THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
THURSDAY, 29 SEPTEMBER 2022
SUBJECTS: High Court Appointment; Administrative Appeals Tribunal; National Anti-Corruption Commission; Optus Data Breach.
ATTORNEY-GENERAL MARK DREYFUS: This morning His Excellency the Governor-General accepted the advice of the Government to appoint Justice Jayne Jagot as the Justice of the High Court of Australia. Justice Jagot will commence on the 17th of October 2022 upon the retirement of Justice Patrick Keane. Justice Jagot is the 56th Justice of the High Court. She is the seventh woman appointed to the Court and when she takes her place on the Court, a majority of the Justices of the High Court of Australia will be women for the first time since Federation. Justice Jagot is currently serving as a Judge of the Federal Court of Australia. She has served with distinction on the Federal Court of Australia since she was appointed in 2008. The Government is delighted that she has accepted our nomination to the court and we have no doubt that she will serve the High Court of Australia with great distinction. As Attorney-General I consulted extensively ahead of this appointment, including with all state and territory Attorneys-General, with the Shadow Attorney-General, with the heads of the Federal Courts, and the Chief Justices of the state and territory Supreme Courts, state and territory bar associations and law societies, National Legal Aid, Australian Women Lawyers, the National Association of Community Legal Centres, and deans of law schools. I am very grateful to all of those who provided nominations to me in this process and assisted with the Government's consideration of suitable candidates. I conclude by taking the opportunity to thank Justice Keane for his nine years of distinguished service on the High Court and wish him well in his retirement from the bench. I'm happy to take a few questions. But I do have another engagement shortly.
REPORTER: It's a question I've asked every Attorney-General since Daryl Williams. 56 High Court judges. The High Court's been around for 120 years but never had one from South Australia, one of the Federation states. It's been a long and agonizing complaint in that state, in its judiciary and legal circles. And after the last appointment there was speculation that Wendy Abraham would be probably next cab off the rank. Can you tell us why that state has been looked over for more than a century now?
ATTORNEY-GENERAL: I can tell you that this appointment is an appointment made on merit. That Justice Jagot is the best possible person for this job. And I have heard the complaint from all of my colleagues from South Australia, you're not the first person to raise this with me.
REPORTER: But why is that state ignored?
ATTORNEY-GENERAL: Well, I don't think it should be looked at as ignoring South Australia. I can only assure the people of Australia that this appointment is of the best possible person for this position to the High Court of Australia.
REPORTER: Ex judges wrote to you to warn that the AAT members, some of their term extensions in the dying days of the Morrison Government might be unlawful. Have you received advice about that? And do you concur with that opinion that some of those extensions weren't lawful?
ATTORNEY-GENERAL: I have. I have received the correspondence that you're talking about from some retired justices. And I can assure everyone that I'm looking hard at the lawfulness of those extended appointments.
REPORTER: Do you think there needs to be reform of the Administrative Appeals Tribunal and the way the appointments are made, or even in changing the existing membership of that tribunal because there's this concern about nine years of basically stacking it with political appointees?
ATTORNEY-GENERAL: I've drawn attention in the past, with increasing alarm, at the way in which the former government treated the Administrative Appeals Tribunal, a really important government institution, as if it were a Liberal Party job agency. Appointing almost 90 former Liberal Members of Parliament, failed liberal candidates, former Liberal Party advisors, as if that that were an appropriate qualification for the Administrative Appeals Tribunal. It's clearly something that needs reform. We are actively looking at this. And we are determined to make sure that that never occurs again.
REPORTER: Are you concerned about how Optus was able to convince the previous government that it should be exempt from some data laws?
ATTORNEY-GENERAL: We are looking very closely at the way in which the Privacy Act has worked. We know and we've said for years that there needs to be reform of the Privacy Act. Regrettably, the former government simply sat on the need for reform, the need to bring the Privacy Act into the digital age. We're terribly concerned about this huge data breach affecting, as it has nearly 10 million former and present Optus customers with the hacking of some very sensitive personal information. We've been working for a week now with Optus, ministers right across the government agencies, right across the government, working to repair the harm that has occurred as a result of this breach. And at the same time, we are looking at what urgent reform reforms can be made to the Privacy Act. It's something the Prime Minister talked about yesterday.
REPORTER: Back in 2020 when the ABC revealed these colour-coded spreadsheets, you said that there was some good reason for there to be an integrity commission. You were very scathing of this process. Now, while it's corrupted policy and a corrupted process, is it corruption, do you think?
ATTORNEY-GENERAL: Well, I'm not going to be giving a quote. It's a matter of for the independent Commission. This is a really important principle with us. We're about to establish a powerful, transparent, and most importantly, independent, National Anti-Corruption Commission. It will be for the National Anti-Corruption Commission to decide what is corrupt conduct and it's not appropriate for me to speculate about hypotheticals, it's not appropriate for me to give you a quote on what the Commission is going to do.
REPORTER: Back in 2020 you were very, very critical of the programs like these and carparks. Do you think there's a prime facie case of corruption there? Or is corrupted process different from corruption?
ATTORNEY-GENERAL: What we are clear about is that this was a rort. 51 colour-coded spreadsheets compiled in the office of the Prime Minister. That's what was revealed by the Auditor-General's investigation of what we've rightly come to call the Sports Rorts scandal. Whether or not that's something that's going to come within serious or systemic corruption, according to the National Anti-Corruption Commission, will be a matter for the Commission to determine.
REPORTER: Ministerial discretion, I think was your point, the exercise of ministerial discretion, which was Bridget McKenzie's defence to this. Does that satisfy you?
ATTORNEY-GENERAL: Well, I'm not the person that's going to be investigating this if it is investigated by the National Anti-Corruption Commission. I've talked yesterday about how there's a spectrum in these discretionary grant programs and at one end of the discretionary grant programs what you might have is no more than a minister choosing to disagree with a recommendation of a senior public servant. At the other end of the spectrum you've got absolute corruption occurring. Whether or not that's a proper description is going to be a matter for the National Anti-Corruption Commission.
REPORTER: On privacy reforms is it about just simply stronger penalties to ensure that companies protect that data? Will you actually look at rolling back the tide of the data that these companies are collecting and harvesting? For example, would it be just simple as saying presenting your driver's license when you get a phone account is enough? Optus don't need to take those details.
ATTORNEY-GENERAL: The first bit of your question, it is certainly not simply about increasing penalties, although that will be part of the reforms we're going to look at. We need to make sure that companies who are keeping Australians data pay absolute attention to keeping that data safe and if the penalties are inadequate to concentrate their minds on that task, then the penalty should be increased. But in addition, what we've had is a Privacy Act that says that care has to be taken with Australians' privacy and Australians' private data, but has not kept pace with the digital age. It has not kept pace with technological improvements and the extinction of the ability of companies to keep absolutely huge amounts of data. I think Australians expect that they will not only be real care taken of their data, but they want the Government to have a look, and we will be having a look at whether or not companies should be permitted to go on keeping data when the purpose of collecting it in the first place might have been no more than establishing someone's identity. We're all familiar with this 100 point identity check. If a company says we need to see your driver's license, or we need to see your passport number, that's for the purpose of establishing that you are who you say you are. But that should be the end, one might think, of the company keeping all that data. They don't seem to me to have a valid reason for saying we need to keep that for the next decade. And obviously the more data that's kept, the bigger the problem there is about keeping it safe. The bigger the problem there is about the potential damage that's going to be done by a huge hack that's occurred here.
REPORTER: Just following up on that question is it irresponsible then for a company to keep the data for many years when that customer has moved on to a different telco? Is it clear to you that data retention laws need to change?
ATTORNEY-GENERAL: Australians need to be assured that when their data is asked for, and taken from them by a private company or by government, that it will only be used for the purpose for which it has been collected. And we need to get in place something that encourages companies to dispose of data safely, to not keep data when they no longer have a purpose for it. I've heard a commentator suggesting that it's appropriate to look at data storage, the companies need to look at data storage, not as an asset, but as a liability or a potential liability and I think that's quite a good way of looking at it. For too long, we've had companies solely looking at data as an asset that they can use commercially. We need to have them appreciate very, very firmly that Australians' personal information belongs to Australians. It's not to be misused, it absolutely has to be protected. And if the Privacy Act is not getting us those outcomes, then we need to look at reforms to the Privacy Act.
REPORTER: Clearly the Government is saying that whatever is in place now is inadequate, what is an appropriate magnitude to present a deterrent?
ATTORNEY-GENERAL: I don't think I'm going to set the number here, but it needs to be something that concentrates the minds of the board members of big companies so that they can see that if there's a data breach, it shouldn't be just treated as a cost of doing business but that there's a very serious penalty there. Enough to be a deterrent, enough to be an incentive for companies to behave with the caution that we expect on them. You've seen an announcement this week about increasing penalties in the Competition and Consumer Law up to much higher levels. I think that we need to be looking at higher levels of penalties under the Privacy Act as well.
REPORTER: You have a very busy agenda the rest of this year, you personally and the Government’s legislative agenda, not that many more sitting weeks. How quickly do you think you can get tougher privacy laws, penalties, disposal of data in place?
ATTORNEY-GENERAL: We're back here in about four weeks for the Budget on the 25th of October. I'm going to be looking very hard over the next four weeks at whether or not we can get reforms to the Privacy Act into the Parliament before the end of the year.
REPORTER: You mentioned it's the first ever majority female bench. What role did gender play in the decision? And is that still going to be the case after the retirement of the Chief Justice?
ATTORNEY-GENERAL: This was an appointment of the best possible person to the High Court of Australia. The Government's very proud of the appointment that we are making today and announcing today and I am certain that she is going to serve with distinction. Her excellent service to the Federal Court of Australia since 2008 shows us. Anybody can examine her record, and indeed her record before that serving on the Land and Environment Court in New South Wales. Justice Jagot is an eminent jurist, she brings tremendous experience. She was nominated by very, very many people that I consulted with. Thank you very much