Monday, 02 July 2018

2GB – Afternoons with Warren Moore



Subjects: AHRC; serious overseas criminal matters

WARREN MOORE: Well, you don't need me to tell you that the Australian Human Rights Commission has lost the plot - if they ever had the plot - they certainly lost the plot. I mean, time and time again we're reminded of how useless they can be. Today's no different. No different whatsoever. It's been reported that the Turnbull Government will investigate a decision by the Commission to demand insurance company Suncorp give compensation to a convicted child pornographer for refusing to hire him. And it does sound bizarre doesn't it?

The Federal Attorney-General, Christian Porter, will meet with the Commission about it because it just doesn't make sense. Not only that: he's also seized control of a legal aid scheme - separate story - which granted more than $0.5 million to defend paedophile Peter Scully as he faced trial in the Philippines. Can you believe that: it’s half-a-million of taxpayer's money? It's under the same scheme. People like cocaine Cassie [indistinct] also had access to a lot of money to help with their defence. So, a couple of big issues to talk about there with the Federal Attorney-General Christian Porter, who's on the line right now.

Thanks for your time.

ATTORNEY-GENERAL: Pleasure to be here.

WARREN MOORE: Well, I mean obviously this would not pass the pub test to say the very least. But even beyond that, it just makes no sense at all - both of these issues - but particularly first up about the Australian Human Rights Commission and the Suncorp case.

ATTORNEY-GENERAL: Yeah, I find it a decision that doesn't accord with my sense of common-sense and I think it would probably be a decision that most people find doesn't make a lot of common-sense. There's two competing principles here. The first principle is that a criminal record shouldn't rule you out of all future employment, and most Australians would accept that. If people have done the time or paid the fine then we don't want them on welfare queues forever. They should be able to, with a reasonable protection from discrimination, apply and get work. That's what we all want to see. But the second principle which is meant to be established in the relevant legislation is that employers nevertheless should be able to decide if someone's individual criminal record means that they're unsuitable given what the regulations call the inherent requirements of the job.

Now I, having considered this decision from the first time it was sent to my office - have some difficulty in seeing how that conclusion could be drawn that for what was effectively a claims assistant consultant at Suncorp that the level of dishonesty that was shown in the application process wouldn't actually itself mean that the person was unsuitable given the inherent requirements of the job, because claims assistant consultant requires you to make judgments about the accuracy and honesty with which people make claims.

WARREN MOORE: Let's just clarify that little point there, Christian. When I say - actually it's a big point. So not only was there the criminal record, it was not on the application.

ATTORNEY-GENERAL: Well, he eventually disclosed it but he did not initially disclose the criminal record in its entirety and certainly didn't let on the extent and severity of the criminal record in the initial online application. And I mean my legal reading of a decision here is that that would have been a very prominent feature of the decision-making. But look, ultimately it comes down to these words: inherent requirements of the job, and whether the criminal record means that someone's unsuitable for those. And, my own view reading this case is that you could have made the decision the alternative way: to say that the lack of honesty in the application process without more, meant that the person wasn't suitable given the inherent requirements of the job of claims assistant consultant. But nevertheless, I'm also going to have a look at the law and particularly the regulations that are at play here, because if there is a lack of clarity and an organisation like Suncorp doesn't feel safe in making what I think is a fairly responsible decision - not to employ someone with this criminal record into this particular job - I think that it just represents a result we need to try and work to clarifying and reversing.

WARREN MOORE: I take what you said on board before. Just because somebody's made a mistake in life doesn't necessarily mean that their employment prospects should be written off for their entire career. But having said that, if you have this information, if it's volunteered the way it should be, surely you as an employer have the right to take that into account when determining whether that person is of the type of character you want within your business.

ATTORNEY-GENERAL: I think it's more - slightly more - than whether the person’s of the character. I mean, people can and do reform, right? That happens. And as you say, we don't want everyone with a criminal record unable to take a job. But if the inherent requirements of the job, which I see claims assistant consultant as being about assessing honesty and accuracy in claims, and the person themselves hasn't honestly and accurately at the first reasonable instance declared their criminal record, I think you've got a problem there. And the way in which the law has allowed this type of decision to come out of the Human Rights Commission concerns me. And, as you say, I think that there has to be a reasonable ability for employers to look at the job, its inherent requirements and decide whether or not particular criminal offending in someone's past would mean that they're actually an unsuitable person for that job. That seems to me to be pretty basic and I must say I was concerned about this decision.

WARREN MOORE: Well obviously, Suncorp's taken it on as more of an ethical issue than anything else, because within their size, the $2500 fine isn't that much but yet they're refusing to pay it.

ATTORNEY-GENERAL: That's right, and I understand why they might take that position.

WARREN MOORE: I think we all do.

ATTORNEY-GENERAL: Indeed. So for me, it's a matter of looking into the law and seeing whether or not we can make it clearer and whether or not there's a way through the regulations, particularly to try and give a little bit more certainty and clarity for employers doing the right thing and trying to protect their clients and trying to employ the right people.

WARREN MOORE: To look at this in a more broader scope, though, if somebody has been refused a job for their criminal record, something of a different type maybe and something not as serious, do you think there are cases where they should have a right of appeal based on that?

ATTORNEY-GENERAL: Well I think that if someone's criminal record exists, it should not be a permanent barrier to employment. Like that would be a very bad result in Australia. And as I say, people who have done the time or paid a fine should be able to search for employment without undue and unfair discrimination. But the question is whether or not the discrimination is undue and unfair, and if the nature of the job means that a certain type of criminal offending indicates that you as a person are unsuitable for that job, then there should be clear and certain latitude for the employer to not employ you. And I think that this is something that needs to be looked at with a view to clarifying it, so that we don't get decisions at the margin like the one that we've had.

WARREN MOORE: Okay. We've got two big issues, so I'd better move on to the second one; that is the serious overseas criminal matters scheme. Part of legal aid, isn't it?

ATTORNEY-GENERAL: It's actually part of a - it's separate to legal aid. It's very much like legal aid, but what it was administered by my department effectively, and it applied only to Australians overseas who were either facing the death penalty or charged with charges with a penalty in excess of 20 years' imprisonment. And if you met either of those two criteria, your ability to get the payments was effectively automatic. Now, the Peter Scully case gave rise to a very serious and reasonable question, which was whether or not the people who were getting this money were getting it in circumstances that met community expectations, and the view that I formed after looking at the Peter Scully case was no, they weren't, that the community wouldn't expect that someone like Peter Scully would get in excess of half a million dollars to fund his legal defence overseas on the most incredible and terrible charges relating to a range of child sex offences.

So I looked at it, made two decisions or three decisions: one, it shouldn't be automatic in circumstances where the penalty is 20 years or more. What we need to do is limit it to the death penalty and then also consider other factors such as whether or not the person has had a long history of similar criminal offending, either here or overseas. And in Peter Scully's case, he was - actually left Australia to avoid prosecution and arrest in Australia, and I think that should also be a consideration. And thirdly, I've brought the decision-making up to my office and to myself as Attorney-General. I think it's the sort of decision-making that people want their elected representatives to make on a case-by-case basis and not have them made at the level of the civil service, even the highest civil service. So it's a pretty substantial reform to the scheme. Obviously we still want to ensure people get adequate defences to avoid the death penalty overseas, but there shouldn't be this near automatic guarantee if you face other serious criminal offending, even if you've had a long history of that criminal offending, even if you've fled Australia to avoid arrest, that you would automatically get the funding. I think that's quite wrong.

WARREN MOORE: Yeah, well, I think most people would agree with you on that. No doubt, no doubt whatsoever. And look, just turning back to one of your previous portfolios for a moment, I know you've had some comments to say about the Child Care Subsidy arrangements today. Do you think that's a generally- a good move?

ATTORNEY-GENERAL: Yeah, I do. I think that - well, first of all, it's a multi-billion-dollar investment, and that money eventually goes into the, directly goes into the pockets of Australian families. And just in my electorate, I've gone round and avoiding that dreaded cap that used to hit people in January or February or March after which they'd be paying the full amount for child care, avoiding that cap helps families to the tune of thousands of dollars, depending on the individual circumstances of the family. So it's a much simpler system, it's a much clearer system, it is skewed towards the people on the lowest and lower incomes, and the people who work the most, which is fundamentally what child care is meant to facilitate. And it also means more money in the system, so you don't hit that cap which, you know, for some families, wipes out the benefit of working.

WARREN MOORE: Well, that's exactly right. You end up with some people essentially paying to go to work.

ATTORNEY-GENERAL: Completely, and that takes the incentive out of dual-income households. And what I find in my electorate is that dual-ling the income of households is how people get ahead. That's how they afford a little bit better for themselves and for their kids, and you've got to make sure that for mums and dads that are working and raising their kids that they've got a proper, simple, fair system of child care and child care rebates. And this condenses the multiple number of payments into one, gets rid of that cap, is skewed towards the families that work the hardest and towards the families on the lower and middle incomes. It's a really significant change and people will feel it.

WARREN MOORE: Thanks you for your time, as always appreciate it.

ATTORNEY-GENERAL: Cheers, thank you.

WARREN MOORE: Federal Attorney-General Christian Porter across a few issues there, and I think a sensible approach to pretty much all of them.