Thursday, 03 October 2019

6PR - Mornings with Gareth Parker



Greater clarity for employers and providing further protections for journalists

GARETH PARKER:  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?

GARETH PARKER:  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 in.


GARETH PARKER: 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 law.

GARETH PARKER:  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.

GARETH PARKER:  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 general principle…


GARETH PARKER:  … 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.

GARETH PARKER:  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.

GARETH PARKER:  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 safeguard.

GARETH PARKER:  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.

GARETH PARKER:  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.

GARETH PARKER:  [Talks over] To date, has any such application-


GARETH PARKER:  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.

GARETH PARKER:  Okay. Christian, I appreciate your time this morning. Thank you.

CHRISTIAN PORTER:  That's a pleasure, cheers.

GARETH PARKER:  Christian Porter, the Attorney-General.​