Thursday, 14 June 2018

RN Breakfast – Hamish McDonald



Subjects: national security; child protection/confessional, elder abuse

HAMISH MACDONALD: The Turnbull Government will take a lead role in reforming the law to force priests to disclose information relating to child sexual abuse they hear in a confession. It was a key recommendation of the Royal Commission, which is already facing strong resistance from the Catholic Church, which argues that breaking the sacred seal of confession would do little to protect children. The government's formal response to the Royal Commission comes as it weighs up whether to allow a Chinese telecommunications giant, Huawei, to help build the 5G mobile networks here in Australia. The Attorney-General is Christian Porter, he joins me from Sydney. Good morning to you.

ATTORNEY-GENERAL: Good morning, Hamish.

HAMISH MACDONALD: I want to get to the Royal Commission in a moment. First though, these reports about Huawei. The Financial Review is saying that the Chinese company will almost certainly be blocked from building 5G or participating in the build of 5G on national security grounds. Is that correct as you understand it?

ATTORNEY-GENERAL: Well, there's a process in place and there is an ability to exclude an organisation or organisations from taking part in that process on national security grounds. So, there's two relevant pieces of legislation - The Telecommunications and Other Legislation Amendment Act and the Security of Critical Infrastructure Act. So, there is a process underway where decisions are made with respect to who can and can't participate in that process, but it's just too early to say in that process what groups that might apply to.

HAMISH MACDONALD: But obviously you're aware of these reports. Would you like to knock down the story and tell us that it's not correct?

ATTORNEY-GENERAL: Well, I mean, there's a process, which is very orderly, which relies on the Government seeking a range of detailed advice about a range of organisations that have indicated the desire to be involved in the tender process and we weigh that advice and make a decision in due course. But I mean, other than notifying everyone that that process is being undertaken in a robust and diligent way, it's just too early to make statements about how that process is going to conclude.

HAMISH MACDONALD: We understand that a range of national security and defence agencies are firmly opposed to allowing Huawei to participate in providing the equipment for the rollout. Are you hearing that advice?

ATTORNEY-GENERAL: Well again, we seek advice, with respect to Huawei and a number of other organisations as well, and we assess that advice as independent elected representatives and make decisions in the best national interest. So it's a very robust...and I think most Australians would accept - a logical and common sense process that when you're building critical infrastructure - and particularly in the modern age telecommunications and IT infrastructure, that you do so in a way that takes into account national security concerns.

HAMISH MACDONALD: Sure. But are you hearing those concerns in relation to Huawei? I mean, it's a pretty straightforward question. We're trying to illuminate the public conversation on this...

ATTORNEY-GENERAL: Well I mean clearly, clearly some of the advice is with respect to Huawei. I mean, of course there is advice sought on a range of other potential applicants in a process. So, that is the core of the process, yes.

HAMISH MACDONALD: Are you personally comfortable with the idea of Huawei being involved in 5G? I mean, the FBI director Chris Wray pointed out that it had the capacity to maliciously modify or steal information.

ATTORNEY-GENERAL: Yeah well, I mean, like all other members of the Turnbull Government's cabinet, we are very focused on national security. Infrastructure and telco infrastructure is a very important part of our national security, which is why we've received this advice and we take the advice very seriously. And we are advised by agencies and departments who are utterly expert in this area and we take their advice very seriously of course.

HAMISH MACDONALD: And are you concerned about the impact this might have on the relationship with the Chinese government? This presumably would infuriate them.

ATTORNEY-GENERAL: Well, all sovereign national governments, including the Australian sovereign national government, make decisions in their sovereign national interest and it's a just a common sense process. So it's a relationship that has its tensions from time to time. I mean, as a West Australian, I live and grew up in an economy that has the closest links to China of any economy in Australia, and the relationship is very mature. Our state Labor Premier in WA visited China recently and his remarks were you need to, of course, conduct the language of the relationship with due and appropriate care, but that the trade relationship is, in his observation, robust and very healthy.

HAMISH MACDONALD: I asked the chairman of Huawei in Australia, John Lord, what the impact would be if the company was blocked from providing equipment on this network. This is what he had to say.

JOHN LORD: It would have a huge significance for Huawei in Australia, Hamish, because at the moment most of our business is 4G and we're providing over 55 per cent of Australia's 4G requirements that's across the whole nation.

I mean, it would be a pretty big player to knock out of the market wouldn't it?

ATTORNEY-GENERAL: Well, that's why we take a range of advice from a range of quarters. Why we have people that are expert in these fields and why of course that we listen to statements such as that and make a balanced decision in the national interest ultimately.

HAMISH MACDONALD: Parliament is back next week. It will be considering your foreign interference bills. Why can't you at this point say if Huawei will have to join the government's foreign agents' register?

ATTORNEY-GENERAL: Well, the process would be this, for your listeners Hamish. So, if someone were engaged in Australia, whether they were a former minister, Ambassador or just someone engaged in a government relations firm, they would ask themselves this question: am I in the business? Like, is my activity designed to affect or influence a democratic or government outcome in Australia? And if so, then you need to ask: who is the principal that is engaging me to do this? And then you ask: is that principal defined in the Act as a foreign principal? And there's a particular term in the Act, which is a foreign government-related enterprise, and there's a range of criteria. So, you would need to be satisfied, first of all, about the nature of your own activity and then the nature and structure of the organisation that's employing you in effect to undertake that activity. And anyone would have to undertake their due diligence. But I mean I can't say because it is a process that relies on self-assessment and self-reporting. Ultimately it's been noted correctly in the media there would be an ability for the Government if an organisation didn't consider themselves a foreign principal or someone acting for them didn't consider that they were working for a foreign principal and the Government took an alternative view, there'd be a process in place using what would be known as a transparency notice to, in effect declare an organisation a foreign principal, but that would have to be sustainably able to be argued on balance probabilities in the Administrative Appeals Tribunal. So that's the process. I mean that is a process that people who might need to register need to put themselves through and do their due diligence around.

HAMISH MACDONALD: But clearly there is a question in relation to this company though because, you know, your benchmarks are 15 per cent owned by a foreign power or 20 per cent of directors with links to foreign governments. Huawei has always said it's a private company. It doesn't have any links to the Chinese Communist Party or to the state. So you'd end up in the situation you just described where it would be contested.

ATTORNEY-GENERAL: Well potentially...but that's not the only relationship that might be contested and about which different views might exist. But what we've done is establish a piece of legislation that provides for transparency. So fundamentally what the Government is saying is that if you are a former minister or a former diplomat, or anyone in Australia, and you're writing an opinion editorial column for a newspaper, putting a view which looks, for all intents and purposes, the view of an Australian, but you're being employed or engaged or paid by a foreign principal to do that, then you simply need to declare that fact and that needs to be transparently known to the readership in Australia and Australian citizens which we think is ultimately a very reasonable thing to require.

Now of course you need a legislative system in place to produce that transparency and we've designed that legislative system. It's before the committee, it's been subject to some amendments that we've set up recently, but ultimately that is a regulatory system. And there's no stigma attached to being on the register. There's no problem with people being engaged by foreign principals to change opinion in Australia or effect a government or democratic outcome. That happens with some regularity. But what we're saying is it should happen transparently and with full disclosure about the relationships.

HAMISH MACDONALD: On the Government's formal response to the Royal Commission into Child Sexual Abuse, will there be uniform agreement across all states and territories to force priests to break the seal of confession and report abusers to police?

ATTORNEY-GENERAL: There will ultimately I think - I think that's fair to say and at last week's Council of Attorneys-General a process was committed to by which the states would harmonise so there's consistency amongst their mandatory reporting requirements. So what the Royal Commission did is it made some recommendations around 7.3, 7.4 which effectively said that states and territories should make consistent and harmonise their mandatory reporting requirements. Generally speaking states' and territories' mandatory reporting applies in the child protection context. So, for instance to anyone working in that space, whether it's in education or in other areas, they're under a legislative obligation to mandatorily report reasonable suspicions of offending against a child. But in some states that extends into the relationship, the confessional relationship between a priest and the confessor, in some states it doesn't.

So the first process here is for the states to make consistent that law. Now ultimately because the Commonwealth doesn't really have a mandatory reporting regime because that's not the space that we operate in, a question arises as to how that new consistent model would relate to a provision in the Commonwealth Evidence Act, which is adopted by a lot of the states, and it may be that some amendment needs to occur to ensure that there's not a clash between the model that's developed by the states and the Commonwealth.

HAMISH MACDONALD: If there's no hard evidence though that the seal of confession has actually contributed to the rates of child abuse, isn't this whole argument slightly academic?

ATTORNEY-GENERAL: Well I think that there is an academic quality to it. So I think what...

HAMISH MACDONALD: ...I mean they're anonymous confessions anyway, right, so what value is the information?

ATTORNEY-GENERAL: Well I mean for instance; I think the circumstances that are that are being sought to be covered here are where someone confesses to a priest something that they may have done, which then would give rise to a reasonable suspicion on the part of the person receiving the confession that an offence might have been committed. Now in those circumstances the proposition, I think the fair proposition is that the information should be transmitted to the authorities, to the police. Now, whether or not that happens with any regularity, I mean it's fair to say that it likely doesn't. There is a protection in the Commonwealth Evidence Act, which the Uniform Evidence Act adopted by a number of states, which basically gives a form of privilege, protections to that communication. Bu that privilege has never been absolute and at the moment that privilege is qualified by the idea that confessions made for a criminal purpose cannot be subject to any protection. And as far as we can see there's never actually been any case law to expand on what a criminal purpose might be. So this is not a regularly used protection to the information. But also the protection to the information in the confession has always been limited to the common sense concept that you can't confess something and expect it to be protected if the confession itself would constitute a criminal purpose.

So we're looking here in a fairly minor modification to the law. There are 409 recommendations. Of all of them these are probably some of the more academically interesting, but least frontline recommendations - and there's 122 that apply to the Commonwealth. Overwhelmingly, we've accepted either in principal or immediately and underway, those recommendations. So this is a major step forward right across Australia in a range of important areas for survivors of this terrible behaviour.

HAMISH MACDONALD: Christian Porter, thank you very much.

ATTORNEY-GENERAL: Thank you, Hamish. Cheers.