THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
ABC RADIO MELBOURNE MORNINGS
THURSDAY, 29 SEPTEMBER 2022
SUBJECT: National Anti-Corruption Commission, Optus Data Breach.
VIRGINIA TRIOLI: Well, it's 17 years since Transparency International first recommended an anti-corruption commission federally, five years since that Senate Select Committee agreed that it was time to get give it serious consideration. Labor promised one in January 2018. And as you know, the government had a draft bill looking at it, but it was much criticised. Now, you've got for your consideration, a National Anti-Corruption Commission bill, the legislation is there in black and white to read. So does it fit the bill and as proposed by the then opposition, the now government in the first place? Mark Dreyfus KC is the Federal Attorney-General and the Labor MP for Isaacs here in Victoria. Good morning, Attorney-General.
ATTORNEY-GENERAL: Good morning, Virginia.
TRIOLI: Now the Opposition has signalled its support for the NACC, saying that you've got the balance right. Does that mean that the Parliamentary committee that now reviews the bill can't make significant proposals of change for fear of losing their support?
ATTORNEY-GENERAL: Not at all. The purpose of having a Parliamentary committee inquiry is that we want this bill closely looked at. I welcome any suggestions that are made by any Parliamentary process and we'll look closely at suggestions that come forward. We'll look closely at the submissions people make. We will listen hard at the hearings that are going to be conducted by this Parliamentary committee.
TRIOLI: Well, let's talk about listening hard and then responding accordingly. Because one significant omission in the legislation so far, is no really effective whistleblower protections. You told Parliament only recently that you're taking that idea very seriously, indeed, but we don't actually have a whistleblower protection authority in this legislation. Why not?
ATTORNEY-GENERAL: We've already got a scheme of whistleblower protection at the Commonwealth level. I actually brought the legislation establishing the Public Interest Disclosure scheme to the Parliament in 2013. I was conscious that it would need to be monitored and fine tuned. I wrote in to that law a statutory review which did take place and in 2016, an eminent former public servant Philip Moss reported to the former government on a range of amendments that he said should be made to the Public Interest Disclosure Act. Regrettably, like so much else, of the former government, not a thing happened. So what I've said is that I will be picking up those recommendations that Philip Moss made back in 2016, and updating them for the whole scheme of whistleblower protection across the Commonwealth. This bill, that I introduced yesterday to establish a National Anti-Corruption Commission - and I'm very proud that we've kept our commitment to the Australian people, by bringing it forward - has got its own scheme of protecting anyone that brings forward allegations to the National Anti-Corruption Commission that will protect public servants. It'll protect anyone that's giving evidence to the National Anti-Corruption Commission, as it should. What we're talking about with the wider and already existing scheme is bringing it up to date and I've said, I very much hope that we can make that changes well, before the National Anti-Corruption Commission is up and running around the middle of next year.
TRIOLI: But Attorney-General It's more than bringing it up to date is actually establishing an independent whistleblowing protection authority, and it's been interesting, if not a bit dismaying, to hear from Transparency International Australia, who have been saying that that's a big disappointment that you don't have that authority in this legislation. And let me say, or repeat what Clancy Moore, the CEO of Transparency International has had to say about that. "Whistleblowing laws need a complete overhaul. We need a centralised authority, and for the NACC to be as effective as possible. It needs people to come forward and report the problems they see, otherwise searching for corruption can be like searching for a needle in a haystack." Is that something you're open to? Actually establishing that independent authority within the act?
ATTORNEY-GENERAL: We're open to anything that's going to improve protection of whistleblowers across the Australian public sector. And I think it's important that people understand that the anti-corruption commission is very focused on that task of stamping out corruption in the public sector investigating corruption in the public sector. Whistleblower protection is a much wider frame. Whistleblower protection is about protecting anyone, in the Australian public sector who comes forward and makes complaints, not just about corruption, but about malpractice, about maladministration.
TRIOLI: Indeed, and don't we need that?
ATTORNEY-GENERAL: Of course we do, but what I'm trying to say is that the place for a wide scheme of whistleblower protection and making the improvements to the existing scheme is not to put it into this National Anti-Corruption Commission that's got its own task to do and it's got its own protections within the bill for anyone that comes forward to the anti-corruption commission.
TRIOLI: Well, Mark Dreyfus, as you're well aware, as Federal Attorney-General, the exceptional circumstances test for public hearings for your commission has become one of the most controversial points so far. But it's also been a key and cumbersome barrier in the only state in which that test applies, and that's here in Victoria. Why replicate that?
ATTORNEY-GENERAL: Well, first of all, I'd say, I'm very, very heartened that there hasn't been many other things that people have criticised. So just keep that in mind that there seems to be quite a high level of satisfaction with the other provisions of the bill. But on this one in particular, there will be public hearings. That's the key point here and it's the big sharp distinction from the former government's model. They didn't want to have public hearings for investigations of corruption. We do. When there is the need for a public hearing, the Commissioner will have the discretion to hold one. And most importantly, when there's corruption found the public are going to know about it, because the Commissioner is going to make a public report about it.
TRIOLI: Again, are you open to any changes around that? Again, to quote Transparency International, they've made it plain that exceptional circumstances, that test is unhelpful, and this is their phrase "potentially dangerous", as a test for that purpose. Are you open to any negotiation around that?
ATTORNEY-GENERAL: We'll listen to any ideas that members of the public, who are interested in this, or other Parliamentarians put forward about changes to our bill. But what I'm looking for is support across the Parliament. This scheme of anti-corruption and anti-corruption commission will be strengthened if there is support from across the Parliament if there is support from the Liberal Party and the National Party and the crossbench and the Greens Party, because then Australians can be confident that what is being set up is the powerful, transparent and independent anti-corruption commission that we promised to do. I think there are some core matters about an anti-corruption commission, which you have to have. There's other aspects which are matters of fine tuning. And I see this question of what are the circumstances in which the Commission can decide to hold public hearings, that's a matter of fine tuning. I think you can look at the experience of say the New South Wales ICAC, which publishes statistics about its public and private hearings, they've made it clear that over the last 30 years, they hold public hearings in a ratio of about one to 20 to private hearings, so only about five per cent of the hearings are in public. But I'm confident that from time to time, this anti-corruption commission, when it's established, will hold public hearings.
TRIOLI: Victoria's IBAC Commissioner Robert Redlich has been highly critical of the limitations of his commission, as designed and constrained by the legislation here. Have you consulted either formally or informally with him about this scheme?
ATTORNEY-GENERAL: I've met in the past with Robert Redlich. I've met also with the recently appointed Commissioner of the New South Wales ICAC John Hatzistergos, and I've met with a number of former commissioners from the state and territory Commissions. I found those meetings with all of those commissioners past and former incredibly helpful.
TRIOLI: I'm sure you have and I'm sorry to jump in. But I just want to draw you back specifically to the Victorian context, because that's where we are. and that's what matters most given that that exceptional circumstances test only applies here in Victoria. And the Commissioner has been explicit about that being a hamper on what he's actually there to do. So did you consult either formally or informally with him about the usefulness or not of actually including that test?
ATTORNEY-GENERAL: I'm satisfied that we've got the balance right. In these provisions in the bill. The important thing here is that it's up to the Commissioner. This is an independent Commissioner. The Commissioner is going to decide when to hold private hearings and when to hold public hearings. And just to remind listeners, there's a whole range of reasons why this kind of Commission, which is not a court, might well not wish to hold a hearing in public. It might be the very important matter of not wishing to prejudice a current criminal prosecution or a projected criminal prosecution because some of these corruption investigations are going to lead to people being charged There is something that always has to be taken into account, that you don't want to do anything in public which is going to prejudice the fair trial of someone who was subsequently charged. Similarly, at the federal level, we've got national security information sometimes that needs to be protected. If there is a corruption investigation involving that overlaps with a national security question, we've got to take care to protect national security information. And then there might be other reasons like privacy, or protecting the identity of an anonymous source, that might be a reason for continuing to do you're hearing in private. Against that the Commission is going to have to take into account the importance of demonstrating to the public, at least some of the time that anti-corruption investigations are taking place. There's two really good ways that the Commission can do that. One is by holding public hearings, and the other is by publicly reporting on the results of investigations. I think our commission is going to do both of those things.
TRIOLI: How would you ensure that the Parliamentary committee overseeing the appointment of the Commissioner of course and the performance of the Commission is genuinely multi partisan and sustainable?
ATTORNEY-GENERAL: The bill provides for there to be 12 members of the Parliamentary committee, three Government members and three Government senators, two Opposition members of the House and two Opposition Senators and one crossbench member from the House and one crossbench Senator.
TRIOLI: So you've kept the majority for yourself?
ATTORNEY-GENERAL: Yes, and that's absolutely standard for all Parliamentary committees, but what's different about this committee is that it's first of all, evenly balanced between both Houses, that's unusual, and it's got a specific requirement that there be a crossbench representative from each House on the committee. Of course, it's the case that any member of this committee will be free to both join with the rest of the members of the committee in a unanimous report, or, as happens in the Parliament to put in a minority report, if that's what they're wishing to do, and draw the attention of the public to any matter about this National Anti-Corruption Commission that they think needs to be drawn to public attention, and that will, of course, include the funding of this Commission. If any member of the committee believes, having looked at the adequacy of funding, that not enough resources are being provided to the Commission, then of course, they will be able to say so publicly.
TRIOLI: Just finally, today, Mark Dreyfus, following the massive Optus breach, is there, in your view, a need, and are you actively considering some sort of overhaul of either cyber security or privacy laws or indeed, about the kind of material about us that corporations like Optus, not only require in order for us to engage their services, but they then retain about us? Are you reconsidering any of that?
ATTORNEY-GENERAL: I'm looking hard at reforms to the Privacy Act. This is a long running review of the Privacy Act that the former government did not accelerate, I will. And I can say that ministers across the government have been working on this because this is a matter of shared responsibility. The Treasurer has been working closely with banks and financial regulators to work on how there can be safe and secure sharing of data between Optus and financial institutions, including banks, to make sure that banks and financial institutions can protect the Optus customers past and former who have suffered from this breach. The Minister for Home Affairs is working hard at our cyber security arrangements. As Attorney General I'm responsible for the Privacy Act and I'm hopeful that we will be able to bring some changes to the Privacy Act to the Parliament, if we can, by the end of this year, and if not by the end of this year, early next year. One of the things that's been discussed is for example, increasing the penalties that apply to companies who have failed to care for Australians' data. Another will be closely looking at why companies like Optus, who need to ask for identifying information when people open accounts, why they need to keep all of that data.
TRIOLI: Good to talk to you this morning. And if this legislation as you hope is to pass both Houses by the end of the year. Then no doubt we'll get an opportunity to talk again. Thanks so much. Attorney-General.
ATTORNEY-GENERAL: Thanks very much, Virginia.