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6PR Morning with Gareth Parker



Subjects: Westpac; defamation law reform

GARETH PARKER: Attorney-General is Christian Porter. Christian, good morning.

CHRISTIAN PORTER: Morning, Gareth.

GARETH PARKER: Significant speech you made yesterday, which I want to go into some detail in a moment.

But I'll start with Westpac. It's hard to know where to start. But 23 million breaches allegedly of anti-money laundering laws. This is after the Commonwealth Bank had a..such a high-profile problem with the same issue or similar issues. But I just want to get your opinion on this because the allegation that Westpac will not be able to escape is the allegation that the facilitation of child exploitation happened because they were lax on their processes. And there's two particular customers here. Customer number one: November 2013 to July 2019 - that's this year - so hold that date in your mind, listeners - 'til July this year - 625 transactions of $136,000, repeated patterns, [indistinct]. Customer number three: April 2016, July 2019, again - 111 transactions worth over $20,000, same thing. The allegation is that these are paying potentially things like - I mean, it's almost appalling to say on the radio - but live child sex shows in the Philippines.

Now, how can Westpac's CEO standby "well I want to fix this" given that the Commonwealth Banks history and their issues around this were so well known, this isn't some sort of pre-Hayne Royal Commission sloppiness. This was going on until July this year. How can Westpac respond to this, Attorney?

CHRISTIAN PORTER: Well, I think you've asked precisely the right question. I'm sure, as the Prime Minister has said, that's a question that the Board needs to resolve and I'd add they need to resolve it very, very quickly. So you noted at the outset of the program that there were incidents at the Commonwealth Bank – there were 53,000 breaches of what are effectively money laundering provisions of the APRA legislation and because of the nature and the way that these matters are settled, as Attorney-General, I had to approve and design a settlement and that represented a $700 million fine for Commonwealth Bank, 53,000 instances. Now, we don't know what all of these instances are at Westpac. You've nominated two and I'll come to those in a moment. But there are 23 million of them, it appears. And the point that I would make is we don't know yet whether or not those 23 million are of the same type as the 53,000 for the Commonwealth Bank. We don't know how they sort of unpack and how they are constituted. But it is an enormous number. And the fundamental point, which I think that your introduction crystallises, the reason that we have laws to prevent breaches of APRA's legislation to prevent money laundering is that money laundering is a facilitating offence. The laundering of money allows for other criminal activity. Laundered money finances terrorism, international crime and of course, the types of horrendous offending that you've noted in your introduction. So this is as serious as it ever gets. That question about who is best placed to fix this situation at Westpac Bank is a question for Westpac Bank and its Board but I would've thought that is a question that they need to ask and answer very quickly.

GARETH PARKER: Yeah. If these allegations are proven, Westpac has facilitated crime on a massive scale.

CHRISTIAN PORTER: Well, anyone who breaches money laundering laws and therefore allows money to be laundered, has - just as a matter of fact and common sense - contributed to the facilitating of international and domestic crimes of a variety of types. Persistent, inescapable consequence of money laundering, the reason people launder money is to hide the profits of crime and criminality and to fund further crime and criminality, which is why we have such strong laws, such strong penalties and why the Government takes such an incredibly robust approach to money laundering - it's a facilitating offence for other crimes. There's no escaping the fact that if you let money laundering happen, you're letting crime happen.


CHRISTIAN PORTER: Of the most horrendous types.

GARETH PARKER: Yeah. Well, exactly. Well, we'll wait and see how the board responds. We'll wait and see where that all goes. I'll leave that issue to one side for the moment.

Yesterday, you made, I thought, a significant speech and it was about two essential things. One was about the reform of defamation laws in this country; the other was a long overdue - on the question of defamation reforms, I just want to tell you a little story, to you and for listeners, so this crystallises it …


GARETH PARKER: … For the listeners of this program, they know that we've been pursuing a plumbing company that operates in this city. And we have been told stories by listeners to the program that they are being ripped off by this plumbing company. Now, in trying to protect the public and act in the public interest, it took us quite a bit of time and a careful consideration - and we may not be out of the woods in a legal sense yet - before we decided to name the plumbing company. Even though the evidence that they are treating their customers poorly is overwhelming, even though the Department of Consumer Protection in this state are actually actively soliciting from the public more stories about this company so that they can act. But because of the way the defamation laws work in this state, we are taking a risk, and I am taking a risk by naming them to try and protect the public. That's annoying.

CHRISTIAN PORTER: Those sort of instances where the balance doesn't appear to be quite right are substantially more than annoying. I mean, there's a balance to be struck here between protecting peoples' reputations from being unfairly damaged, untruthfully damaged, or damaged without sufficient cause or evidence. And of course then, the other instances we want to enhance people's right to know about the world, about individuals, and enhance the ability of a free press to report right – there's an obvious balance that has to be struck and, 2006, there was a model defamation code brought in across Australia - because  this is largely about state laws. But the Commonwealth, the states, the territories, all in effect have the same laws around defamation. And through the Council of Attorneys-General, there has been a process of reform going on over the last year led by the New South Wales AG Mark Speakman, who's done a great job.

And next Friday, there'll be some significant developments there. I don't want to foreshadow precisely what they'll be, but the types of things that are being considered, clarifying the cap on damages for non-economic loss, setting an upper limit regardless of what aggravated damages apply, looking at the types of defences that appear to work well in New Zealand of responsible communication on a matter of public interest, which I think might be relevant to the situation that you've indicated. There's another massive problem area that has arisen out of the media, the digital platforms, is that there has been an absolute explosion in, sort of, neighbourhood defamation matters, where one person takes action against another person because of something said about them or their neighbour on Facebook or Twitter.

Now, there's a balance there to be struck between people having the right to defend their reputation, but not clogging up the courts with stuff where there isn't any actual, realistic, quantifiable damage to a reputation done simply because something was said in a neighbourhood dispute which was mean-spirited amongst neighbours. These types of issues are going to be resolved in a first wave of reform and where that is headed will become clear next Friday after the Council of Attorneys-General. Then, there needs to be a second wave of reform that deals with that issue that you just mentioned, because how do you come to grips with what I think is a very un-level playing field between traditional media and platforms like Twitter and Facebook who, whilst dissimilar in many ways, are similar in many ways, and at many points look like they're publishing information for advertising revenue as a basic business model. And my own view is that there needs to be more similarity in the treatment between those two types of business models, that the playing field at the moment is very un-level. It's obviously a very complicated area of reform because there's massive volume of material that goes up on Twitter and Facebook, but that is going to be dealt with in a second wave of reform. But this is an area both for digital platforms but also just defamation generally that is long overdue for some pretty serious changes.

GARETH PARKER: The platforms will hate this, because they've always taken the view that: oh, we don't publish, we just provide a utility and it's up to users to control and moderate what they do. And if they break the law, well, it's nothing to do with us. Are you telegraphing that that's not acceptable anymore?

CHRISTIAN PORTER: Well, I just think they're – and my own view and what I'd be arguing during this process of reform is that no responsibility for uploading content is insufficient and a newspaper or your radio show takes a very high level of responsibility for what is said on your radio show or printed in a newspaper. Your business model and the model of operation is different to Twitter or Facebook. But there are striking fundamental similarities in that both of those businesses make money out of advertising revenue, where advertisers pay because your content is popular and so you become responsible for your content. And you've got an un-level playing field at the moment where there is virtually no responsibility taken on the part of large digital platforms for things that might otherwise be defamatory on their platforms. And of course, recently, after the terrible terrorism event in New Zealand, we very quickly passed a law that said that online digital platforms are going to become criminally responsible if they leave up what we described as abhorrent violent material beyond a reasonable period of time on their platforms. And I think most Australians would agree that's fundamentally reasonable. But that is a law that requires a greater deal of responsibility taken by online platforms for what they host. And I'm not pretending that this is simple. There's lot of things to be taken into consideration and it has to be a consultative process and it won't be without it complications, but my own view and what I'd be arguing inside the Council of Attorneys-General process is that there has to be greater responsibility taken for content which is defamatory of people by online platforms.

GARETH PARKER: Well, I urge you on. Keep going. You have our full support. Attorney-General, thank you for your time.

CHRISTIAN PORTER: Thank you very much. Cheers, Gareth.

GARETH PARKER: Christian Porter, Attorney-General.