Greater clarity for employers and
providing further protections for journalists
The Attorney-General, Industrial Relations Minister is Christian Porter. He is
on the line today. Christian, good morning.
CHRISTIAN PORTER: Yeah, morning. Good weather
for the show, huh?
Magnificent weather for the show. It's probably the best day we've had so far
this week, not that Monday to Wednesday was any slouch, but it's gorgeous
today, so the crowd's starting to filter
CHRISTIAN PORTER: Good work.
Can I ask you about this - people may remember this story - it was about a year
ago that, I think it was Suncorp who went to apply or hire someone once they
discovered that the person who they were going to award the job to had previous
convictions for child pornography, they had second thoughts and they decided
not to give him the job. The Australian Human Rights Commission intervened on
behalf of the would-be employee and said: no, you can't prevent employment for
that reason. You promised to review it and we're now at the end of that
process, is that right?
CHRISTIAN PORTER: Yep, so- it's done. And the
law is now significantly changed, it's not the biggest change in wording in the
world but it's very significant. But what it essentially says now is that an
employer can take into account the relevance of someone's criminal record. And
I think the difficulty with the Suncorp matter was that it was a record which
also demonstrated a degree of dishonesty on the part of the person who held the
criminal record. And the job they were applying for was effectively assessing
people's insurance claims. Like, sitting in judgement on other people's
capacity to be accurate and honest with their claims. So it seemed to us, the
government, completely reasonable that Suncorp would say in those
circumstances: well look, given the nature of the record, this is not an
appropriate job for you. The idea that they suffered a law and a decision that
told them that they couldn't make that exercise of their own discretion seemed
to us to be pretty strange if not a bit ridiculous. So yeah, we've changed the
So is the issue the nature of his conviction? Or was the issue that he hadn't
been honest about declaring it?
CHRISTIAN PORTER: Well, the nature of his
conviction, I think in the Suncorp case he was a child sex offender, but in the
circumstances surrounding his conviction and relevant to it, he'd been
dishonest, so that was relevant in all the circumstances we considered. So what
previously was the case was that employers had to clear a much higher bar that
required them to show that a criminal record was directly relevant to the
inherent requirements of the position in question. So, you know, we've tried to
strike a better balance. And what the employer can do now is if they reasonably
believe that a person is unsuitable for a position due to the particular nature
of their conviction, then they can make a determination not to hire them based
on that conviction.
I don't think anyone's going to feel too much sympathy for this particular
individual, but if I can remove it from that for a moment and talk about the
CHRISTIAN PORTER: Yep.
… one of the things that I think we've actually seen in remarkable - on the
other side, of the value of a second chance, actually happened in the AFL on
the weekend where you got Marlon Pickett who went to jail in his teenage years,
finally gets his chance at the top level and stars on the biggest stage. That's
a fantastic redemption story of someone who gets a second chance. We do as a
society I think want to encourage people to take second chances, do we not?
CHRISTIAN PORTER: Completely. No one thinks
that a criminal record should rule you out of future employment. I mean, the
whole point about serving time pursuant to a criminal record or suffering a
penalty of a criminal record is that you served your penalty to the society
that you've offended against, then you get back into that society and you make
amends. So, absolutely. But nevertheless, an employer's got to have the ability
to say: well look, you've been convicted of an offence and that offence was
against children, so you shouldn't be working with children. Or the offence
demonstrated levels of dishonesty, and the job that you're now required or
applying to undertake has an inherent requirement that not merely you are
honest, but you assess the honesty and accuracy of applicants or other people.
So there's got to be a correct balance, and I think what was demonstrated in
the Suncorp matter - which I think most Australians would say, well, totally
reasonable that they'd decline this employment given all the circumstances. But
that was unlawful for them to decline that person employment. So of course you
want to give second chances and third chances to people, and you don't want to
have people ruled out of employment perpetually, but again, employers and
particularly in small business, have got to have a discretion to be able to say
no to people that aren't suitable.
Right. But it's about the relevance of the criminal conviction and the
circumstances surrounding it to the job that they're going to perform, that is
the test now.
CHRISTIAN PORTER: Correct. And the test will be
the reasonableness of the employer in making that assessment that the criminal
conviction means that they're not a suitable person for the particular position
they're applying for.
Alright. In Canberra they are still very focused on whether or not journalists
will be prosecuted over national security leaks. You have said earlier this
week that, what, the Commonwealth DPP will need your approval before they
decide whether they prosecute a journalist or not?
CHRISTIAN PORTER: So there's a mechanism that
exists at a state and federal level for a certain group of offences to require
the Commonwealth's Director of Public Prosecutions or a state director to seek
the consent of an Attorney-General of the day. Now that requirement can either
be in the actual legislation that sets the offence up, or you can use a general
provision that allows me as Attorney-General to write to the Commonwealth
Director of Public Prosecutions, seek their view and consult with them, but
ultimately require them to send something to me for final consent. So it is an
additional safeguard on top of the independent assessment of the Commonwealth
Director of Prosecutions. I think it's an important safeguard. It's certainly a
safeguard that many people both inside the media but also inside the legal
industry were arguing in favour of last year when we were talking about
revamping our espionage and secrecy offences. But I've used a provision to
require the Commonwealth Director of Public Prosecutions in a number of
offences to come to me and seek my consent, and I think it's an important extra
Law Council doesn't see it that way. Arthur Moses from the Law Council says:
“let's be very blunt about this, this doesn't allay the concerns that have been
raised”. He says it puts the Attorney-General, who after all is a politician,
in the position of authorising prosecutions of journalists in situations where
they may have written stories critical of the Government. Has he got a point?
CHRISTIAN PORTER: Well, the Law Council of
Australia around about this time last year argued that- and supported the
position that my consent - or the Attorney-General's consent - be required for
offences of precisely this type. And this year they're arguing that somehow
that is diminishing the independence of the Commonwealth DPP. Which it's not,
it's a regular feature of our system. But if they can explain why they were in
favour of precisely this same mechanism last year but not this year, I'll let
them do that, but it seems a little bit interesting.
Would you ever authorise prosecution of a journalist over these matters?
CHRISTIAN PORTER: Well, I've said I'd be
seriously disinclined to have journalists prosecuted when they've done nothing
more than engage in the ordinary course of public interest journalism. But I
can't say that in a given factual circumstances, consent would or wouldn't be
granted until those factual circumstances have arisen, and they've been
presented to me on a recommendation of the Commonwealth Director of Public
Prosecutions. And the process here is that if someone were investigated, first
of all the AFP has to exercise their discretion to investigate, they have to
investigate, they have to build a brief. That brief of evidence goes to the
Director of Public Prosecutions. The Director of Public Prosecutions considers
the brief of evidence, the strength of it, the prospects of conviction, whether
there's a public interest. If in their independent assessment they determine
that prosecution should happen, they would then come to me and seek my consent.
So there's that final third layer of cautionary examination of all of the
circumstances as a safeguard. But I'm not [indistinct] to agree.
[Talks over] To date, has any such application-
CHRISTIAN PORTER: No, no.
To date, has any such application been made?
CHRISTIAN PORTER: Not in matters involving
journalists, to me. But these applications do come up from time to time,
particularly in the national security space. And I'm, as an Attorney-General,
if you have a requirement that the Director of Public Prosecutions seek your
consent, that is not a requirement that you agree with the Director of Public
Prosecutions assessment. The whole point of this process is that you might
formulate a different view.
Okay. Christian, I appreciate your time this morning. Thank you.
CHRISTIAN PORTER: That's a pleasure, cheers.
Christian Porter, the Attorney-General.