Wednesday, 20 December 2017

ABC Radio National Hamish MacDonald



Subjects: Ministry

HAMISH MCDONALD: (Discuss outgoing Attorney-General)

Taking on that legacy, of course, as Attorney-General, will be Christian Porter.

Christian Porter, welcome to Breakfast and congratulations.

CHRISTIAN PORTER: Thank you, Hamish. Good to be on your show.

HAMISH MCDONALD: The big story of course today is not the reshuffle itself, it's the fallout from the reshuffle. Why is it so difficult for this Government to do things without sparking big internal conflict?

CHRISTIAN PORTER: Well, I'm not sure I'd agree with the observation, and I think that the team moving forward is a very, very strong group of individuals and it will provide, I think, a great 2018 for us after a very strong finish to 2017. I actually, perusing the news, Hamish, thought the biggest news in terms of politics was this secret deal between Bill Shorten, the CFMEU and the industrial left, which is even reduced to a draft contract which has been leaked out.

I mean, on my side of politics there's always robust discussion amongst elected representatives, and Cabinet is a very competitive business. On the other side of politics, they actually engage in formal written contracts guaranteeing seats to what are quite militant and very poorly behaved unions. So not sure I agree with your observation, but my view is we've had a great finish to 2017 and this is a great team to take us into 2018.

HAMISH MCDONALD: Maybe you need to broaden the newspapers that you read in the morning.

CHRISTIAN PORTER: Well, to me, it's a very serious…I read them all, but to me, a leaked document showing a secret contract between militant, industrial left unions and Bill Shorten as a direct challenge to his leadership is the biggest political story of the day.

HAMISH MCDONALD: Okay. Thanks for the advice on journalism. I'll stick to the journalism bit …

CHRISTIAN PORTER: Quite to offer it.

HAMISH MCDONALD: … you can stick to the Attorney-General bit. What's the first thing on the agenda for you as Attorney-General?

CHRISTIAN PORTER: Well, the role changes somewhat, and in fact, the portfolio that George has is going quite different in many respects to the portfolio that I'll be taking, insofar as it reverts to a somewhat more traditional integrity, probity and oversight role with the creation of Home Affairs.

So the Government has made a decision that the best way to meet evolving threats of terrorism to national security is to create a Home Affairs Office, which has, of course, Border Force, ASIO, the AFP, the Australian Criminal Intelligence Commission all together in one department, under one minister to enhance cooperation and effectiveness.

What happens for the AG is that it inherits a range of roles and organisations like the Inspector-General of Intelligence and Security and the Independent National Security Monitor, and the role becomes very much more of a traditional oversight, probity, integrity role. So my immediate concerns will be with Peter Dutton, cooperating and making sure that the transition to the creation of Home Affairs and the new structure of the Attorney-General's portfolio is as smooth as possible.

HAMISH MCDONALD: One of the things that you will now have to oversee is the Government's foreign interference legislation. How do you see that legislation in terms of addressing the influence of threats that we've seen from foreign powers?

CHRISTIAN PORTER: Well, I think that what we have seen in recent times, and which Australians are rightfully concerned of, is the fact that foreign money, in a variety of forms, seems to make its way into political parties, and we are putting a dead stop to that with the strongest legislation of its type that we're constitutionally able to bring in, and in fact some of the strongest legislation in the world.

I think this does two things. I think it creates much greater certainty and confidence in the Australian people in our political processes, and it addresses the real problem of soft influence that can potentially arise when political parties receive major donations from what are effectively foreign citizens who may have deep ties with foreign governments, and whose interests aren't necessarily ours.

HAMISH MCDONALD: Peter Jennings, I note, from the Australian Strategic Policy Institute has talked about the need for some very, very fine lines to be developed in establishing what is legitimate lobbying activity and then illegitimate activities on the part of individuals or foreign companies. How do you see the process for determining what those fine lines are?

CHRISTIAN PORTER: Well, I think the legislation's very clear. So, foreign citizens, only Australian citizens can donate. Only entities registered in Australia, so incorporated here in Australia, can donate. And what we've drawn is a very sharp and clear distinction. Now, some people may think that goes too far, some people may think it does not go far enough, but we think that that's the right balance and the right line that Peter Jennings and others are talking about needing to be struck.

What I think is important to realise is that this has never happened before, and these practices have been engaged in literally for decades, so this is a very, very significant change to the political landscape.  It is George Brandis' design.  It's a very good design. I think it strikes the right balance, but it very much I think has the ability to improve Australians' confidence in the political system and prevent what is the new wave of soft power influences through money.

HAMISH MCDONALD: As you mentioned, there are changes within the portfolio, in part because of the Home Affairs ministry that will be led by Peter Dutton, but there's also components that are coming into the role of Attorney-General; agencies like the Inspector-General of Intelligence and Security about to move to your portfolio from the Prime Minister's.  Can you give us a picture of how you envisage the role that you will fulfil being, going forward? What will it look like? What will the shape of it be?

CHRISTIAN PORTER: Well, I think maybe the best way to describe that is to look at some of the comparisons with the English system. So, the Australian arrangements, I guess, differ from the UK model where they also have an equivalent Home Affairs Office, where those equivalent agencies to the ones you've mentioned, Inspector-General of Intelligence and Security and Independent National Security Monitor, actually in the UK sit inside the Home Office portfolio.

Now, I think it is a better, wiser, in fact more traditional structure to have a separation between the law enforcement agencies, which in Australia are outstanding and do so much, so successfully to protect our physical security and our national security, but to have those investigative agencies separate to the line management and authority for the agencies that oversight the investigative agencies. Because it's naturally the case that where we empower, as we do organisations like ASIO and the AFP, we want robust integrity measures, and the best way to have robust integrity measures is to have them separate from the agencies themselves.

So I think this is a very good design; in fact, a very traditional design and a little bit different from the UK model. But as I pointed out, my role immediately in the coming weeks is to work with Peter Dutton and make sure that this transition into the new Home Affairs structure is as smooth and successful as possible. And then, of course, I become responsible for those agencies that oversight the agencies.

HAMISH MCDONALD: So to be clear though, there should be some inbuilt tension in terms of the separation of those two sets of responsibilities, and you envisage that continuing?

CHRISTIAN PORTER: Of course. That's the design. In fact, that tension, in this model, is enhanced. So we get obvious protection from threats by having these organisations together in one department, cooperating closely, all responsible to one minister, but you also get greater levels of integrity and oversight by having the agencies responsible for approving such things as warrants, but also with the ongoing assessment of both the efficacy but also the integrity of the agencies being completely separate from the agencies themselves. And so it's actually a very traditional model, but one that's proven to work very well.

HAMISH MCDONALD: I suppose with that British comparison, one of the hallmarks of having a Home Affairs ministry is that it is enormous, it carries enormous responsibility, but also therefore enormous weight, and one of the struggles that you often see in British politics is other departments trying to counter that, trying to manage that and ensure that other interests are upheld. How do you see that unfolding here? How do you hope to counter the weight that will come with the responsibility that the new Home Affairs ministry has?

CHRISTIAN PORTER: Well, organisations like IGIS - the Inspector-General of Intelligence and Security - and the Independent National Security Legislation Monitor themselves are powerful agencies in terms of their legislative authority to reach into what will be the new Home Affairs agencies; to observe them, to assess them, to scrutinise them and the level of transparency that you are able to achieve through the legislative basis for those organisations that come into the Attorney-General's portfolio is what empowers him to be able to oversight and scrutinise Home Affairs agencies.

But I might say that the problem in Australia has not been overreach of our security agencies. The problem is that we face incredibly challenging times, threats that constantly evolve, an ability for our national security to be compromised by people who are radicalised online who can do amazing damage to our citizens without the need for high level some type of sophistication. And so, we have had agencies that have prevented more than a dozen terrorist attacks over the last several years and they've operated very, very effectively.

The major problem and challenge that we face as a Government is ensuring the continued effectiveness in their operation to prevent national security threats from arising and prevent terrorist attacks. That's not to say that you shouldn't always be conscious of the ever present need to scrutinise and maintain the integrity of those agencies. But I do not perceive that that has been a major difficulty in recent times, but the real difficulty is rising and meeting the challenge of terrorism in Australia.

HAMISH MACDONALD: In your previous portfolio, you had some dealings with the Royal Commission into Institutional Child Sexual Abuse; you devised the redress scheme for survivors. One of the responsibilities, presumably, that you will now have, will be looking at any legislative response to the recommendations from the Royal Commission. Obviously, the seal of confession is one that is being discussed a lot at the moment. Do you see it as the role of the Federal Government to legislate on this?

CHRISTIAN PORTER: Well, I don't have a perfect answer for you on that at such an early stage. I've read the 180-odd new recommendations of the Royal Commission and as you've noted, they stray into what is controversial, complicated and difficult territory. My personal instincts in having formally been a Crown Prosecutor and in fact spent several years prosecuting child sex offenders, my personal instincts are protective and to adhere to values of protecting children over other values. But how, whether, or when you could legislate and even if you could on those matters is a very complicated question.

And when you look at the 180-odd new recommendations, touching as they do on things like the confessional, on issues such as celibacy, they are not predominantly, in my observations, directed at the Commonwealth Government. I mean, there is a huge leadership role for the Commonwealth Government in responding to many of the recommendations, but they are recommendations directly to civil institutions and religious institutions and very often to state governments who have regulatory oversight for matters such as child protection and criminal investigations of child sex offending. So they are very, very complicated, difficult areas, but I would just say that my personal instincts are protective.

HAMISH MACDONALD: But why is it so complex to legislate on something like the seal of confession? I mean, why is not as simple as saying that if you know of children being abused, you have to report it?

CHRISTIAN PORTER: Well, the first question is what constitutional authority may or may not exist with the Commonwealth Government to even consider doing such a thing. That is to say whether or not that is a state or Commonwealth responsibility. It seems to me that what the proposition is that you're putting is one that pertains essentially to state criminal law. So it would likely be a state jurisdictional matter. And of course the second question is you have a clash of values or freedoms: one between organisations and association's right to freely associate under rules and terms that they traditionally have done for hundreds, sometimes thousands of years, and of course the right of people to be protected from the types of horrific abuse that we saw given rise to, and considered in the Royal Commission.

But what I don't pretend is that they're simple questions. Now, you've put it in a very simple way, but I think that that underestimates some of the complexities that are involved. And of course that's one of the roles of the Attorney-General nationally is to take the leadership role but particularly with the states and territories to have these things considered in a consultative way, but I don't think that that's one particularly, this issue of confessionals, that there'll be quick answers on.

HAMISH MACDONALD: Christian Porter. We appreciate your time this morning. I know you've got to probably get to a swearing in ceremony sometime this morning.

CHRISTIAN PORTER: Yes. I better iron a shirt, mate.

HAMISH MACDONALD: Merry Christmas to you. Thanks very much indeed.

CHRISTIAN PORTER: Okay, you too, cheers.