THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
SUNDAY, 2 OCTOBER 2022
SUBJECT: National Anti-Corruption Commission; Optus Data Breach; AFL racism allegations.
DAVID SPEERS: Mark Dreyfus, welcome to the program.
ATTORNEY-GENERAL MARK DREYFUS: Good Morning David.
SPEERS: You made good points before the election. Why, in your legislation, would the default be private hearings?
ATTORNEY-GENERAL: What you heard me saying is that there are good reasons to hold public hearings and, equally, there are good reasons sometimes for holding your hearings in private. That decision is going to be made by the independent Commissioner in this powerful and transparent anti-corruption commission that I'm very proud to have brought to the Parliament.
SPEERS: So why not then just leave it to the Commissioner, as happens in the New South Wales version, to make that decision? Why do you have to write, in law, that they can only do it in exceptional circumstances?
ATTORNEY-GENERAL: We think that's getting the balance right. And we think that the experience of anti-corruption commissions over the last 30 years - bear in mind we've got three decades of experience to look at here, where the Commonwealth is the last jurisdiction to get an anti-corruption commission - that experience, for those jurisdictions which have got public hearings, is that very few hearings are held in public. Mostly, they're held in private. There's very good reason for that.
SPEERS: I understand that, but why can't you trust the Commissioner to make that call?
ATTORNEY-GENERAL: We do.
SPEERS: And then you're writing into law that they can only do it in exceptional circumstances. Why do you need that?
ATTORNEY-GENERAL: We think it's good to give an indication. We think that that's the right setting. We think we've got the balance right and I've been very heartened by the overwhelming support we've actually got, it seems, across the Parliament for the model we've put forward. I'm looking forward, as you just said on the couch, I'm looking forward to the hearings that are going to be held and the submissions we're going to receive in this Parliamentary committee process which is about to start next week.
SPEERS: There are some who are concerned, including retired judges who've been campaigning on this issue, that having that exceptional circumstances in the law means that this will be subject to legal challenge. People called before the Commission will go to the courts and say look, it says in the law exceptional circumstances, I want a private hearing thank you very much.
ATTORNEY-GENERAL: I've been very conscious in preparing this bill of the experience of a number of the state and territory commissions which have got tied up in court processes designed to interfere with getting to the corruption that's the object that this one is talking about. There's a lot in this bill that's designed to make sure that people who are trying to escape from an investigation won't be able to. That they can't go off and tie up the Commission in litigation.
SPEERS: This gives them something to go to court with, having exceptional circumstances.
ATTORNEY-GENERAL: I'm not about to give legal advice here on national TV. I'm not so sure that it's an open discretion. Yes, there's an indication as to the kinds of things that the Commissioner has to look at. I don't think that that is going to necessarily provide an opportunity for litigation.
SPEERS: Were there any legal experts who said this was a good idea putting this in or was it a political decision?
ATTORNEY-GENERAL: This is us getting the balance right.
SPEERS: Do they think you've got the balance right?
ATTORNEY-GENERAL: The key to this, first of all, is that there are to be public hearings, unlike the former government's model where they'd rule them out. The second thing is, this is a bit of the process of how an investigation is conducted, David. At the end, if there's corruption discovered, the Commission's going to report in public and that's the most important thing.
SPEERS: The question I asked was did any legal experts say this was a good idea, or was this Peter Dutton's idea?
ATTORNEY-GENERAL: Some legal experts think this is exactly right and others have expressed the contrary view and that's what's going to be talked about in the committee process that we're about to have.
SPEERS: A lot of people have debated this week what is exceptional circumstances, what should and shouldn't be public or private. Can I ask you, the most recent high profile case of the New South Wales ICAC, Gladys Berejiklian, should that have been a public hearing in your view?
ATTORNEY-GENERAL: Well, it's a matter for the Commissioner and what we saw there is there had been literally dozens of private hearings conducted before they got to what seemed to be the end of the process, a spectacular public hearing.
SPEERS: Is it warranted?
ATTORNEY-GENERAL: The Commissioner decided that it was. I can understand why, in order to show the people of New South Wales what had been occurring, that the Commissioner decided to do that. We've been waiting a long time for the report, which as I understand it, is about to be delivered.
SPEERS: I was going to ask you about that too, because it's been a long wait. There are cases that have dragged on even longer. What do you think about having some deadlines around how long inquiries can run before the National Anti-Corruption Commission?
ATTORNEY-GENERAL: We've got, in the bill, instructions for timeliness. We want to see this conducted in a timely way.
SPEERS: What is timely?
ATTORNEY-GENERAL: It's going to depend on the actual investigation. I think it's very difficult, given the immense variety of the types of corruption, for a piece of legislation to set a hard and fast rule that it's got to be done within a particular time.
SPEERS: Should any inquiry run more than 12 months?
ATTORNEY-GENERAL: I think it's undesirable that inquiries drag on and on, but I can point to instances, for example, where you are waiting for a criminal trial that is connected to be completed why you wouldn't want to bring to an end investigations, where you're still pursuing inquiries for a whole range of reasons where you know someone's about to be charged. All of those are reasons why an anti -corruption commission like this is not going to complete its inquiry.
SPEERS: Let me ask you a few other details about this. Will you consult the Opposition on appointing the Commissioner?
ATTORNEY-GENERAL: Yes, and we will consult across the Parliament. This is going to be an open, merits-based process of appointment for this Commissioner and the Deputy Commissioners and the Inspector because they're all statutory positions created by this bill. Then, after we've announced our decision, it goes to the Parliamentary Joint Committee to approve the appointment. So, it's about as open a process as you can imagine. There's not many other public positions that go through that process. I think, again, we've got this right.
SPEERS: Have you got someone in mind?
ATTORNEY-GENERAL: No, and I'm waiting to see who puts their name forward. I'm hoping that we can attract a very eminent Australian who will command public confidence in what will be a very important integrity institution.
SPEERS: The Commission will have the power to tap politicians' phones, including the Prime Minister's phone, will that require a warrant?
SPEERS: And what if they're using encrypted apps, WhatsApp, Signal and so on? A lot of politicians, when they call or text, like to use these. Can they be tapped?
ATTORNEY-GENERAL: I'm not going to disclose technical capacity of our agencies.
SPEERS: What about the Commission?
ATTORNEY-GENERAL: Interception is available, and the Commission will have the same powers available to it, subject to warrant, that the police and our intelligence agency have and that's appropriate.
SPEERS: So, it can do what ASIO can do?
ATTORNEY-GENERAL: Subject to warrant.
SPEERS: And tap encrypted apps?
ATTORNEY-GENERAL: Subject to warrant it can seek to intercept telecommunications.
SPEERS: Okay, so, politician sending WhatsApp or Signal messages, watch out.
ATTORNEY-GENERAL: I think everyone needs to watch out. We don't want corrupt activity infecting our system of government. That's why we are creating, at long last an anti-corruption commission for Australia.
SPEERS: Now, the Commission can also extend to ASIO, the ASIO boss, the Defence Force Chief and so on, and I appreciate warrants are needed with all of that. If they gather some of this nationally security sensitive information, what happens to that? How carefully stored is that?
ATTORNEY-GENERAL: Very carefully stored and there's a whole set of provisions in the bill. This is the distinction that you have to make for a National Anti-Corruption-Commission, it's potentially going to be dealing with national security information. That's not something, generally speaking, that state and territory anti-corruption commissions have to worry about. This Commission will have to, perhaps, worry about that and there are special provisions to deal with it.
SPEERS: If someone donates money to a political party with the aim of securing a policy outcome, is that something that will be investigated?
ATTORNEY-GENERAL: The Commission will have the power to investigate any third party who is seeking to adversely influence the carrying out of a public function. And that's the purpose of an anti-corruption commission.
SPEERS: Does that include companies who donate to a political party like the Labor Party and also trying to seek a policy outcome?
ATTORNEY-GENERAL: Donations to political parties in Australia are lawful. They are regulated, there is disclosure requirements. We've said we are going to lower the disclosure threshold because we want there to be more transparency in donations. But I don't think anyone's suggesting that the mere giving of money to a political party, be that the Greens political party, or the Liberal Party or the National Party or the Labor Party, should be banned. Actually, some people have suggested that because they've said that we should go to complete public funding but we're not there. We want more transparency, David, in the giving of donations, we're not about to ban donations.
SPEERS: So, if a Woodside Energy donates to Labor, then are seeking some financial assistance under your safeguards mechanism plans, is that something that would be looked at or not?
ATTORNEY-GENERAL: It's possible for anyone to make suggestions to the Government, to opposition parties, to other participants in our political system to put forward particular policies, that's to be encouraged. That's what an open democracy has in it. That's not corrupt activity.
SPEERS: The Shadow Attorney-General, Julian Leeser, has expressed some concerns about this, the way you've put this together. He says union officials are given special protections so that it makes them immune from the Commission. Is he right?
ATTORNEY-GENERAL: No. That report this morning in one of the newspapers is wrong. Union officials are not excluded. Any third party who was seeking to adversely affect public decision making in a corrupt way is going to be the subject of investigation by this Commission.
SPEERS: What about their activities in workplaces and so on, would that be covered?
ATTORNEY-GENERAL: No, because the activities under this bill for this Commission are directed at the public, sector in Australia. It's not directed at private activity. It's directed at the public sector and the interaction that third parties have with public officials adversely affecting the way they go about their duties in an impartial and honest manner.
SPEERS: It's still a little unclear whether government pork barreling would or wouldn't be covered, or at what point the so-called Sports Rorts scandal under the Morrison Government You said the Sports Rorts scandal reveals government corruption is beyond question. You said it showed why a Commission was needed. Was that corruption?
ATTORNEY-GENERAL: Well, I thought that it was a rort on any view. I thought the idea that a decision made in the Prime Minister's office, when he had no power over the matter, with 51 coloured spreadsheets revealed by the Auditor-General, that looked pretty corrupt to me. But it's not going to be my decision. It's going to be a matter for this independent Commissioner to decide if someone refers a matter to her or him to decide. I've been at pains to say, throughout the discussion since we've been successful at the election and now honouring our commitment to establish an anti-corruption commission, to make it clear that this is not an exercise in political payback. This is not a partisan operation. This is a very large integrity reform. It's been described as the single biggest reform for decades. It's not partisan. It's there to improve standards in Australian public life. We are not setting this up to go after our political opponents and it won't be for me to decide, David, whether or not something's corrupt. It'll be for this independent Commission.
SPEERS: Just away from that issue, a couple of other things. I just wanted to get your thoughts on the Optus hack. Over the past week you've been flagging some changes to stop companies collecting as much information as they do and storing it for as long as they do. What is a reasonable requirement?
ATTORNEY-GENERAL: I think that companies should not store information forever. It seems to have been the case, with Optus, keeping the very personal data of customers who had ceased to be customers years ago and I've yet to hear a reason why that was going on. In particular, it's a concern because Optus failed to keep that information safe. So, one of the settings in the Privacy Act is that information that belongs to Australians is only to be used for the purpose for which it's collected and if the purpose here was to identify someone who's opening an account or getting a phone from Optus that's the end of it.
SPEERS: So, once the account is set up they don't need it?
ATTORNEY-GENERAL: I've said during the week that companies throughout Australia should stop regarding all of this personal data of Australians as an asset for them, they actually should think of it as a liability. This is a wakeup call, David, for corporate Australia and we are going to look very hard at the settings in the Privacy Act and I may be bringing reforms to the Privacy Act before the end of the year to try and both toughen penalties and make companies think harder about why they are storing the personal data of Australians.
SPEERS: Okay, just a final one, some of the families tell me what's going on in the AFL, some of the families of the Hawthorn Indigenous players, don't want to participate in an inquiry that would be answerable or would report to the AFL. Is there a case, do you think, for an external inquiry? That's something that Government might think about?
ATTORNEY-GENERAL: These shocking allegations, David, these abuses of power in sport, which we've now seen, not just in football, in the AFL, but in other sports as well, are a real concern, going from junior right up to elite levels. The Sports Minister, Anika Wells, talked on Friday about a new division within Sports Integrity Australia. I think that's going to be a start. And at the moment the AFL are conducting an independent inquiry.
SPEERS: So that's a start, but depending on how that goes, you're open to some sort of external inquiry?
ATTORNEY-GENERAL: Anika Wells has talked about increasing what is done at the national level through Sports Integrity Australia. I think that looks like a very good innovation from my excellent colleague Anika Wells and we'll see where that can lead to. That will be starting on, I believe, on the first of January 2023. But in the meantime, the AFL is doing this independent inquiry.
SPEERS: Attorney-General Mark Dreyfus, thanks for joining us.
ATTORNEY-GENERAL: Thanks very much.