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Podcast interview – The Conversation

The Hon Mark Dreyfus KC MP


Subjects: National Anti-Corruption Commission; Whistleblower Protections; Attorney-General

MICHELLE GRATTAN: The Government this week has introduced the legislation for its National Anti-Corruption Commission. The legislation will go to a parliamentary inquiry, but it is now virtually certain to be passed in November. Opposition Leader Peter Dutton has given his support, assuring the legislation of the numbers in the Senate. The most controversial part of the legislation that emerged in the debate is the provision that the public hearings would be confined "exceptional circumstances". Some crossbenchers and other critics have said this is too narrow. Today we speak with Attorney-General Mark Dreyfus about the Commission and the criticisms.

Mark Dreyfus, a few years ago, neither of the main parties supported having an anti-corruption commission at the federal level. Now both do. So, what's changed? Is there more corruption federally or is there less public trust in politicians, or both?

ATTORNEY-GENERAL MARK DREYFUS: I think there's certainly less public trust. I think that we don't know the full extent of corruption at the federal level, because we don't have a National Anti-Corruption Commission. I think there's been increasing consciousness across Australia, because every state and territory now has an anti-corruption commission. Over the last three decades, that's what's happened. We've seen an anti-corruption commission created in every state and territory. Think that's brought about, if you like, the demand that we saw very clearly at the last election. And even at the 2019 election, people really want to see established at the national level, an anti-corruption commission. Quite a number of people elected to this Parliament at the 2022 election, campaigned absolutely directly - and I'm thinking now about the people, the so-called teal independents - they campaigned directly on the need for an anti-corruption commission. So did the Australian Labor Party. Every single one of my colleagues sitting in the Parliament, and every one of our candidates in all 151 seats, and for all of the Senate races, was campaigning on the need for a National Anti-Corruption Commission.

GRATTAN: So, you're really saying this has been driven by the public mood, rather than obvious cases of corruption.

ATTORNEY-GENERAL: I think that there's been a growing mood, driven in part by what has been recorded as a drop in public trust in politics and government in Australia. And perhaps it's an empty speculation about why we've got to this position, but there is no doubt that at both of the last elections, both major parties had committed to an anti-corruption commission. In our case, at the National Press Club, the end of January in 2018, the then Leader of the Opposition, Bill Shorten, gave a major speech in which he committed our party to a National Anti-Corruption Commission. The Liberal Party followed on December the 13th 2018, in a very major press conference held by the Attorney-General and the then Prime Minister, Mr Morrison, committing to an anti-corruption commission. Both parties recommitted at the 2019 election. And then, of course, the rest is history, because we know that the Morrison Government failed to deliver an anti-corruption commission throughout the whole of the last term. Both parties then went again to the election, we, from opposition, the government from government saying if we are elected, we will produce an anti-corruption commission. We won the election. We have keeping our commitment. I introduced the bill today in the Parliament.

GRATTAN: Your model has been well received across the political spectrum. But critics are focusing on this provision of public hearings being held only in exceptional circumstances and when it's in the public interest. They say that this hurdle is set too high. Why was it set that high?

ATTORNEY-GENERAL: Well, I don't accept that it's such a high hurdle. I think that it is a recognition that public hearings will be much more rare than private hearings. That's been the experience of all of the state and territory anti-corruption commissions. The New South Wales ICAC has published some statistics about this showing that they hold 20 hearings in private for every one that they hold in public. That, if you like, establishes that it's going to only be in exceptional circumstances. And there's very sound reasons why and this is what our bill recognizes. There's very sound reasons why the Commission will not readily hold public hearings. It's got to have regard to the need for privacy, it's got to have regard to the need to protect national security information, something that doesn't occur at the state level. It's certainly got to have regard for the possibility of prejudicing a criminal trial, either a future one or a current one. And as the legislation itself sets out, it's got to have regard - and this might drive it towards holding a public hearing - it's got to have regard to the public usefulness and public interest in the public seeing how the Commission is going about its work in exposing corruption. So there's a balancing there to be done. I am confident that the independent commission is going to, from time to time reach a decision to hold public hearings. And this is in sharp contrast to the model that had been put forward by the Liberal Party in government, which would have seen no public hearings for any allegations of corruption against a minister or an MP.

GRATTAN: In this question of exceptional circumstances your model is more like that in Victoria than like the New South Wales ICAC, is that correct?

ATTORNEY-GENERAL: In the sense that that phrase appears in the Victorian legislation. But the Victorian Commission has held, from time to time, public hearings. And I'd say again that it's a relatively rare thing for the New South Wales ICAC to hold public hearings. But of course, it has held some very spectacular public hearings in recent memory which is why people naturally enough, think of what the New South Wales ICAC has done.

GRATTAN: There are no half measures when it does. Some critics say this question of exceptional circumstances was a deal between the major parties. Is that so?

ATTORNEY-GENERAL: Not at all. We have done no deals. I have consulted widely across the Parliament and I think all of those, both from the Opposition and the crossbench, in both Houses, who've talked to me, contributed to the bill in Parliament today. I've paid tribute in Question Time today to the work done in the previous Parliament by the Member for Indi Helen Haines who brought, of course, her version of an anti-corruption commission in the form of a private member's bill, based in part on an earlier version brought to the Parliament by her predecessor, Cathy McGowan. Everyone in the Parliament who has participated in what has been a long process, I think, can say they have made a contribution to the development of the bill that I've brought to the Parliament today.

GRATTAN: Peter Dutton seems very positive about the legislation and indeed the consultations. But he does want to be consulted on the head of the Commission, the appointment of the head of the Commission, will that be done?

ATTORNEY-GENERAL: I'm proposing to hold a transparent and open and merit-based process I can devise. We have provided in this bill for there to be a Joint Standing Committee of both Houses of Parliament, which will be the oversight committee for this Commission. It will need to approve the appointments of the Commissioner, of the Deputy Commissioners and over the Inspector, who is another oversight mechanism in this bill. So of course, Mr Dutton is going to be consulted. So too, will the crossbench be consulted on our choice of Commissioner.

GRATTAN: Now how will that process actually work? Will they be asked to ratify the decision? Or will they be asked for their views during the process?

ATTORNEY-GENERAL: We will be seeking suggestions not dissimilar to the process that I've just followed very publicly in the making of the appointment of a High Court judge to replace Patrick Keane, Justice Patrick Keane, who's due to retire later this year. I've made no secret of the fact that I've consulted with Chief Justices of courts, state Supreme Court, state governments, the Opposition, deans of law schools, a whole range of people in the legal profession in order to get the best possible nominees. And we will be consulting widely including across the Parliament. And I'll be welcoming suggestions from Mr. Dutton as to who he thinks is an appropriate person to be Commissioner, the more wide the support, both for the bill itself and I'm hoping to attract support from right across the Parliament. But also, the more wide the support for the Commissioner and Deputy Commissioners, the better that will make this a strong Commission. So, I'm not about to be putting forward to cabinet, nor I think will my Cabinet colleagues want to be putting forward some Commissioner who would be immediately seen as a divisive figure. We're going to be trying to find someone who's eminent, who can have real standing in the community, who can fill the role, this important role of being the National Anti-Corruption Commission.

GRATTAN: So, you don't have a name in mind at this particular point?


GRATTAN: Now the Commission will have the power to decide whether it gets into questions of so-called grey corruption, schemes which dodgy such as the Sports Rorts scheme, for example, but it's still really confusing as to whether it's likely to go down that path. Is it the expectation that it will do so?

ATTORNEY-GENERAL: I don't want to direct this Commission as to what it investigates. Nor do I wish to direct this Commission as to what it is going to find his corrupt conduct. We've included in this bill a broad definition of corrupt conduct. It goes to breach of public trust, abuse of someone's office as a public official, misuse of information acquired in the person's capacity as a public official, but leaves open to the Commission to find other forms of conduct are corrupt. I think it goes with establishing an independent Commission that we have included in the bill - and this is similar to the models we see in the states and territories - a broad definition of corrupt conduct. But we've put on top of that a threshold. We've asked the Commission to only continue with investigations where it is of the view that the conduct amounts to serious or systemic corruption. We don't want minor misuse of postage stamps, we don't want rats and mice matters to be pursued by this Commission. I think we've seen some examples, I won't go to what they are, but I think we've seen some examples in the states and territories where Commissions have pursued matters that I think most members of the public would see as rather minor. We don't want this National Anti-Corruption Commission to be doing that. We want it to focus on serious or systemic corruption.

GRATTAN: Nevertheless, obviously, these alleged rorts schemes are not rats and mice. But by the same token, many politicians would say these schemes, which have been going for a long time in various iterations on both sides of politics, that they don't amount to corruption, that they're undesirable. They've been condemned by Auditor-General's reports but this is different from corruption as we know it. Do you accept that distinction or do you think that it's all part of one very broad category?

ATTORNEY-GENERAL: I think there's a spectrum. And I think it's possible to conceive of conduct at one end of a discretionary grants program where the criticised conduct amounts to no more than a minister disagreeing with a recommendation from a senior public servant. That's not corruption. But at the other end of the spectrum, it's possible to conceive of millions of dollars of Commonwealth money set aside in a supposed discretionary grant program, where there are no guidelines, no recommendations from public servants and an investigator is able to conclude that this was a rort, an investigator was able to conclude that this was not decision making in the public interest, but decision making entirely directed to some private interest. So, there's the spectrum. And it's going to be a matter for the Commissioner, to determine when looking if indeed, there are allegations made about a discretionary grant program, it's going to be for the Commissioner to determine whether there's corrupt conduct and whether it is serious or systemic.

GRATTAN: Now the legislation goes to a Parliamentary inquiry. It's now clear, however, that you have the numbers to get it through the Senate because the Opposition is supporting it. But are you open to making any changes after the inquiry, significant changes, and in particular, is there any flexibility on this question of public hearings?

ATTORNEY-GENERAL: We have Members of the House of Representatives and six Members of the Senate as voting members of this committee, but we've taken the unusual step for a Joint Select Committee of providing for participation by Members of the House of Representatives and the Senate who are not voting members of the committee. This is a regular practice in the Senate. It's not a regular practice in the House of Representatives and I'm expecting that in the hearing process to be conducted by this Joint Select Committee we'll see other Members of the House of Representatives coming in to the hearings and possibly asking questions. I think that this committee process is likely to produce suggestions to the Government as to how the bill might be amended. We will take exceptionally seriously any suggestion that comes out of this committee process.

GRATTAN: Even on public hearings?

ATTORNEY-GENERAL: On the whole range of issues raised by this bill. We welcome the hearing process. We welcome the report process. I'm looking forward to seeing what the Members and Senators participating in this committee process are going to produce.

GRATTAN: Finally, while this bill contains protections for whistleblowers, you're also committed to overhauling the whistleblower legislation that already exists. What do you have in mind here, particularly what problems are there and what are you aiming to achieve?

ATTORNEY-GENERAL: I've got a long-standing commitment to protection of whistleblowers. I brought the Public Interest Disclosure Act 2013, to the Parliament back in 2013 when I was last Attorney-General, I was conscious then that we might not have got the scheme completely right and provided for a statutory review to take place. It did take place, and it was conducted by an eminent Australian public servant Philip Moss, who made a report to the government in 2016, which sat on the shelf. The former government decided not to respond to Mr Moss' suggestions about how to improve the Public Interest Disclosure Act. I've said publicly that I'm going to pick up Mr. Moss' report, I'm going to look at his recommendations, I'm going to update them because six years have passed since that report was done with a view to strengthening protection of whistleblowing in the Australian public sector. At the same time, I've said I'm hopeful of doing that by the time the anti-corruption commission gets up and running in the middle of next year and I can point to, in the bill, express protection for people who make allegations to this anti-corruption commission.

GRATTAN: Just a postscript question, you reminded us that you were Attorney General before? What's it like second time round?

ATTORNEY-GENERAL:  I'm hoping that I can apply the lessons I learned in the short time that I was Attorney-General in 2013. It's a wonderful honour and a privilege to be back for a second time. As the Secretary of the Attorney-General's Department reminded me on my first day in office, I'm part of a very small group of Australians who've served twice as Attorney General. She also pointed out that one Australian served three times as Attorney-General.

GRATTAN: I presume you're hoping not to break that record?

ATTORNEY-GENERAL: I'm not looking to emulate Billy Hughes, who was the person who was Attorney-General of the Commonwealth three times. I'm very satisfied to be serving for a second time.

GRATTAN: Mark Dreyfus, thank you very much for talking with us today.