SUBJECTS: National integrity commission, 2019 Election, Media freedom, Religious Discrimination.
SHADOW MINISTER FOR CONSTITUTIONAL REFORM
MEMBER FOR ISAACS
NATIONAL PRESS CLUB, CANBERRA
WEDNESDAY, 11 SEPTEMBER, 2019
SUBJECTS: National integrity commission, 2019 Election, Media freedom, Religious Discrimination.
SABRA LANE, NATIONAL PRESS CLUB PRESIDENT: Thank you very much for the speech. Given that you designed and introduced the Public Interest Disclosure Act, whistleblowers have told me that they feel it's a flawed scheme. Are you prepared to concede that now? They argue that it is not rigorous enough. And how would investigations under this new commission that you are proposing, if a whistleblower believes that their case hasn't been rigorously and thoroughly investigated, will there be an appeals mechanism for them or not?
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: I don't think that this is about who guards the guardian and who watches the watcher.
Two questions there. On the first question, of course the Public Interest Disclosure act needs to be kept under review. We learn about how integrity mechanisms work by watching them and learning from that experience, just as there have been amendments made to just about every one of the state independent commissions against corruption since they were introduced, some of them as long as 30 years ago.
The Commonwealth Government should be constantly looking at how the Public Interest Disclosure Act is working and if necessary, responding to complaints that have been made by whistleblowers or would be whistleblowers and bringing in necessary amendments. I certainly envisaged when I brought in that bill that became the Public Interest Disclosure Act to the Parliament, that there could be revisions made and should be revisions made, but nothing much has happened under this Government.
And on the other point, one of the elements that Labor committed to in the design principles that we outlined in January 2018 was that the national integrity commission that we think should be established should have a reporting mechanism and an oversight mechanism in the form of a Parliamentary committee, a bit similar to the way in which the Australian Commission for Law Enforcement committee has an oversight committee of the Parliament. I think it's useful. These sorts of oversight mechanisms build public confidence.
MATTHEW DORAN, ABC: Thank you for your address today. Picking up on what Sabra was asking there about possible improvements or reforms to the public interest disclosure regime, the Commonwealth Ombudsman, in one of its submissions to the inquiry into press freedom at the moment has suggested that there could be avenues for the media to be included in some of these protections that are afforded to whistleblowers under the regime. Given that you are a member of Parliament's Intelligence and Security Committee, is that something that's on your radar and that you would be pursuing within that committee?
DREYFUS: I'm not going to tell you about the deliberations of the Parliamentary Joint Committee on Intelligence and Security. But I can say that we've had many dozens of submissions to this inquiry. Many dozens of submissions have raised just the point that you've mentioned in your question. And, of course, that is going to be looked at.
We've got a problem in this country. I mentioned it right at the start of the speech by saying that we've got laws, but we've also got a Government that doesn't actually care about press freedom. We've got a Government that is not interested in exercising the discretions that have always been there in the system - and they're part of the law as well - in making sure that journalists doing their job are not put under threat of prosecution. Are not put under threat of being convicted or even sent to jail because some of the offences are very serious.
It's unprecedented that we should have had police raids on two separate major news organisations in this country, two weeks after the election, on successive days. And that's a product, not of the laws which have been in place for very, very many years, but of the way in which this Government has chosen to go about demanding that leaks be investigated and has not prevented, by proper regard for press freedom, those raids being conducted on media organisations.
There is a real problem in Australia right now. I'm pleased that the Government set up, albeit a narrow inquiry, and a limited one, an inquiry at all. The problem with it being an intelligence committee is that it's going to be a rather securitised inquiry, but there’s also a Senate inquiry into the same matter which I hope will reach more broadly. I’m hoping the Government listens hard to the submissions that have already been already made to the committees and sets about making some reform. Because those raids tell us that reform is needed.
OLIVIA CAISLEY, THE AUSTRALIAN: Thank you very much for your speech. You've said Labor's 2019 policies are currently under review but Mark Butler this week pointed to more long-term issues, making the point that Labor has secured majority government just once in the past quarter century. What do you think Labor needs to do to ensure it wins majority government more often? And does the party need to embrace new policies such as religious freedoms and protections in order to become more electorally competitive?
DREYFUS: Thank you very much for the question. I'm not going to pre-empt the outcome, first of all, of the review that's being conducted by eminent former figures in the Labor Party. That review is going to report to the party later in the year. And this will be an ongoing debate in the Labor Party, as it should be, after an election defeat.
It's an election defeat where the Government increased its majority by precisely one seat, moving from having a one-seat majority after the 2016 election to a 2-seat majority after the 2019 election, but it’s an election which caused shock right across Australia because of the deep expectation that Labor was going to win the election.
We do have to review the way in which we campaigned. We do have to review the policies we took to the people at the last election. That's an entirely appropriate process for us to be engaging in. And, might I say, we are not going to win the 2022 election by making announcements right here and now, or for me to make an announcement at the National Press Club of what our policies are going to be.
One of the striking things I would say about the last election was just the way in which the winning party, the one that won the majority of the seats, 77 seats in the Parliament in their Coalition, was able to go from the knifing of a Prime Minister for the second time in five years, to a just-winning position in May of 2019. But it does tell you something about the speed with which things can change in Australian politics and the closeness to the election that changes of position might be able to be achieved to make a difference.
SABRA LANE: Just picking up on the second point of Olivia’s about the religious freedoms. What about the criticism that has come from within the Labor Party itself, that Labor didn't take concerns of religious groups and communities very seriously during the election?
DREYFUS: Well, I can speak for myself and say that I always take concerns of religious groups very seriously, and I'm in close touch with religious groups, not only in my electorate, but appropriately in my role as Shadow Attorney-General, with religious groups right across Australia, with whom I've been consulting for years now and that process of consultation continues.
I think that all sorts of attributions have been made for the election defeat by a whole range of people and they're entitled to form those views. But I think that what we had is a great deal of misleading campaigning - in some cases by the Liberal Party masquerading as a religious group. In other cases by particular religious groups who put forward entirely false representations of what are Labor policies in relation to say, anti-discrimination law. I'm hoping that one of the outcomes that we're about to have of the Government after a two-year argument, as yet unresolved in the Liberal Party room, about what form Australia's anti-discrimination laws should take - that's manifested in a set of exposure bills that the Attorney-General released ten days ago - I'm hoping that the draft consultation will be as full as possible and that from that debate, we can get to a more settled position about Australia's anti-discrimination laws.
Because goodness knows that debate has been going on for long enough. Think right back to the Government commission the Ruddock Review in the middle of the debate about same-sex marriage in 2017. Even that was a sop to the right wing of the Liberal Party. That didn't produce the outcome that the right wing of the Liberal Party was seeking, so the debate continues. And immediately upon Christian Porter, the Attorney-General, publishing the exposure drafts of the bills, what we got was immediate push back from the Liberal Party room who don't like the approach that he's taking.
I'm expecting that pretty vigorous argument in the Liberal Party room and the split in the Liberal Party room on this topic to continue. Labor, as always, will be respectful of religious communities in our country and will consult deeply and properly in a way that the Government has yet to do.
DANA McCAULEY, SYDNEY MORNING HERALD/AGE: I would just like to go back to the topic of your speech about the national integrity commission. New South Wales has had an anti-corruption commission for many years, but the evidence that's been coming out of ICAC in recent weeks seems to suggest that that has not prevented Labor Party figures from engaging in questionable and allegedly corrupt behaviour. How will your proposal for the national integrity commission be any different? And does the ALP need to change its internal policies and procedures to prevent corruption?
DREYFUS: Thank you for the question. I think that all parties need to constantly review their internal processes and policies to guard against corruption. I don't think that it is, as I tried to say in my speech, necessary to single out any particular party. The same New South Wales ICAC that you mentioned, through another inquiry, produced findings that resulted in the resignation of 11 Liberal Members of the State Parliament of New South Wales. And just this morning, in the Daily Telegraph, we read of allegations being made against a New South Wales Government Minister over campaign funding.
Now, yes, of course, all parties need to look at this. But the second part of your question was about whether or not the fact that independent commissions against corruption, including the one in New South Wales, have continued to uncover serious misconduct, have continued to uncover breaches of the law or continued to uncover corruption, is that a basis for saying it hasn't worked? I don't accept that logic at all. I think that the presence of independent commissions against corruption is a very good thing. I think that they do act as a deterrent. I'm sorry, always, when I see that corruption is uncovered in public life, but certainly, it's not proof that it doesn't work simply to say that inquiries have produced outcomes that none of us could feel happy about.
I'm going to stick with absolutely being sure that if we had a powerful independent commission at the national level it would assist in reducing corruption and serious misconduct at the federal level, and I'm pretty confident that even though the New South Wales ICAC, as we speak, is conducting an inquiry that we're awaiting further report of, that's not evidence that its presence hasn't prevented other conduct that might have occurred. I do think that the law acts as a deterrent. I do think that the presence of these kinds of commissions acts as a deterrent.
PAUL KARP, GUARDIAN AUSTRALIA: Thank you very much for your speech. In the context of the marriage debate, Bill Shorten gave a very simple commitment that Labor would not vote for legislation that watered-down the protection of LBGTI Australians. Now, I know the religious discrimination bill is just an exposure draft and I know that Labor is still consulting about it, but will you recommit today that Labor will not vote to water down existing protections in state and federal discrimination law? And if not, why is that principle no longer a red line for Labor?
DREYFUS: Well, I don't want to give an absolutely clear answer to Paul's excellent question. It's one of the questions that's raised by the exposure draft bills that Christian Porter released about ten days ago. The reason I don't is that, as I've said publicly, as recently as yesterday at a press conference that Paul asked me a similar question, I said that these are exposure drafts. And Labor is now consulting on those exposure drafts. And when the Government resolves on whatever final position it gets to and introduces legislation to the Parliament, that will be the time for Labor to form a final view of whether the legislation that the Government has introduced to the Parliament is an appropriate change to Australia's anti-discrimination law.
One thing I can say though is that we have longstanding Labor values in this area. Labor is committed to the elimination of all forms of discrimination in our community. We've shown that since 1975 when we enacted the Racial Discrimination Act. Continuing through 1984 when we enacted the Sex Discrimination Act through to the Disability Discrimination act, another Labor enactment and supporting the Howard Government when it had the Age Discrimination Act. Those are the four acts of the Australian Parliament that set up the anti-discrimination framework that governs conduct in Australia today.
We look carefully at the other provisions that have been enacted at the state level, because one of the parts of the debate prompted by the exposure drafts that Christian Porter has produced is whether or not, in addition to the existing framework of the four acts, there should also be a new attribute protected against discrimination, namely religious belief. Four states already have such a protected attribute in their anti-discrimination frameworks. There's a question raised by the legislation as to whether or not at the federal level, we should have that as well.
And one of the questions that's going to need to be resolved, as it always has been when a new anti-discrimination statute is produced, is how that new anti-discrimination statute needs to interact with the existing anti-discrimination statutes. This is something that international human rights laws has dealt with. This is something that the international committee on human rights deals with. It's where you have conflicting rights. And the resolution of that conflict or competition between rights is the subject matter of the debate.
We've seen bits of it so far in the commitment that the Prime Minister made during the Wentworth by-election, for example, to abolish the exemption that's there for religious schools to discriminate against students and children in those schools. That's unresolved, of course, because the Prime Minister didn't keep that promise and still hasn't, and perhaps, demonstrates the degree of difficulty. That's the issue that's going to have to be resolved. The issue raised by your question is going to have to be resolved when we come to debating the legislation that the Government says it's bringing forward.
SABRA LANE: Forgive me for the cheeky comment. That sounds like a lawyer's answer! (LAUGHTER) And giving yourself some wriggle room here on that question?
DREYFUS: I'll be clear. I don't think that it is of assistance for the Australian Labor Party and me as the person on the Federal Labor Party's front bench responsible for this area of legislation, to commit to a position - which is what Paul would like me to do, because it would make a better story for The Guardian, no offence, Paul - and I'm not going to do it. It would pre-empt the full consultation and listening that I propose to do, that Anthony Albanese proposes to do - every member of our Caucus. I see Susan Templeman nodding at me over there because Susan was telling me yesterday how she's met with all of the faith groups in her community in the Blue Mountains and that's an appropriate task for every member of Parliament when we're faced with, what is on any view, a difficult piece of legislation.
The fact that the Liberal Party has been arguing about it internally, and Christian Porter right through this year has kept talking about how he's been talking to small groups of Liberal backbenchers, that's not enough, just to talk to small groups of Liberal back benchers. This has to involve the whole community.
So yes, it might sound like a lawyer's answer. Although I'd like to say I'm a recovering lawyer rather than a continuing one, it’s certainly a politician's answer. I'm giving myself room, and proper room, and the party room and proper room to have a proper consultation.
ANNABEL HENNESSY, WEST AUSTRALIAN: Thank you for your speech. Also on the Government's draft religious discrimination legislation, Equality Australia has raised concerns about the legislation could possibly allow doctors and nurses to legally refuse care to LGBT Australians. Having met with Equality Australia, do you share these concerns? And obviously you've made it clear that you're still consulting, but will this be one of the issues you'll be speaking with the community and your MPs about?
DREYFUS: Thank you very much for the question. I want to reiterate - not only I, but all of my colleagues in the Federal Labor Party, will be carefully reading every submission made on the Government's exposure draft legislation. Meeting with people in our own communities and at a more national level with peak bodies. And very carefully considering every issue that is raised.
The one that was raised yesterday by the Equality group is a very important one. I think one that most Australians, perhaps all, would recoil from the idea that medical treatment could ever be refused to any Australian once they had sought it from a health practitioner. And if that's an issue that is raised by the exposure draft bills that the Attorney-General has produced, it's obviously an issue that we're going to have to deal with.
ASTRID WATTS, UNIVERSITY OF CANBERRA: My question is related to the commission. I'm wondering - farmers in Tocumwal protested yesterday over the drought. Could this commission possibly be altered not to just include politics but also big business such as land owners like Rinehart who are holding a lot of water from our farmers, to help assist our farmers?
DREYFUS: Thank you, Astrid for the question. The discussion about what a national integrity commission is to look like has been very focused on the Commonwealth public sector. The Government's commitment to do it, announced in December last year, is about the Commonwealth public sector. Our demand that something occur is about the Commonwealth public sector.
Clearly, though, there are intersections between the Commonwealth public sector and private enterprise. The water question - water entitlements, sale of water entitlements - are all within a framework established by Commonwealth Government instrumentalities, necessarily interacting with state government instrumentalities. It's not simple. But let's say that there were a national integrity commission, and let's say that acting on say the report of the South Australian Royal Commission - a truly extraordinary piece of work, albeit hampered in its access to information, the one written by Brett Walker for the former South Australian government. He talks about the problems of water entitlements and the lack of water and investigation that's occurred. A federal anti-corruption commission that tasked itself with this would be looking not merely at the conduct of government instrumentalities but also at private sector bodies and individuals who are interacting with those instrumentalities.
MICHAEL KEATING, KEATING MEDIA: You've said that you want the commission to have the powers of a Royal Commission. A Royal Commission can breach doctor-patient confidentiality, breach lawyer-client confidentiality and potentially look into the press and force them to disclose their sources. How far do you see the scope of this commission going? And do you think that there might be some unintended consequences?
DREYFUS: Well, I think that we have to look very carefully at the way in which the powers of the Royal Commission are expressed. But I do wish for this independent commission against corruption to have the powers that are now given in the Royal Commissions Act to Royal Commissions. And I would expect that a national integrity commission armed with those powers would use those powers with the same discretion and care that almost all Royal Commissioners since Federation. So, since we legislated the Royal Commission Act in 1902, almost all Royal Commissioners have exercised the power.
You're aware, as someone who appeared before a number of Royal Commissions, Royal Commissioners are always aware of the breadth of their powers, intrusiveness of their powers and, in my experience, they're very reluctant to intrude on, for example, client privileges, the relationship between lawyers and their clients. They're always reluctant to use the more extreme of the powers that are given to them, but it's necessary that they be armed with those powers in order that everybody knows and has confidence that they've been able to investigate, as fully as possible.
If there was a genuine concern about the width of these powers being given to Royal Commissions we might have done something about that before now. But the experience of Royal Commissions in this country is overwhelmingly that they have been useful. I don't speak as to 100% of them, but overwhelmingly, that they've been useful, particularly when they have been investigating corruption. And that's why I mentioned the AWB Oil For Food Scandal which was inquired into and produced definite outcomes or the Fitzgerald Inquiry or more recently the Banking Royal Commission which brought to light, because of the powers that Ken Hayne was given, a whole range of serious misconduct by our banks that we would not otherwise have been aware of.
JOHN MILLARD, FREELANCE: Thank you for the first address to the club. We're sure it won't be the last. My question involves the matter of attack on the media by the AFP and, indeed, the Government. This was widely criticised worldwide, but perhaps less so by the Opposition. Do you think that this criticism was adequate? And should it be more vocal? Should it be necessary in the future?
DREYFUS: Thank you, John. My criticism is directed at the Government and not at the Australian Federal Police. It's not the Australian Federal Police that is attacking anybody. It's not the Australian Federal Police that is attacking journalists. The Australian Federal Police are doing their duty, acting on complaints and referrals that they have received from the Government.
The Government has a discretion here to decide how to investigate leaks. The Government has a discretion as to whether or not there ought to be prosecution. And it's, to my mind, wholly within the power of the Government to shape an environment where press freedom is actually protected.
I've been a bit concerned about some of the public commentary in this area because it's been so focused on black letter law. I think some of it needs to be focused on what you can call unwritten law on the exercise of discretions, on the conventions which have surrounded the way in which - just to take a simple example, Sections 70 and 79 of the Crimes Act 1914, they have been there since the First World War - have manifested. What's happened to them?
On the face of them those provisions criminalise a whole lot of journalistic activity. They criminalise the publication when the journalist knows that is it is a leak from Government. But no journalist has been prosecuted for that in the more than 100 years that have gone past. And you have to ask the question why is that so? It's so because of the way in which governments exercise discretions and applied conventions to make sure that journalists and ordinary media work in this country is protected.
We've reached a different point, John. So I don't attack the Australian Federal Police at all. There is an implication in your question - you'll accept the criticism - that it was the Australian Federal Police who are attacking the journalists. That's not what occurred here. The Government didn't need to refer the leaks at all, and if it did refer them, it could have said, as does anyone complaining to the police - if you complain about a burglar in your house, you can ask the police to investigate in a particular way. Certainly, the Government could be asking the Australian Federal Police to investigate only internally within departments and not externally, in a way that produces this extraordinary chilling effect and intimidation that's now occurring of journalists.
DAVID SPEERS, SKY NEWS: If I could sneak in just two questions, one to pick up what you said there. Back on religion I appreciate Labor is still consulting, you’re still consulting on all the aspects of this, but a pretty threshold question - do you see the need for a religious discrimination act at all yet? Are you convinced we need to do anything here? And then just to pick up on what you just said - should journalists be exempt from prosecution for handling classified documents, for example, under the Crimes Act?
DREYFUS: Answering the second question first - I think a blanket exemption is difficult. It shouldn't be the case that simply being a card-carrying member of the Media, Entertainment and Arts Alliance exempts you from all legal sanction. I could think of going right back to the 1950s, and probably in every decade since, various foreign spies using journalist as their cover. So it's quite a common and useful cover because journalists can go almost everywhere and ask questions almost everywhere. That's a good thing. So I don't think a blanket exemption is going to work very well.
But we have got to find a way that journalists are not prosecuted for doing their ordinary work. We got to find a way that ensures that both the legal system and the discretions around the law as it's written makes sure that journalists can serve the incredibly useful role that the Fourth Estate plays in holding governments to account, in getting information out to the public, in bringing things into the sunlight. No-one else is going to do that and no-one else is going to do that in quite the disinterested way that journalists do it. In a way that can be trusted by the public. In a quite different way, I regret to say this, if I voice a criticism or bring forward information or a fact, it's going to regrettably, I say, have more weight if a journalist does it.
So journalists have got a role to play in our democracy. It's an incredibly important role. We got to keep thinking about it. Right now, it's not working very well.
On your other question about the religious discrimination bills that the Attorney-General has brought forward. Some of the public commentary and some of the submissions, Senator Lambie, for example, the day before yesterday, expressed the view that the legislation wasn't necessary at all. I imagine that that's going to be part of the debate because some people are expressing that view.
But speaking for myself, I think that there's a number of groups in the Australian community that have suffered discrimination because of their religious belief and the community that most springs to mind in recent years would be the Muslim community among us who directly suffer discrimination in employment and the provision of services and I think that it's absolutely a worthwhile innovation that the Attorney-General has produced to add this additional ground of discrimination to our existing set of anti-discrimination laws.
Precisely how that's going to be done is the argument that's ahead of us. But I hear the voices that have said, "What's the need for this?" Or, "Why are we doing this?" I hear the slightly more cynical voices that say the only reason we're having the discussion is because of what occurred in the same-sex marriage debate. Put that to one side. There's been calls now for a long time for a new ground of discrimination based on religious belief. Four states of the Commonwealth have acted to create that ground of discrimination. I'm very happy we're having that debate at the federal level now.
TIM SHAW: Mr Dreyfus, thank you for your address. When you named all of those agencies that had the responsibility, or of the ability to investigate others, and I draw you to the Commonwealth Ombudsman. A scenario: five and a half years ago Malaysian Airline flight MH370 went missing and we're still trying to uncover the truth. The ATSB, of course, an agency of the Australian Government has been heavily criticised about elements of its process. Would you see the commission having an overriding capacity to ask the Ombudsman about the work that they had done based on complaint on the basis that the commission has that oversight to be able to investigate other agencies. What are your thoughts there?
DREYFUS: This is again the “who watches the watchers” question. One of the matters that will have to be very carefully worked through, and any legislation to establish a national integrity commission, will be the interaction with each of the existing integrity agencies.
The Commonwealth has got many more of them than any state jurisdiction. That was always the reason why I think there was a lack of preparedness to go to a national integrity commission in the federal sphere. We have moved past that, but I would urge the Government, when they produce their legislation - I earnestly hope that we see it soon although it is not on the list - that they will have dealt with the
question that you have raised, which is how would the national integrity commission interact with the Ombudsman and your example is of a complaint against the Ombudsman for not having done the right thing.
It might be that there's other mechanisms that are more suitable, and it might be that the complaint – and I’m not wanting to comment on it at all - it certainly doesn't go to corruption and wouldn't, but it doesn't go to serious misconduct either - but it is a different, more procedural complaint about the way in which the Ombudsman has gone about that.
SABRA LANE: Everybody, please join me in thanking Mark Dreyfus.