Thursday, 19 September 2019

ABC Radio Melbourne drive with Rafael Epstein



Subjects: IR discussion papers, family law

ATTORNEY-GENERAL: So there's a discussion paper from the Federal Government. They want to ramp up penalties for wage theft. But will it get any easier if you want to try and make a claim? People like the Rockpool Group Dinner for Heston, they've been locked in inquiries with the Ombudsman for years. So will the Government make it simpler and cheaper to claim back wages you are owed?

The Attorney-General in Scott Morrison's Federal Government is also the Minister for Industrial Relations. Christian Porter, he joins us. Thanks for having a word to us.

ATTORNEY-GENERAL: Yeah, Raf. Good to be here.

RAFAEL EPSTEIN: The Biloela family first, that ruling in the Federal Court today. TheGovernment fought this tooth and nail. Your lawyers were wrong, weren't they?

ATTORNEY-GENERAL: Well this is an interlocutory decision that the matter has to be heard at a final hearing, so it's obviously a contested point of law. And we're still contesting it. So this isn't the end of the matter, and this is not unusual in matters of these types. But our position is very clear on it.

RAFAEL EPSTEIN: Just that the youngest child in the family should be given - her lawyers say she should be given a full chance to make a case for a visa. The Government must have got that argument wrong.

ATTORNEY-GENERAL: Well, we thought that there was insufficient basis to have that full hearing. The courts determined otherwise. But the full hearing has yet to be had. So, yeah. We have not been successful in this interlocutory matter, and that much is clear.

RAFAEL EPSTEIN: Disappointed?

ATTORNEY-GENERAL: Well, we abide by decisions of the courts which has always been the case in these matters. Which of course is part of our fundamental argument, that if anyone comes to this country unlawfully and applies for a particular status - in this case, refugee status - and they exhaust every avenue of appeal designed to argue that status, then the final decision of the courts have to be abided by. I mean, that fundamentally is our position.

RAFAEL EPSTEIN: Personal reaction, disappointed or not?

ATTORNEY-GENERAL: Well, I'm never disappointed in court outcomes in the sense that we abide by court outcomes in a rules based system.

RAFAEL EPSTEIN: On to your discussion paper, if I can use George Calombaris and the MAdE group as an example because it's so familiar, $8 million taken from 500 people, tiny penalty worth about 2.5 per cent of the money that was taken from workers. If that was to happen again, would your desire be that someone actually be prosecuted this time? Is that the test you'd like to set yourself, something like that?

ATTORNEY-GENERAL: Well, we have stated that we will institute a criminal penalty for the most serious forms of underpayment. And the types of things that delineate what's serious - I mean, that'd be the quantum, the amount involved, how sustained it is over what period of time - particularly important would be the state of knowledge of the person, if they are doing this knowingly. I mean that is a very strong indicator that there should be more serious and criminal penalties. What we don't want to have is punitive criminal outcomes for the overwhelming majority of businesses who are trying to do the right thing in a quite complicated system with 122 awards. So this paper is designed to get the views from all the stakeholders - employees and employers - as to precisely where that line should be drawn in legislation so that it's fair, so that it provides the specific and general deterrence that you need.

Now I'm open minded as to precisely where that line would be drawn, but I think that the thing that…

RAFAEL EPSTEIN: …can I ask you to draw a line with something like the MAdE group, because they say - I mean, they say it's a genuine mistake. They say it's not deliberate. So if something like that happened again, could people expect them to be prosecuted or not?

ATTORNEY-GENERAL: Well there's lots of things that were going on there and that might be going on in any individual case. And I just can't take the facts of that and then test them against tests that we don't - haven't yet developed. And the reason that we're developing the test in this consultative way is to get it right. But as you'll see in the paper - I mean, another issue that's taken into account is whether or not a fine or penalty is actually going to send the business bankrupt or into receivership, which would mean ultimately that the workers that you're trying to protect are all worse off because people lose jobs. And this is one of the things….

RAFAEL EPSTEIN: Kind of like a bad bank being too big to fail, isn't it? They can rip you off as long as they're ripping off large enough they can't get penalised.

ATTORNEY-GENERAL: Well I think the difference with banks is that they are so big that penalties don't put them in jeopardy of becoming bankrupt. But where there has been underpayment, where it's been self-reported, where it's a genuine mistake, even if the amount of underpayment is significant, if it's repaid back quickly the courts do take into account when they push a penalty in terms of a final contrition payment, whether or not that final contrition payment might send the business bankrupt, which is not in the interest of anyone that works there, and then that's a real outcome that many businesses might face in this type of area whether they're restaurants or groups of restaurants and so forth. So the court takes into account a lot of different things.

But I can't give you a precise answer as to what the test might be and how therefore it might relate to a case like the Calombaris case. But I think we'd all agree that the amount there, the level of the contrition payment that was exacted there, as I've said I think in all the circumstances seems very light, which was one of the reasons why we're looking at a criminal offence. But we're also looking at ways in which you'd have the civil offences strengthened. And one of the things that happened…

RAFAEL EPSTEIN: ….can I ask you about the civil offences - and just from the point of view, I know there are people listening to this whose kids or they themselves, they've being ripped off. One of the big complications, it's not simple and it's not cheap.

There was a case this week on Jon Faine's show; chef went to the Ombudsman, then went to the small claims tribunal, small claims tribunal supported the chef, but the chef then had to get a lawyer to go back to the Federal Court, to get the sheriff to go and seize assets from the restaurant. I mean, it's - most people who are owed $3, $4, $5000, they're not going to do that. Can you make it - will you make it simpler and cheaper?

ATTORNEY-GENERAL: Yeah, look, I accept that that's a very rational and valid point of view. This is the first half of a two-part series on penalties and processes, and this focuses on the penalties. We will have a second part to this discussion paper, which was acknowledged in the discussion paper, which will deal with this issue around how you make the process simpler, cheaper, more efficient for people who believe that they've been underpaid. Now, the Fair Work Ombudsman is now investigating these matters and successfully investigating and recovering them at much greater rates than they ever have been before, they're been funded under our Government than they've ever been before. I think that there is-

RAFAEL EPSTEIN: Rockpool, Chin Chin, Ichi Group, Dinner by Heston, they've all been going on for years, and that's even once you've given them extra resources.

ATTORNEY-GENERAL: Well as I say, I accept that looking at ways in which to make the process of complaint through to outcome simpler, faster, and more efficient is a very valid point of view and argument, and specifically one that we're going to go out and seek views on, and it'll be the second part of this penalties space in terms of underpayment.

I might also say that many people say the same thing about unfair dismissal laws for small business, that the process itself through the Fair Work Commission is sometimes agonisingly complicated and slow. So I'm very much in the area and space where I want to see present processes made more efficient and more user friendly. So, yep, that is definitely something that we will be looking at.

RAFAEL EPSTEIN: Can I ask for an opinion on the hospitality industry? I think one - your discussion paper says you needed to do something because you looked at migrant worker exploitation and they found strong evidence of systemic and deliberate underpayment.


RAFAEL EPSTEIN: Do you think in hospitality the underpayment is systemic and deliberate?

ATTORNEY-GENERAL: Well, the answer is that we don't have sufficient evidence or data to conclude one way or the other. Whereas…

RAFAEL EPSTEIN: It looks like the newspapers have got the evidence.

ATTORNEY-GENERAL: Well, the evidence and data was collected quite thoroughly through the migrant task force and it was very concerning, obviously, and we've responded to those recommendations. But evidently, we think that there's a significant enough problem, and the Fair Work Ombudsman, because they're better funded and doing more work, now have a much clearer picture, but far from perfect. But they have a much clearer picture that this is a considerable and substantial problem, which is precisely why we're taking the action of consulting towards trying to develop better penalties that are better suited to providing general deterrence in this area so that we see less of this process of underpayment.

RAFAEL EPSTEIN: Christian Porter is the Attorney-General. He also holds the portfolio of Industrial Relations. 1300-222-774 is the phone number. You can see that the Government says they want to make it simpler, cheaper and for businesses to face more penalties. 1300-222-774.

Can I ask you Attorney-General, your Government has announced yet another inquiry into the family court system - this time a parliamentary inquiry with One Nation Leader Pauline Hanson as Deputy Chair. Why would you give a senior position in this inquiry to someone who continually uses made up statistics about the very thing she's going to examine?

ATTORNEY-GENERAL: Well, I'm not aware of her use of statistics. I think the statement that she made yesterday was quite wrong. But..

RAFAEL EPSTEIN: That's about women lying in court about violence.

ATTORNEY-GENERAL: Indeed. Now, the reason for this review and the reason that you would have crossbenchers on the review is that there's an area that we've not had proper research and conclusions as to how you might improve it. Many of those, if not most of them, will be legislative and ultimately, because of the fact that the Government doesn't control the Senate, there has to be…


ATTORNEY-GENERAL: …Crossbench support for any conceivable solution.

RAFAEL EPSTEIN: I accept the political argument, Attorney-General, but I'm sure you're more familiar than I am with the last parliamentary inquiry. There are, I think, half a dozen submissions of people effectively saying - well, Pauline Hanson says that people make up stuff about violence to get custody of their kids, and your Government-dominated committee threw that out. But the evidence in the research has been sifted a number of times.

ATTORNEY-GENERAL: Well, I mean, I think what she said was quite wrong. But the benefit of this review and having a broad cross-section of parliamentarians on it is that this review looks at how the law operates in practice. So we've had an Australian Law Reform Commission that's come back with 60-odd recommendations. Most of them I find very sensible. We've obviously got reforms that we will have before the Parliament about merging the structure of the courts. So the Law Reform Commission looks at the actual drafting of the law.


ATTORNEY-GENERAL: We have a policy around the structure of the courts. The area in my observation, having seen the family court process up front for many years, is that there is a third area of problems, and that's where the law applies in practice. So one example, I think, Raf, is where the Law Reform Commission took a view about the need for another type of family court order, and I think that what they've said is sensible.

But the ultimate problem with family court orders for people who've been in and out of the system is that they are incredibly difficult to enforce. So these quite complicated circumstances that will arise, where there's pick-up of kids and time that's allocated between one party and the other party and…

RAFAEL EPSTEIN: And men who are violent actually hold those agreements over the women they're being violent towards, don't they? That was…


RAFAEL EPSTEIN: …one of the findings of the Parliamentary Committee.

ATTORNEY-GENERAL: ….undoubtedly that happens. And this is not about one side or the other but…

RAFAEL EPSTEIN: I understand.

ATTORNEY-GENERAL: …if you have an order that says a child will spend X amount of time with one of the parents and that pick up and drop off will occur in this way at this point in time and that order of the court is regularly not observed by one or either party, it's really difficult for those parties. They've got to go to the court. They've got to make…


ATTORNEY-GENERAL: …an application. It's costly. It's time consuming. It's not immediate. Now, I think that is - and this is one specific area of the terms of reference. It is a really, really important area, as I might add, are legal fees. So we've had judges in the family court complain about…

RAFAEL EPSTEIN: Yeah, the cost.


RAFAEL EPSTEIN: Can I just take you back to one more thing? Pauline Hanson and One Nation have continually used numbers linking male suicide to family court decisions. Steve Dickson, the disgraced former One Nation politician, has said he got that as anecdotal evidence from one ambulance officer. Pauline Hanson uses those numbers continually. Should she be deputy chair of an inquiry looking at that very area if she uses numbers that come from anecdote?

ATTORNEY-GENERAL: Well, I think that every member of that committee - the chair, the deputy chair, and every ordinary member - is going to hear input and evidence from parties and I would hope that this would be as strong a learning experience for Pauline Hanson as it would be for every other single member of Parliament there to sort out myth from reality, to understand what things can be empirically verified by known collected facts and data, but also to hear practical stories of failures in the system.

So, I think that I'd be surprised if some of the views that people take on to a committee like this wouldn't actually be tempered by the process of the committee itself. But I say…

RAFAEL EPSTEIN: Okay. We'll see.

ATTORNEY-GENERAL: …people should base their views in this area on evidence.


ATTORNEY-GENERAL: That's not to say that anecdote is unimportant…


ATTORNEY-GENERAL: …because people tell stories and those stories are real human stories that occur in the courts but…


ATTORNEY-GENERAL: …this is not about one side or the other. It's about trying to get better outcomes for everyone involved in the process. And ultimately, that means quicker processes, cheaper processes, more efficient processes and where orders of the court are made that they are enforced or able to be enforced.

RAFAEL EPSTEIN: And easy to be enforced.


RAFAEL EPSTEIN: Just a quick one - climate strike tomorrow. There will be a whole lot of children who don't go to school. If a kid asks you if it was the right thing for them to do to leave school and protest basically your government's policies on climate change, is it the right thing for a kid to do, miss school for that?

ATTORNEY-GENERAL: I don't believe so. That's my personal view. I think that there's a place for people to form and express views about public and social policy, but that place is not on school days when there are other imperatives like becoming better and more knowledgeable on a whole range of issues that prepare yourself for the future. Now, call me old-fashioned but that's my view.

RAFAEL EPSTEIN: Christian Porter is the Attorney-General. He also has the portfolio of Industrial Relations. Thanks so much for your time.