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ABC News 24 – Patricia Karvelas




Subjects: NPC speech – defamation; robodebt; Religious discrimination; integrity commission

KIRSTEN AIKEN: Now, Christian Porter has today spoken about a couple of big topics: religious freedom and media reform.

PATRICIA KARVELAS:  Yeah. Actually, he's made some significant announcements at the National Press Club today on media reform significantly, saying that digital players should be treated the same as traditional media and-

KIRSTEN AIKEN: And that's something that the media has been calling for.

PATRICIA KARVELAS: They absolutely have. And it didn't seem that the Government was prepared to go that far and also on some exemptions, some changes, he wants to make to his draft religious freedom bill.

And he joins me now. Christian Porter, welcome.

CHRISTIAN PORTER: Very good to be here.

PATRICIA KARVELAS: You said today that Facebook and other social media sites should be treated as traditional publishers and subjected to the same defamation laws. Why are current settings uneven in your view?

CHRISTIAN PORTER: Well, that's a view that I've got and it's certainly the view that I'll be arguing at the Council of Attorney-General. I mean, defamation laws are pursuant to a model code and largely are a state matter but we have a role to play in that and I'll be arguing the point that you just made strongly. But, look, my view is that there are a range of ways in which the defamation laws can be improved. And actually, next Friday, a first wave of reform was going be considered and hopefully agreed on at the Council of Attorneys-General.

But the one issue that likely won't be agreed on there because it's more complicated and needs to be dealt with separately and more slowly and cautiously is this issue about digital platforms. But the reality is that as publishers, whether you're a newspaper or the ABC, you're held to very high standards about the content that you carry if it's defamatory. But of course, other platforms don't have the same responsibilities and that, by its very nature, creates an un-level playing field. Now, the two types of scenarios are different. One has a much higher volume and you'd have to think about how you engage in reform, taking into account that volume. But at the moment, I don't think anyone thinks that's a level playing field.

PATRICIA KARVELAS: Communications Minister Paul Fletcher said in August that a digital platform is a different kind of business to a traditional media organisation that has editorial obligations. Do you disagree with that?

CHRISTIAN PORTER: No, I think that that's completely correct. It's a very different form of business. But that it doesn't have the same sort of editorial obligations doesn't mean that it is obligation-free. And that's why I say that as we go through the Council of Attorneys-General process, which we are, you'll have no doubt a variety of views but an argument that I would put is that the playing field is un-level and it should be levelled up. Now, that doesn't mean precisely the same rules that would apply to mainstream media would apply to digital platforms, but it means at the moment, the standards that apply to digital platforms are virtually non-existent.

PATRICIA KARVELAS: You said you support a serious harm threshold for defamation laws. What will that threshold look like?

CHRISTIAN PORTER: Well, these are things that we'll be finalising at the Council of Attorneys-General next Friday. But the difficulty and issue that's sought to be resolved there is that there is a spectacularly large amount of defamation matters that have been brought in what are relatively minor matters, neighbourhood disputes, things being said about other people in community groups, online platforms and other places. Now, everyone should have the right to bring a proceeding but it does seem, with the enormous volume at the lower end that we're receiving, that some appropriate threshold or cap for bringing an action would be reasonable, given the fact that these things ultimately end up in the courts and an enormous amount of taxpayer resources are applied to try and resolve them.

PATRICIA KARVELAS: You said that the recently announced changes to the robodebt program were prompted by legal advice that the Government received. Did you obtain legal advice at the time you oversaw the expansion of the robodebt program in 2016 and 2017 about the legality of the scheme?

CHRISTIAN PORTER: Well, the legality of the scheme was underpinned by legal advice that was internal to the department at the time and that advice existed - it had existed, I understand, earlier than that and after that point and indeed, when similar data-matching was done by the Labor Party when they were in government. But as I noted today, there is both a class action on foot and two individual matters dealing with these issues. And of course, we seek and receive advice on individual matters. But that advice is very much about the individual circumstances of individual matters rather than the overarching process in its entirety.

PATRICIA KARVELAS: I'm just wondering why the legal advice has changed, Minister?

CHRISTIAN PORTER: Well, that's a view that you formed. That's-

PATRICIA KARVELAS:  But will you explain to me- has it not changed? Because you say now have obtained legal advice, which is why you've changed it.

CHRISTIAN PORTER: Well, the legal advice now is with respect to a specific individual circumstance.

PATRICIA KARVELAS: And on that specific individual circumstance, why wasn't there a warning about that earlier?

CHRISTIAN PORTER: Well, the department’s formed a legal view and legal views often differ about circumstances and particularly, when a legal view is obtained with respect to an overarching process. It is sometimes the case that when that legal view is sought and received about a specific individual set of facts, that it's a different matter.

PATRICIA KARVELAS: Okay. So just to be clear, you didn't get legal advice warning you about this scenario?

CHRISTIAN PORTER: Previously, no.

PATRICIA KARVELAS: Did you seek it?

CHRISTIAN PORTER: Legal advice, of course, existed-

PATRICIA KARVELAS: But it didn't warn that this would happen?

CHRISTIAN PORTER: That's correct.

 PATRICIA KARVELAS: Okay. Do you still maintain that this is not a matter for apology?

CHRISTIAN PORTER: Well, my view is that the Government shouldn't be apologetic about the process of trying to recover overpayments of taxpayers' money and we've successfully done that to the tunes of hundreds of millions of dollars. Where there are individual instances where that process has failed, as there are when you do something at very high volume, then I think individuals should be the subject of an apology. But if you're asking whether or not the Government should apologise for using every best effort and all the information that we can possibly gather at our disposal to ensure that hundreds of millions of dollars of taxpayers' money is paid back to taxpayers, I don't think that should be the point of an apology.

PATRICIA KARVELAS: So when did you receive this latest legal advice, that this system - that this key element needed to be suspended?

CHRISTIAN PORTER: Well, again, you're characterising something in a way that I haven't characterised it. But individual advice was received on an individual matter. It pertains specifically to the individual matter in question.

PATRICIA KARVELAS: And when was that received?

CHRISTIAN PORTER: Well, we don't go into waiving privilege over government advice and that the timing-

PATRICIA KARVELAS: But was it recently? Because this drama around robodebt has been unfolding now for a long period of time. This is what I'm trying to establish.

CHRISTIAN PORTER: The advice was sought with respect to an individual matter that has been a recent matter.

PATRICIA KARVELAS: So this is recent advice, and how quickly did the Government act?

CHRISTIAN PORTER: Well, the Government acted in a way that I think is totally reasonable. So Stuart Robert, the Minister for Human Services, has made a decision that with respect to a certain category of individuals against whom debts are assessed and collected, that there will need to be further proof points in the future and obviously he's doing a review to establish how many people fall into that category. You'd have to ask timing questions precisely of the Human Services Minister. But when we receive advice that indicates that something should change by way of process, I mean, I think we act reasonably, fairly and quickly.

PATRICIA KARVELAS: Minister, your speech was so far reaching today that there's now a new topic we're going to talk about that you raised. Today you confirmed the revised Religious Discrimination Bill will give religious hospitals and aged care facilities, the same powers to hire or fire on the same basis as religion schools. You said your laws wouldn't be a sword, but isn't that what you're doing now, you're expanding the right to discriminate?

CHRISTIAN PORTER: No that's not right. And you talk about giving powers to hospitals, in effect this maintains a status quo. So where you have a Bill, as in a religious discrimination Bill, that says it's prima facie unlawful to make a decision on someone's employment based on their faith, that's a matter of providing a shield to people of faith, because we don't want people refused a job because they're a Catholic or because they're of the Islamic faith or whatever their faith may be. But quite obviously you also need in a Bill of that nature to have an exemption, so that churches and religious organisations can prefer people of their own faith. The question is just how do you define a religious organisation? Everyone accepts that schools are religious organisations. There's been very strong argument to suggest that with respect to staff particularly, that religious organisations should include hospitals. But that would only mean that they are in effect exempted from the specific prohibition in this act which regards faith. So a religious school, in an Islamic school for instance, would be open to not employ a Catholic teacher or vice versa, and that's a principle that would be extended to a religious hospital.

PATRICIA KARVELAS: So a religious hospital or an aged care facility could say they could say they don't want to hire a gay staff member?

CHRISTIAN PORTER: No, because that's not on a religious basis.

PATRICIA KARVELAS: So explain to me why that wouldn't be the case? Couldn't they say if it's a Catholic hospital, we don't believe people should be homosexual and we don't want to employ this aged care worker? Wouldn't that cover that kind of scenario?

CHRISTIAN PORTER: The exemption only is an exemption to make a decision about an employee based on their faith. Not their sexuality, not their age, not the fact they might have a disability.

PATRICIA KARVELAS:  So give me a scenario where an aged care facility could sack a staff member?

CHRISTIAN PORTER: Well I'm not here to provide hypothetical scenarios, that's usually what you do.

PATRICIA KARVELAS:  Well it's not hypothetical because it becomes real life. I mean this is the thing about these laws; they affect real people's lives. So if you could give me an example of how an aged care provider would be able to use this change that you've announced today, I think it would be helpful for people.

CHRISTIAN PORTER: Well aged care providers at the moment can - a religious aged care provider can employ people of its own religion. That happens now.

PATRICIA KARVELAS: So what's going to change then?

CHRISTIAN PORTER: Well it just - as I say, this affirms the status quo and doesn't change the status quo. While we're delivering a protection to people and drafting exemption, we're trying to draft the exemption that maintains the status quo for religious organisations.

PATRICIA KARVELAS:  Okay and how about all the people that they see, patients, does it have any impact on patients?

CHRISTIAN PORTER: So as I said today in the speech, part of the consultation here was to really thoroughly understand how religious hospitals and religious aged care facilities work. And what they told us is that like a religious school, they have a strong view that they should be able to maintain a critical mass of staff that are of the same faith as the hospital or the school. But the hospitals and aged care facilities effectively said to us that they just don't make decisions about admitting patients based on the patient's faith. So that's not a matter that we're giving any extension to.

PATRICIA KARVELAS: So there might be other changes. This is just one you've announced today. Will the sections on healthcare providers in the religious bill remain?

CHRISTIAN PORTER: The sections on healthcare providers in the religious bill?


CHRISTIAN PORTER: You're talking about the sections that ...

PATRICIA KARVELAS: On doctors for instance prescribing …

CHRISTIAN PORTER: The conscientious objection provisions. Yeah, look they stay. There might be a little bit of tightening up on the drafting around those but again …

PATRICIA KARVELAS: Help me out with the tightening up on the drafting - what might change there?

CHRISTIAN PORTER: Well again, we'll see that in the very near future when the bill is introduced.

 PATRICIA KARVELAS: What sort of tightening do you think might be necessary?

CHRISTIAN PORTER: Tightening that tightens, Patricia.

PATRICIA KARVELAS: That doesn't make sense to me. What do you mean?

CHRISTIAN PORTER: I'm not going to go into details about whether one word is substituted for another in a final draft - but those provisions basically seek to achieve this; that where there are circumstances that it's legitimately accepted in a state or territory that someone can conscientiously object, that if there is any workplace rule that would limit that ability to conscientiously object, that could be indirect discrimination depending on how reasonable or unreasonable it was. So they're not overly controversial provisions I wouldn't have thought.

PATRICIA KARVELAS: Okay. Just finally on ICAC, the former judges that designed what they have put forward as an anti-corruption body, you talked about extensively in your speech, have put out a statement that I've got – and they that say rather than you run a commentary on the Australia Institute research they've been part of in terms of what they've proposed, they invite you to release your draft legislation for a Commonwealth integrity commission. When will you do it?

CHRISTIAN PORTER: We'll do that shortly.

PATRICIA KARVELAS: What does shortly mean? What sort of time frame?

CHRISTIAN PORTER: I'm sure you'd love an exact date.

PATRICIA KARVELAS: I'd like a time frame. I'm not asking you for the actual calendar, I'm not going to tick it off. But time frame?

CHRISTIAN PORTER: It will be shortly. But isn't it interesting that people don't want debate on this issue? That they just want some kind of body that they're massively enthusiastic for? And the whole point that I hoped to get across at the National Press Club today is that these integrity commissions can be forces for great good, but depending on how they're designed they can also bring about very significant injustices. And with respect to those injustices they have to be understood, analysed, and the reason why you've got to be cautious in the design of these bodies is to avoid those injustices. Now I don't think that that's an unreasonable process.

PATRICIA KARVELAS: Attorney-General, thanks for joining us.

CHRISTIAN PORTER: Thank you very much.