Wednesday, 20 February 2019

ABC Radio National Drive with Patricia Karvelas



Subjects: Border security; Minister Cormann travel; Privacy Act; Minister Cash legal bill

PATRICIA KARVELAS: A sudden change of stance on the reopening of the Christmas Island detention centre has seen Labor on the back foot today. The Government was making the most of it during Question Time, but it also faces difficult questions around the so-called medivac bill. A law passed last week by the Nauruan Government has banned the use of teleconferencing in assessing whether critically ill asylum seekers require medical transfers. Critics say it effectively undermines Australian law.

Christian Porter is the Attorney-General and he joins me now from our Parliament House studio. Minister, welcome.


PATRICIA KARVELAS: Does the Nauruan law contradict the medivac bill that passed the Australian Parliament, and if it does, which law takes precedence?

CHRISTIAN PORTER: Well, it's a complicated question of a conflict of laws and I think that it's not one that's been thoroughly investigated or answered yet.  And it's one, of course, that should have been considered before the law was passed by Labor, but debate was gagged by Labor and the Greens and so the problem with this law is that it wasn't thought through. Nauru is a sovereign nation and they are responsible for their own civil justice system, their own rules and their own laws. And you're right, it gives rise to a very complicated, almost unprecedented set of circumstances.

PATRICIA KARVELAS: Human rights lawyers say that holding asylum seekers on Nauru would be a violation of that country's constitution, given the Federal Court has ruled Australia has a duty of care. Do you agree with that?

CHRISTIAN PORTER: Well, I'm not going to give constitutional advice on the run. This is a law that was rammed through the Parliament without debate after a gag motion was passed between Labor and the Greens. Since that point in time we've obviously been doing our level best to operate inside the law, to understand how it would operate, its deficiencies, and how it would operate poorly. But look, that is a real question that needs to be investigated. But looking at a conflict of laws between Nauruan domestic law and then those laws with Australian judicial precedent is a very complicated set of circumstances. And none of this was thought through by Labor beforehand. Not an ounce of it.

PATRICIA KARVELAS: Alright. So, that's a political point. Now, what's the legal point? How do you resolve it?

CHRISTIAN PORTER: Well, it's a point of reality, don't you think?

PATRICIA KARVELAS: How do you resolve it? Because you're actually the Government. How are you going to resolve it?

CHRISTIAN PORTER: Well, you resolve those sort of issues piece by piece. This has only arisen today, so it probably won't surprise you that we haven't thoroughly researched the legal points in the course of 12 hours.

PATRICIA KARVELAS: Are you going to be, though? What can you tell me about what you will do?

CHRISTIAN PORTER: Well, of course. I mean, we will look into how the situation operates as a conflict of laws, which laws might take precedent. I mean our job is, having had these quite ridiculous, poor laws thrust upon the Australian people, is to try and make them work as best we can, which is why we've opened Christmas Island.  We think that is the appropriate place, in all the circumstances, to bring the people who will be transferred under this Labor law. Obviously, where legal issues arise with this Labor law, we will do our best to sort through them. But obviously these are questions that…

PATRICIA KARVELAS: You keep calling it.  Sure, but I have to pick you up on something. You keep calling it the Labor law, and it's obviously a political point. It's actually the Parliament's law. The Parliament passed it with a majority.

CHRISTIAN PORTER: Well, you can go all AV Dicey on me, Patricia, but this was a law..

PATRICIA KARVELAS: I'm not going Dicey. I mean, I know the numbers, I know the Parliament, right? I'm right, aren't I?

CHRISTIAN PORTER: This was a law passed by Labor, the Greens, and the independents. It's not a law that we as the Government, the Liberal-National Coalition, favoured. We didn't get a chance to debate it. We think it's bad for Australia. We think it's been poorly thought-through. We think it weakens our border security. We think the practical implications of it are that the Minister has had his discretion radically narrowed and can no longer refuse the transfer of people who are charged with serious offences. It's going to cost Australia $1.3 billion. It gives rise to a whole range of problems and consequences, but if you're trying to pretend that Labor wasn't desiring this change of laws…

PATRICIA KARVELAS: No, no. I didn't pretend. I said Labor voted for it, but the Parliament did as well, and indeed the crossbench.
Doctors we've spoken to say there is no medical justification for refusing to allow teleconferencing to be used here. It's routinely used, actually, for remote medicine in Australia; it's increasingly used. Is it reasonable for it to be banned?

CHRISTIAN PORTER: Well, we're not banning it.

PATRICIA KARVELAS: No. But it would be banned under these laws that have been passed in Nauru.

CHRISTIAN PORTER: Well, that's correct. But Nauru is a sovereign nation that makes its own laws. I mean, you're asking about the reasonableness of two doctors making an assessment as to someone's need for further assessment by Skype, effectively. Now, I would argue and the Government..

PATRICIA KARVELAS: But Skype is used in medicine all the time. That's the point I'm making.

CHRISTIAN PORTER: Well, that is true. It is used. But of course there are a range of medical professionals already on Nauru; 60.  One medical professional for every seven persons on Nauru (corrected). The judgment of two consulting doctors over Skype may well be at odds with those that are employed on Nauru, the medical professionals, to take care of the people on Nauru, and we have always argued that it is a fairly low bar pursuant to which to fundamentally change the offshore processing regime, to have two doctors commence a process from which the Minister's discretion is largely eradicated by Skype at the request of someone who's on Nauru. And we think that's a bad process.

PATRICIA KARVELAS: If you're just tuning in, I'm interviewing the Attorney-General Christian Porter tonight. This is RN Drive - 0418 226 576 is the text line if you want to text in on these issues. Minister, do you concede that it's possible none of these asylum seekers will be treated on Christmas Island and all of them may come to Australia because the medical facilities may not be up to scratch?

CHRISTIAN PORTER: Well, Christmas Island is being reopened for the purposes of accommodating and having appropriate medical attention adequately provided to the transferees. We expect that there could be up to 1000, but certainly in the early stages we expect several hundred. The reason why we've chosen Christmas Island is, I think can be summarised as being two-fold: the first is, of course, having cleaned up the mess that was left by Labor last time, we have closed 19 detention centres, so there are only a handful of detention centres actually operating now onshore on the Australian mainland. They have just under 1300 people in them. There is not enough capacity in those detention centres onshore to cope with the influx of people that this Labor law will create. And secondly, of course, the Labor law takes away from the Minister the discretion to refuse entry on character grounds, and there are just going to be too many people who would otherwise fail a character test or about whom we do not know nearly enough to justify …

PATRICIA KARVELAS: Alright. Can I just get some…

CHRISTIAN PORTER: … community detention onshore in Australia. And that seems to be a position now that Bill Shorten agrees with.

PATRICIA KARVELAS: Minister, has the Australian Government spoken to the Nauruan Government about this teleconference ban?

CHRISTIAN PORTER: I would expect that there would be dialogue between the Minister for Home Affairs, but I don't have confirmation of that.

PATRICIA KARVELAS: Okay. Just on another big issue that's been dominating today, if you made a $2800 purchase on your credit card and it was never charged, would you notice?

CHRISTIAN PORTER: Well, me personally, there might be some jeopardy that I would not notice because,  this is sort of an unusual set of circumstances, but the amount of travel, unfortunately, that I'm required to do for the job that I'm in - from Perth particularly - and the amount of payments and then reimbursements, is it can be the case sometimes that you lose track of these things. So, I fly usually once a week, often more, between Perth and the east coast, which is the distance of London to…

PATRICIA KARVELAS: Isn't that paid for by the Department, though?

CHRISTIAN PORTER: Yeah, it is, but that's booked independently. You know, there are hotel rooms and payments and incomings and outgoings. If you're asking me, personally, would it be something that you could miss-

PATRICIA KARVELAS: Do you sometimes have to pay on your own credit card?

CHRISTIAN PORTER: Well, all accommodation and so forth, of course, yeah.

PATRICIA KARVELAS: Okay. So, you're saying you wouldn't notice if $2800 hadn't been charged? Do you think it's reasonable?

CHRISTIAN PORTER: Well, I mean, it's quite possible that in the circumstances that you're in being a Federal Member from Perth, travelling the equivalent distance from London to Moscow at least once a week, hotel rooms and flights, that, you know, that is quite possible that that amount could come out of a credit card with all of the incomings and outgoings and you wouldn't notice.

PATRICIA KARVELAS: Andrew Burns is the Federal Treasurer of the Liberal Party and the CEO of Helloworld Travel. Mathias Cormann says he called him directly to book the flights. Do you call the CEO of, you know, a company and organise travel? Is that reasonable? Does that pass the pub test?

CHRISTIAN PORTER: Well, look, as I understand it, Mathias called, booked the travel, he gave credit card details expecting to be billed. He wasn't; he didn't notice that, obviously, for some time, that the organisation itself had the booking and payment listed on their books as unresolved but didn't remind him because his credit card details were there. So, there's no reason to not accept that explanation for these events. I mean, sometimes in modern trade and commerce these things happen. I'm not quite sure what the huge sort of furore around it is. His credit card wasn't billed and now it has been.

PATRICIA KARVELAS: Well, personal relationship.  Clearly he was booked by the CEO, who's a donor to the Liberal Party, and the company had got a contract from the Government. That's why it's an issue.

CHRISTIAN PORTER: Well, but that suggests that there was some connection between those two, and as Mathias has noted, he had absolutely nothing to do with the provision of that contract. And in answer to your first question, I mean, it is often the case that people will ring up the person they know in an organisation. I mean, that in itself is not unusual.

PATRICIA KARVELAS: Do you accept it's a bad look for them to be paying for personal flights for the Finance Minister?

CHRISTIAN PORTER: Well, again, to answer the question

PATRICIA KARVELAS: He only paid it back when he got a media inquiry.

CHRISTIAN PORTER: Well, when he became aware of the fact that when he gave over his credit card details, that the amount that was agreed would be taken from the account, hadn't been taken from the account. So, the premise of your question that someone else paid for the flight, I think, actually isn't an accurate reflection of what went on. The flight was unpaid for, for some time.  When Mathias Cormann became aware of the fact that they hadn't properly debited his credit card account, he organised for that to happen. So, that again is not an unheard set of circumstances.

PATRICIA KARVELAS: Political parties are exempt from the Privacy Act, which means Australians have no way of knowing how much of their personal data could've been accessed during this cyber-attack on Labor and the Coalition servers. Should they lose that exemption?

CHRISTIAN PORTER: Well that exemption's been in place for several decades, it applies obviously evenly to all registered political parties. The purpose of it is to allow a high degree of free political communication between political parties and voters. So there's certainly, I think, a rationale for it. But there aren't any particular steps afoot from this Government to have a change in those long standing arrangements.

PATRICIA KARVELAS: Don't Australians have a right to know if their personal data has been accessed by foreign government and what information has been accessed?

CHRISTIAN PORTER: Well, obviously, we work very hard as a government to prevent any access to data of the type that appears to have happened in the incident that's been reported recently. As a government, we've passed laws to ensure that certain breaches of a certain size for companies are compulsorily reported. But of course, political parties and the relationship with voters are inherent to the democratic free-flow of information, in fact, the freedom of political communication which is enshrined in the Australian Constitution. So, they represent a quite different case from commercial entities at large I think.

PATRICIA KARVELAS: And Minister, at a bare minimum, don't Australians have a right to know which country was responsible for the attack when that information is obtained?  There's an investigation that hasn't been revealed yet. But shouldn't it be revealed if you do find out who it is?

CHRISTIAN PORTER: Well, those are determinations based on advice that we get from our security and policing agencies who undertake investigations of that type. And you'll appreciate, whether it's a standard state-based police investigation or an investigation such as this, which is conducted at a national and international level, there will be investigations which are conducted in a way where the investigators do not wish to, for the purposes of making the investigations work, reveal what they know at any particular point in time. That's been a longstanding feature of investigations, otherwise it would be impossible to get to the bottom of these things.

PATRICIA KARVELAS: Minister, before I let you go, it's just broken this afternoon, the Attorney-General's Department, which of course is your department, you're the Minister, officials say Michaelia Cash's legal bill for this AWU raid matter is up to $288,000; that's taxpayer funded. That's nearly $300,000 of taxpayer money. Is that acceptable?

CHRISTIAN PORTER: So there is a longstanding ability, provision which says that Ministers of the Crown, whether they're from Labor or Liberal, or from Government to the next government, when they are compelled to appear before proceedings, as Michaelia Cash has been, that their legal costs are covered. That again is a very longstanding rule; that's applied to Kevin Rudd appearing before a Royal Commission into pink batts, it's applied to a whole range of circumstances. As a politician, it's often going to be the case that from time to time you are compelled to appear before inquiries, whether they're Royal Commissions or other matters before courts or tribunals. And it's been a longstanding practice that that's not paid for individually.

PATRICIA KARVELAS: Do you think taxpayers would be concerned about it? Would you be concerned about it? Nearly $300,000, given what has been revealed in this case and the role that Michaelia Cash's office has played?

CHRISTIAN PORTER: Well, I mean, this case could end tomorrow if the organisation in question who was the subject of the warrant, simply provided the information that showed the appropriateness and lawfulness of the payments that were made. So it's, I guess, disappointing that the matter has come this far, but the matter's before the courts and they'll deal with it as they see fit.

PATRICIA KARVELAS: Minister, thank you so much for joining me.

CHRISTIAN PORTER: Okay. Thank you Patricia.

PATRICIA KARVELAS: That's Christian Porter; he's the Attorney-General, joining me here on RN Drive.