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6PR Mornings with Gareth Parker



Subjects: borders; Hong Kong extradition

GARETH PARKER: And the issue of borders takes on a new light this week given Victoria's circumstances. The Attorney-General Christian Porter is on the line. Christian, good morning.

ATTORNEY-GENERAL: Morning, Gareth.

GARETH PARKER: Has your view or has the Commonwealth's view changed about borders given what's happened in Victoria?

ATTORNEY-GENERAL: Well, the Commonwealth's view is that things have to be constitutional. So you know, obviously a case has been commenced by private citizens. We're asked to intervene, which we would do in all but the most extraordinary circumstances and we'll provide a view. Now, the analysis isn't like a fixed point in time, so the question is whether or not each state is properly adapting its rules and its border restrictions to the problems that it's facing. And obviously, Victoria represents a new problem, both in interstate travel but in terms of the pandemic and its management. So you know it's a fluid situation and it's a matter of assessing evidence from experts before the court and the court being allowed to make a judgement.

GARETH PARKER: If I can sort of try my best to interpret the West Australian Premier's position on this, he seems to be saying that his advice presumably from his Crown Solicitor's Department is that you cannot discriminate against the states. So if you want to close the West Australian border to protect from COVID-19 infections being imported from other states, then you must close it to all other states. But the Commonwealth position seems to be - well, sorry I'll set aside the Commonwealth - I'll ask you about that. But other state premiers have taken a different view. The Queensland Premier, the South Australian Premier, and now the New South Wales Premier seem to be saying: well, we think that we can open to some states and close to others. Does that sort of summarise the various positions of the premiers?

ATTORNEY-GENERAL: I think that's about it. I mean there's a matter of logic, and these are issues that are going to be argued, right, in the High Court. But as an issue of logic, it seems a strange piece of logic to suggest that if you have less restrictions, that would make the situation more unconstitutional. I mean what the Constitution guarantees is freedom of intercourse among the states, which is effectively people, goods, communication. Now over many years and many cases that test has been interpreted by the courts to mean as a matter of common sense, there'll be legitimate reasons why you would prevent movement across states of people and goods and so forth and the question is whether or not at the particular points in time that you're analysing, those restrictions are reasonable, adapted, and proportionate. But I would have thought that as a matter of logic, the less restrictions that you have, you're likely to be more constitutional.

GARETH PARKER: Right. So if we can turn to the issue of community spread, which looms large here.


GARETH PARKER: It would make sense if Western Australia wanted to close its border to a state like Victoria where there is community spread, but it may make less sense to close it to Tasmania, or to South Australia, or the Northern Territory where there has been no community spread for months.

ATTORNEY-GENERAL: Well, I would imagine that's what people who want to travel between Tasmania and Queensland would be arguing, right? That in two states where there's very very, very low, like less than a per cent of an infection rate in those states, that preventing movement between those two states might not necessarily be adapted to the purpose that you’re trying to serve which is the health outcome. But these are arguments that will be put - you know, these are private citizens, they're tourism operators in Queensland, they're people whose livelihood depends upon movement across borders and they've got a right to take a case and where private citizens take a case, the Commonwealth is asked by the court to intervene and give expert evidence and provide observations and a view.

GARETH PARKER: The Premier wants you to drop it. He's very clear about that on Monday.

ATTORNEY-GENERAL: It's not our case. We don't - the Premier nor the Prime Minister, nor any other politician has the ability to prevent a private citizen from arguing a case under the Constitution; just beyond the power of the individual politician. There are some countries where you can do that; we're not one of them.

GARETH PARKER: Sure. But he seems to want you to not intervene. Let Clive Palmer made the argument, without your assistance or non-assistance as the case may be.

ATTORNEY-GENERAL: Well, we're not assisting Clive Palmer, we're assisting the court. And the court has asked for our assistance. And the idea that the Commonwealth, when there is an ability to intervene in a matter of this level of constitutional importance would not intervene, I mean that would just be ridiculous. We're not supporting any particular plaintiff or any particular individual. We're providing expert medical opinions that have been furnished to the Commonwealth, just like the states will be providing expert medical opinions they have been furnished to the states and our Solicitor-Generals through instructions from me once we've seen all of the various evidence, we'll be putting an observation about what rules and restrictions are reasonably adapted to the health purposes and what may not be.

GARETH PARKER: When would you expect this to all be resolved?

ATTORNEY-GENERAL: Well it won't happen super quickly, I don't think. There's a factual hearing on the 14th or the 15th of this month and then once facts have been determined, it would then be set down for a hearing in the High Court itself. So I mean even with a matter of this level of importance it's just never an instantaneous process when there are complicated evidentiary issues about expert opinions and health advice. So it's not imminent. And again, look, I understand the protective position that is being taken but again private citizens have a right to argue their case under the Constitution. That's the kind of nation we are. We're a nation of laws and the rule of law.

GARETH PARKER: Just as a matter of practical politics though, the Premier's border position in this state has always been extremely popular regardless of the merits of the argument. Public opinion is in his favour. It seems hard to believe that that has done anything other than solidified this week.

ATTORNEY-GENERAL: Well, I guess that the Constitution has provided for the establishment of a nation and part of the core feature of a nation is the ability to move across state borders, which was part of the initial important provisions of the Constitution. Private citizens can bring a case. It's often the case that a private citizen will bring a case that may not be a popular case at the point in time. But being a country governed by laws where the highest law is the Constitution is not a popularity contest. It's a fundamental feature of a democracy and a separation of powers in a country that observes the rule of law that private citizens can bring a case against a rule put in place by a state, or any other person for that matter, if they think that it breaches the constitution.

GARETH PARKER: Speaking of the rule of law, will you recommend that the Government make moves to end our extradition relationships with Hong Kong given the national security law that's been passed by China?

ATTORNEY-GENERAL: Well, look, I've got a view on this and I'll put that view at Cabinet very shortly. I'm not going to anticipate that view on air before it's put in Cabinet. But what I would say is that there's obviously been very, very significant changes in the circumstances legally that apply to Hong Kong, and it's quite proper that Australia consider issues like an extradition treaty when circumstances change. But the view that I'm holding on that, which I formulated over the last several days, as the Government's lawyer, I'll put to Cabinet today.

GARETH PARKER: The Government previously under a different ministerial configuration backed away from moves that were put forward by Julie Bishop to enter into an extradition treaty with China. That was…

ATTORNEY-GENERAL: With China itself.

GARETH PARKER: Yeah. That was seen as beyond the pale as too risky. Do we draw any inferences from the Government's determination of that matter?

ATTORNEY-GENERAL: Well, I mean, people will use their common sense. I mean, that is precisely as you stated it. That's what occurred. You now have a very significant change in circumstances whereby some of the more - some of the sharper laws from the mainland are being applied in Hong Kong and that represents a very, very significant change in circumstances and we'll be discussing that at Cabinet today.

GARETH PARKER: And further, DFAT now - not that people can travel, but they're recommending Australians don't go to China because they're at risk of arbitrary detention. That's a significant escalation.

ATTORNEY-GENERAL: Well, I think that it's not so much that they don't go because of the risk of arbitrary detention but that they make sure that they themselves make the determination that they travel with the full understanding and knowledge that laws, which can be characterised I think quite fairly as laws which engage in arbitrary detention, apply now in Hong Kong.

Now, people, West Australians and others will travel to China with some regularity knowing the status of mainland Chinese law. It is a very significant change. So I think what DFAT is trying to explain to people is that they would travel to China with a certain knowledge and expectation about the nature of laws and that that situation has now been transposed to a large degree in Hong Kong and people should be aware of that. Hong Kong is now legally a very different place with a different set of laws applying to travel to than it was only a matter of weeks ago.

GARETH PARKER: And indeed, the Prime Minister has already telegraphed that the Government wants to consider its options about how to provide some sort of level of assistance to Hong Kong citizens who might want to flee that arrangement. Do you think Australians in Hong Kong should be worried? Should they come home?

ATTORNEY-GENERAL: Well everyone's got to make their own individual judgments about these things. But I mean, my view would be that you've got a very, very serious change in the nature of domestic laws that apply in Hong Kong, and when laws change, the nature of a society changes and obviously the conditions that you live under change. And I don't think that they've changed for the better. That's for sure. So, if you were living there, you would be taking that into account.

And look, why wouldn't you, if you're a talented Australian living in Hong Kong, come back to Australia? We're managing the pandemic as well as any country on earth. We've got some issues to sort through in Victoria and all of Australia's support has to be applied to Victoria, I might also note I mean, epidemiology data and the issues that they're dealing with are now a Victorian issue. But we have said from the very outset of all of this that there are very likely to be periodic outbreaks from time to time in place to place when you've got a virus running rampant throughout the rest of the world, and the question is how you deal with those and how do you deal with them in a way that maximises the health outcome, that minimises the economic consequences? And I hear things like you had on air before we came on with the bloke who's running the company driving the charter vehicles. Your heart goes out for people who, through no fault of their own, having built up a brilliant business, no doubt, just find that the demand is just stripped from underneath that business. And we've got to balance the health effects and the economic effects to make sure that people like that have got a future and can pay mortgages and that their work isn't just washed away.

GARETH PARKER: Well, we covered this terrain with the Treasurer earlier, but do you think there's a case for bringing forward tax cuts in this environment?

ATTORNEY-GENERAL: Well, I'll leave that to the Treasurer, but I mean, we are a government that is looking at ways in which we can help Australians and people will have different views about how that help should be administered. But that's a complicated process that we're going through at the moment.

GARETH PARKER: Mind if I just put one question to you from a listener?


GARETH PARKER: Darren, good morning.

CALLER DARREN: Yeah, I just want to know, with Clive Palmer's case, is he arguing that he just doesn't want to do the two weeks quarantine and be able to fly in fly out or is it that we're not letting in the state at all?

GARETH PARKER: Thanks Darren.

ATTORNEY-GENERAL: I understand that he isn't being let in the state at all. I mean, he's the appropriate person or his lawyers to answer that but I think the question from the perspective of the plaintiffs - and it's not just Clive Palmer as I've said, it's people running businesses and tourism operators looking at border travel into Queensland.I think that their view is that Section 92 of the Constitution has been breached because they can't get in at all, like they're not exempted persons and they can't come in with a quarantine; they’re not citizens of the state so they can't come in with a quarantine.

GARETH PARKER: Attorney, I'll let you go. The public record shows you got a significant birthday coming up here.

ATTORNEY-GENERAL: Yeah mate. 40, it's great.


ATTORNEY-GENERAL: No. No. It is 50 sadly. Yeah and you're aging in dog years in this job, I can tell you. Just - you look a photo of yourself 10 years ago and you don't recognise who it is. But yes mate, 50 on Saturday so I'll do my best to limp through that and just keep plotting on.

GARETH PARKER: Our best wishes to you.

ATTORNEY-GENERAL: Thanks very much. Cheers mate.