Thursday, 13 December 2018

Sky News Live – Newsday with Tom Connell Thursday 13th December 2018



Subjects: Federal Integrity Commission, Religious Freedoms Bill

TOM CONNELL: But let's get response from the Government. The Attorney-General Christian Porter has been good enough to join us. Thank you very much, Attorney, for rushing off from that rather lengthy news conference. Let's just start on what's happening here. We played a grab from Christopher Pyne earlier who spoke about this not being needed just two weeks ago. Yes, you've been working on this for a while, but it was a back down to even consider this, right?

ATTORNEY-GENERAL: No, it wasn't. I mean, I've been working on this since January. We've put out a range of very detailed material today explaining how our proposal for a Commonwealth Integrity Commission will work. I, like Christopher, was not at all enthusiastic about the model that was being proposed in a private member's bill, and nor would I support the Labor approach, which is to put out a press release in the most vague terms and have some kind of body that no one knows how it would operate or work. What we're doing is clearly setting out an approach, how the approach would operate, and why the approach can actually enhance integrity across the public sector rather than detract from it.

TOM CONNELL: Okay, let's go through your approach. You spoke today about a gap covering the public service, including parliamentarians and their staff. What's an example of what this commission would be looking into - a real life example so we can see the types of things we're talking about?

ATTORNEY-GENERAL: Well, there's a range of organisations that presently exist at a Commonwealth level like the Auditor General, the Ombudsman, the Independent Parliamentary Expenses Authority. If one of those present bodies, in the course of one of its investigations by way of a referral from the public or from some other mechanism saw activity that they thought could constitute serious criminal corruption and be unlawful against one of the known offences in our criminal code, those organisations could refer that matter up to this body, a Commonwealth Integrity Commission. And that body would have two wings, and one of those wings would cover the entire public sector. So, for the first time, you'd have a specialised, experienced peak body who would be able to look into the most serious allegations of criminal corruption wherever they might occur.

And if I can offer this other example, the jurisdiction would extend to those that contract with government. So, obviously one of the issues for Commonwealth Government is that we have very large procurement and contracting arrangements. And of course, unfortunately, where money is transacted, there is always the potential to have wrongdoing. So, we haven't seen endemic or systemic corruption across the federal sphere, but we also, are equally, looking at the way in which the present multi-agency approach works, things that can be improved upon.

TOM CONNELL: Right. You mentioned parliamentary expenses. At the moment, the procedure basically is parliamentarians pay back something if it's found not to have been something they should've been claiming for with a 25 per cent penalty. So, how does this change things in that regard?

ATTORNEY-GENERAL: Well, the Independent Parliamentary Expenses Authority looks into issues like that. So when there's been errors in the claim of travel - and yes, there's a penalty if there's been those errors, but only in the most extraordinary circumstances would something like that constitute a criminal offence. But, if in the course of one of those investigations the Independent Parliamentary Expenses Authority thought that there was a potential that there had been criminal offending by a member of Parliament or a staff member, or anyone else in the public sector for that matter, what they would have for the first time is a specialised peak body, very skilled and well equipped to look into that issue, that they could refer the investigation on to.

TOM CONNELL: Let's go through some of the cases of politicians in the spotlight recently that have caused a lot of people to say: well, should it be looked into further. Sam Dastyari and elements around Chinese donors, public comments he made afterwards; could that be looked into?

ATTORNEY-GENERAL: Well, potentially, it could be. But I obviously can't give you a concluded view about whether or not that behaviour, as outrageous and reprehensible as it was, constituted offending. I mean, that's the type of thing that you need a body like this to look into to investigate. And this body, unlike, for instance, the New South Wales ICAC, isn't existing for the purpose of writing a report and making a finding on paper. It's existing for the purpose of uncovering, investigating, and building a brief to allow for the prosecution of corruption pursuant to known criminal standards. So, with examples like one that you've…

TOM CONNELL: …is that a bit of an issue though, Attorney-General, because if that example iF - that a politician had donors, got a significant donation to a party. The party, perhaps, changed policy at some stage afterwards. They did, in this case, of course - he made comments publicly, though - that if it's not an offence, then they can't really pursue it at all?

ATTORNEY-GENERAL: Well, corruption must be based in offending. So, rest assured though, Tom, there are a wide variety of offences in the Commonwealth Criminal Code and Crimes Act that relate to public officials in what we would call a broad category of corruption: taking bribes, receiving bribes, soliciting bribes, making decisions based on payments that might have been made to you - all these things, that type of behaviour, are criminal offences. And as part of this process, we'll be modernising and updating that broad range of offences that exist at Commonwealth law to make sure that they're fit for purpose and sufficiently broad to capture, in a criminal sense, the type of conduct that no Australian would want to see.

TOM CONNELL: So we could see, perhaps, a more wide ranging charge of some sort of corruption, for example against a politician or a party member, where it's easier to lay charges based on corruption and donations?

ATTORNEY-GENERAL: Well, there are a whole range of existing offences. They'll be modernised and updated. But unless, unfortunately, I get very specific information about a factual scenario, I just can't give you a view as to whether or not a very vague scenario represents criminal offending. But the types of things, generally speaking, that you've raised of course are going to be the types of things that would be capable of being investigated.

TOM CONNELL: What about the circumstances surrounding the $444 million grant to the Great Barrier Reef Foundation? Would that be the type of thing that could be looked into as well?

ATTORNEY-GENERAL: Well, no one's ever suggested anything as absurd as that was anything other than appropriate. And certainly no one's ever suggested that it was criminal conduct. I mean, we have to be reasonable about these things. We're not here to create a body where people play out political vendettas - which is what's happened, unfortunately, with some of these bodies in the state jurisdictions. This, like the existing Commission for Law Enforcement Integrity will be a serious investigative body that operates to known rules of evidence and that exercises its powers cautiously, because they will be strong powers, and they engage in investigation. But what you don't want is to create a body where everyone who's got a political view tries to cloak it in some form of complaint to an integrity commission body.

TOM CONNELL: What about the Michaelia Cash incident with the tip off to media about the AFP raid?

ATTORNEY-GENERAL: Well again, I don't know what you're suggesting as to whether or not there was some criminality there. No one's suggesting that. And what I'm putting to you is that this is a body that investigates criminal offences. So, I mean, you can go through a list of …

TOM CONNELL: …well, it's not necessarily legal to reveal an AFP operation, is it, ahead of time?

ATTORNEY-GENERAL: Well, I mean, releasing information contrary to instructions is an offence under the Commonwealth Criminal Code. But I don't know what you're suggesting as to who did what, Tom, in any set of circumstances. They're just matters of fact.

TOM CONNELL: Well, I'm not suggesting the person's done something, but clearly, we know about the tip off, whether that incident broadly, I'm not putting accusations to names here, but whether that thing, that type of incident, for example, could be looked into.

ATTORNEY-GENERAL: Well, yes. I mean, issues where a public servant has provided information outside the regular course of their duties where they are prohibited from doing so is a Commonwealth criminal offence. And this body is set up to look into systemic and endemic corruption - if it exists - pursuant to known and Commonwealth criminal offences. So, if you had a set of circumstances where there was routine and systemic misuse of information or documents, of course that's the type of thing that this body is being set up to investigate. But really, I mean, the types of issues and the great concerns that would exist in a government as large as the Commonwealth government will be around issues such as procurement and contracting, these are the serious areas where in international experience it's been shown that you need to have a very strong investigative presence to ensure that you don't have corruption.

TOM CONNELL: Moving on to religious discrimination, Attorney, the amendment today includes not being able to discriminate against someone also because they don't hold a religious view. Now, where does that fit in for, for example, teachers being hired at a school, that means schools won't be able to ask a teacher about their actual religious views when they're hiring?

ATTORNEY-GENERAL: Well, the way in which discrimination legislation works, Tom, as you know, well, an attribute is defined - race, sex or in this case religion - and then there are a range of prohibitions, so a range of protections that exist so that people cannot do certain things to you based on your religion, like deny you employment but in every act, of course, as is presently the case, there are exemptions. And we're debating many of the exemptions that presently exist in the Sex Discrimination Act. So, for instance if you want a hypothetical example, it would be prima facie unlawful to deny admission to a public event to a person because of their religion or because they were an atheist. Now, there might be exemptions to that based on religion, so that you wouldn't be compelling a church orthodox group to admit an atheist into its club membership, for instance. But that is a matter of drafting and it follows a well-known pattern of drafting in discrimination legislation. The fundamental point, though, is that at the moment if you are denied access to a room or an event that you've been invited to, because of your sex, your age or your race or because you happen to have a disability, that is unlawful but if you were denied access in the same set of circumstances because of your religion, that is not unlawful in Australia. And frankly we think it should be.

TOM CONNELL: One of the big things you've been talking about in recent weeks is the ability, for example, to make schools or to have schools be able to make students go to a chapel service. In this report, though, my understanding is it's going to be education departments having to make it clear when and how a parent may request that a child be removed from a class that contains religious instruction. So, this is - are you now saying this is up to the states - each state - to decide this power?

ATTORNEY-GENERAL: No. Look, I think that that issue arose largely with the Safe Schools Program in Victoria, and there were a number of religious parents who considered that some of the teachings inside that program were contrary to their doctrine and faith, they wanted to be able to withdraw their students from the days in which or the periods in which that program was taught, which doesn't at all appear to be unreasonable and I think most parents reserve that right, that part of the Ruddock response is about having a consistent model for circumstances where parents can withdraw their children from a school form of tuition if it's contrary to their doctrine or faith.

TOM CONNELL: So, does that also - does that not apply then if you're talking about a gay student that might be going to a religious school and the parents don't want them being taught that marriage is exclusively between a man and a woman …..?

ATTORNEY-GENERAL: Well, this is - we're talking about essentially state schools here, Tom. Where parents who choose a religious school obviously choose a religious school knowing that it's a religious school.

TOM CONNELL: Because the student and the teacher element is still to be worked out now, essentially. That's gone off for a further review.

ATTORNEY-GENERAL: Well, it has. We've determined to send that based on discussions with the states about an appropriate term of reference to the Australian Law Reform Commission. The reason being, the Prime Minister, with students, made good on his undertaking to try and have that matter resolved, in fact had a clearly drafted bill, offered a conscience vote ultimately across both sides of politics if they were to agree. But although it sounds simple, balancing the principles of protecting a religious school's ability to teach and conduct its affairs according to its faith and also removing discrimination against students, striking that balance as a matter of drafting is clearly difficult, clearly people disagree on what the appropriate balance is and how it should be drafted. So, we've determined that with that issue and with respect to the issue of hiring and managing school teachers, that the best response is to have an independent legally expert process where specific drafting alternatives to finding that balance can be put to parliament and hopefully that's a way in which we can find some bipartisanship on this issue.

TOM CONNELL: I just wanted to touch finally on encryption. There's been a lot going on in your area actually lately, Attorney-General. You've spoken of the need to have these laws because of terrorism, child sex abuse, but they're going to apply to any offence punishable by up to three years in prison, so that could include improper use of an emergency call service, interference with political rights and duties, theft, causing reckless injury. These are big powers to have for what sound like not all that dramatic crimes.

ATTORNEY-GENERAL: Well, service denial attacks against 000 call centres are probably, in my view, about as serious as you can get, as are the other matters that you've mentioned. Plus I would note for all of your viewers that the ability to…

TOM CONNELL: ….That is a bit of a …..surely.

ATTORNEY-GENERAL: Well, not at all. The type of offences that you've listed out, I think people would reasonably expect that law enforcement agencies are properly equipped to investigate. And if it's the case that organised crime networks and serious criminals are using encrypted platforms, at least having some ability for our agencies to compel the assistance of the designers and developers of those platforms seems an appropriate and reasonable response. And ultimately both sides of politics agreed that it is an appropriate and reasonable response, although it took Labor kicking and screaming to get there.

TOM CONNELL: It did. My understanding was they wanted a bit of a longer sentence than that. But look, that's still something with a little bit of debate in it. Attorney-General Christian Porter, you've been generous with your time, thank you.