THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
TUESDAY, 27 SEPTEMBER 2022
SUBJECTS: National Anti-Corruption Commission; Whistleblower Protections; Optus Data Breach.
ATTORNEY-GENERAL MARK DREYFUS: I'm pleased to confirm today that the Labor Caucus has approved the proposed legislation to establish a powerful, transparent and independent National Anti-Corruption Commission.
The Albanese Government was elected on the 21st of May on a platform of returning integrity to federal politics. Australian voters want to see that public officials, whether they be politicians or public sector workers, act in their interest. Australian voters want to see transparency and accountability. Labor has promised to establish a strong National Anti-Corruption Commission at two elections. Now, in government, we are delivering on that promise. I will introduce the legislation tomorrow.
This shows that the Government is delivering on its promise to tackle corruption and restore trust and integrity to federal politics. I can today announce that the Government has committed $262 million over four years for the establishment and ongoing operation of the Commission. This is close to $90 million more than the former government committed. This funding will ensure that the Commission has the staff, capabilities and capacity to properly consider referrals and delegations, conduct timely investigations and undertake corruption prevention and education activities.
The Commission will be adequately funded, and its funding will have strong Parliamentary oversight. The legislation provides for a Parliamentary Joint Committee for the National Anti-Corruption Commission to regularly review, and publicly report, on the sufficiency of the Commission's budget. Those reports would be subject to public debate, a debate which would likely be uncomfortable for any government that chose to ignore them.
The Albanese Government's National Anti-Corruption Commission will investigate serious or systemic corrupt conduct across the entire federal public sector. It will be built on the following design principles:
• A broad jurisdiction: The Commission will have broad jurisdiction to investigate serious or systemic corrupt conduct across the Commonwealth public sector by ministers, parliamentarians and their staff, statutory officeholders, employees of all government entities and government contractors.
- • Independent: The Commission will operate independent of government with discretion to commence inquiries into serious or systemic corruption on its own initiative, or in response to referrals, including from whistleblowers and the public oversight. The Commission will be overseen by a statutory parliamentary joint committee empowered to require the Commission to provide information about its work.
- Retrospective powers: The Commission will have power to investigate allegations of serious or systemic corruption that occurred before or after its establishment.
- Public hearings: The Commission will have power to hold public hearings in exceptional circumstances and where it is in the public interest to do so.
- Findings: The Commission will be empowered to make findings of fact including findings of corrupt conduct, and refer findings that could constitute criminal conduct to the Australian Federal Police or the Commonwealth Director of Public Prosecutions.
- Procedural fairness: The Commission will operate with procedural fairness and its findings will be subject to judicial review.
The legislation also provides strong protections for whistleblowers and exemptions for journalists to protect the identity of their sources. I look forward to introducing the bill tomorrow.
Following the introduction of the bill the Government will propose the establishment of a Joint Select Committee to examine its provisions and report to the Parliament. We look forward to support from across the Parliament for this powerful, transparent and independent National Anti-Corruption Commission.
Now just in addition, I do have to go shortly before 12 o'clock to the House for a second reading speeches, but I want to make another comment about Optus, to touch on a very serious matter which I know is worrying millions of Australians today. The Government, as well as the Australian Federal Police and other government agencies, are working closely together on the Optus data breach. The Australian Federal Police is taking this very seriously with a large number of officers involved working with other federal government agencies and state and territory police and with the FBI in the United States and with industry.
I would also like to reinforce the message that has been given by the Privacy Commissioner publicly, which is that all Optus customers should be vigilant. Do not click on any links in a text message. Check all website sources, just check that it is an official website before taking any future action. If you are unsure about why you are being asked to divulge private information, stop and verify who the person or organisation is that is making that request of you. And finally, for affected Optus customers, I can say that the Office of the Australian Information Commissioner website has further advice. Please visit OAIC.gov.au and follow the prompts.
REPORTER: You talk about the need to restore integrity to politics, and you spent the last several years in opposition building a case for the integrity commission and you used as examples for the misdemeanours of the Morrison Government. Things like the Leppington Triangle, Sports Rorts, Carpark Rorts, all these were used as ammunition to build a case. But in your view, in your legal opinion, would any of those examples you raised actually satisfy the benchmark for your new commission for it to warrant an investigation as corrupt behaviour?
ATTORNEY-GENERAL: That will be a matter for the National Anti-Corruption Commission to decide. And it's really important that I stress this to everybody - it's an independent commission. We will not be seeking, as the Federal Government, to direct this Commission as to what it should inquire into. I can repeat that it will be able to receive information from any source. It will be able to receive anonymous tip offs. It will be able to receive referrals from the heads of agencies, referrals from the public and it will then be a matter for the Commission to decide, first, whether or not the matter that's been complained about satisfies the serious or systemic corruption threshold and then to decide how and when, and in what manner, it's going to conduct the investigation.
REPORTER: Can the public have expectations as to what this body might actually investigate?
ATTORNEY-GENERAL: You'll be able to see in the bill when I introduce it to the Parliament tomorrow that there's a very broad definition of corrupt conduct. There is a threshold of serious or systemic corruption which will shape the way this Commission undertakes its work. But the Commission should have expectations that this Commission is going to get on with the job of stamping out corruption in the Australian public sector.
REPORTER: If you've left so much discretion to the Commission, which people have basically welcomed in the last couple of days, one of the key questions on my mind, and I'm sure in others, is what is your thought at the moment about the process for selecting the Commissioner? Is there one Commissioner? Will there be several? And is that basically going to be your call as Attorney-General to appoint them? Will it be a Cabinet appointment? Is there any role for Parliamentary oversight and a transparent open process to select that key position?
ATTORNEY-GENERAL: The details will be in the bill tomorrow, but there is a role for a standing committee of the parliament in the approval of the commissioners, the senior officials at the Commission. But of course, it'll be a Cabinet decision as well, and an Executive Council appointment.
REPORTER: In regards to public hearings, and exceptional circumstances if it's in the public interest, isn't any investigation by this body into politicians, won't any investigation into politicians be in the public interest? And, on third parties, they can be investigated, can they also be subject to corrupt conduct findings?
ATTORNEY-GENERAL: Of course, every investigation that this Commission undertakes is going to be in the public interest. But this is a different question that the Commission is going to be asked to consider which is whether the particular hearing should be held in public. I expect that most of the hearings conducted by this federal commission, just as for the state and territory commissions, of which there is one in every state and territory, most of its hearings will be conducted in private. But where there are exceptional circumstances and the Commission determines that it's in the public interest that a hearing be in public, then it's going to be in public. But that's a matter for the commission. It will decide.
REPORTER: On retrospective powers, how far back does retrospective powers go? Is it essentially limitless? Is it for the Commission to decide?
ATTORNEY-GENERAL: It's going to be for the Commission to decide. It will be able to investigate conduct occurring before it was established.
REPORTER: Following up Phil's question, because you can't say definitively whether ministerial discretion programs will be in or out. And also this last question about how far back it will go, when people fear that, in fact, this Commission is being given too wide a remit, that enough fences aren't being put up to define what it will do?
ATTORNEY-GENERAL: Well, people should be afraid if they've been engaged in corrupt activities. And I would want people to be afraid if they've been engaged in corrupt activities. But the question of how the Commission decides which matters are to be investigated, how it will devote its resources, which are not limitless, that will be a matter for the Commission to decide. And it's the same problem that is faced by every one of the existing state and territory commissions. Where do you put your resources? What's the most effective use of the public funds that are entrusted to this Commission?
REPORTER: Why set the bar for public hearings at exceptional circumstances? That's a much higher bar than the state legislation. And was that a demand that the Liberal Party made in consultations?
ATTORNEY-GENERAL: We think that this is the right setting that shows that the Commission has to take that into account before deciding to hold a public hearing. But it will remain a matter for the Commission to determine.
REPORTER: Why that high?
ATTORNEY-GENERAL: For the reasons set out, that's going to be set out in the bill, we think that public hearing should be exceptional. And we think that the Commission should be required to determine that it is in the public interest that a hearing be in public. Public hearings, as we have seen, are more difficult to conduct. They raise questions about reputational harm, which are not faced when you hold private hearings. And that's why most of these commissions' work has been done in private. We would expect the same to occur with this new Commonwealth agency.
REPORTER: Crossbenchers have obviously played an important role in the design of the NACC. Is the Government open to placing them on the oversight committee so that it's not a Government majority committee overseeing that NACC?
ATTORNEY-GENERAL: It's going to be a standing committee of the whole Parliament. And I'll just come back to your question about third parties - I'm a bit conscious of the time - of course, the Commission will be able to investigate third parties whose conduct influences the improper conduct of a public official, or the failure by a public official to act impartially. Those matters will be available to the Commission to investigate. But the finding, the finding goes to corrupt conduct by someone involved in the government. And if it's the third party..
ATTORNEY-GENERAL: ...if you wait until the bill is there tomorrow, but corrupt conduct may necessarily involve some other person and that person is going to be the subject of findings by the Commission, if appropriate. But I'm not ever going to dictate how the Commission is to go about reporting, or how it's to go about its investigations.
REPORTER: On the crossbench, are you open to considering amendments the same way as the climate bill? Or is this legislation the final red line for your government?
ATTORNEY-GENERAL: This legislation is being introduced, second reading by me in the Parliament tomorrow, and following that it will go to a Joint Select Committee of both Houses of the Australian Parliament to conduct an inquiry, receive submissions, I hope hold some public hearings and report to the Parliament on the bill and whether or not amendments are required to the bill. So there will be ample opportunity.
REPORTER: When will it report?
ATTORNEY-GENERAL: We're hoping that the committee can be established tomorrow and that it will be able to report in order to enable debate in the final sitting weeks of this year.
REPORTER: Given you use the several scandals under the former Morrison government to build momentum for the NACC, do you, or the Albanese Government plan on referring any of those scandals - i.e. Sports Rorts - to the Commission when it's established?
ATTORNEY-GENERAL: I don't look at the scandals surrounding the former government as material to build support for the National Anti-Corruption Commission. They were scandals in their own right and it was right that we drew attention to them. I am hoping that this National Anti-Corruption Commission will be supported by the whole Parliament. Both the Opposition, the now Opposition when they were in government, went to two elections, and we went to two elections, promising to establish a National Anti-Corruption Commission and I'm very much hoping that the Liberal Party and the National Party keep to their commitment made at the 2019 election and the 2022 election and will now support our model for a National Anti-Corruption Commission.
REPORTER: Will you be making referrals?
ATTORNEY-GENERAL: I don't think that as the minister responsible for this Commission, once it is established, that it's appropriate for me to be making referrals to this Commission. I've said before, the Commission will be able to receive referrals from any source.
REPORTER: With regards to the whistleblower protections that you've included in this, can you explain how they would operate, and do they go far enough to allay the concerns that the crossbench have had about whistleblowers through this process?
ATTORNEY-GENERAL: Put it this way, the concerns that have been expressed by a number of members of the crossbench go to the whole scheme of whistleblower protection across the Australian Government. I brought the legislation to establish the Public Interest Disclosure Act to the Parliament in 2013, conscious that it was going to need to be looked at to see whether it was working. I wrote in a statutory review to that act and that statutory review did take place. An eminent Australian public servant Philip Moss reported to the former government in 2016 and there that report sat. Nothing has occurred to deal with the recommendations that Philip Moss made. I've said we're going to pick up that report, update the recommendations and introduce legislation to reform the whole scheme of Public Interest Disclosure protection, which is not just confined to anti-corruption measures. It's about the reporting of maladministration, the reporting of any breaches of codes of conduct of any bad government, all of those things are the subject of whistleblower protection. The National Anti-Corruption Commission bill will have its own whistleblower protections, as is appropriate for Australian public servants and people working in the public sector who come forward with allegations that the Commission should look at. So, there's a there's a specific set of whistleblower protection that will be in this National Anti-Corruption Commission bill. In addition, and I'm hoping that these reforms can take place before the National Anti-Corruption Commission is established around the middle of next year, I'm hoping we can do also these reforms. But it's important to see the distinction between anti-corruption measures - that's what the focus of this anti-corruption commission is - and the wider whistleblower protection scheme that we put in place in 2013. That needs reform, that needs updating and we are going to be attending to that.
REPORTER: Will the Commonwealth pay the legal costs or any legal costs incurred by any MP, Minister or public official?
ATTORNEY-GENERAL: In a word, yes, because there are existing schemes that respond to Ministers and former Ministers and MPs, who incur legal expenses arising from the conduct of their positions.
REPORTER: Just following up Rosie's question, you said it would be inappropriate for you as minister to make referrals to the commission. Would you be having a quiet word or a public word to your colleagues about the appropriateness or otherwise of them making referrals around the scandals around the previous government?
ATTORNEY-GENERAL: I'm not going to be commenting on the scandals about the previous government. I'd say again, this is a really important reform. It's one which we hope that the whole Parliament will support. I'm not going to be trying to dictate to this Commission what it should be investigating, what its work should be. And I'm not even going to respond to your question which invites me...
REPORTER: No one should be using it as a vehicle for payback or fearing that it would be used as a vehicle?
ATTORNEY-GENERAL: That is not the purpose of this anti-corruption commission. It's going to complete the set, if you like. We've got an anti-corruption commission in every state and territory. I'd like to think we've learned lessons from the way in which those anti-corruption commissions have operated over the last 30 years and I'd like to think also that we can say we've got best practice picking from the features of those anti-corruption commissions. And when this Commission - and we hope the legislation passes this year - when this Commission commences, as we hope around the middle of next year, people will see it operating in that way.
REPORTER: You said that examples can be taken from some other states. There's been concerns the CCC in Queensland has been used in the past as a political weapon. It has quite a narrow scope of what it can investigate. This federal anti-corruption commission will have possibly a broader scope. What's to stop it from being used as a political weapon rather than getting to the bottom of any potential corruption?
ATTORNEY-GENERAL: It is a Commission which is going to be focused on serious or systemic corruption. We've put in the bill a whole range of measures that are designed to empower the commissioner to protect reputations where that is possible, to ensure that the investigations that are conducted and the reports that are made deal with matters of real importance to Australia that are going to let us get on to the integrity of Australian Government, improve the level of integrity in Australia's government, which is what the Australian people voted for at the last election.
Thanks very much.