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6PR Mornings with Gareth Parker


E&OE Subjects: Borders, age of criminal responsibility, paid pandemic leave

GARETH PARKER: On the line, the Attorney-General Christian Porter. Good morning.

ATTORNEY-GENERAL: Morning Gareth. How are you?

GARETH PARKER: I'm okay. Thank you for your time. So the border case with Clive Palmer is tipped very much in the balance or it's in the balance. Can I talk about the politics of this to start with? It seems clear to me that the McGowan Government's hard border policy is about the most popular public policy measure I think I can recall in all my years covering politics. If in fact this High Court challenge succeeds, aren't you going to be held responsible by West Australians, you and the Federal Government, for intervening in this case, providing expert witnesses to argue against it?

ATTORNEY-GENERAL: Well, maybe we'll start at the beginning. So, the hearings that have been held over the last couple of days were in the Federal Court and they are to determine matters of fact and those matters of facts will be written up as a judgment of the Federal Court judge and then used by the High Court at a later point in time, which could be August or more likely, I would say, September or October, where the High Court will consider those facts in light of what it actually says in the Constitution and determine the constitutionality of the present position. And the present position may change between now and when the High Court ultimately gets to hear this matter as it has changed from the time when the borders were first closed to the point in time when the action was taken to the point in time now where the facts are being heard in the Federal Court. So there's some considerable time to go in all of this. Like, this isn't a decision that's going to be made tomorrow, far from it. But as to your ‘who is responsible or not responsible’, things are either constitutional or they're not, and every citizen has a right to argue that the Government has done something which is not constitutional, whether that's a state government or local government or a federal government. That's one of the absolutely defining parts of our free and open democratic system. So, we aren't arguing for either side. We are, at the Commonwealth, a middle man, if you like, who is there to provide expert evidence, to inform the court, and to offer observations about what the facts are through our medical experts, just like WA does, and then offer observations to the court about how those facts relate to the words of the Constitution and the constitutionality of the situation. But the situation is either constitutional or it's not, and ultimately, the High Court determines that.


ATTORNEY-GENERAL: Now, that's going to take some time.


ATTORNEY-GENERAL: That's not something that anyone is responsible for. It's either constitutional or it's not.

GARETH PARKER: The Commonwealth's intervention rather suggests that the Commonwealth believes that the West Australian Government's current position is not constitutional.

ATTORNEY-GENERAL: Well, I think that there are good and strong arguments to suggest that that may be an outcome in this case. I mean, for instance, yesterday in the Federal Court, there was evidence offered by the Western Australian Chief Medical Officer, by medical experts from the Commonwealth. They noted things such as the fact that there is a less than 1 per cent chance of the virus re-entering WA, whether the state borders are closed to everyone or whether the borders are opened to those states where there is no or very low community transmission. So, like in the last 24 hours, Northern Territory, South Australia, Tasmania and the ACT have the same number or a lower number of active cases than WA. And for complete clarity, in assisting the court through our medical evidence in the last couple of days, we have said it makes sense to close the borders to Victoria with the circumstances that presently exist there but that it is less proportional and makes less sense for WA, for instance, to close its borders to South Australia when each jurisdiction has very, very low rates of community transmission and no community transmission and very low rates of active cases. So, that's a conclusion I would imagine the court would draw irrespective of who was appearing, but the Commonwealth has a responsibility as a middleman in these matters to assist the court with observations of fact, medical expertise and evidence and observations of law.


ATTORNEY-GENERAL: The problem all of this is its complete all or nothing approach, right…


ATTORNEY-GENERAL: …which is- and if you maintain an all or nothing approach, then you run a very high risk that you will have the High Court determine against you in the long run, which might be October or whenever, other states have run less of an all or nothing approach. And so, those individuals in Queensland that challenged the Queensland border closure, they withdrew their challenge because there was a compromise reached. But the more uncompromising and total your approach, the higher the risk that that uncompromising approach will be found to be unconstitutional and-

GARETH PARKER: [Interrupts] So can I put it this way, there have been clearly thousands and thousands of exemptions granted for people to fly in and out of Western Australia and travel in and out of Western Australia. Clive Palmer has not been one of them. Would it have been more sensible for the West Australian Government to come to some sort of arrangement with Clive Palmer so that the High Court challenge falls away?

ATTORNEY-GENERAL: No, I'm not arguing that at all. And this is not about any great love or any great dislike for Clive Palmer. This is about the overarching policy. Now, I think that the compromise position here is to try and very cautiously, in a staged, sensible, jurisdiction by jurisdiction way, start to open your borders. And I think what that avoids is the risk that in October or November, you have an adverse finding in the High Court which requires you to do everything at once….


ATTORNEY-GENERAL: …Why would you not start say, for instance, with South Australia and start putting the measures in place that allow the traffic of Australian citizens between South Australia and Western Australia where you both basically have a bubble of low active cases and no community transmission?

GARETH PARKER: Right. And indeed, I think it is noteworthy that the West Australian Chief Health Officer Dr Andrew Robertson told the Federal Court that he had put exactly that suggestion to a government but had not heard back about it, but I'll perhaps leave that one there. The Premier's rebuttal to-

ATTORNEY-GENERAL: [Interrupt] Well and that's like- that is WA's own evidence. Right? That's not our evidence.


ATTORNEY-GENERAL: That's WA's evidence. And how can the court ignore that evidence? Because ultimately, the constitutional test here is proportionality. Now, the Federal Government was very supportive of WA's position and other states’ position for an uncompromising total border closure in the early stages of the pandemic when there was enormous uncertainty, when there was volatility in all jurisdictions, when we didn't know what that case numbers were going to be from one day to the next. But you can't sustain that all or nothing position forever under the Australian Constitution, I would think. And I think that WA's own evidence suggests that.

GARETH PARKER: [Talks over] Okay. Well …

ATTORNEY-GENERAL: So why- why not look at compromises along the way. And stage ourselves back into the safest return to what is more likely a constitutionally orthodox position.

GARETH PARKER: The Premier's rebuttal to that is it is not that simple; that we can't guarantee that someone coming from Queensland or South Australia hasn't first come from Victoria or New South Wales and in fact, it appears that that is a situation unfolding in real time in Victoria- sorry, in Queensland today where two 19-year-old women have come from Victoria potentially via New South Wales to avoid the quarantine and self-isolation requirements from Victoria. Doesn't this sort of strengthen- this Queensland case strengthen the Premier's point?

ATTORNEY-GENERAL: Well, I don't think that's necessarily consistent with WA's own evidence before the Federal Court but in any event isn't that an argument for doing this in a slow, staged, cautious and administratively secure and practiced way rather than facing a potential judgment later on this year that forces you to do it all at once?

GARETH PARKER: Okay. If- if the High Court sides with Clive Palmer, do you think that you- and I'm back to politics here, do you think that you and the Commonwealth Government, the Federal Liberal Party, will be thanked by West Australians for clarifying the constitutional position or blamed for opening the borders?

ATTORNEY-GENERAL: Well, we don't clarify the constitutional position; the High Court does that. I mean, what is the suggestion here, Gareth, is that the Commonwealth Government should ban one or multiple or all private citizens from their constitutional right to argue that a state or local or Commonwealth Government has done something beyond its power? Is that what's being suggested here? Or should we just close the High Court down? I mean, you know, this scenario in its various forms has played out from decade to decade and during hot wars and World War II and Cold Wars and attempts to ban communist parties and all the like, there've been popular and unpopular positions. But ultimately, individual citizens in our great democracy have had the ability to argue that a government is acting contrary to the Constitution and the Federal Government can't stop that, the state government can't stop that. No Premier, no Prime Minister, no person in Australia can stop that. And ultimately, the High Court in our democracy determines what is a constitutionally valid law position and what is not. And that is a process that the Premier can't stop and that we can't stop once it has been initiated by an individual litigant. Now, the individual litigant can withdraw and the Queensland litigants did because Queensland Government modified their position from one as a totally uncompromising position to a more compromised position. But there's no ability for state or federal governments to stop individual citizens arguing their case no matter who they are or how much you like or dislike them.

GARETH PARKER: Is ten years of age too young to hold a child criminally responsible for their actions?

ATTORNEY-GENERAL: Well, this is an issue where there's a Latin phrase that talks about basically the mental capacity of a child, and the law in Australia as it is, is conceivable and possible and very rarely it does happen that someone under 14 can be held criminally responsible. But there's a very arduous process that the prosecution will have to go through to understand that they were acting with full knowledge that what they were doing was wrong, that it was unlawful, that they had the mental capacity to understand that. Now very, very rarely that's able to be shown. Some people say that there should never be an ability to hold someone at 13 say criminally responsible even to that very high standard of proof of their mental capacity. I've not personally been an enthusiast for that position. Some people in some states advocate that position but that's an issue that's being debated and argued and assessed through the Council of Attorneys General and equally rational people will have different views. But I've been long on the record that the present system where there's a very high test to show that someone could be held criminally responsible in very rare circumstances for very serious offences, where it can be shown that a 13-year-old, say, knew what they were doing was wrong and had the mental capacity to understand all of the facets of that criminality of their actions, that in those rare circumstances people can and should be held criminally responsible.

GARETH PARKER: This is something the Victorian situation with COVID-19 at the moment has shown up, it is that for people who are casually employed, the choice between going to work sick and staying home but losing income is not an easy one, and it's a decision that whatever the reasons of the individual has the potential to endanger public health. I think that's now been recognised by the Fair Work Commission with its decision to extend pandemic leave to aged care workers. Is that something that should be revisited for other casual workers in other industries where those employees interact with the public?

ATTORNEY-GENERAL: Well, I think it certainly makes most immediate sense in the context of aged care and in the context of Victoria. I mean, in a sense, the Fair Work Commission's decision is somewhat theoretical in other jurisdictions but it could be applied in other circumstances. But I think this is the flexibility of the Australian system working relatively well. So yes, I mean, if people need to get a test; that might be 24 or 48 hours out of work action; if people need to be quarantined because of exposure to someone who has had COVID-19, that can be a significantly longer period, two weeks, where they're required by state law or by their employer to self-isolate which means not going to work, which means no income, they might not have leave. The Fair Work Commission has said that in the context of aged care, looking at the circumstances in Victoria, that a person in that latter situation should be able to, in effect, have leave for that period of 14-day isolation. The Commonwealth Government- we gave $850 million into the aged care system which is going to allow the financial flexibility for the providers to cope with that extra cost to their businesses. The Fair Work Commission makes the decision that that extra cost exists and is to be applied. State governments and Daniel Andrews' Government in Victoria have also allowed for one-off payments for people who have to self-isolate and therefore, can't go to work. So, there are a multiple number of approaches here which I think are coping relatively well with the situation. We're obviously keeping a watching brief on it but at the moment, the problem is obviously most acute in aged care. And of course, the other problem is we want to make sure that people, when they can and are able to turn up lawfully to work, are doing so because we don't want to have the denuding of the staffing in the aged care facilities where we need either to transmit people to hospital or to give people care in their, in-situ, in their aged care homes.


ATTORNEY-GENERAL: I think it's the- the system is working relatively well at the moment in terms of coping with that scenario where people have to be self-isolated for a period.

GARETH PARKER: Alright. Thank you for your time as always. Lots to discuss there. We'll chat next week.

ATTORNEY-GENERAL: Okay. Thanks very much.

GARETH PARKER: Christian Porter, the Attorney-General.