Attorney-General Michaelia Cash says class action reforms and a federal integrity commission will have to wait until after the election as the government pursues laws on religious freedom and online trolls in the final days of parliament.
Senator Cash said the first priority of the Prime Minister was to ensure passage of the Religious Discrimination Act and to remove the right of faith-based educational institutions to expel gay students under section 38(3) of the Sex Discrimination Act. The next priority was to amend privacy laws to help combat online abuse.
“They are the two bills the Prime Minister is fundamentally committed to,” she said in an interview with The Australian Financial Review.
While Labor has not declared its position, a group of liberal moderates want teachers to also be covered by any amendment to section 38(3). This has left the final make-up of the bill in doubt.
The Attorney-General indicated that with only three sitting days for the Senate before the expected May election, the government would not waste any effort on the establishment of a Commonwealth Integrity Commission (CIC) – a commitment at the 2019 election – or class actions reforms.
Labor and the crossbench have made it clear they do not support the CIC model that has been presented, but Senator Cash said the PM had drawn a line in the sand.
Under the draft CIC bill, which is yet to be introduced into parliament, there will be no public hearings for the public sector division. It could only investigate potentially criminal offences, and it could start inquiries without a reference from MPs.
The model has been dismissed by the Centre For Public Integrity, a think tank led by former judges, as an “appallingly weak sham designed to hide corruption”. It does not have the required support of crossbench opposition in the Senate.
“The Labor Party want a political witch-hunt with show trials,” Senator Cash said. “That is unacceptable. The Prime Minister has made it clear our model has been released … the law remains unchanged.”
“If the Labor Party hate it so much, where is their model?”
The move against the litigation funding industry via a minimum return of 70 per cent for class action members will also be delayed until after the election. If the Coalition is defeated, Labor will scupper the legislation.
Senate committee reports last week expressed concerns over the constitutionality of the bill, the impact of the 70 per cent floor and the ban on common fund orders, which allow funders to represent all potential class members instead of signing them up one by one.
Senator Cash said she was looking at the issues with Treasurer Josh Frydenberg.
“There is a very broad range of views among the crossbenchers and these do need to be taken into consideration,” she said.
“We don’t have the numbers in the Senate, so we need to negotiate … I’ve pressed [through] harder legislation in a small period. Certainly, this is important for the government.
“In the first instance though, the online trolls and religious discrimination are two bills the Prime Minister is fundamentally committed to. The reality is, we are headed to an election and there is limited parliamentary time.”
Senator Cash said she was “still very pleased the committee supported the [litigation funding] bill – with some amendments”.
The Attorney-General has resisted the release of any advice around the constitutionality of the bill, including what heads of power are involved – a position that was criticised by the committees.
“It is the normal position of the government not to reveal confidential legal advice, but I will certainly consider the committee recommendation in relation to revealing the heads of power.”
The online trolls legislation will make social media companies liable for defamatory comments if they do not reveal the identity of the users responsible.
Labor has not declared its support, saying it wants to see the legislation first.
Senator Cash said she “would be at a loss to understand why the Australian Labor Party would not support a bill that protects Australians from online defamatory comments.
“Social media companies can already take down comments that they don’t believe should be on their page.”
If the online troll does not consent to taking down the post or revealing an identity, the bill allows an affected person to get a disclosure order from a court and to sue for defamation. The government has said it might support any test cases.
“The Prime Minister has a strong commitment to this. He was prepared to introduce the offence himself and to fix up the [Dylan] Voller decision [in the High Court].”
Written by Michael Pelly and originally published in the Australian Financial Review on February 7 2022