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6PR Mornings with Gareth Parker



Subjects: Federal Court decision n WA v Clive Palmer, JobKeeper extension, Tony Abbott

GARETH PARKER: The Attorney-General is Christian Porter. Christian, good morning.

ATTORNEY-GENERAL: Yeah, morning Gareth. How are you?

GARETH PARKER: Okay. So, how do you score this Federal Court decision yesterday?

ATTORNEY-GENERAL: Well, I mean, from the perspective of the Commonwealth, it was almost exactly what we were expecting. I mean, it's a common sense analysis of evidence that was put by lawyers for the Commonwealth, lawyers for WA, lawyers for the plaintiffs, and it basically says that the risk of having a transmission event if you have an open border with a high-risk jurisdiction like Victoria is obviously higher. With a low-risk jurisdiction like South Australia, it's low. And with a jurisdiction like Tasmania, which is a very low risk, it's a very low risk. So, that's pretty much exactly what we were putting. In fact, I think, at certain points in time, the judgement talks about the similarity between the evidence of the state and the Commonwealth. So, very much what we were expecting.

GARETH PARKER: Okay so the Premier is saying that this is vindication for his case. He wants Palmer to drop the whole thing. Do you agree with that analysis?

ATTORNEY-GENERAL: Well, I mean, I understand why there's a degree of vindication insofar as the court says something which has never really been in dispute from the Commonwealth; that when you've got a high-risk jurisdiction closing your borders to that jurisdiction, obviously, very significantly diminishes that high risk. And the court says that. And that policy of closing your borders to high-risk jurisdictions has been used by WA to great and positive effect. We've never argued against that. It's been used by other jurisdictions. It's in place now between Victoria and New South Wales. So, that's an effective policy. But as a blanket with no end in sight, for every single state and jurisdiction, even those that are very low risk like Tasmania, whether or not that is actually going to be a constitutionally sustainable position, that's something that we've had doubts about from the beginning.

GARETH PARKER: Okay. Justice Rangiah says that the hard border arrangement is the most effective way of protecting public health, and he says that the precautionary principle is the key principle. Is that relevant to the High Court decision from your point of view?

ATTORNEY-GENERAL: Well, it is relevant but it's not going to be the only relevant thing. So where Justice Rangiah also says it may therefore be “possible to ease border restrictions with some states and territories without a significantly increased risk of morbidity and mortality in the West Australian population” I mean, he's talking there about low-risk jurisdictions like South Australia and Tasmania. So yes, I mean, it's a very effective method of decreasing risk, but if the risk with the jurisdiction is already very low, like it would be, say for instance, with Tasmania because of the fact that they have at least the same or perhaps even a better situation with respect to community transmission as WA, it becomes harder to justify the boundary with Tasmania. So, I mean these are these are matters that the High Court will take into account. We won't be there and we won't be putting a view on these things. But look, I've always understood the rationale for the policy. The policy works very well at certain points in time with certain jurisdictions based on risk. No question. But whether or not it's constitutionally sustainable in the long run, I think a question mark hangs over that. And look, I mean, I know that there's a bit of a tendency to want to shoot messengers in this and no one's getting any prizes for delivering news that might not want to be heard, but the news that might not want to be heard here is that there is still a constitutional issue of significance that exists with hard border closures to every single state and territory, with no end in sight, when some of those states and territories have very low risk attached to them.

GARETH PARKER: And that's ultimately what the High Court will determine. There was a detail in Peter Law's piece in The West Australian this morning I found noteworthy, that the Solicitor-General of Western Australia, Joshua Thomson, apparently a teetotaller, but he had a bottle of Moet & Chandon on ice in anticipation of a big win. How do you think people would regard that, particularly those who've been separated from families for months on end?

ATTORNEY-GENERAL: Look, I don't know that there's anything to celebrate in any of these circumstances across Australia with COVID, particularly not border closures. I mean, there are single mums finding it hard to get exemptions to have their kids travel with them for cancer treatment. There are people who can't get crops out of the ground because they can't get workers across borders. They can't even get themselves across borders to the other part of their property. There are grandparents not seeing grandchildren born – there are people not being able to see their kids. You know, I don't know what there is to celebrate in all of this. I mean, you're trying to do the best you can to balance risks. You're trying to balance health outcomes with economic outcomes. There needs to be an understanding that the economic outcomes have their second-round health outcomes with mental health and with a range of other issues that arise for people's health because of lockdowns and closures and the extraordinary restrictions in Australians' freedoms that we've all had to endure. Not sure whether it's something I'd be popping champagne corks about.

GARETH PARKER: Okay. I've already had something to say about this this morning, but a 28-year-old West Australian woman jailed yesterday for six months for coming into Western Australia. She had permission to come into Western Australia, but she definitely did the wrong thing by ignoring the quarantine direction, which was to go to a quarantine hotel. It would have been at her expense. She's unemployed. I understand she can't pay her legal bills. Is a six-month sentence proportionate to the crime?

Look, I think it probably is. But you know, look - where a law exists like this for public safety, it has to be abided by. And you know you can't have people breaking the law like that; you just can't. But I mean equally, there are a whole range of areas where people do things and don't get six months which, you know, would be interesting comparisons. But I think that if you're breaking a law like this, which is a very, very serious law then you need to have an appropriate penalty. I don't think that's an inappropriate penalty, but...

GARETH PARKER: Well it's out of sync with the penalties that have been levied for similar offences. The two young women from Adelaide who last week totally thumbed their nose at the whole system, they came to Western Australia with no authorisation. When police called them up, they laughed. They were - one was fined, the other was sent home with a suspended sentence. This woman was at least a West Australian. She'd been caring for her sister in Victoria and had permission to come home. I'm not saying she did the right thing, but surely that's out of whack.

ATTORNEY-GENERAL: Well I think the consistency needs to move up, not down to a lowest common denominator, would be in my view.

GARETH PARKER: Okay. The ...

ATTORNEY-GENERAL: I mean, when they're in place in the right context, these are very, very important policies and they have to be abided by. And I think that, you know, being able to enforce those policies is entirely appropriate.

GARETH PARKER: In the Parliament today the bills for the changes to JobKeeper but there's also an element of flexibility that will be introduced for employers who no longer qualify for JobKeeper. Can you explain how that will work?

ATTORNEY-GENERAL: Yeah. So, I mean when JobKeeper first came in and there was the $1500 wage subsidy being paid to employees, there were a range of industrial relations flexibilities. So you know, business which might have had its turnover just completely smashed because it had to close - restaurants, cafes - you remember they might have had their turnover go down 70 per cent; they were able to direct people's hours down of work.  And the worst thing you can do to a business in these circumstances is to force the business to pay someone for doing work that just doesn't exist. Now, what we've said is that for those businesses that are still in distress, that not quite at the level that would qualify them for the second round of JobKeeper, some of those flexibilities should remain because we don't want staff flooding back into a business that might have been 70 per cent down during JobKeeper number one, and they're now 20 per cent down, and it still is trading its way out of trouble. We want them to be able, with reasonable precautions, and safeties and checks, be able to make sure that they can direct down an employee's hours to meet the work that actually exists for that business while they're trading out of trouble. So, it would be able, for one of those businesses, to direct a staff member down to 60 per cent of their usual hours if they can show that that person can't be reasonably engaged because of COVID related conditions.

GARETH PARKER: And that will expire when?

ATTORNEY-GENERAL: That'll be another six months.


ATTORNEY-GENERAL: Yeah, that's right, so that period of JobKeeper 2.0. Now, we think that if you don't do that, a whole bunch of these businesses who are doing better but aren't yet out of the woods, they could easily fold because you'd basically be forcing them to pay staff for work that just doesn't exist and what we cannot have is businesses tipping over just when they're starting to recover - because people lose jobs, the businesses could fold and everyone is a loser from that situation.

GARETH PARKER: Just lastly, the former Australian Prime Minister Tony Abbott has got a new job in the UK. He's been appointed to the British Board of Trade and his job will be helping to boost global trade deals for the UK. Would that require him to register as an agent of foreign influence under the new foreign influence transparency scheme?

ATTORNEY-GENERAL: That's not impossible, but I don't have confirmation one way or the other. And I don't know all of the ins and outs of the particular role that Tony will be taking. Great role, by the way. And I'm really pleased, he’ll make a great difference in that role.

GARETH PARKER: Well, he's working for the English, not for us.

ATTORNEY-GENERAL: Well, yes, but - indeed. But you know we might be quite interested in getting into some of that trade. So, I think Tony might be of some assistance there. But look, there's a range of requirements that are very strict on former Cabinet Ministers under the foreign influence transparency scheme. And like registering, there's no stigma attached to that. I mean, a whole lot of Australians will go on to have contracts of employment and do work, and represent foreign companies and foreign governments. And this is just about transparent knowledge of those types of arrangements, and of course it doesn't get much more transparent than it being announced and being public like it is with a former prime minister like Tony Abbott. But it would depend on all of the ins and outs of that arrangement. But that's not impossible.

GARETH PARKER: Christian, thank you for your time.

ATTORNEY-GENERAL: Okay, cheers, Gareth.

GARETH PARKER: Attorney-General, Industrial Relations Minister Christian Porter.