Monday, 26 November 2018

Doorstop Media Conference – Mural Hall



Subjects: Integrity Commission, encryption bill

Good afternoon everyone. Ready to go?

Thanks for being here after Question Time and obviously a day when some discussion is being had of a body which would represent a reform of national integrity functions. The first thing is, as a matter of clarity, it's certainly the case that the Government does not support the private members bill that was tabled today, which would create a National Integrity Commission under a variety of jurisdictional definitions contained in that bill. Just for the purposes of everyone assembled here, the central reason for not supporting that model, and this is not meant as a particular criticism of any of the crossbenchers, it is a very difficult thing to design, particularly outside of government changes to arrangements as complicated as they are with respect to national integrity; but the central reason why the Government does not support that model and would not support any model that was commensurate or similar to that, is the fact that the definition that is applied across what is the incredibly broad and expansive number of people in the Commonwealth civil service.

The definition of corruption is so low as to affect potentially so many people in such a wide variety of what are relatively minor circumstances in ways where the most serious applications of coercive power were to be applied to those people. We consider that the model that has been placed before Parliament by the crossbench is such a violation of individual rights and freedoms to due process across the public sector, that a body of the type that they are suggesting with the jurisdiction that they're suggesting could not be supported by the government. And to give you just an expression of the difficulties that would arise with respect to the private member's bill - under their definition of corruption any public servant - which would include journalists by the way - but any public servant, or indeed contractor with the public service, who did anything that it could be argued impaired confidence in the public administration of the Commonwealth, would prima facie have committed the standard of corruption, so long as it was also a very minor civil offence or something that could attach some form of disciplinary proceedings to it, which could be as low as an administrative irregularity.

Now, the application of that sort of very low definition of corruption across the entire public sector, including public sector journalists, and based on that trigger definition, applying the most extreme coercive powers that exist anywhere in Australia on the lowest conceivable definition of corruption, we consider is an utterly unworkable model. And in the example that I raised in Parliament today, and I think it is a real example; this is not meant as a critique of Mr Probyn - he was doing his job. But he said some things about the former Prime Minister. They were the subject of a complaint to AMCA. The complaint was upheld on the basis that that breached the ABC code of behaviour - code of conduct - for impartiality.

Now, no need to argue the case - it's not a matter of grey or anything of that nature. That scenario would be corrupt conduct under the bill that was tabled in Parliament today. Now, the Government considers that would have an utterly chilling effect on CBS and ABC journalists. That having retrospective application of an incredibly low definition of corruption with the application of the most severe enforcement and compulsive powers, including the effective abrogation of the longstanding right of Australians to legal professional privilege under the model that was put before the House today, would be a terrible step backwards. And if the point is to enhance public confidence in Australian politics, creating a body with such an incredibly low definition of corruption with massive coercive powers applied to that low definition, would simply invite the politicisation of complaints of corruption. You would invariably get point scoring, political agendas being run, and public advocacy on political issues put before a body of this type under the guise of complaints of corruption, because the standard definition of corruption is so incredibly low.

So - if I might just finish - the Government is committed to a process. We have been for some time. We have never ruled out significant reform in this area. And what I'd note for you will present is that the question has arisen: do you support a thing - and then the thing is given a label. What I would describe is that we have 13 bodies and agencies dealing with integrity and corruption issues at the national level. At the centre of that very complicated matrix is the Commissioner for Law Enforcement Integrity. That body is, in effect, Australia's National Integrity Commission. Now, the live question about how the jurisdiction operates and its adequacy between those 13 agencies; what level of overlap and duplication could be reformed; whether the powers in individual agencies are appropriate; or whether or not one particular agency should be merged with other agencies or should have its jurisdiction changed are all live and real questions under this debate about integrity models at the federal level.

But we do not as a Government support the transplantation of a model that, frankly, does not work terribly well in New South Wales, but it is even more extreme than that model to the Commonwealth sphere where we employ journalists in the public sector - we simply don't support that model.

QUESTION: When did this review begin into integrity models at the federal level? The Prime Minister and yourself have said a review is underway. When did the review begin?

CHRISTIAN PORTER: I've been working on that since I took this office, which was in December of last year, so about 11 months ago.

QUESTION: And will you work with the Opposition and the Greens? I mean, you sort of say that this particular bill is flawed; well why would you not work with the Opposition and the Greens to come up with one that does?

CHRISTIAN PORTER: Well, what happens in this type of area, I think, and this is why, I mean, no particular criticism of Cathy McGowan, she has a genuine intent to improve the arrangements that we have at a federal level. But the best way in which to do that is to talk around detail. It's the Government's responsibility in a process to develop detail and to produce suggested detail for the change of present arrangements, which themselves are immensely detailed. So, no doubt, as we go through, as the Prime Minister has noted, the Cabinet process that we will go through, but what we produce from that process will be the subject of enormous debate with the crossbench, with Cathy McGowan and others, and with Labor, and when that happens I welcome it and we will enter that debate in good faith, just as we do on other important but complicated legislation in the National Security space and with respect to encryption. So, cooperation -absolutely.

QUESTION: Would you put forward that detail before the election, and can you legislate what your preferred model is before the election?

CHRISTIAN PORTER:  Well can I say that Adam Bandt today - the Greens Member from Melbourne - said that we should have an Integrity Commission of the type that he has proposed in place by Christmas. Right? In the next two sitting weeks. Now, that is absurd. And if I might say so, when Labor announced its commitment to, in very broad principle, a National Integrity Commission, they did so in a press release that had the words to the effect that corruption is not a major issue in politics in Australia. Now, I would tend to agree. Now that's not to say that you're not constantly looking at the arrangements to improve them, to minimalise overlap and duplication and confusion, and to understand how the jurisdictions operate; and to make sure that agencies that are working this base are properly resourced. However, when you look at all of that detail, as I say, you have to produce a model, and frankly, the most important piece of legislation before the Parliament at the moment is the access bill, the Counter Encryption Bill. I mean 95 per cent of ASIO's terrorism targets are using encrypted methodology to keep their planning a secret. That's the most important bill before Parliament.

But, David, in answer to your QUESTION: the Prime Minister has said that it's part of a Cabinet process. I mean of course that's a process that we will be absolutely open with the people about at the resolution of that process, and whatever we produce is going to be the subject of great debate and scrutiny. And if you don't have a slow, methodological process, what you do get is bills of the type that we've got before us, which are utterly unworkable and completely unfair for every civil servant in Australia.

QUESTION: Is one of the options that you've been canvasing - or had the Department canvasing - to set up a new standalone body.

CHRISTIAN PORTER: I've said from the outset that we've not been closed minded to any option. But what I haven't also noted is that we have 13 bodies and organisations and agencies that are presently operating in the integrity space in Australia. And central to …

QUESTION:  So can we read into that that you're not of the mind to a new one?

CHRISTIAN PORTER:  Well, there are any number of ways in which you can improve the present arrangements. I'm not going to advance or foreshadow the conclusion of the Cabinet process that we have underway. But one of those ways is to adopt a model that the crossbench prefers, which is in effect, an entirely new agency that overrides the jurisdiction and operation of every existing agency, and does so with enormous powers - which powers are applied to every conceivable maladministration in the Commonwealth public sector. And I'd just say, it's utterly unworkable. It is utterly unworkable. So, you can probably guess from that, as we've said, that the model that's being suggested by virtue of the bill at the moment is not merely a non-preferred model; in my observation it's actually completely unworkable.

QUESTION: What would you say to Australians who think it's a bit of a cop-out to pass a motion in favour of an anti-corruption body? Today, you've said we've basically, in effect, already got an anti-corruption body, and now you're not ruling out just combining existing functions, different letterhead; move things around in powers. What would you say to people who think that's a cop-out?

CHRISTIAN PORTER: What I'd say is that not any single part of that question actually resembles what has happened here. There was a motion. Certainly, we didn't oppose that motion. I have said innumerable times that we do not rule out the creation of a centralised body; how that body were to be centrally functioning, how it takes into account the existing 13 bodies, how it accommodates differences between the Commonwealth public sector and state public sectors, where they don't employ journalists, right - how the centralisation and improvement of the present arrangements work is the only question. Putting a label on that is just imagery, right? So what we are saying and what we said by virtue of the motion today, is that we are committed to reform in this area. The reform will not be inconsequential. The reform will improve rather than degrade the present integrity arrangements; but we are not simply breathlessly adopting a cut and paste model for New South Wales or from the crossbench. What we will do is provide great detail around ways in which we can improve an already complicated, but actually quite well-functioning, system.

QUESTION: Your thinking in this space Minister, you’d be familiar with the Corruption and Crime Commission in WA, having worked over there….what are your thoughts on that and ICAC as well for example?

CHRISTIAN PORTER:  Well, the Victorian model, the New South Wales model, the Queensland model, the West Australian model all have very significant differences. And my own personal observation is that they have worked with various degrees of success. So I have seen in WA people being found by report to have committed misconduct, or serious misconduct, or corruption - which findings have been overturned by the Parliamentary Inspector, and these civil servant's careers have been utterly ruined by the mere finding.

Now, avoiding that type of excess, those failures at a federal level, which is immensely more complicated than the type of bureaucratic structures at other state level, is very important. So, those questions about whether any organisation or centralised reform of this system has public or private hearings, what type of powers it might exact, how they would operate; they are the questions of detail that we have been working on for some time.

QUESTION: Attorney, how confident are you that you will have no member of the Coalition across the floor to support Cathy McGowan's view?

CHRISTIAN PORTER: I'm incredibly confident. Can I just- again, this isn't a criticism of Cathy and I've spoken to her many times and she has done something that has not been able to be done by Labor, who say they support this in principle, and that's produce the detail. And I understand, that's very difficult. But supporting the crossbench bill today would support the finding of corruption in every instance where a breach of one of the six codes of conduct in the public sector, could be argued to result in impairment of public confidence in public administration at the Commonwealth level. That standard is frankly so low as to have the opposite result of what is intended, which is to strengthen confidence in the public sector and in federal politics. That standard is so low that you would get innumerable, vexatious, point-scoring complaints - a never ending cycle of them. That standard is so low that journalists could find themselves guilty of corrupt conduct under the crossbench’s bill for something that, at the moment, we might label as defamation. A civil act of defamation, if it were found against an SBS or ABC journalist would no doubt impair confidence in the public administration of the Commonwealth if that were a defamation action against a senior public servant or a politician. And it may be that it was a successful civil action. But to label that corrupt conduct, which is what this bill does, that is quite, quite excessive, and it would have a chilling effect in an already delicate space of scrutiny at the Commonwealth level.

QUESTION: You mentioned the New South Wales' ICAC is not ideal, I think might have been your phrase. What concerns do you about the way it works or the, I guess, the scale of its powers?

CHRISTIAN PORTER:  Well, I mean recently, the New South Wales ICAC was the subject of very significant scrutiny, because on a very important matter where very important findings of corruption were made, it failed to disclose itself information that it had in its possession that one of its key witnesses had frontal lobe injuries and amnesia. Look at the pursuit of Margaret Cunneen. Now, if you want to improve the public's confidence in federal politics and the federal public service, particularly in an environment whereas Labor themselves say there is no immediate corruption issue that is so obvious as to create massive urgency. If you want to improve public faith in federal processes, then repeating the types of things that happened to Margaret Cunneen or to Mr Allen in WA or Mr D'Orazio in Western Australia - at a Commonwealth level would be a terrible step backwards. So, this is a delicate and complicated area. The Prime Minister has indicated we're in a Cabinet process and it is a very fulsome process.

Let's do the back. I'll take one more.

QUESTION: Have you spoken to Llew O'Brien today and express your concerns with crossing the floor….

CHRISTIAN PORTER: Well, Llew is a former Police officer and is a former prosecutor. I speak with Llew very often. I know that he is very interested in this area. I have spoken to him today, as I have other people such as Bob Katter and explained to them how the crossbenchers bill would actually operate. And they were as surprised, I think, as I was when I first read it. And I'll just leave you with this: the way in which the crossbencher’s bill operates on a very low standard of corruption is retrospective. Now last year, there were 922 conduct findings for the AFP; a very small number of those are truly corruption and are dealt with appropriately. This bill would turn a very large number of those into findings of corrupt conduct against AFP officers who are public servants in this jurisdiction. And I don't actually think that's what's intended, but that's what would happen under the definitions that have been adopted and that would be a terrible step backwards. Okay.
QUESTION: Mr Porter, could I ask about the Assistance and Access Bill?


QUESTION: So, the hearing today; the agency has kind of- they agree it's urgent, that it would assist them, that it would have benefits for ongoing investigation. But they have not endorsed this two-week deadline. They said it was up to the Parliament, up to the committee. Labor may not be inclined to agree to that deadline based on the outcomes of the hearing today. Is the Government's position still the same? Do you want to see it passed or do you agree to an amended kind of bill under an interim report?

CHRISTIAN PORTER: Well, these are always matters that are heavily debated and scrutinised and negotiated in the Parliamentary Joint Standing Committee on Intelligence and Security. I think the keywords that you've used are that at the moment, there is an absence of agreement to that timetabling but that doesn't say that there cannot be agreement. What I would say is that when you have 95 per cent of ASIO terrorist targets using encrypted applications, when you have the Commissioner of Victorian Police say that we are no longer talking about the fact that intelligence and police agencies are going dark in terms of their ability to investigate people using encrypted applications, but that we have gone dark - this is the single most important bill before this Parliament.

And I consider, the Prime Minister considers, the Home Affairs Minister considers that it can be resolved through the Parliamentary Joint Committee in the next two weeks. And here we are talking about based on Adam Bandt's view that you should have an entire new integrity system in an area done and dusted in two weeks - we have before us a bill that will stop intelligence agencies from being in the dark about the planning for terrorist events. That is the most important bill. My view is that there will be a resolution and it should be in the next two weeks.

QUESTION: And if you shouldn't hurry the scrutiny of the Integrity Commission bill, why should you hurry the scrutiny of a bill about encryption access, which the Inspector-General of Intelligence and Security and the Commonwealth Ombudsman have both raised concerns about and say it needs reworking?

CHRISTIAN PORTER: What would you say is hurried about the process?

QUESTION:  You've suggested you want the process hurried. They've got hearings set down going to early December. So, they obviously think that they need to do more, the committee, that is.

CHRISTIAN PORTER: Well, the committee yet has not actually said that it's unable to meet the next two weeks as a deadline. So let's just park that for a moment …

QUESTION:  But it hasn't changed the date …

CHRISTIAN PORTER: But the fact is that this is a very long, detailed, consultative legislative process. It has been before the committee for many months. There was, before that, enormous consultation with all of the stakeholders involved. The terms of the legislation have been known for a very long period of time. And the fact is, we now have our intelligence and law enforcement community telling us, in the wake of attacks like we've seen in Bourke Street, that we can no longer get inside the encrypted communications of terrorists, major syndicated criminals, and paedophiles; that we have, in effect, in the words of the Victorian Police Commissioner, gone dark. Now if anyone can nominate a more urgent area for reform, I'd like to hear it. But there is no more important issue.

Okay, thanks everyone.

- ENDS - ​​​