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6PR Mornings with Gareth Parker



Subjects: Pell; Personal leave court case

GARETH PARKER: Two Cadbury chocolate workers in Tasmania have recently won a decision in the courts which affects their sick leave; it might affect your sick leave. We'll come to that issue in a moment with the Industrial Relations Minister and the Attorney-General, Christian Porter, who is on the line.

Christian, good morning.

CHRISTIAN PORTER: Yeah, morning Gareth.

GARETH PARKER: First of all though, is Cardinal George Pell a paedophile?

CHRISTIAN PORTER: Well that's not the language that the provision uses but I think colloquially speaking that's what the description would be by virtue of being found guilty at trial and on appeal.

GARETH PARKER: We went through some of the ways that an appeal might precede with Professor Jeremy Gams from the Melbourne Law School this morning. But as Attorney-General, do you have any role in this?

CHRISTIAN PORTER: No. It's a state based offence in Victoria obviously. I mean we watch with enormous interest because the matter is self-evidently high profile and very important and it's an important example for all Australians as to how our criminal justice system works and how investigations occur and the jury system’s operation. But that's a decision on a further appeal which could potentially occur for his - Cardinal Pell's – counsel. And you know, that may be filed or it may not be filed. But at the moment you had a full trial, a jury verdict and a Victorian Court of Appeal decision, two-one affirming the guilty verdict.

GARETH PARKER: In your judgement, would the High Court be inclined to take it on?

CHRISTIAN PORTER: Look I just- I honestly couldn't say that without having read all of the decision that was handed down yesterday and that's literally hundreds of pages. But they'll look for - and the counsel for Cardinal Pell - will look for something that's you know, for your listeners I'd describe it as novel I guess. They'd need a special - a point of special leave, something that's novel. But I'm just not in a position not having read it to know whether or not such a thing exists in the decision that's been put out.

GARETH PARKER: The interesting thing for interested lay observers like myself and many of our listeners is that you've got two versions here. You've got the majority decision and you've got the dissenting decision and they are chalk and cheese. They are so different from one another. And yet on the basis of - and no one suggests that either the majority justices or indeed, the dissenting justice are anything other than eminent people, yet they reached completely different conclusions and we're supposed to - as a society - accept that that means that the matter is settled.

CHRISTIAN PORTER: Well those conclusions are conclusions which are based on an initial conclusion which was made by 12 ordinary Australians on a jury. I mean I've got a great deal of faith having been in the court system, in the jury system. It's got a wisdom and a resilience that you don't get from simply having the trials, I think perpetually by a judge alone. So at the trial level you had jurors who are ordinary Australians from every conceivable walk and part of Australian life who sat together and listened to weeks and weeks of evidence and then deliberated through a very long period of time and made a determination. And then on legal points, which necessarily involve some determination by the appeal judges of the facts that were considered by the jury, the appeal judges are asked to think about how the jury reached its verdict and whether or not it did so according to law. But ultimately the strength in all of these types of criminal law decisions - which very much and very often are about one person's view or recollection of events being contested by another person - the best people in Australian society to make those judgements about fact, truthfulness, on alternative views about what occurred in the past are ordinary Australians in the jury system. So I think that…

GARETH PARKER: …because that's an interesting point because a lot of people have picked up on the fact that in Victoria there's no capacity for a judge alone trial and many have speculated that, was this in a different jurisdiction, it would have been a judge alone trial but you reckon the jury system is more resilient?

CHRISTIAN PORTER: Well, I just think that, first of all, just wild speculation to say what would've happened on any matter, had it been heard by a judge alone, instead of by a jury…in WA, we have the ability in certain fairly limited circumstances to have a trial by a judge alone and I think that there's reasons why in rare exceptional circumstances, you would have a trial by a judge alone. But my point would be, generally speaking, this is not really about this particular case but about having watched many criminal cases. But it's very often the case that criminal matters come down to questions of judgement and interpretation and particularly whether or not witnesses are or are not telling the truth. And they are very difficult decisions for any person to make but there is a strength in the jury system by having 12 Australians from a variety of different backgrounds and different skills and life experiences, collectively sit down together on the very high standard of beyond reasonable doubt and in most cases, that requires unanimity from a jury - having all 12 of them agree that someone is or is not telling the truth. That is a very strong and resilient system. No system is infallible but I think the jury system…


CHRISTIAN PORTER: …is a very strong, resilient system and it gives people faith in the outcomes because the outcomes are driven by their neighbours, by ordinary Australians who sit and listen to evidence dutifully over a very long period of time. Back when I was State Attorney-General, after a very high profile matter here, we strengthened the jury system by decreasing the number of exclusions and excuses, which over time had grown so sort of rapidly, that too many people were getting out of jury duty and it was controversial. I think you might remember, Gareth, at the time that we decreased the number of exemptions including for people like medical doctors and so forth, so that you'd have the widest possible representation of Australian life inside West Australian juries, and I think that that's a critical part of the resilience of the system.

GARETH PARKER: Fair enough. Onto an industrial relations matter, two Cadbury workers took Cadbury to court basically. So, as I understand it, these are shift workers, they do 12-hour shifts and they're entitled, as everyone is, as a minimum, to 10 days' sick leave under the law. Cadbury wanted to pay them at 7.6 hours per day. The workers said: well, hang on. Our work day is 12 hours. We think we should be paid 12 hours. And the Federal Court agreed with them. Will this have implications more widely than just these two workers?

CHRISTIAN PORTER: Yeah. So, it's a 51-page decision of the Federal Court of Australia basically dealing with how you interpret the use of the word ‘day’ in the Fair Work Act in a provision that was inserted by the previous Labor government and it's clearly caused confusion. And your summary is right. Basically, the outcome is that if you have people in a week working 5 x 7.2 hour shifts, they will get less leave than someone who works the same total hours, so 36 hours, but does it in three 12-hour shifts. And that is a very unusual result. I don't think it was the result that was intended by the Labor drafting of this provision. I think the result that everyone expected was that you accumulate the number of hours worked and then you calculate how many hours' leave or days' leave…


CHRISTIAN PORTER: …that you get for the total number of hours' work. So, it will have implications and we're looking at the decision now as to its sort of legal strength and the correctness or otherwise…


CHRISTIAN PORTER: …of the interpretation so we'll make some calls about that. But I think for the first thing for employers or employees, the Fair Work Ombudsman, if you've got some confusion about your entitlements based on what is admittedly a confusing decision in several respects, you can call up the Fair Work Ombudsman but we're having a close look at it. I think ultimately…

GARETH PARKER: This might be the spark for lots of people to challenge their sick leave provisions and they could be radically expanded depending on the hours' work in the day for each particular worker.

CHRISTIAN PORTER: Well, not so much challenging the provision, just trying to use this interpretation of the Labor-drafted law to decide what their actual entitlement for the relevant days' leave is. So, yes. I mean, people will be asking that question. What I would say is that it represents a decision that I don't think was intended by Labor when they drafted this legislation. I think everyone intended that over a fortnight, if you work the same number of hours as the person next to you but you happen to work 7 hour shifts and they happen to work 10 or 12 hour shifts, that you will ultimately at the end of the calculation period, get the same number of days' leave. So it is a pretty unusual decision but we're looking very closely at it today and tomorrow, and we'll make some decisions about it.

GARETH PARKER:  Thank you for your time.

CHRISTIAN PORTER: Pleasure. Cheers, mate.

GARETH PARKER:  The Attorney-General Christian Porter and IR Minister. That's interesting. That's one to follow for sure. Might need a legislative fix-up.