THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
THURSDAY, 29 SEPTEMBER 2022
SUBJECT: National Anti-Corruption Commission, Optus Data Breach; Privacy Act; Cost of Living.
LIAM BARTLETT: Well, there's been a lot of talk about the anti-corruption commission, the Federal body that was being set up. It certainly was a hot topic during the election campaign wasn't it? And to give credit where credit's due Labor campaigned on that basis that if they were elected to government, they would install an anti-corruption watchdog federally, and they've done just that - a National Anti-Corruption Commission with retrospective powers to investigate misconduct by public officials and also the involvement of unions and business is set to pass Parliament. Its Commissioner will be handed unilateral discretion to hold public hearings in what are termed exceptional circumstances. The National Anti-Corruption Commission - NACC - would also be able to initiate its own investigations and be handed powers to tap phones, to use surveillance devices to seize or compel the production of documents to search premises, including Commonwealth offices without a warrant and compel witnesses to attend hearings under arrest if necessary. Joining us this morning is the man who's driven this piece of legislation and that is the Federal Attorney-General Mark Dreyfus, Mark. Good morning.
ATTORNEY-GENERAL MARK DREYFUS: Really good to be with you Liam.
BARTLETT: Thanks very much for your time minister. We really appreciate that. Look, one of the big talking points on this in the last couple of days, there's been this thing about holding public hearings. And you've come to the conclusion that the Commissioner will have the power to do that in exceptional circumstances. What do you mean by exceptional?
ATTORNEY-GENERAL: We're very pleased that we've introduced this bill to the Parliament honouring our commitment to Australians Liam. We think we've got the balance right, including on this question of public hearings. The former government had refused to include the possibility of public hearings in the proposal that they had. We've said that it's a matter for the for the Commissioner to decide. It's an independent Commission, the Commission is going to make an independent decision on whether or not in a particular circumstance, it should hold a public hearing. We think that the experience of state and territory commissions - and remember, every state and territory has got an anti-corruption commission - has been that most of the hearings will be in private. There's lots of good reasons for that. But we think that the Commission should have the power to hold a public hearing, because sometimes it's going to want to demonstrate to the Australian community that it is getting on with the job of stamping out corruption in our public service across the Federal Government.
BARTLETT: What would be exceptional Minister? What would the sort of circumstance be? Can you give us an example? Would that be about the person at the centre of the of the allegations?
ATTORNEY-GENERAL: That's going to be one of the factors. I think clearly it has to be serious or systemic corruption for the Commission to be going on with the investigation in the first place. I think one can imagine that if it's a particularly serious piece of corruption that the Commission has uncovered and wants to demonstrate to the Australian people how the investigation has proceeded, that'd be one exceptional circumstance. I think another might be simply that from time to time the commission wants to educate the public about corruption matters. Weighing against holding a public hearing you'll have matters such as the possibility of a current criminal trial that's proceeding or, or a projected criminal trial. You wouldn't want to be prejudicing a criminal trial by publishing details. So there's a balance there. The balance is something you see in our bill and that balancing process is what the Commissioner is going to have to apply. I'd say this, though, Liam, the Commission is, most importantly, going to be able to publicly report on corruption. So at the end of its investigation it's going to have the power to publicly report to the Australian community on what it has found in any particular case and that is really important.
BARTLETT: And in terms of the media exposure of that, I mean, a journalist won't be able to report on ongoing investigations, will they? Unless it's contained within a public hearing will only be able to report the result.
ATTORNEY-GENERAL: What will be available to journalists will be what the Commission chooses to make public. But we expect that the Commission will be making public the results of its investigation so that will clearly be reported by journalists. And if there's a public hearing that too, we would expect to be reported.
BARTLETT: It is, you know, treading this sort of fine line, and it is difficult, isn't it? I can see it from your perspective, as well as maybe this whole idea of public hearings. I mean, it just goes to the criticism of bodies like this being a star chamber. And there's this sort of fear of a public lynching. We've seen this a little bit through ICAC in New South Wales. I noticed some criticism of the body already, some people saying it takes the worst parts of the Victorian model. Maybe if you're copying all this criticism from all different sides, perhaps you have got it right?
ATTORNEY-GENERAL: You could say that Liam. But I look at it this way that we've had, overwhelmingly, approval for most aspects of the bill. There's been some discussion about this question of what circumstances ought to apply for a public hearing to take place. But overwhelmingly, there's been approval expressed for most of the provisions of the bill. It's, of course, going to go to a Parliamentary committee and, as is appropriate, we'll be watching the submissions that are received by that Parliamentary committee. Listening to what's said in the hearings, and waiting for the report on the parliamentary committee as to any suggestions that members of the Senate and members of the House of Representatives who are on that committee make in order to improve the bill? I don't think anyone should ever pretend that they've got things absolutely right. I think I've got the balance right. We think we've got the main architecture of this anti-corruption commission right. But if there is some suggestions, we'll be listening carefully.
BARTLETT: What about the Commissioner? Who's in line to be the Commissioner?
ATTORNEY-GENERAL: We have not decided on who is going to be the Commissioner. We will publicly advertise for the Commissioner after the bill is passed. And will I'm expecting there'll be a strong field of people wishing to be Australia's first National-Anti Corruption Commissioner. That would be a great honour to undertake this task and I think there'll be people vying for that honour.
BARTLETT: Well, that's interesting. So, it would be open and open merit based appointment, it won't be just that is captain's pick?
ATTORNEY-GENERAL: That is the approach that we are taking to every appointment in my portfolio. We are proposing to advertise seeking expressions of interest from people appointed, even to the senior roles. There will be a transparent and merit-based appointments process. And, of course, the government will nominate. It's an Executive Council appointment but one feature of this bill is that the appointment will have to be approved by the Joint Standing Committee of the Parliament with equal representation from the House and the Senate, with representation from the Government, representation from the Opposition and representation from the crossbench. That standing committee is given the power to approve the appointment of the person nominated by the Government.
BARTLETT: Minister, we've got a couple of callers up here. Daniel, we'd like to ask you a question. Good morning, Daniel.
CALLER: Morning Liam, Morning to the Attorney-General, Mr. Dreyfus. First up, I'd just like to say congratulations on getting into office. Myself and my partner are over the moon every day. The colours are more vivid. Food tastes better. It's just a fantastic thing.
ATTORNEY-GENERAL: (laughing) I'm glad to hear it. That's not something we promised at the election. And if we've delivered that, that's good, too.
CALLER: Yeah, seriously, though, it is really, really good to have a government that often respect in, in power. And I'm not saying that flippantly. Especially the last sort of PM that we had with the Coalition the whole the whole way through or just it just felt like we were being sold things that constantly but not what I rang up about.
BARTLETT: Oh, that's nice for you, Daniel. But is there a question in it?
CALLER: Yes, there is - ICAC. Now, I was wondering why wasn't it just a simple case of there's a preliminary hearing, you have your witnesses in, you find out if there's a case to be answered and at that point, then it becomes a public hearing. You know, I understand, you don't want just random witnesses, you know, people getting pulled in and getting named or had to appear before ICAC and what have you, all this media doubt cast. But once things have been established, once that bar has been met, okay, yep, there's something to be looked at here. And it's public money, public dime, this is all public interest straight into that's a public hearing. There's no questions about no threshold to be met there. What about that?
ATTORNEY-GENERAL: There will be cases, Daniel, and that's the question that we're trying to answer here. It's the question that I've been in discussions for many months with integrity experts, with Members of both Houses of Parliament since the election. I've been talking a lot to the newly elected crossbenchers, I've been talking to the Opposition, I've been talking to the Greens Party. Everyone's got their own views about this. Some people didn't want any public hearings. Well, we don't agree with that. We think there should be public hearings. But there are reasons why this kind of investigative commission shouldn't put all of its work in the public. It's not a court, courts are required to do their work in the open. Open justice is a basic principle. This Commission won't be making findings of criminal guilt, it won't be making findings of civil liability. So it's not doing a court function. Rather, it's investigating corruption. It's going to report publicly, if it thinks that there's the possibility of a criminal offence being committed, it will refer the allegations to the Commonwealth Director of Public Prosecutions and the Australian Federal Police to decide whether charges should be laid. And there you've got the tension, that if you put too much in public, there's a possibility of prejudicing subsequent criminal proceedings. There's also problems about potentially unfair attacks on someone's reputation. And all of those things have to be balanced by the Commission in making the decision about what part of its investigation it conducts in the form of a public hearing. But we've left that possibility open, that's the important thing. It'll be up to the Commission to decide. We can think that there should be occasions when there'll be public hearings, but I don't think I'd go down your track, Daniel, with respect of making every bit of the last stage in public. There are always going to be, potentially at least, reasons why you'd want to keep things in a private hearing.
BARTLETT: And it is a problem, isn't it? I mean, we've seen that in the past, you know, people are named, they don't end up being charged at all, but they are stained as a result of the process, unfairly in some cases.
ATTORNEY-GENERAL: Certainly that has occurred. There's a silver lining in the Commonwealth being the last Australian jurisdiction to arrive at having an anti-corruption commission and that is that we've been we're able to look at the last 30 years of these anti-corruption commissions at the state and territory level, learn from the mistakes that have been made. Learn from what works in the act of Parliament and what doesn't. And I'm very hopeful that we've picked the best of the state and territory models and that we've got the balance right.
BARTLETT: I tell you one thing that from a WA perspective, Minister, that I was pleased to see, which I think will make a difference. I mean, we talked to the Commissioner of the Crime and Corruption Commission, here in WA, a couple of weeks ago, on the program, they were having a problem with, with including a particular person of interest who wasn't a public servant. I mean, you you've gone one step further here. You have made allowances for that, haven't you?
ATTORNEY-GENERAL: We have. We say in this bill that it will be open to the Commission to investigate the conduct of anyone that's potentially trying to cause an abuse of office, or trying to engage in a way that will lead to corrupt conduct by a public official. And we thought that it was important to extend the scope of the investigations to make sure that it covers people who are engaged in that way, in trying to cause corrupt activity by a public servant or by a minister or by a Member of Parliament.
BARTLETT: Very important. I mean, our sort of balancing act there was involving someone who was who was contracted to the Department of Communities. So, paid for, still paid for by the taxpayer, but because they were separately employed from a higher company they weren't included under that public official status. But this one, this won't happen in your model.
ATTORNEY-GENERAL: Indeed not. Indeed, on that score we have directly covered contractors to the Commonwealth because they are just as much part of the Australian public sector as full time Australian public servants.
BARTLETT: Couldn't agree more. Grant is on the line. Hello, Grant.
CALLER: Morning, gents. Obviously, ICAC was an election promise, but probably the election promise that was more relevant to everyday Australians was the reduction of cost of living. I'm just wondering when that might be implemented is probably more important to the average person on the street as opposed to an ICAC.
ATTORNEY-GENERAL: I absolutely agree with your Grant that the cost of living is something that is on my mind. It's on the minds of all of my colleagues, and particularly the Treasurer, the Finance Minister and the Prime Minister, as we move towards this Government's first Budget. On the 25th of October, it's going to be honouring a range of election commitments you'll see directly in that budget. And one of those big ones, it's not the only thing we're doing for cost of living is the reduction in the cost of childcare. There's a range of other measures but that's going to be a big one for Australian families. And everything we are looking at in relation to this Budget has squarely in mind, cost of living, reducing the pressures that everyday Australians are facing.
BARTLETT: Thanks very much for your question, Grant. Minister, I know you're flat out and you've got to go but can I just ask you before you finish, just pulling your other hat on but still as Attorney-General, can I ask you about this Optus situation because we've had a lot of calls to the station and emails talking about the length of time companies like Optus keep personal, you know, identification numbers and privacy information on their files. Is this sort of part of an overall federal law that companies have to keep it or should Optus have, you know, once you establish identification for customer service liabilities, should you then offload it? How do you see that?
ATTORNEY-GENERAL: This question has been raised with me Liam, by lots and lots of people. As digital technology has improved it's become ever easier at a technical level for companies to keep just about everything they ever get from anybody. We all understand why companies like Optus or any other company needs to be able to establish the identity of their customers. If you're opening an account with Optus they need to know who you are and people are familiar with this idea of the 100 points of identification. But there is a very real question about whether or not companies should go on keeping all of that data that they collect, permanently it seems, in huge data banks, when that's not the purpose that they got it for in the first place. This is a privacy principle here. Australians, I think are entitled to expect that any data, any personal information they give over will only be used for the purpose for which it's been given. Now, if the only purpose was to identify the customer you can well ask, why should companies go on keeping that really personal information? And we're looking at reforms to the Privacy Act, possibly as early as before the end of this year, and one of the things we're going to be looking very closely at is that question which you've raised - why do companies need to keep so much information, and if they don't need to keep it, they should be getting rid of it in a safe way.
BARTLETT: A couple of our callers have indicated that from their experience in the private sector, there is some sort of law that says companies must keep this identifying information for something like seven years? Do you know of such a law?
ATTORNEY-GENERAL: I don't, and even if there were, I would say we should be looking very closely at such a law. We need to look closely at why these massive amounts of data are being kept. Why it's even possible for a hack of a large company like Optus to produce the outcome that the personal information of nearly 10 million Australians, former and present customers of Optus has ended up in the hands of a crook. People are understandably worried. The Government has been working for a week now with Optus to try and get to the bottom of all of this. But we need to make sure that in the future, we've got the powers that are needed. We need to make sure that the penalties are adequate and we need to make sure that the controls on private companies keeping Australians data are what they should be.
BARTLETT: Yes, it's long due for an overhaul. I don't think too many of our listeners would disagree with you Attorney-General. Thank you very much for your time today. Great to have a chat.
ATTORNEY-GENERAL: Good to be with you Liam.