October 13, 2022
Attorney-General Mark Dreyfus has conceded politically appointed members of the Administrative Appeals Tribunal could sign off on warrants for anti-corruption investigators to tap the phones of prime ministers and senior public servants.
The Australian revealed on Wednesday that national anti-corruption commissioners seeking to bug phones or access the encrypted messages of its targets – which could include the prime minister, a spy chief, soldier or NDIS employee – must obtain a warrant from a judge or “nominated member” of the AAT.
Mr Dreyfus opened the door to changing the legislation so that it required a senior judge to approve warrants involving journalists as he lashed the “extraord-inary politicisation” of the AAT, with 40 per cent of appointees in the past three years having political links. These include former federal MPs, staffers, party officials and candidates. Asked at the National Press Club whether he could guarantee the nominated AAT members would not have been politically appointed, Mr Dreyfus responded: “Clearly I can’t at the moment and your story on the front page of The Australian makes that clear.
“It is not just me saying it. It is Mr (Andrew) Hastie and Senator (James) Paterson saying it loud and clear that we have had an extraordinary politicisation of the AAT, which is quite wrong. It has severely damaged the reputation of the institution, which is something that I regret, and we are embarked now on considering what we can do about it.”
Attempting to start a public conversation about the commission, which will have wide-ranging powers to investigate “serious or systemic” corruption in any part of the public sector, Mr Dreyfus said it would be up to the commission to decide whether it wanted to tap a person’s phone or execute a search warrant on private premises. He said the judges or AAT members who signed off on the warrant would simply review its legality.
“It’s a very straightforward function,” he said. “It’s an important check and balance in our system.” But he would consider whether it was appropriate to ensure those judicial officers reviewing warrants involving journalists were more senior. “That’s one of the areas that has to be looked at,” Mr Dreyfus said. “I’m on record as promoting the idea that you need senior people looking at these particular kinds of warrants … I would hope (it) to be a very small number of compulsory powers ever used connected to a journalist. You can’t rule it out.
“There will be investigations where this comes up. But in those very small number of cases, there’s every reason why you might like to increase the level of qualification of the person who’s conducting the scrutiny.”
Opposition legal affairs spokesman Julian Leeser said the issuing of warrants for the NACC was “better dealt with by a superior court judge”.
Mr Hastie and Senator Paterson, former Liberal chairs of the powerful parliamentary joint committee on intelligence and security, said Mr Dreyfus had been careful when safeguarding the rights of those subjected to covert and overt warrants. “I should know, I worked with him on the PJCIS for four years,” Mr Hastie told The Australian.
“We expect he will want to safeguard the rights of parliamentarians, staffers and public servants in the same way he argued the case for protecting journalists from abuses of power.” Senator Paterson added: “Given the gravity of a decision to authorise access to a member of parliament’s encrypted communi-cations, it’s reasonable to expect the now Attorney-General puts into practice what he preached in opposition.”
