THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
ABC AFTERNOON BRIEFING
WEDNESDAY, 29 MARCH 2023
SUBJECTS: National Anti-Corruption Commission; Family Law reforms; Whistleblowers.
MATTHEW DORAN: Attorney-General thanks for joining us today. I want to move to the Family Law Amendments that you introduced in Parliament in just a bit because since then you've committed news, I guess you could say, by announcing your pick for the National Anti-Corruption Commission and namely the Commissioner and Deputy Commissioners. Let's start with Paul Brereton the new Commissioner. What is it about Paul Brereton that made you think he's the right man for the job?
ATTORNEY-GENERAL MARK DREYFUS: It is good to be with you Matt. Paul Brereton is one of Australia's most experienced investigators. He's had a very, very good judicial career and before that, a career as a barrister. And I'm completely confident that after the merit-based appointments process that he was selected by that we have the best person for the job. That it is a very important appointment. Obviously, both he and the two Deputy Commissioners that are to be appointed: Nicole Rose, who's the very experienced public servant, presently the CEO of AUSTRAC, and Dr Ben Gauntlett, who is presently the Disability Discrimination Commissioner, but a distinguished lawyer. I'm confident that with Paul as Commissioner, and these two Deputy Commissioners, we've got a very, very good team as our inaugural team. And I shouldn't forget, as an Acting Deputy Commissioner, we have Jaala Hinchcliffe who is the current Integrity Commissioner.
DORAN: On Justice Brereton is there anything about, I guess he shot to prominence because he was running the war crimes investigation for the Inspector-General of the Defence Force, is there anything about maybe the sensitivities of how that investigation needed to be conducted that made him a more suitable candidate than maybe others who threw their hat in the ring?
ATTORNEY-GENERAL: I think it shows you that he has got the experience. That was, by any measure, an extraordinarily difficult, long running inquiry and investigation with a great deal of difficulty in getting people to come forward, a great deal of difficulty in obtaining evidence. I expect that from time to time the National Anti-Corruption Commission will encounter such difficulties. So, we know in a sense about Paul Brereton that he's a man of the calibre that we need to conduct that kind of really difficult investigation.
DORAN: You've always said throughout this process that it will be up to the discretion of the Commissioner as to whether or not there will ever be public hearings in certain inquiries. Certainly, or I'm assuming, that during your vetting, your interviews with Justice Brereton, maybe that issue has come up in discussions. Has he given any sense to his inclination or otherwise to allowing public hearings in future?
ATTORNEY-GENERAL: Justice Brereton was interviewed by an independent panel. That was the way in which the merit-based selection process ran, they made recommendations to me. I have not had a discussion, nor would I have a discussion with the Commissioner designate as to how he's going to exercise his discretion, which is there in the legislation to hold a public hearing when appropriate. I think I understand the interest. There was a lot of debate about this when the legislation was going through the Parliament in November last year. But people are going to have to be patient and wait and see how it works out in practice once the Commission is set up around the middle of this year and commences investigations.
DORAN: And just one final question on this one, still on track for having the anti-corruption commission in place operational by the middle of the year?
ATTORNEY-GENERAL: Yes. And I thank the National Anti-Corruption Commission Joint Standing Committee of this Parliament for dealing with the proposed appointments in a really expeditious way and giving me their approval this morning. That's made it pretty certain that we are on track for the Commission to commence operations in the middle of this year.
DORAN: Let's move to matters of policy here in the family law sector. You've introduced legislation this morning to amend the Family Law Act. You're scrapping one fairly contentious element of family law disputes which is the presumption of equal shared parental responsibility. For people who are lucky enough to have never had to come across this sort of term can you explain first up what it actually is?
ATTORNEY-GENERAL: That presumption has given rise to a lot of confusion. Even though the best interests of the child are paramount in all decision making in the family courts we've had confusion created by the introduction of that, as you've put it, the presumption of equal shared parental responsibility by the Howard Government. It's caused not only confusion in court, it's caused confusion in mediations. And you need to bear in mind that most family law disputes never get before a judge or even a registrar. They're resolved by the parties to the marriage when their relationship ends, the parenting disputes are resolved by agreement. But the guide to how they are to be resolved is, of course, the Family Law Act. So we need to get it right. And where you've got a provision like this one that's created a lot of confusion we need to get rid of it. It's been recommended by a number of inquiries. I put it in the exposure draft bill that I released right at the start of this year. I wanted to see whether or not there would be concern expressed about the repeal of this presumption.
Overwhelmingly, there's been support for the repeal of the presumption because I think people understand the dreadful effect that it's had in creating a false idea that there's some absolute right to share equal time. There's never been such a right but that presumption allowed people to form that impression. It's been used to pressure, very often, a victim of family violence has been pressured by the perpetrator into giving up equal time on a false notion that there is such a right. We think it's really important to restore in an absolute sense the concept that the best interests of the child dictate decisions under the Family Law Act.
DORAN: Clearly the family law system is a system that's under considerable strain. It's quite a traumatic experience for people going through it. I guess you're not going through the family law system unless there is some conflict or trauma happening there. Is there always going to be, regardless of how much reform you try to put through the system, is there always going to be complications or problems with how it operates?
ATTORNEY-GENERAL: I think people can take some heart. Of course, it's a dreadful, stressful time in anyone's life if their marriage breaks up and they're undergoing divorce and custody proceedings in one of the family courts. But happily, most proceedings, as I said before, most disputes get resolved through mediation, they get resolved without needing to appear before a judge or a registrar. That tells you that something is operating well about the system.
What we're concerned with here is to make sure that the rules are clear, to make sure that we've got a fair and easy to use system, an accessible system. And one of the reasons why we've started in on this process of reform of the Family Law Act is because there have been countless reviews over the past decade or so. The largest ever review of the Family Law Act was done by the Australian Law Reform Commission, which reported in 2019. The former government just let that sit there. We're not going to do that. We're going to pick up the suggestions for reform that the Australian Law Reform Commission made, we're going to pick up some of the suggestions for reform that was made by the Joint Select Committee of the Parliament, which came afterwards and make sure that we've got the best possible family law system and for our country,
DORAN: Something that you picked up on before about how the presumption that's currently in the system about equal shared parenting responsibility that sometimes does get abused throughout that that marriage breakup, or the like. A lot of advocates are saying that this is a great step. But there needs to be more done in that space around family and domestic violence around abuse, things like coercive control, getting a proper definition of that. I know that's a difficult process when you've got to herd all of the state and territory Attorneys-General in the same direction. But where's that process going? How developed are efforts in those sort of areas?
ATTORNEY-GENERAL: One of the things we've done since coming to Government is reestablishing the Standing Council of Attorneys-General which is going to meet quarterly. We've had two meetings. We've got our third meeting coming up in Darwin on the 28th of April. And one of the items for discussion, I put it on the agenda straightaway, is developing national principles of coercive control. We've just today put out the results of the consultation on draft principles. And it's going to be a matter that we're going to keep working on. It's going to be discussed again on the 28th of April by the Attorneys-General of the states and territories with me. And I'm very hopeful that sometime this year we will get to an agreed set of national principles for coercive control so that we can get consistency across the country. Which is always something that we should aim for.
DORAN: One final question before we let you go. On Monday the courts in South Australia rejected an attempt by the ATO whistleblower Richard Boyle to claim immunity from prosecution under whistleblower protections. How do you justify to the Australian public that he's a person that needs to be prosecuted when he unveiled unethical practices within the ATO so many years ago?
ATTORNEY-GENERAL: That matter is still before the court and I'm not in a position to comment. In particular we don't even yet have the judgment of the court in South Australia where the judge put a suppression order on the reasons that were given for rejecting the whistleblower protection provisions as applied to Mr Boyle. So doubly so, not only is it before the courts, but we don't even have at this time access to the judgment given by the court on Monday. So, I can't comment at this stage.
DORAN: Well no doubt something that we can discuss in the future. Mark Dreyfus, thank you for joining us.
ATTORNEY-GENERAL: Thank you very much.