred before its establishment.
The definition of corrupt conduct in the legislation is broad and is drawn from existing definitions at the state and territory level.
It encompasses conduct by a public official that involves an abuse of office, breach of public trust, misuse of information or corruption of any other kind.
Conduct that could adversely affect public administration, but does not involve the corruption of a public official, such as external fraud or collusion, will continue to be dealt with by existing law enforcement and regulatory agencies.
This will ensure the Commission is not diverted from its core purpose of tackling serious or systemic corruption.
The Commission will work in partnership with other integrity agencies, and the cross-referencing of matters to the appropriate agency is a key element of the legislation.
The Commission’s powers
The Commission will have a full suite of powers similar to a Royal Commission.
It will be able to use its powers to undertake an investigation into a corruption issue if the Commissioner is of the opinion that it could involve serious or systemic corruption.
Importantly, the Commission will undertake preliminary investigations using powers to compel the production of information.
This will enable the Commission to determine whether an allegation could be serious or systemic, and how it may best be dealt with.
Public and private hearings
The Commissioner will have the discretion to hold a hearing in public if satisfied it is in the public interest and exceptional circumstances justify doing so.
This is, I would note, in sharp contrast to the former government’s failed model which ruled out the possibility of public hearings for anyone outside of law enforcement agencies.
We think our approach gets the balance right. Let me explain why.
The experience of state anti-corruption commissions is that a very small proportion of all hearings are actually public – including the well-known NSW Independent Commission Against Corruption.
There are important reasons for some hearings to be conducted in private, including to avoid prejudicing an ongoing investigation or related criminal proceedings, to protect the privacy of witnesses, or to ensure national security information is protected from disclosure.
The decision to hold hearings – in public or in private – will be made by the independent Commissioner.
The Commission will use hearings to question witnesses and obtain critical evidence about alleged serious or systemic corruption on the way to making findings and recommendations.
There will be times when the Commission’s investigations will be done in public. At other times investigations will benefit from being done in private.
Let me be clear – the National Anti-Corruption Commission is not a court. It is an investigative body. Its primary work is rooting out and exposing corruption.
At the conclusion of an investigation, the Commissioner will be able to publish a detailed report.
That report would set out the Commissioner’s findings and recommendations supported by evidence – including evidence obtained in private hearings – providing transparency and a comprehensive, public account of the Commission’s investigation.
The public can be assured if there is a finding of corruption, they will know about it. Ultimately, that is what matters.
Prevention and education functions
I would like to spend a bit of time on a really important part of the Commission’s functions which has been overlooked so far. That is, the Commission’s power to educate and provide information about what corruption looks like, in order to prevent it happening in the first place.
The Commission will provide guidance and information to support the public sector to understand the concept of corrupt conduct, and to identify and address vulnerabilities to corruption.
This work will harden the Commonwealth public sector against corruption, and will be informed by insights the Commission draws from its investigations and the intelligence it collects about corruption.
This will be critical to strengthening the Commonwealth’s broader integrity framework, and will complement new requirements that the Government intends to introduce for Commonwealth entities to take measures to prevent, detect and deal with corruption.
The Commission will also engage in broader public education about its role, corruption risks, and avenues to report corrupt conduct.
The Commission’s independence
The independence of the Commission is fundamental to the public accepting its work and findings.
We have secured the Commission’s independence in a number of ways.
The Commission will be able to conduct investigations on its own initiative or in response to referrals or allegations from any source.
Agency heads will be required to report any corruption issue in their agency to the Commission if they suspect it could be serious or systemic.
There will be an open, merits-based process for appointing the Commissioner, Deputy Commissioners and the Inspector.
Those appointments will require approval by the Parliamentary Joint Committee, ensuring that appointees have parliamentary support.
The appointees will have limited terms, and security of tenure during their term comparable to a federal judge.
Oversight of the Commission
The Commission will be overseen by a Parliamentary Joint Committee made up of members and senators from across the Parliament, not just Government and Opposition, as well as by an Inspector, who will be an independent officer of the Parliament.
- The Committee will have broad functions, including:
- approving recommendations for the appointment of the Commissioner, Deputy Commissioners and the Inspector;
- monitoring and reviewing the performance of functions by the Commissioner and the Inspector;
- examining trends and changes in corruption and reporting to both Houses of Parliament; and
- reviewing the sufficiency of the Commission’s budget and finances, and reporting to both Houses of Parliament.
The Parliamentary Joint Committee will be multi-partisan; comprising 12 members – 3 Government, 2 Opposition and 1 crossbench member from each House.
We want the Parliamentary Committee established as soon as possible following the passage of the legislation to enable a Commissioner-designate and other office-holders to be appointed to guide the establishment of the Commission.
Reputational safeguards
The legislation contains strong safeguards against undue reputational damage.
There will be an express ability for the Commissioner to make public statements at any time to avoid damage to a person’s reputation.
The Commission will be able to clarify the capacity in which a witness is appearing at a public hearing.
Reports on investigations will include statements that a person has not engaged in corrupt conduct or is not the subject of any findings, where that is appropriate to avoid damage to a person’s reputation.
The Commission must afford procedural fairness to individuals or agencies who are the subject of any adverse findings it proposes to include in a report by providing them a reasonable opportunity to respond.
Whistleblower protections
The legislation provides strong protections for whistleblowers against adverse consequences, including a penalty for retaliation against a whistleblower.
Public officials making disclosures to the Commission will also be protected under the Public Interest Disclosure Act.
Shortly I will be introducing separate reforms to the PID Act to improve whistleblower protections, with the aim of having these reforms in place when the Commission commences operation.
Protections for journalists
Many of those present have a strong interest in press freedom.
So do I.
For this reason the legislation establishing the National Anti-Corruption Commission contains strong safeguards to protect the identities of journalists’ sources and uphold the clear public interest associated with a free press.
As Attorney-General I am acutely conscious that any newly created power brought onto our statute books must not interfere with the important work of the press in holding those in authority to account.
The legislation expressly provides that journalists and their employers will not be required to answer questions or provide information that would enable the identity of their sources to be identified.
The Commission’s access to search and surveillance powers will be subject to additional safeguards to protect press freedom and the identity of journalists’ sources.
But the work doesn’t end here.
Improved protections for press freedom are needed, and the Albanese Government intends to progress further legislative reform as a priority – including responding to important reports on press freedom from the Parliamentary Joint Committee on Intelligence and Security and the Senate Standing Committee on Environment and Communications, from the last parliament.
Why is the National Anti-Corruption Commission important?
I welcome the past and ongoing work of integrity experts and fellow parliamentarians in contributing to the legislative model before the Parliament.
But in examining how the Commission will work, we should not lose sight of why its work is needed in the first place.
In recent years there has been a significant erosion of trust between voters and politicians. Some of the reasons for that are global – most notably, the rise of disinformation and the exploitation of it by public figures for political gain. But a lot of the damage was done here, at home, by the former government.
Voters were not credited with the intelligence and respect they deserve. Promises were made and never delivered. Questions from journalists were treated like an annoyance. Basic standards of accountability were pushed aside.
The new Labor Government has a big job to do.
We must repair the damage and restore trust in government.
The National Anti-Corruption Commission is a nation-building reform that will help restore trust in government and in Australian democracy.
Australians deserve a government that is prepared to be held to account, a government prepared to have wrongdoing exposed, even when there is a political price to pay.
It is my hope that simply by doing its job the National Anti-Corruption Commission will make government better.
Of course, I am keenly interested in the views of my parliamentary colleagues.
Unlike the former government, our government has actually introduced a bill.
And we’ve established a joint select committee to examine it.
With Linda White as chair, Helen Haines as deputy, and a membership drawn from the Government, Opposition and crossbench, I look forward to the committee inquiry into the bill.
I believe the Government has got this bill right.
But I’m prepared to listen to other views, because I want the Parliament to enact the best possible anti-corruption commission.
RESPONSE TO THE ALRC REPORT ON JUDICIAL IMPARTIALITY AND THE LAW ON BIAS
The National Anti-Corruption Commission is a central pillar in our broader project to restoring public trust in institutions.
The Government is also working on reinforcing public trust in the judicial system.
The courts are fundamental to good governance and it is important judicial officers display the highest standards of integrity.
The Australian Law Reform Commission’s recent report on judicial impartiality and the law on bias is a significant contribution to strengthening the rule of law in Australia.
I am pleased the ALRC found that, in general, the Australian public, rightly so, has a high level of confidence in Australian judges and courts.
I welcome the ALRC’s 14 recommendations aimed at further strengthening the administration of justice.
I recently released the Government’s formal response to the ALRC report outlining our support for the three recommendations that are directed to the Government.
The ALRC recommended the Government:
- establish a federal judicial commission;
- develop a more transparent process for appointing federal judicial officers on merit; and
- collect, and report annually on, statistics regarding the diversity of the federal judiciary.
Federal Judicial Commission (Recommendation 5)
The Government has given in-principle support to recommendation 5 of the ALRC’s report to establish a federal judicial commission as a transparent and independent means to address concerns about the conduct of federal judges.
A federal judicial commission would be a significant reform that complements the National Anti-Corruption Commission.
The Government is carefully considering the merits of a commission that can independently examine complaints about federal judicial officers and take appropriate action.
Any model for a federal judicial commission must respect the independence of the courts and judiciary in accordance with the Constitution, and I plan to consult stakeholders accordingly.
Merit-based and Transparent Judicial Appointment Process (Recommendation 7)
The appointment of a judge to a federal court is a significant decision.
The Government has already taken steps to restore integrity in the judicial appointment process through a more transparent, merit-based appointment process for the federal judiciary.
While the ALRC has not proposed a particular appointment model, it noted that those consulted believed the appointment process in place under the previous Labor Government worked well.
When we were last in Government, the process for selecting judicial appointments included broad consultation and the use of advisory or selection panels.
I have instructed the Attorney-General's Department to identify candidates to fill current and emerging judicial vacancies in the federal courts using a merit-based process.
This process has involved extensive consultation with the legal community to identify suitable candidates including the heads of jurisdiction of the federal courts, the legal profession, and key members of the legal community.
In the future I will consider additional measures to ensure integrity and transparency remain a key part of the appointments process. This may involve advertisements in addition to an independent advisory panel.
Reporting on Diversity of the Judiciary (Recommendation 8)
The Government is committed to improving diversity in the federal judiciary. The bench must look more like the country it serves.
I want to ensure that appointments are drawn from the widest pool of candidates with the appropriate skills and experience, thereby broadening the diversity and experience of those on the bench.
The Government looks forward to engaging with the federal courts in considering the reporting of judicial diversity statistics.
CONCLUSION
Every new government comes to power promising to be better than the last. And voters, left repeatedly disappointed, have rightly grown cynical.
But in establishing the National Anti-Corruption Commission, our aim is to create a lasting body – one that not only causes our government to be better, but all future governments to be better too.
Integrity should be above partisan politics.
It is my sincere hope the legislation I have introduced to establish a National Anti-Corruption Commission attracts support across the Parliament.
The Australian people delivered a clear message at the last election – something is broken and they want it fixed.
The Albanese Government heard the message loud and clear.
We will honour our commitment to legislate a National Anti-Corruption Commission.
And we will do it this year.
Thank you.
ENDS
