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ABC RN Breakfast – Fran Kelly



Subjects: Coronavirus; Foreign Influence Transparency Scheme; sports grants

FRAN KELLY: With the coronavirus entering a new and more dangerous phase here in Australia now, the Federal Government says it may need to use unprecedented quarantine laws to restrict the movement of people. For the first time ever, biosecurity control orders could be imposed to direct people suspected of carrying the virus to remain in lockdown and human health response zones could be declared which would ban people from attending places of mass gatherings; places like shopping centres, schools, work. Attorney-General Christian Porter joins us now in our Parliament House studios. Christian Porter, welcome back to Breakfast.

CHRISTIAN PORTER: Yes, thank you, Fran. Good to be here.

FRAN KELLY: Minister, these laws exist but have basically really never been used before, but now that we do have confirmation of human to human transmission here within Australia, do you think they will need to be invoked?

CHRISTIAN PORTER: Well they do get used but in a limited and sort of more narrow way particularly at our borders. So if people come in and there's a suspicion that they might have some ailments, then you'll find that these laws have been used. They were introduced in 2015 but I guess the point that we're making as a Government is that it's very likely that these laws will get used on a larger scale and it's very likely that Australians will encounter practices and instructions and circumstances that they've not had to encounter before. And as I say, the laws were introduced in 2015. They generally emanate from the Biosecurity Act which replaced the 100-plus year old Quarantine Act and the Quarantine Act was designed for a time when most things came to Australia by ship. But these laws were designed precisely with the type of pandemic in mind that we are now facing. And they're very important laws; they will be in some instances strange and foreign to many Australians but they will become very important I would suspect over the next couple of months.

FRAN KELLY: Okay. Well if it's very likely, we better go through them because, as you say, many of them of will be strange and foreign. The biodiversity control orders, for instance, what kind of powers does that give to doctors and police? What do these laws mean in that front?

CHRISTIAN PORTER: Well let me start by saying that the laws are always framed in that they should only be invoked if what is being requested is the most effective and least invasive power that is available to control a set of circumstances. But you can have a situation where there can be orders that would ban or restrict certain behaviour or practices or require certain behaviour or practices, orders that could require records to be kept. There could be the declaration of what are called Human Health Response Zones and that could mean that there are specific requirements for screening measures for people going in and out of such a zone. So for instance, in a peak presentation period, it would be likely that you'd have things that are called fever clinics which are designed to help people recover from the acute fever that comes with coronavirus and people entering and leaving those zones could be subject to requirements that are compulsive. So these are the sort of things I think most Australians would expect that you would need to be able to do in a situation where you're trying to manage a pandemic, to slow its growth, to ensure the orderly presentations into the health system and out of the health system. But of course it's unlikely that people would have encountered these sort of measures before.

FRAN KELLY: In terms of human health response- Human Health Response Zones, you talked about fever clinics. Does that extend to declaring areas like shopping centres or football matches no go areas, for instance? Do you think that's- it's likely to come to anything like that?

CHRISTIAN PORTER: That's a potential under the way that the legislation's framed. So the Director of Human Biosecurity can impose a zone for small scale outbreaks. It always …

FRAN KELLY: …entire buildings, for instance, is that more feasible?

CHRISTIAN PORTER: Potentially. It always requires consultation between the Chief Health Officer for the relevant state or territory and the Director of Biosecurity. So these things are always done on medical advice with more than one very senior person with medical expertise, authority and responsibility trying to determine what is the best thing to occur. And of course, this can pertain also obviously to individuals. So it's again potential under the Biosecurity Act that you could have the prevention of movement from persons in and out of particular places and they would be powers that would attach to an individual rather than necessarily the place itself. So that might be from …

FRAN KELLY: What do you mean?

CHRISTIAN PORTER: Well it might be from going in and out of a school at a certain period of time or indeed attending work if there was a view that that workplace was structured in a way that meant that there was a high likelihood for the disease to be spread quickly through that type of workplace …

FRAN KELLY: Can you just - sorry, Attorney-General. I'm just struggling with this. As you say, these are unusual for us, strange and foreign. Can you give me an example of what that might look like on a day to day?

CHRISTIAN PORTER: Well you might have a major sporting event where people would be in very, very close proximity to each other and that might be occurring during a high point of presentations into the medical system and it might be determined that the risk of transmission at a venue like that was too high.

FRAN KELLY: So people wouldn't be allowed in?

CHRISTIAN PORTER: Well there would be a requirement that people not visit there. So I think that the effect of that would be whatever it would be, would be cancelled.

FRAN KELLY: Okay. What about in terms of detention powers. New laws are being rushed in the South Australian Parliament today that would empower the police in that state to arrest and detain people at risk of spreading coronavirus. If a person defied a Commonwealth's control order, could they be arrested as well? And do you expect all states should or will bring in these detention powers?

CHRISTIAN PORTER: Yes. I've seen- I mean South Australia obviously have a view that with respect to their own laws, there are issues that need to be dealt with. I mean I've got a team of people working with me and my office looking across the full suite of the Commonwealth laws to make sure that we are prepared and that we are able to do the things that we anticipate may need to be done. They may not, but they may need to be done. But in answer to your question directly, I mean there will be certain circumstances where there are penalties for failing to abide by an order. Detention can occur under the Act but it is rare and very much a last resort and it exists for the types of requirements like compelling someone to go to a medical facility or detaining someone who has arrived in Australia and who is trying to leave, potentially to avoid being issued with a control order. So those are very much last resort type scenarios but they're powers that were debated very extensively in 2015, when we brought them in …

FRAN KELLY: Sure. But now we've got a real life kind of experience of it, I mean, well, potentially, and if we're looking at the here and now, for instance, does a person have to be diagnosed with coronavirus to be subject to one of these control orders? Would it apply if they're only suspected of carrying COVID-19?

CHRISTIAN PORTER: Well I'll give you another example. So someone could be directed to undergo compulsory decontamination and that wouldn't necessarily mean that there had been a test prior that the person had definitely been carrying COVID-19 or any particular disease, but that might be a requirement to go in and out say, for instance, of something like a fever clinic. So if you had a place where people were being treated en-masse because of the fever conditions that are associated with the disease, then you could compel that people are decontaminated when they leave that facility and re-enter their homes in the community and buses and so forth. So …

FRAN KELLY: What about someone who's returned from overseas and has to go in home quarantine, like many people are asked to do, and they don't and someone dobs on them and the authorities become aware of this? Is that person likely to become within the purview of this well?

CHRISTIAN PORTER: Well, that person could be the subject of a control order, they could be the subject of actions if they breach the control order - so yeah, quite obviously-

FRAN KELLY: Would you expect they should be? I mean, this is voluntary home detention that we're asking- quarantine that we're asking people to go into.

CHRISTIAN PORTER: Well, that's at the moment, but again, it's potentially the case that certain people at certain times might be subject to a control order and the control orders aren't voluntary things. But these laws are put in place to deal with the sort of situation that we have now. They actually showed a very high degree of foresight and I think that-

FRAN KELLY: What about though, the balance of human rights versus public safety in all this? And I'm sure they were debated at the time, but here we are now and we're dealing with this. I mean, who's the arbiter of that balance?

CHRISTIAN PORTER: Well, the laws-

FRAN KELLY: [Interrupts] Who's in charge of declaring this?

CHRISTIAN PORTER: Well the laws themselves set up the decision making criteria - things must be necessary, they must be the less- least invasive means of achieving the thing that you're trying to achieve. It must be the most effective and least invasive means; decisions must be in accordance with principles that are listed in Section 34 of the Act - so the measure will be effective in managing the risk; it's justified and reasonable in all the circumstances. So the legislation has been designed to take into account all of the things, of course, that you've raised and that people would think are reasonable to take into account in the circumstances.

FRAN KELLY: But if it's challenged, who's the arbiter?

CHRISTIAN PORTER: There are two angles to go, there are two angles to go into this, Fran. One is that you re-litigate the very extensive debate about getting the balance between rights and responsibilities and the need to protect the Australian public safe that we've had over many, many months in 2015. Or we actually realise that the government had the foresight to ensure that we weren't now labouring over a pandemic with laws designed in 1908 for the quarantine of goods and people coming from sea.

FRAN KELLY: [Talks over] No, I understand that Attorney, I'm not saying, I'm not saying we prosecute, I'm just saying at that time what- within this law, this framework, who is the arbiter of this? Who invokes this? If it's challenged, who is the final arbiter?

CHRISTIAN PORTER: Well, these matters are determined, generally speaking, by either the Health Minister personally with requirements that that be done and over sighted by the Governor-General - that is, say, for instance, declaring that a human bio-security emergency exists - which is the final power in the Act. But with respect to things like human health response zones, they're requirements of chief medical officers with consultation and agreement from chief medical officers of the states. So these are matters that are very much driven and determined by the best medical expertise that we have at the point in time…


CHRISTIAN PORTER: … assessing what is the best and least invasive way of protecting the Australian public's health at large.

FRAN KELLY: You're listening to RN Breakfast. It's quarter to eight. We're speaking with Federal Attorney-General, Christian Porter. On another matter, the Government's promised us a National Integrity Commission. We don't have it yet but there are complaints about your model as we know it now. Some legal experts say it wouldn't have the power for instance to investigate the so-called sports- Community Sports Grants scandal because the conduct in question doesn't constitute a criminal offence. Is that correct?

CHRISTIAN PORTER: Well, the - all corruption and crime commissions have to investigate criminal offences, that's what they do. There hasn't been any suggestion whatsoever that there's been a criminal offence committed or reasonably suspected by anyone with respect to the matter that you've just mentioned. So the complaint that an integrity commission that we might design wouldn't investigate things that weren't offences is kind of a circular argument-

FRAN KELLY: Well, it's an integrity commission, it's not, it's not a- it's an integrity, it's investigating matters of integrity. That doesn't necessarily mean criminal offences.

CHRISTIAN PORTER: No. Well, that's just not correct. So integrity commissions, or corruption commissions, or whatever they are called, investigate things which are written into statute as offences. So for instance, the model that we've designed would be able to investigate a very wide range of Commonwealth offences which pertain to issues of integrity, which went to issues of corruption…

FRAN KELLY: [Interrupts] But not the sports grants?

CHRISTIAN PORTER: Well neither the police nor integrity commissions investigate things that aren't offences.


CHRISTIAN PORTER: That's just, that's just how it works. So there are offences on the Commonwealth books such as abuse of public office, which is a very broad ranging offence. Now, I'm not sure that anyone out there has suggested that an offence of that type has been committed-

FRAN KELLY: Let me put it this way, as the Attorney-General, would you think that any national integrity commission should be able to look at programs like the National- the Community Sport Grants program.

CHRISTIAN PORTER: Well, it absolutely should look at all programs across government. But the way in which the model that we've designed would work, which is, which is completely orthodox and followed in many other jurisdictions, is that the first investigation on a matter would occur, as it did here, through the Auditor-General. If the Auditor-General in his investigation considered that there was a reasonable grounds for suspecting that a Commonwealth offence had been committed, that they would send the matter up then to the Integrity Commission who would have greater powers than a royal commission to investigate that matter.


CHRISTIAN PORTER: But, if I might make this observation …

FRAN KELLY: Well we're almost out of time today, sorry.

CHRISTIAN PORTER: Well, well you know, there's been all sorts of allegations thrown around yesterday about documents being backdated and forged by ministers. Not that long ago there were allegations thrown around by the Opposition about another minister forging a document - no evidence whatsoever of these allegations of what are very serious criminal offences. And really, how many times do you have to accuse federal government ministers of serious criminal offences with no evidence, with no one willing to undertake an investigation because there's no evidence and you, yourself, not have a case to answer. It is absolutely out of control. Ten referrals from the Labor Party with zero results whatsoever of Commonwealth ministers with allegations of serious offences. And then yesterday in Estimates you get Senator Keneally again accusing a Commonwealth minister of a serious criminal offence with zero evidence whatsoever. Like when does this stop?

FRAN KELLY: Attorney-General, we've got to leave it there. Thank you very much for joining us.

CHRISTIAN PORTER: Thank you. Cheers.

FRAN KELLY: Christian Porter is Australia's Attorney-General.