THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
ABC RADIO NATIONAL BREAKFAST
THURSDAY, 29 SEPTEMBER 2022
SUBJECT: National Anti-Corruption Commission, Optus
PATRICIA KARVELAS: Legislation for the long awaited national integrity commission has finally arrived and those who've spent years championing it are satisfied. Well, mostly. The key sticking point is the Federal Government's decision that the body would only hold public hearings in as yet undefined, exceptional circumstances. It's helped win the support of the Coalition but independent Senator Jacqui Lambie says public hearings are crucial.
SENATOR LAMBIE: There is no public trust in politicians out there and if you want to play this out, it's going to have to be in the public arena, if they've done something wrong, and they need to be held accountable like every other Australian who goes through a civil court system. Throwing us behind closed doors, it's just about gonna kill off any trust that we're trying to establish with the Australian people.
KARVELAS: Mark Dreyfus is the Attorney-General and he joins you now. Minister, welcome,
ATTORNEY-GENERAL MARK DREYFUS: Morning, Patricia. Good to be with you.
KARVELAS: Can you give me an example of what would be considered exceptional circumstances for the National Anti-Corruption Commission to hold public hearings? What's the threshold for that?
ATTORNEY-GENERAL: It's up to the Anti-Corruption Commission, which I'm really proud to have brought the legislation forward to the Parliament yesterday. If the anti-corruption commission is of the view that it needs to expose corruption that its investigations have determined, then it can decide to hold a public hearing. And I can think of a range of exceptional circumstances but it's going to be a matter for the independent commissioner to decide whether or not in the particular circumstances of the particular investigation it's right to hold a public hearing.
KARVELAS: And you can you can think of a range? Could you explain them for us?
ATTORNEY-GENERAL: Well, if the Commission has discovered serious or systemic corruption that needs to be exposed, and it's the right case, that the Commission can demonstrate the work that it's been doing, and it thinks that it's an appropriate time to do so, then that'll be a matter for the Commission to determine and that could constitute exceptional circumstances. The Commission will be required to find that it's in the public interest that there be a public hearing. But I'd be pointing to the experience of these anti-corruption commissions, of which we now have one in every state and territory. Mostly, they have held their hearings in private. Sometimes they hold hearings in public. Our model provides for those hearings to be in public when the Commission determines it and that's a sharp distinction from the former government's proposal, which was no public hearings at all.
KARVELAS: The former counsel assisting the New South Wales ICAC, Geoffrey Watson SC, says the term exceptional circumstances is ill-defined and it's hard to prove. Do you expect this will end up in the High Court?
ATTORNEY-GENERAL: No, I don't think this is a matter that's going to be the subject of litigation. It's going to be a decision for the Commission. An independent decision as to whether or not part of its investigation, because it's only ever going to be part of the investigation, should be should take the form of a public hearing. What's more significant Patricia is that there's going to be public reporting when the Commission finds corruption, serious or systemic corruption. It's got the power to make a public report. The community are going to know when corruption has been discovered, because the Commission is going to be making public reporting at the appropriate time on the result of its investigations.
KARVELAS: Okay. But given you're leaving it up to the Commissioner to work out how to read and how to define a lot of this doesn't leave a lot of room for people to essentially complain and to mount legal challenges, Attorney-General?
ATTORNEY-GENERAL: You cannot prevent people who are affected by the proceedings of a government agency from going to court to seek to have a review of those actions. I've done my level best in the drafting of this bill, with the assistance of excellent people at the Attorney-General's Department, to make sure that the opportunities for litigation are limited. We've seen from the way in which state and territory commissions have conducted themselves that sometimes people who are suspected of committing corruption have been able to hold up inquiries and investigations by running off to the court, getting injunctions preventing the commission from continuing as far as possible. We've tried to limit that scope, but it can't be removed because Australians have got rights to seek review in the courts.
KARVELAS: So will it be like the Victorian IBAC where, for instance, Daniel Andrews was investigated but we didn't get to see it, or will it be more like the New South Wales ICAC. What can you tell our listeners?
ATTORNEY-GENERAL: I can point to the New South Wales ICAC's experience in this area, because the NSW ICAC has been publishing statistics for most of the three decades that it's been in operation and what those statistics show us is that they hold public hearings, only about 5 per cent of the time so in a ratio of about 20 to one, they're holding private hearings, and only in about five per cent are public.,
KARVELAS: Would you like public hearings to occur around five per cent of the time? That five per cent figure, because you've quoted it? That's why I'm asking.
ATTORNEY-GENERAL: I'm not at this is the point. This is a powerful and independent Commission. As the executive government we're not going to be dictating to the Commission about how it's to go about its work. I'm saying that there's a Commission that's been in operation for more than three decades. That's been its experience. I can understand, as someone who's looked very closely at the operations of each of the state and territory commissions, that most of their investigations have to take place in private. Most of their investigations take the form of poring through documents conducting private interviews, and usually towards the end of an investigation a commission, as the New South Wales ICAC has demonstrated, might decide that it's appropriate to hold a public hearing, and it does so for a few purposes. One is to, as the late David Ipp, an excellent ICAC Commissioner in New South Wales used to tell me, that the holding of public hearings had the effect of flushing out more witnesses. People would come forward when they saw public hearings being conducted, and more evidence would come to light.
KARVELAS: So isn't that the case for having the more then?
ATTORNEY-GENERAL: It's a case for having them. It doesn't mean necessarily that you're going to have them more. And another really big reason for holding public hearings is the demonstration effect that it shows the public that the Commission's working. It shows the public that it's conducting investigations. But overwhelmingly, the more important thing is that there'll be public reporting. And of course, our bill provides for public reporting by the Commission. At the end of its investigations, when it's found corrupt conduct, the public are going to know when there's corrupt conduct because there's going to be public reporting.
KARVELAS: If you're just tuning in the Attorney-General Mark Dreyfus is my guest. Mark Dreyfus did the idea of exceptional circumstances for these public hearings into the frame when you began talking to the Coalition?
ATTORNEY-GENERAL: You've identified Patricia earlier in this interview that that phrase appears in state legislation. So it's not a new idea.
KARVELAS: But it was the Coalition's concerns that were quite well articulated.
ATTORNEY-GENERAL: We've had a whole range of concerns expressed to us, not just in the last few months since the election, when I've been talking to newly elected crossbenches, to Helen Haines, to members of the Greens party, to members of the Liberal Party and the National Party about the issues raised by establishing a National Anti-Corruption Commission. I'm not going to go through whose idea was which. But I can say that there's been incredibly high levels of participation and cooperation across the Parliament in getting the balance right with this legislation. We are confident that we've got the balance right and of course, in the Parliamentary inquiry process, which we commenced yesterday because this bill is going to go to a Parliamentary Joint Select Committee. There'll be further ideas put forward, there'll be suggestions put forward. There'll be arguments about whether or not the precise wording in the bill is right. We will listen to all those arguments. We will read all of the submissions that are brought forward. And of course, we will pay close attention to the report.
KARVELAS: So are you prepared to look at altering this language given there are such strong concerns about it from the crossbench and the Greens?
ATTORNEY-GENERAL: We are prepared to look at any ideas that people bring forward to improve this National Anti-Corruption Commission bill. The purpose of having an inquiry process is to flush out suggestions to hear from people who've thought about these issues long and hard and of course, it's appropriate that we take into account any ideas that come forward from representatives because that will strengthen this massive improvement to Australia's integrity processes. The more support there is in the Parliament, the more confidence that Australians will have that this is what we've said it is, a powerful, transparent and independent anti-corruption commission.
KARVELAS: Ok, Attorney-General, just some quick ones. What's your timeline for getting the bill through the parliament now? Will it pass before Parliament rises for the year and when will it be up and running being able to do its first investigation?
ATTORNEY-GENERAL: We'd hope to have the legislation passed by the end of the year and I hope to have the Commission up and running by around the middle of 2023.
KARVELAS: So it could reasonably start investigating something by July next year?
ATTORNEY-GENERAL: It might take it a couple of weeks to get its feet under the desk.
KARVELAS: More like August? Just trying to get an idea here?
ATTORNEY-GENERAL: We hope to have the, and I can tell you're champing at the bit there Patricia, but around the middle of next year is the setup date. And as soon as possible after that I would expect the Commission will be receiving allegations, it'll be sifting through them and making its decision on which of them are serious or systemic corruption or the possibility of it and commencing investigations.
KARVELAS: Okay. Just wanting to ask you some questions about Optus. You reveal they're yet to reply to a government request to pay for replacement passports - are you disappointed that they haven't replied yes immediately?
ATTORNEY-GENERAL: The Foreign Minister has written to Optus and the Prime Minister made it very clear in the Parliament yesterday. That is going to be a matter for Optus to pay for the costs incurred by Australians as a result of the data breach that's occurred with the data that they are meant to have safeguarded. Millions and millions of Australians have been affected and are rightly concerned about the loss of their personal information. And we've been working flat out and I can say that Optus has been cooperating with the government. We've been working with the Treasurer, have been working with the banks and financial regulators, the Minister for Communications, the Minister of Home Affairs, and I've been working with my responsibility, with the Privacy Commissioner, I'm responsible for the Privacy Act. Optus has been cooperating with all of that. And we're expecting continuing cooperation from Optus to try and make sure that any damage flowing from this massive data breach is kept to a minimum.
KARVELAS: So how quickly will we see the toughening up of privacy laws now? Is this a matter of urgency?
ATTORNEY-GENERAL: It is a matter of urgency. We need to bring the privacy laws Australia has up to date to make them fit for purpose in the digital age. There's been a very long running review, which the former government did not accelerate. I'm hoping to complete that review by the end of this year. But we are also looking at even more urgent reforms that we can make straight away to the Privacy Act to do things like increasing the safeguards that are already there to relate to protection of personal information, enhancing security guidelines, strengthening the notifiable data breaches scheme.
KARVELAS: Can you do that immediately? By the end of this year?
ATTORNEY-GENERAL: I think it's possible. We're looking hard right now at what legislation in the remaining sitting weeks can be brought to the Parliament and if possible pass this year. If not passed this year then passed early next year. It is clear that we need to strengthen the Privacy Act in a range of ways too. Possibly one of those ways will be to increase penalties to make sure that in no way is a data breach just a cost of doing business, but something that boards of large corporations that store the data of millions of Australians know that there are very, very serious consequences for the company if they fail to take appropriate care of the data.
KARVELAS: Mark Dreyfus thanks for joining us this morning.
ATTORNEY-GENERAL: Thank you Patricia.