Tuesday, 27 November 2018

Radio National – Breakfast with Fran Kelly



Subjects: National Integrity Commission, religious freedoms – gay students

FRAN KELLY: The pressure is mounting on the Morrison Government to establish a National Integrity Commission. This is despite the Prime Minister dismissing it as a fringe issue. Cabinet reportedly considered a submission earlier in the year around a corruption watchdog but that process stalled after Malcolm Turnbull was removed as Prime Minister. The shadow attorney-general Mark Dreyfus told us earlier the government is paralysed by division.

MARK DREYFUS: It appears that Mr Morrison thinks, as he said yesterday, it's a fringe issue. If it's a fringe issue; why was the cabinet considering it? He should get on with it. Labor remains absolutely ready to work on a bipartisan basis to get this done.

FRAN KELLY: Shadow attorney-general Mark Dreyfus speaking with us earlier. Well the Attorney-General Christian Porter joins us in our Parliament House studios.

Attorney-General, welcome back to Breakfast.

ATTORNEY-GENERAL: Well good to be here Fran. Good morning to you and your listeners.

FRAN KELLY: We are getting confusing signals from the Government. Are you committed to new integrity arrangements or is this talk just a fringe issue to quote the Prime Minister?

ATTORNEY-GENERAL: We are committed to improving the present arrangements. They're, I think, complicated.

FRAN KELLY: So it's not a fringe issue?

ATTORNEY-GENERAL: Well I would say that this is not the absolute first and foremost priority legislative issue before the Parliament or the Government at the moment. I mean at the moment in Parliament we have legislation which is known as counter-encryption legislation which is designed to allow appropriate warranted access to encrypted telecommunications between terrorists. I would frankly say to all of your listeners who have witnessed recent events that is significantly more important legislation. I mean when Labor announced their commitment in-principle to such a change, they noted that corruption has not become a major problem in Australian political life. We would tend to agree but equally I think that there are reasons why you can argue that there should be substantive changes to present arrangements because they are capable of serious improvement.

FRAN KELLY: Well according to media reports which I hope you can confirm for us this morning, you did take a submission to Cabinet a few months ago or you were planning to, to crack down on corruption as reported. So if that's true, clearly you thought it was an issue worth moving on.

ATTORNEY-GENERAL: Well first of all those are two very different things that you've put to me, so what are you putting?

FRAN KELLY: Well did you take a submission or were you preparing a submission to Cabinet a few months ago to crack down on corruption and come up with some kind of overarching body?

ATTORNEY-GENERAL: Well it's, I mean it's no secret. I mean the Prime Minister has said that we've been working on this and it's subject to a Cabinet process which is, I think in his words going to be dutiful and cautious, which it is. So I have been working on this for some time - probably about the last six months - and what I'd say is that it's not as simple as it looks and the corruption bodies that have existed in each of the states and territories have had varying degrees of success and failure and they've been very mixed in terms of their outcomes. So if we were to look at improved arrangements in the Australian federal sphere, you would want to learn those lessons and try and design arrangements that gave you the best opportunity to investigate serious corruption and uncover serious corruption. And that has to be considered in the context of what is already quite a complicated federal system where we have 13 corruption and integrity agencies and bodies and organisations looking at detecting and prosecuting corruption in different parts of what is a very, very broad federal public service.

FRAN KELLY: Okay, let's look at design then, because it's been reported that the submission that apparently was ready before Malcolm Turnbull got dumped, involved turning the existing Australian Commission for Law Enforcement Integrity into a corruption-busting body with two divisions: one for the police and security agencies, the other for politicians and the public service. Is that still your preferred model?

ATTORNEY-GENERAL: Well I'm not going into models or preferred models in that level of detail.

FRAN KELLY: Why not?

ATTORNEY-GENERAL: …that's certainly one logical model. The Commissioner for Law Enforcement Integrity you could probably describe amongst those 13 agencies as the central or peak agency that presently exists in the Commonwealth for investigation of corruption integrity and its mandate essentially at the moment is to look at integrity and corruption issues inside that part of the civil service, the public service, that deals itself with law enforcement and has powers that are significant in terms of its reach; so the ability to intercept telephone communications and coercively obtain documents and so forth.

So it is a very, very important agency. It largely does very, very good work. My personal assessment of that agency is it probably needs some assistance in a variety of ways. But that's the logical place to start when you're considering ways in which you would improve our integrity arrangements at a Commonwealth level.

FRAN KELLY: Look, we can talk about this until the cows come home - as you say there's 13 agencies now.

ATTORNEY-GENERAL: I'm always happy to Fran.

FRAN KELLY: Yeah, great let's do it. The problem is that it's perceived and we've had 34 judges adding their experience and opinion behind this, this week. It's perceived that amongst all those 13 agencies there are gaps and what we need to really strengthen integrity in our public sector broadly is some kind of national integrity commission, some kind of federal anti-corruption body. Do you accept that that would certainly affect and shore-up public confidence in our federal sphere if we had a national body? And why don't we given all the states do?

ATTORNEY-GENERAL: The question as to whether we have a national body cannot be dissembled from the question as to how that body would be structured, what the powers would be.

FRAN KELLY: Of course, but you've got to start with the desire and then moved to the model, don't you?

ATTORNEY-GENERAL: Well the desire is to improve the present system and there are any number of ways in which you can do that and that judge's letter I think highlights one of the very interesting and key questions you'd have to answer. So when Labor announced their in-principle commitment to some form of centralised body, they said that it should also take into account and thereby cover the judiciary. Now that is a very complicated constitutional question. I'm not sure that any of those 34 judges when they signed that letter particularly had that reach in mind but these are issues that need to be discussed, consulted on, and sorted through and the way to do that is cautiously.

FRAN KELLY: Isn't the way to do that to get a model and Cathy McGowan and others have put one forward and start working on that? I mean those judges who wrote that letter to the Prime Minister this week said: anybody must have broad jurisdiction and strong investigative powers including public hearings to adequately…

ATTORNEY-GENERAL: But that's just a motherhood statement, Fran. And so if that motherhood…

FRAN KELLY: Well it's not a motherhood statement if you then put meat behind it and design it. When are you're going to get up and come up with a model? That's the point isn't it?

ATTORNEY-GENERAL: Well I think that the private member's bill evidences the fact that you can hurry into these things and produce a model which is fundamentally flawed and would actually take integrity backwards at a Commonwealth level and I would say detract from confidence in federal political and public service affairs. So that bill that was introduced yesterday has a very, very low definition of corruption which would effectively transform on a historical and retrospective basis a whole range of minor maladministration and shortcomings that might exist from time to time in the public sector that are presently dealt with in code of conduct violations or disciplinary actions into corrupt conduct.

Now you can say well it's all so easy, and that you need to put meat on the bones but the meat on the bones has to be adapted, appropriate to circumstances, well drafted, considered, consulted upon, and your starting point - just take some time - and it hasn't been an unreasonable amount of time that we have taken - to work through a variety of complicated issues such as the issue whether or not a body like this would cover the judiciary.

FRAN KELLY: But with respect it has taken a long time for the Government to actually commit to the notion of one national central federal integrity commission or something of that - forget the name. I mean Labor agrees with you that the corruption definition in the Cathy McGowan bill is too low, that the bar is too low. But as Mark Dreyfus said, let's use it as the bones and start working on it.

ATTORNEY-GENERAL: Well I wouldn't use that as the basis for the path forward. I think that that would actually be..

FRAN KELLY: Well we don't know what you'd use.

ATTORNEY-GENERAL: Well, indeed, the definition is going to be central and I think it is a fair thing for governments to do to run through a sober cautious Cabinet process to ensure that the starting point that you would have as a definition for corruption that would apply to hundreds of thousands of federal public servants is an appropriate and adapted one and takes into account the multiple and varied work that the federal public service does including the fact that we do something that a lot of states don't do at all which is employ journalists. So having the starting point right is appropriate and fair enough. I mean no disrespect to the crossbench because it's a very, very difficult thing to do that out of government with the resources in terms of drafting that are at the Government's disposal but that's not the right starting point that they tabled yesterday.

FRAN KELLY: Attorney-General, sooner or later there will be a stronger anti-corruption arrangement for federal Parliament, for the federal sphere. Is this just a repeat of the Banking Royal Commission? The Government had to be dragged kicking and screaming but eventually and inevitably capitulates to pressure and comes on board.

ATTORNEY-GENERAL: Well I mean I had some hand in drafting the terms of reference for the Banking Royal Commission, devising its administration. I think it's working incredibly well. My view is that in an area as complicated as the integrity arrangements at a Commonwealth level that you should take appropriate time. But to your, to the central point of your question, we have never ruled out and we have always said that we are open-minded to a variety of models and we have been working through those without committing to any particular model at the beginning. And committing to a particular model at the beginning before you've done work to assess which might be the best model doesn't seem to me to be the right way to go about it.

FRAN KELLY: You're listening to RN Breakfast. Our guest is the federal Attorney-General Christian Porter.

Can I ask you about religious discrimination? Labor says it's tired of waiting for your legislation to stop schools expelling LGBTI students and it will now introduce a private members bill …

ATTORNEY-GENERAL: Well can I …can I just start…there's no real evidence of schools expelling LGBTI students. I mean …

FRAN KELLY: No, but there's legislation that allows it. There's exemptions …

ATTORNEY-GENERAL: Well that is true but I just…I think for all your listeners, it is not super helpful to have this sort of reckless presumption that this happens at all with great regularity.

FRAN KELLY: I wasn't, the legislation that you promised was to make sure that schools would not be allowed to do that.

ATTORNEY-GENERAL: Yeah, well that's correct. So we have committed ourselves to the removal of Section 38(3) of the Sex Discrimination Act and we were negotiating, I thought, quite well and in good faith with the Labor Party. Obviously saw the statements of the shadow attorney-general - the first I heard the negotiations had ended were through the media this morning but sometimes these things happen. The view that we have taken with respect to this issue is that there should be a removal of all of the bases for discrimination against students that exist in Section 38 of the Sex Discrimination Act. But there should be the insertion or addition of a very modest provision which clarifies the ability of religious schools to maintain school rules which are reasonable and represent their own religious views.

So if I can give you the examples that I've used previously: we think it's not at all unreasonable that a religious school should be able to compel its students to attend chaplain or religious services once a week or however often they wish to do so irrespective of whether those students are LGBTI students or not. Now we think that's a very reasonable protection for religious schools. They consider that that is very important to the way in which they conduct their affairs and that was the essence of the negotiations that we were conducting with Labor. Labor's view now appears to be that there should be no even modest protection for schools with respect to the maintenance of school rules. That's not something that we fundamentally view as the appropriate path forward here.

FRAN KELLY: Attorney-General, just briefly when will you be at least the Ruddock Review?

ATTORNEY-GENERAL: Very soon. So that's in its final stages. And again, there are very complicated issues in that, around and further amendments with respect to teachers and the Sex Discrimination Act and all anyone is trying to achieve here, I think, Fran is have the best modern balance between two competing principles…


ATTORNEY-GENERAL: One: that people shouldn't be discriminated against in their employment or their attendance at school, but also that religious groups and particularly schools should be able to organise themselves and their staff in accordance with their doctrine and their faith. And perhaps the way in which the balance has been struck previously, now is in need of change. The question is how do you best strike that balance into the future?

FRAN KELLY: And just finally, the Government is still absorbing the shock waves from the Victorian election result. Your cabinet colleague Kelly O'Dwyer has reportedly told a crisis meeting of Victorian MPs and Senators that Liberals are now widely viewed as quote: homophobic, anti-women, climate change deniers. This sort of echoes what Scott, Senator Ryan told us yesterday that he's sick and tired of having right-wing views shoved down- people are sick and tired of having right wing views shoved down their throats. Would you agree that the Liberal brand is being trashed by some of your party?

ATTORNEY-GENERAL: Well, I mean I was a supporter of and voter for same sex marriage. I've got to tell you that I don't share any of those sort of concepts, those views. I don't know whether they were actually or not said, who knows. However, in my electorate Pearce which is 14,000 square kilometres of outer urban WA, the single most important issue on people's minds is the value of their homes and negative gearing policy. That's what I get absolutely everywhere I go. And so whenever I get the opportunity to talk politics, I talk about that because we'll ensure that house values increase and Labor will absolutely ensure that they decreased by 10 per cent.

FRAN KELLY: Christian Porter, thank you very much for joining us.

ATTORNEY-GENERAL: Thank you. Cheers.

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