Address to National Press Club Canberra
Can I first acknowledge the traditional owners of the land on which we stand and pay my respects to elders past and present.
Also to any current or former service personnel – thank you for your service.
In the 1970s an argument between a scientist and a social scientist reached an interesting stalemate when the mathematician challenged the economist to name one single proposition in the entirety of the social sciences that was both observably true and non-trivial. If that could not be done then surely you couldn’t claim to be a scientist.
The mathematician was Stanislaw Ulam - a nuclear physicist on the Manhattan project.
The economist was Paul Samuelson.
It actually took Samuelson several years to come up with a response but he nailed it eventually; with David Ricardo’s theory of the comparative advantage of trade. It’s demonstrably true (in every circumstance) and has been the bedrock of modern economic growth.
There may actually be another theory in the social sciences that is demonstrably true and non-trivial.
The theory that in the world of ethics, human rights or social values (whatever label we give agreed human goods) rights are in a constant state of conflict.
If it is true that in practice rights and values clash with each other and inescapably make conflicting demands, then that observable truth about the social sciences is non-trivial and has profound implications. Including, providing good reason for democratic resolution of problems through compromise.
Every new task I am allotted does seem to inevitably support the observation that rights in practice collide with each other rather than neatly contouring into each other.
Since releasing the draft Religious Discrimination Bill on 29 August I have personally consulted in two-hour sessions with over 90 different stakeholders and one thing is clear, people will disagree on which rights are more important than others and where to draw the lines between them.
Consultations, while constructive, inevitably end at a point where it is factually obvious that freedoms collide.
The unavoidable fact is that the colliding nature of rights means there is simply no way to exhaustively define their boundaries with each other in a way that sees them perfectly contour with neighbouring rights.
An obvious example is that freedoms to associate (whether on the basis of gender or religion or age) will need to be balanced against the right for individuals to access places and institutions free from the arbitrary exclusion of others.
One example has sat in my mind firmly during the drafting process. Last year the CEO of the NSW Jewish Board of Deputies was refused entry to a function; because of the religiosity of his position.
The Labor Deputy Leader of the NSW Upper House to his credit properly and swiftly said Mr Alhadeff had an official invitation to be at the function and … “was welcome to attend [AND THAT] ...it was a stupid, malicious and vindictive to refuse him entry into a multicultural event”.
That exclusionary conduct was clearly malicious and vindictive, but in NSW without this proposed legislation there would be no avenue for Mr Alhadeff to argue this was unlawful discrimination on the basis of his religion.
In a structural sense the four existing Commonwealth Discrimination Acts dealing with race, sex, disability and age actually give expression to the most traditional conception of rights.
That laws should protect us from others infringing on our natural rights as far as is reasonable.
And in the case of Mr Alhadeff, a complaint would have been a powerful avenue to argue the treatment was unlawful discrimination on the basis of his religion and such a complaint would have potentially been a powerful general deterrence which may have also shed light on anti-Semitism.
But then of course there is always a balance to be struck between anti-discrimination clauses of any type and other rights including rights to free expression and free association.
A particular challenge in the religious context is freedom of association.
Where we seek to protect people from being excluded because of their religion, we equally recognise that for religion to exist at all; religious bodies must be able to maintain a chosen level of exclusivity to their premises or composition or services.
For instance a religious school may admit students of many faiths or it may prefer students only of its own faith; but that discretion is not viewed by other faiths as discriminatory because they understand and accept its existential importance to all faiths.
In choosing how to formulate exceptions for religious bodies the Bill adopted a broad approach informed by the exception in s.82 of the Victorian legislation.
The effect is to preserve the status quo whereby a defined religious body can, in dealing with the exclusivity of its premises or composition or services, apply its own determination of the best application of its own doctrines and beliefs; and does not discriminate by acting in good faith on that basis.
So, for example, in Victoria it would not be discriminatory for an Islamic school to decline to employ catholic teachers (or vice versa). Or for the same school to decline to employ an irreligious person.
For the avoidance of any doubt it cannot be stressed enough that this type of exception for religious bodies applies only in respect of decisions on matters of religious doctrine that pertain to people of different religious beliefs. And the Bill does not affect the current exemptions that exist for religious bodies within other Discrimination Acts, at either State or Commonwealth level.
But religious groups particularly have stressed in the consultation process that the definition of religious body is important because of the reasonable autonomy it provides any organisation that falls inside its ambit.
Specific consultation occurred with religious hospitals and aged care providers, given the critical roles those bodies provide in the health and aged care sector.
A summary of what became clearer in consulting with these organisations on their real world operation is that religious hospitals do not appear to make decisions about the admission of patients based on any given patient’s religion or absence of religion, and do not seek to do so.
Likewise for aged care providers (with very few exceptions) they do not appear to consider religion or lack of religion before making a decision to accommodate a person.
Nevertheless, many religious hospitals and aged care providers indicated that, similar to religious schools, the ability to take into account religion in staffing decisions was important to maintaining the religious ethos and culture of the organisation and so reasonably sought an exception to the general prohibition on religious discrimination in employment that allows them to make staffing decisions in accordance with their faith.
The religious hospitals and aged care providers themselves recognise that competing objectives of providing access to health services and maintaining a faith-based identity must be reconciled, and seek to maintain the balanced position they themselves have arrived at reflected in the Bill.
In the Bill that will be introduced, I can flag that one significant change from its first draft will be that religious hospitals and aged-care providers will be given protections equivalent to those given to other religious bodies, in relation to employment of staff.
Commonwealth Integrity Commission
The balancing exercise between competing values is also central to the design of a Commonwealth Integrity Commission.
There is an obvious value in a powerful investigative body of broad jurisdiction that’s properly designed and equipped to successfully investigate contravention of commonwealth law amounting to corruption in the public sector (and thus provide a standing deterrence to such behaviour).
But this objective must always be balanced with the foundational goal of any liberal democracy - to treat individuals with fairness and justice when their rights or reputation are at risk of serious deprivation by an adverse finding of criminality or corruption.
As important as detecting and deterring corruption is to this government – we must always design systems to prevent injustice and unfairness to people investigated and accused by the overwhelming authority of the state.
That is completely foundational to what we all at least profess to believe in a liberal democracy.
And this balancing exercise is not theoretical.
Many times with bodies of this type, processes have fallen well short of long accepted standards of justice and fairness.
And there have been clear contraventions of the most foundational right in the justice system – the right to be presumed not to have done something criminal in the eyes of the public and the government until it has been proven that you did.
One of the very first Reports I had to consider on becoming a State Attorney General was that of the then Parliamentary Inspector of the Western Australian - Corruption and Crime Commission (WA CCC).
As Parliamentary Inspector, Malcolm McCusker QC was asked to scrutinise a Report of the WA CCC which had made a finding against Mr Allen that he had engaged in “misconduct” by complying with the wishes of Brian Burke, then a lobbyist, by agreeing to appoint a particular planning officer to write a planning report on a development at Smiths Beach.
Smith’s Beach for those that get the chance is an amazing surfing spot just south of Yallingup.
Mr Allen’s career was ruined by the finding and I’m sure his life changed forever.
McCusker’s assessment of the ultimate injustice and of the gross procedural failures is devastating.
- Relevant witnesses were not interviewed
- Witnesses that were interviewed gave evidence which did not support the serious adverse finding indeed negatived it (this exculpatory evidence was not mentioned in the CCC report).
- Other relevant witnesses were ignored and had they been interviewed they would have provided evidence further inconsistent with the findings.
- Contrary to all principles of fairness inferences of wrongdoing were accepted when other reasonably available inferences were clearly open.
- Mr Allen was the subject of a public hearing that he fairly described as being “pilloried in public” and McCusker concluded the delay between the public examination and the Report was unacceptable and unfair to him.
McCusker ultimately concluded that the CCC had “not identified any evidence to support it (the finding of misconduct) and the CCC should publicly acknowledge that it was in error and apologise.”
Sadly Mr Allen’s experience is not unique and to his names a long list of others could be added, including Margaret Cunneen, Murray Kear, Nick Greiner and Michael Gallacher.
In another remarkable case in WA a State Labor Minister was found to have engaged “inappropriate conduct” which was not even a term used in the Act.
This is not to say the problems, failures and shortcomings exhibited by State bodies have overwhelmed their utility or desirability.
But it is to note that these problems are real, they are serious and multiple.
And some who advocate for a Commonwealth body of this type seem do so with a strange uncritical tendency to apologism for known failures of such bodies.
Rather than acknowledging and understanding the extent and nature of known failures (as a means to avoid the injustices being repeated at the Commonwealth level); some prefer to explain the problems away or argue they are not material.
There is an extraordinary paragraph in a Report of the Australia Institute which seeks to deal with a very significant type of shortcoming, being instances where a someone has been the subject of a finding of corruption but the Commission investigation has failed to secure a subsequent conviction for a relevant offence.
Failing to secure a prosecution is a form of shortcoming that warrants very serious consideration.
It represents a situation where someone is burdened with all of the inevitable life destroying repercussions of a finding of criminality; that has not been tested against the centuries old protections that individuals deserve and receive in courts.
The problem was succinctly described by former Acting Inspector-General of the ICAC, Mr John Nicholson SC, where he said: “There should be no doubt the public perception of a finding that a person engaged in ‘corrupt conduct’ amounts to a label – as potent as any criminal label short of ‘murderer’.”
This is how the Australia Institute explains the known problem of adverse findings of a Commission failing to secure a conviction for the relevant offence.
“This does not necessarily mean that the corrupt conduct did not occur, but that legally it did not constitute a proven criminal offence. It may also mean that the onus of proof required in a court was not met, the rules of evidence led to critical information being withheld from court, time limits on prosecutions had lapsed, or the person under investigation exploited a legal technicality."
So the Australia Institute’s response to this critical problem area is to essentially say “well people are exploiting legal technicalities”. If it were not for annoying little things like the burden of proof and the presumption of innocence and the rules of evidence there would be a perfect record between corruption findings and prosecutions and therefore no problem.
I must say I find this paragraph quite remarkable: it demonstrates none of the usual precautionary legal respect for due process that we would expect in a debate as serious as this.
There are also some other very strange things in some parts of the Australia Institute papers advocating on Integrity Commissions.
In the same paper they cite the WA CCC Smiths Beach investigation as a GOOD example of a successful investigation because even though the substantive prosecution from that report against Brian Burke failed, there was nevertheless a finding against him. This is an exceedingly generous assessment and again there is no mention of the shocking injustice done to Mr Allen.
In another Paper there are case studies into the Charif Kazal matter and the Murray Kear matter.
The Kazal matter was the subject of very strong criticism by the then acting ICAC Inspector who said Kazal and his co-accused Andrew Kelly were “unable to test the corrupt finding made against [them] in a court of law. The consequence is that each has been stigmatised and ashamed by a finding that has not been made, and cannot be tested in an environment that has rules of evidence and procedures established over centuries to ensure a fair and impartial hearing to them and to their opponents.” People can read for themselves but the extraordinary response to this in the Australia Institute’s case study is effectively to say the Inspector got it wrong.
In the Kear matter, Mr Kear made out his defence in court to a charge under s.20 of the Public Interest Disclosure Act and was found not guilty by the magistrate who found there was no element of revenge, payback or reprisal. The Australia Institute case study explains this failure by quoting the present ICAC Inspector in effect as saying that the Magistrate got it wrong. Precisely when statutory office holders declare court judgments wrong I’m not sure but it is a very strange case study.
In fact the case studies are such a defensive apologism of serious ICAC failures it would be interesting to know who actually drafted them. But ironically in a paper about transparency and integrity in the public sector the Australia Institute does not make clear which individual on the Committee authored the case studies (or indeed any part of the paper).
Ultimately, the model advanced by the Government will be such that the public sector division of the proposed organisation will not be able to make corrupt conduct findings but will rather be tasked with investigating matters and building briefs of evidence that are then sent to the Commonwealth DPP for prosecution in a Court.
There is plainly very good reason for this approach. Equally, there is a very strangely uncritical approach at times by some to Integrity Commissions as if they are the only unmixed good in the history of law enforcement institutions.
In the Shadow Attorney General’s address to the National Press Club in advocating an urgent need for a Commonwealth body there was, in over 3000 words, only one note of caution that I could find. It was a sentence where in talking about a need for balance it was said “There are some well-publicised cases of individuals who feel their reputations have been unfairly damaged by appearances at state-based anti-corruption bodies. Some elements of the media have taken these cases and run with them in attempt to prove a case against anti-corruption bodies completely. I don’t see that is the lesson that is to be learned from those kinds of cases.”
Now I would agree that these cases should not mean there should be no Integrity Commission.
But equally, we do not learn the lessons from these cases if we characterise them as cases where people believed or felt their reputations were unfairly damaged.
Reputations have been unfairly damaged. That is just a matter of fact.
Many people’s lives have been damaged actually, irretrievably and unfairly. And these and other failures are things warranting critical consideration so we learn from them in designing future bodies of this type.
The uncritical/apologist approach to the known problems inherent in designing a Commonwealth Integrity Commission leads to drafts like that put into parliament by independents in the 45th parliament, and re-introduced in a very similar form in this parliament by the Greens.
These Bills suffer from several very significant flaws.
- The scope of what can constitute ‘corrupt conduct’ is incredibly broad. Corrupt conduct can include something as minor as a disciplinary offence or any behaviour that gives rise to reasonable grounds for dismissal. Even an ‘irregularity’ that gives rise to disciplinary action could be considered corrupt conduct.
- There is also immense confusion and duplication regarding how the Bill will operate with existing agencies, such as the APSC or the Ombudsman.
- The Greens Bill proposes that findings of public sector corruption can occur retrospectively as far back as 10 years; even when the matter was at the time a minor code of conduct breach dealt with previously by the appropriate agency and the person is no longer a public official. This broad retrospectivity is at odds with fundamental principles of the rule of law.
- The definitions of ‘employee’ and ‘public official’ in the Greens Bill are also very broad. It may even cover foreign governments if they provide a service to a Commonwealth agency, for example, for foreign aid purposes.
- And it clearly allows for findings of corruption on public sector matters to be included in public reports.
There is no effort in the Greens Bill to engage in caution or mitigate known risks.
When the first Independent’s Bill was considered by the Legal and Constitutional Affairs Legislation Committee in April 2019, the Committee recommended, quite correctly, that the Bill should not pass the Parliament. Labor members agreeing entirely with this conclusion.
Then remarkably Labor decided that they WOULD vote for almost exactly the same Bill in September 2019, saying that while it ‘may not yet be perfect, it is quite close to what Labor said we would do in Government.’
A better approach than voting in September for design features you thought wrong in April is to consider the failures of commissions that have caused problems and design cautiously.
The first feature requiring cautious treatment is that Commissions can investigate known offences that having been in statutes for decades or longer and have known meanings and boundaries. Public servants can readily know what constitutes offences against the Commonwealth Criminal Code that relate to obtaining a financial advantage by deception, abuse of public office or money laundering.
The difficulty arises in that Commissions like that proposed by the Greens will also investigate new offences or standards of conduct which might be called variously ‘corruption’ or ‘any other corrupt conduct’ or ‘misconduct’ or ‘serious misconduct’ or ‘improper conduct’. What behaviour falls inside or outside these terms is simply less clear.
Because there are already strong, existing oversight measures in place for less serious public sector misconduct, the Government’s approach in this area is that the public sector integrity division will focus on criminal corruption, while the law enforcement integrity division would continue to function with jurisdiction similar to ACLEI. In relation to the public sector division, the offences will be set out in the draft Bill and will include offences such as abuse of public office, bribery, fraud and money laundering.
A second issue noted earlier is that Commissions often generate reports of guilt against public servants not scrutinised by the courts.
And third – some Commissions can generate reports based on public hearings and even if not the subject of an adverse finding in a Report the public hearing can and very often is a form of punishment. This is not to deny the role for public hearings in some important instances but they come with very high risk to individual rights and otherwise accepted standards of justice.
The Government approach deals with these issues by establishing the role of the Public Sector Division, which will establish evidence of criminality and the CIC will then be required to assemble and provide the evidence to the AFP, CDPP or other person or authority authorised to prosecute the offence or bring the proceedings itself..
As a final observation on policy-balancing exercises - I might close this speech with some comment on the issue of press freedoms.
Press freedom is self-evidently a critical value in our liberal democracy but equally it has never been absolute.
The right to publish material of many types has ALWAYS been subject to other critical rights such as the right to a fair and unprejudiced trial, the right not to be defamed, the right not to be vilified.
There are also balances with rights to privacy - including laws to protect the identity of children in legal proceedings and the identity of law enforcement and intelligence officers and to protect victims and witnesses in criminal proceedings.
Indeed, there are serious limitations on rights to publish contained in the Public Interest Disclosure Act 2013 (designed to protect the identity of whistle-blowers); and we have seen recently that complicated issues arise even where one media outlet publishes the details of a person who considered their identity protected by an undertaking to keep their identity private given by another journalist.
There are also always balances to be struck with national security imperatives, required to enhance public safety; which often require sensitive information about capabilities and processes to be quarantined from wide publication. And for investigations to be conducted without contemporaneous reporting.
The media’s Right to Know Coalition raises 6 central issues and the balances to be struck with respect to each issue are complicated and unique to that issue.
So as a Government we are pursuing the most sensible policy approach which is to unpack the issues and consider reforms and processes appropriate to each issue. Given there is unlikely to be shortage of questions on any number of the 6 issues I want to provide a focus on two specifically notably defamation and the Public Interest Disclosure Act.
The present Public Interest Disclosure Act passed in the dying days of the Gillard/Rudd governments has been described by the Federal Court as “technical, obtuse and intractable”.
The Act was comprehensively reviewed in 2016 (and the Moss review) provides a strong blueprint for reform.
Our government will soon release our formal response to that review but this reform process will also go further than the Moss recommendations; to ensure that the essential and overall drafting and structure of the Act is easily and readily understandable to the people who need to use it.
The process of reform in this area is very well advanced with significant milestone due on the last Friday of this month.
The introduction of national uniform defamation laws in 2006 was heralded at the time as being the most significant development in Australian defamation law. And while there still remain differences between Australian jurisdictions (for example, the use of jury trials in some states but not all); the adoption of the model laws has resulted in far greater consistency in defamation law across the states and territories.
Thirteen years later and I think it is fair to say that current defamation laws no longer strike the perfect balance between public interest journalism and protecting individuals from reputational harm.
Being a substantial issue of State law covered by uniform code the path to reform has been through a Councils of Attorneys-General process agreed in June 2018, which is being led by New South Wales.
At the meeting on 29 November on behalf of the Commonwealth I will be arguing, consistent with NSW in favour of proceeding immediately on the bulk of the reform. This would mean the public release for consultation of the exposure draft of the revised Model Defamation Provisions in accordance with the timetable publicly announced in January 2019.
This is very significant milestone in a very significant reform process. And without prejudging the outcome of upcoming CAG discussions, there are areas where I think it is clear that sensible reform is required that will be of great significance to Australian media.
For example, meaningful reform in this area needs to consider the introduction of a serious harm threshold and should also provide clarity in areas where the law failed to operate as jurisdictions may have anticipated. For example, clarifying that the cap on damages for non-economic loss sets the upper limit on a scale and applies regardless of whether aggravated damages apply. Likewise the NZ style defence of responsible communication on matter of public interest is a worthwhile consideration.
This reform process has been, and will continue to be, informed by public consultation and is working to a timetable to enable States and Territories to implement the reforms from mid-2020. At our meeting next week, the Council of Attorneys-General will also consider a proposal for stage 2 reform – but there is no reason why the overwhelming bulk of the proposals for reform cannot be dealt with now in line with the NSW Attorney’s timeline delivery before July 2020.
The one issue that will need a stage two process and further work is whether and how to treat online platforms as publishers.
My own view is that these online platforms should be held to essentially the same standards as other publishers but that how this should occur requires a sensible measured approach to reform taking into account the differences in the volume of material hosted between twitter or Facebook and a traditional newspaper for instance.
But what is clear is the playing field is not at all fair at the moment.
After the very curious decision in Voller v Nationwide News & Ors which held that the respective media companies (not Facebook) were, for the purposes of defamation law, the ‘publishers’ of third party comments posted to their public Facebook pages – it is clear that to have a level playing field between online publishers such as Facebook and twitter and traditional media publishers reform in this area is very necessary.
Finishing where we began.
If the idea is true, as people like John Stuart Mill believed - that rights inevitably conflict – that we can’t hope to resolve the conflicts to everyone’s complete satisfaction.
And if the subject matter of my portfolio seems to prove this idea – then perhaps a very unglamorous but important goal is some evenness in how dissatisfied people are that a particular draft or policy doesn’t provide everything on their wish list.
At least some measure that balance is about right might be something approaching an evenness in peoples’ dissatisfaction levels arising from different viewpoints.
Likely in this speech I have continued that long but unglamorous tradition of the AGs portfolio and have made all the members of the press club equally dissatisfied so will take that as at least something unifying - and move on to questions.