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ABC Radio National Breakfast with Fran Kelly



Subjects: CFMMEU, John Setka, Foreign fighters, Religious Discrimination Bill

FRAN KELLY: The Morrison Government has scored two significant wins this week in the Federal Parliament on drought funding and foreign fighters, and is now turning its attention to a union-busting bill which the ACTU has called quote: an unprecedented attack on workers.

Debate will begin today on - or this week anyway - on the Ensuring Integrity legislation which will make it easier to deregister unions and ban union officials. The Opposition Leader Anthony Albanese says this is just the latest in a series of divisive bills which shows the Government's more interested in baiting Labor than doing the right thing by the country.


ANTHONY ALBANESE: Attempting to play politics with every issue rather than actually just sitting back and governing in the national interest. On each occasion, what they're looking for each and every day is a short-term political advantage. Now, that is not in the national interest and Scott Morrison and his Ministers should be called out for it.

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FRAN KELLY: That's Anthony Albanese speaking here on Breakfast yesterday. Christian Porter is the Federal Attorney-General and the Minister for Industrial relations. Attorney-General, welcome to RN Breakfast.

ATTORNEY-GENERAL: Thank you, Fran. Good to be here.

FRAN KELLY: Labor says the Government's re-introducing the Ensuring Integrity Bill because quote "it hates unions". How much of this is just driven by pure ideology?

ATTORNEY-GENERAL: That is just nonsense. I mean look at Anthony Albanese himself. He himself is trying to expel John Setka from the Labor Party on the grounds that John Setka is bringing the Labor Party quote "into disrepute" but at the same time wants to oppose a rational, fair, reasonable Government Bill that would allow a court, potentially in the future if John Setka carried on as he does as the moment, to consider whether John Setka's a fit and proper person to be a union official.

I mean surely that is the absolute gold standard in hypocrisy. Now, Anthony Albanese is saying that his behaviour, John Setka, is too bad for him to be a member of the Labor Party but wants to oppose a bill that allow- would allow - the exact same question to be asked by a court as to whether or not he's a fit and proper person to be in the union movement.

FRAN KELLY: Minister, let's go to that. In terms of the court, you want to make it - this Bill would make it easier to deregister unions and union officials. It would allow a Government Minister, the Registered Organisations Commission or - and this is important - quote: a person with a sufficient interest to apply for the Federal Court to take action. Who would qualify as a person of sufficient interest?

ATTORNEY-GENERAL: Well when you say easier, it would certainly make it simple, but it would still be far from easy and that use of standing - so the description of a person with a sufficient interest - is a very standard legal formulation that already exists in the ROC legislation. But for instance, it might be one group of members of a union who believe that their union is being brought into disrepute by someone like John Setka. So they would have sufficient standing, they would meet that test, not dissimilar, if you like, from Anthony Albanese himself and others being the people that want to remove Setka from the Labor Party.

FRAN KELLY: So where is all this in company law? Yes, the Corporation Act in power is ASIC to disqualify company directors, but there's not a similar power is there for a Minister or a person with so called sufficient interest to do so?

ATTORNEY-GENERAL: Well for the deregistration or the placing into administration of a company, there are quite similar rules around standing. It's not merely one small group of people who can take that action but it seems …

FRAN KELLY: Is it a person with sufficient interest? Is that clause there?

ATTORNEY-GENERAL: Well that test specifically exists in the Registered Organisations legislation, it's already there.

FRAN KELLY: So that's already there.

ATTORNEY-GENERAL: But there are similar standards in Corporation's law, not that specific test, but that's a well-known test to the Commonwealth. That's a well-known test.

FRAN KELLY: Yes. But it's a well-known test you now apply to unions that is not applied in the same way in business and in corporations and it seems to me that a lot of the laws within this Bill are things that are already covered by law. I mean the fines and the fees show courts are really dealing with union wrongdoing.


FRAN KELLY: … this is already happening.

ATTORNEY-GENERAL: But, Fran, you've got one particular union which everyone clearly believes has a history of unlawfulness which is completely unprecedented …

FRAN KELLY: So this a lawful one union?

ATTORNEY-GENERAL: Well the CFMEU has $16 million worth of fines racked up over 2000 contraventions of the law and the existing provisions that would allow for deregistration have never been able to be used against that union. Now, if you can't use the existing provisions where there has been $16 million worth of fines racked up for over 2000 contraventions …

FRAN KELLY: But there are fines being racked up. So they are being …

ATTORNEY-GENERAL: But surely the point is in those circumstances, as you raise, if a company behaved like that, action would be taken against the company. Surely, you'd agree with that.

FRAN KELLY: Companies do make transgressions all the time. Look, at the - look what we're seeing in the construction industry …at the moment with no action being taken.. because the regulations have been watered down.

ATTORNEY-GENERAL: Well if comparative unlawfulness was undertaken by a company, there would be moves against that company. The point is there has never been a law - an organisation in the union movement more unlawful than the CFMEU.

FRAN KELLY: What about the proportion …

ATTORNEY-GENERAL: … and a rational government under the present laws is hamstrung in having even an application brought to deregister it.

FRAN KELLY: Many of the fines - and I'm not just talking about the CFMMEU but for them and for others - and as pointed out regularly by the unions and by Labor for relatively minor transgressions breaching right of entry bans on work sites, working - entering a work site to check on safety. Why shouldn't that be? And shouldn't that be? I mean we've had six deaths on mining sites in Queensland this year. Is it important that unions have that right?

ATTORNEY-GENERAL: A massive number of those contraventions are for union members themselves breaching federal and state occupational health and safety laws. The very laws that they are meant to uphold. They are in contravention of - which adds up in a large part …

FRAN KELLY: By entering a work site?

ATTORNEY-GENERAL: Well for a whole variety of reasons …

FRAN KELLY: A lot of them are for entering a work site.

ATTORNEY-GENERAL: Very often, Fran, when you enter a work site without notice or permission or a proper permit, you're putting people's health and safety at risk. When you stop …

FRAN KELLY: But the unions would argue the opposite when they're that denied entry, that safety is being put at risk.

ATTORNEY-GENERAL: Well Fran - well, they argue the opposite of that in court and they still get fined and convicted of those offences.

FRAN KELLY: So the laws are working. Why do we need this law?

ATTORNEY-GENERAL: Well - so what do you think is a reasonable number of contraventions for the CFMEU to rack up before some kind of action is taken to deregister it? Four thousand, 10,000, 50,000? How many million dollars of fines do you think? What level of unlawfulness is unacceptable, Fran?

FRAN KELLY: Well that's not a question for me I don't think…

ATTORNEY-GENERAL: Well I'll tell you the what the answer is. I'll tell you what the answer is.

FRAN KELLY: … deregistering a union that represents many, many thousands of workers is a major step. I mean, unions are an important element in this society.

ATTORNEY-GENERAL: Well indeed and that's why in this legislation for the first time ever you could deregister a part of the union which is an ability that doesn't exist. So if you found that one branch - let's just say for instance the Victorian branch of the CFMEU was more outstandingly unlawful than the rest of the organisation, that you could have a surgical approach to deregister that part of the organisation. But surely there must be some kind of standard here.

FRAN KELLY: You're listening to RN Breakfast. It's 18 to eight. Our guest is the Federal Attorney-General Christian Porter, also the Minister for IR. At the same time as you want this Bill in to make life harder for unions, there's more evidence emerging in this country of wage theft by employers. The latest high profile example is that $7.8 million that was underpaid to staff employed by the MAdE Establishment Group of restaurants. That company has been slapped with a $200,000 fine, so-called contrition payment by Fair Work. That's a long way short from being banned from working in the industry, isn't it?

ATTORNEY-GENERAL: Well I think that that fine myself is light and I've said that that's an area where we will review penalties. And I'm open minded to submissions that there should be further penalties there, inclusive of potentially criminal penalties reserved for repetitious breaches. But when we talk about theft of wages the other Bill we have before the Parliament is the worker's entitlement fund register- Worker's Entitlement Fund Bill which is meant to have the proper regulatory regimes around worker's entitlements funds. Before the last election a worker's entitlement fund called Protect, which is meant to hold money for severance payments for union members, for workers, transferred $32 million back to a union for no reason. That is the theft of wages of union members because there is no regulatory system around those funds.

FRAN KELLY: Okay. But let's stay with the scale of wage theft that has been revealed in this country over recent years with 7-Eleven, with Coles, with Woolworths and Neil Perry, Heston Blumenthal, the MAdE Establishment, it goes on. I'm sure you're very aware of it. We've also had the report from Allan Fels and the Migrant Worker Taskforce. You said you're open minded even to criminal penalties for the most serious cases. When will you adopt the recommendations of the Allan Fels taskforce and make it a criminal offence to underpay workers?

ATTORNEY-GENERAL: Well as I said, I'm very open minded to that and we're going to go through a process of-

FRAN KELLY: When are you going to move on that?

ATTORNEY-GENERAL: Well we're going to go through a process of consultation on both sides of this argument to determine what is the proper limitation. So at what point would you apply those criminal offences? But what I don't understand is that why is it a matter of extreme public interest, Fran, here this morning that there is theft of wages by someone such as George Calombaris in those circumstances and I think it's deplorable; but then why is it okay for a union set up fund meant to hold worker's entitlement money, to transfer $32 million back to the union without any explanation. That is the theft of wages of hardworking Australians, sent back to a union with no reason, in a system where there's no regulation. So why would we oppose the regulation of those funds?

FRAN KELLY: Well I'm not aware of that case, so I can't make a comment on that case. But-

ATTORNEY-GENERAL: But it's interesting, isn't it that everyone's aware of George Calombaris, but no one seems to be aware of these 32-

FRAN KELLY: Well because people are stealing workers' wages on a grand scale.

ATTORNEY-GENERAL: Yeah sure, but you're aware of one type of theft but not of another type of theft.

FRAN KELLY: … so let's not make a comparison and let's deal with the issue that has been very front and centre in the media for recent years.

ATTORNEY-GENERAL: Well what I'm arguing is that $32 million dollars taken out of Protect and sent back to a union before the last election should be a matter of public concern and should be highlighted more by the media.

FRAN KELLY: We're running out of time, we've got a couple of major issues - the Foreign Fighters Bill has passed the House, it will clear the Senate. 18 Australian women and children who are detained in Syria though, are now threatening – or have threatened to take the Government to court. They say they are legally obliged - you are legally obliged to repatriate them as Australian citizens. Do you have an obligation - legal or moral to bring them home?

ATTORNEY-GENERAL: Well they're arguing some kind of legal obligation and they can make that argument. But what we have said is very clear is that we will make very rational judgments about the level of risk that we would put any Australian, particularly a member of our defence services into, to repatriate.

FRAN KELLY: But you're the Attorney-General, have you looked at the legal obligation here?

ATTORNEY-GENERAL: Well I mean obviously we look at those sort of things, but I'm not going to argue that case that has been raised by these individuals. Our first and foremost obligation is to the safety and welfare of the people who work for the Australians and the Australian Government, who might be put in harm's way trying to repatriate individuals who are now on the border of Syria. And our first interest is always to the hardworking men and women of our Defence Forces, their safety and welfare is our primary concern.

FRAN KELLY: Attorney-General, there is much on your plate at the moment - you've also undertaken a wide- ranging consultation process on the Religious Discrimination Bill. Is it still the case that the Bill will follow, as you've said, standard architecture of other anti-discrimination Bills because you've previously said that it's an orthodox Bill, it won't really deal with the Folau situation. Is that the case?

ATTORNEY-GENERAL: No, I haven't said it wouldn't deal with the Folau situation. I've said it's an orthodox Bill and it will follow the architecture of discrimination Bills. But as you'd be aware, all present discrimination Bills have a clause which deals with indirect discrimination. So will this Bill following that Orthodox structure and I would have thought it's precisely that type of clause that someone like Israel Folau or others in similar circumstances would argue that the rule of general application by their employer, in this case, Rugby Australia, indirectly discriminates them - against them - because of their religious views. Now, a Bill like this, following the orthodox pattern of discrimination Bills would allow another avenue for an action to be brought by someone in those circumstances.

FRAN KELLY: How does that fit then - religious lobby groups are fighting to retain the right to fire a gay teacher and also now arguing people of faith should be able to say homophobic things within the rights, as you say, under discrimination law.

ATTORNEY-GENERAL: But I think you're inflating the Sex Discrimination Act with a Religious Discrimination Bill. A Religious Discrimination Bill would deal with people being free from discrimination because of their religious attribute. It would of course have certain exceptions. They might be religious organisations like churches or religious schools, but that would only be in relation to decisions that they would be making based on religion with respect to other religions, it wouldn't deal with the matters of the Sex Discrimination Act.

FRAN KELLY: So the Bill that you come up with that fits the standard architecture of other anti-discrimination bills, is that going to disappoint, for instance, Senator Concetta Fierravanti-Wells who wants more sweeping protections to allow people freedom to manifest their religion.

ATTORNEY-GENERAL: Well that's not something that we promised at the last election based on the Ruddock Review, which recommended a Religious Discrimination Bill. We said we would bring in a Religious Discrimination Bill. Our central point of principle is this - is that if you have a law in Australia which protects you from discrimination based on your sex or your age or your race or the fact that you have a disability, then there should also be in that architecture an ability to protect people from discrimination based on the fact that they're religious.

FRAN KELLY: One final question, Attorney-General, just briefly, in December last year, you announced a National Integrity Commission. It's not in a form that satisfied many lawyers, many former judges, many political parties calling for such a commission. But when will you get around to legislating it? When will we see the Bill?

ATTORNEY-GENERAL: Well I think again, say for instance the Law Council of Australia was generally in approval of the type of integrity commission that we were proposing and dead set against the type of integrity commission the crossbench moved by way of legislation…

FRAN KELLY: Wasn't just the crossbench, there's a lot of former- former judges came out criticising it.

ATTORNEY-GENERAL: Sure. But you're trying to create an impression that the legal industry was against our model. That's not - that's just not at all correct.

FRAN KELLY: No, I said many, I didn't say all. But my question is when will we see the Bill?

ATTORNEY-GENERAL: Well that's in an advanced draft and again, that'll be something that we'll take out in draft consultation. But keep in mind that we put three and a half thousand words worth of description of our model out before the last election. The Labor Party had a press release effectively, so already people know a lot about the direction that we're taking. But of course that's the sort of legal drafting exercise that once it's through Cabinet, we'd consult on heavily.

FRAN KELLY: Christian Porter, thank you very much.

ATTORNEY-GENERAL: Thank you Fran. Cheers.

FRAN KELLY: Christian Porter is the Federal Attorney-General and the Minister for Industrial Relations and the Leader of the House and a lot going on.