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ABC Radio Melbourne – Ali Moore

The Hon Mark Dreyfus KC MP


Subjects: Medibank data hack; Privacy penalties; Censure of former Prime Minister; National Anti-Corruption Commission

ALI MOORE: Well in fact, just through Parliament yesterday, penalties, legislation to increase the penalties for data breaches passed on the same day that legislation passed to establish a National Anti-Corruption Commission. And also happening on the same day, the former Prime Minister Scott Morrison was censured by his Parliamentary colleagues. Mark Dreyfus is the Federal Attorney-General, Mark Dreyfus, thank you very much for talking to us.

ATTORNEY-GENERAL: Great to be with you Ali.

MOORE: Let's start with the Medibank hack and the overnight dumping of stolen data. Legislation to increase penalties for data breaches, it's now passed, but what else needs to happen? The Minister for Cybersecurity Clare O'Neil did say that we're about 10 years behind in privacy protection. So what else needs to be done?

ATTORNEY-GENERAL: This is a really outdated piece of legislation, we need to have a wholesale reform of it. The Privacy Act review that I've had the Attorney-General's Department doing, it's going to be completed by the end of this year and in the new year, I'm going to be working on a complete revision of the Privacy Act. In the meantime, we've brought to the Parliament as a response, an immediate response to these shocking data hacks that have affected so many millions of Australians, a bill that massively increases the penalties. And that’s there, and they passed the Parliament this week, that's there to provide a tremendous incentive to every Australian company that storing Australians' personal data, to take better care of it, to have better security arrangements.

MOORE: But there's still going to be some big gaps until you can legislate next year?

ATTORNEY-GENERAL: A lot of this comes down to the way in which the private sector chooses to put cybersecurity in place. By having really serious penalties that say to the private sector, if you don't take care of Australians' data, and there's serious harm, there will be serious penalties on you. It means that it's no longer just the cost of doing business, it means they've really got to think about it. This is going to concentrate the minds of boards and directors and CEOs right across Australia and I think that's a good thing.

MOORE: I know you're not the Cybersecurity Minister, but do you have any insight, Mark Dreyfus, into whether this data dump is legitimate? They're saying that they've pretty much put out everything that they stole now on to the dark web. They're calling it case closed. Do you have any insight?

ATTORNEY-GENERAL: We've become aware of this dump and agencies are looking at it. That's all I can say at this stage.

MOORE: Let's look at the historic censure yesterday in Federal Parliament of Scott Morrison and on 730 last night, the Prime Minister said it would have been untenable for the Parliament to say "nothing to see here". But what did yesterday really achieve beyond allowing Scott Morrison an opportunity for a very lengthy defence and essentially to a virtually empty Opposition bench?

ATTORNEY-GENERAL: It's really important that the Parliament mark its disapproval of this extraordinary misconduct by the former Prime Minister. This is a Prime Minister who's secretly appointed himself to administer five additional departments and didn't tell the Cabinet, didn't tell the relevant departments, didn't tell his colleagues didn't tell the Parliament didn't tell the Australian public and it's corrosive. That's the word that was used by former High Court Justice Virginia Bell, it's corrosive of our system of government. The Solicitor-General, in an earlier advice, said that this was a breach of the principles of Parliamentary responsibility and accountability and we've got to have this marked by the Parliament. It's not enough just that we have public commentary or articles being written about it, or press conferences. The Parliament itself has formally censured a former Prime Minister. It's the first time that's ever happened, but it's entirely appropriate that it do happen. We need to make sure this doesn't happen again. And of course, we are moving on all sorts of measures to restore integrity and trust in our system of government. We're not just looking backwards at the former Prime Minister.

MOORE: But Attorney-General, do you think that marking it is enough? I know that you're making changes to stop it happening again. But if it is as significant as you and indeed as Virginia Bell found, is it right that Scott Morrison is free to be "sorry, not sorry", free to have no regrets beyond causing offence and to carry on sitting in Parliament and being an active player in our democratic system?

ATTORNEY-GENERAL: Well, he's not sorry. What was more concerning is that the Opposition, by voting against the censure motion, show that they've learned nothing from their election defeat. They clearly don't believe in transparency or integrity or accountability. That's what the significance of them voting against the censure is.

MOORE: But there is no further action can be taken under parliamentary rules?

ATTORNEY-GENERAL: No. This is very serious. It's a censure by the Parliament. These are very rare. The last time this happened was a censure, which we supported, brought by the former government of their former minister Bruce Billson, who was discovered to have been taking the pay from the Franchise Council while he was still sitting as a Member of Parliament. We supported that censure because the Parliament has to uphold its standards and that's what the Opposition should have done yesterday. Mr Dutton should have shown the disapproval that he has actually already expressed publicly about Mr Morrison's actions by voting in favour of this censure and it was very disappointing that the Opposition refused to do so.

MOORE: On the same day as the former Prime Minister's integrity was on the line legislation to establish a National Anti-Corruption Commission got through Parliament. Is the model you put up and the model that got through the best model do you think?

ATTORNEY-GENERAL: We believe it is, and what was most heartening about the passage through both Houses of the Australian Parliament of this National Anti-Corruption Commission bill is that all sides of the Parliament cooperated really constructively. The Government considered amendments that were put forward by the Joint Select Committee. We've made some 11 amendments after that committee reported. We've accepted further amendments that were made in the Senate when the bill returned to the House of Representatives. I think we have got this right. I think we've got the best possible model. We've learned from the experience of the eight state and territory anti-corruption commissions - just remember the Commonwealth is the last move here - and it has given us the opportunity to take the best features of those eight state and territory commissions.

MOORE: You say best possible model, and yet there is still consternation regarding the threshold for public hearings. And I know that you've been asked this before, but I've not heard you give a direct answer. The original design principles for the NACC that were made public before the election only included a public interest test, then exceptional circumstances was added. Why?

ATTORNEY-GENERAL: We think this is the right setting.

MOORE: My question would be, in the context of if you're going to argue that there is a risk of destroying reputations, doesn't public interest cover that? It's patently not in the public interest to destroy reputations of people with no cause.

ATTORNEY-GENERAL: It's not just the risk of reputations. There's a standing problem in those anti-corruption commissions potentially prejudicing criminal trials which might follow.

MOORE: But that would also come under public interest, wouldn't it?

ATTORNEY-GENERAL: It's a matter that the Commission, we say, should be looking, for in the public interest and exceptional circumstances. But if I can, just let me talk like a lawyer for a moment, it's an open discretion. It's a discretion that the Commissioner has and we're saying to the Commissioner, in this act of Parliament now, that the Commissioner has to pay attention to the public interests and pay attention to exceptional circumstances but it's still open to the Commissioner. People won't be able to go to court about this. It'll be up to the Commissioner to decide, in appropriate circumstances, when there should be a public hearing. There will be some public hearings, but like with all of the state and territory commissions they're not that common. Most of the work of these anti-corruption commissions takes place in private hearings, in private interviews, in private investigations, and it needs to be like that.

MOORE: So we have the legislation, when will we actually have an operating Commission?

ATTORNEY-GENERAL: Around the middle of next year. It's going to take that time to go through the transparent, merit-based process that we're using for the appointment of the Commissioner and the three Deputy Commissioners and the Inspector, who is a kind of overseer of the whole thing. That will take place sometime in the first few months of next year we'll be making those appointments. That Commission's obviously got to find premises in Australian capital cities and some in Canberra, and it's got to employ staff and all of that will happen over the first six months next year. We're on track. We said we'd legislate this by the end of the year, we've done that. And we've said we're hoping to have it set up by the middle of next year. And we're on track for that as well.

MOORE: Mark Dreyfus, thank you very much for joining us.