ABC TV Insiders
Subjects: IR reform; robo-debt; Bernard Collaery trial; Constitutional recognition
DAVID SPEERS: Christian Porter, welcome to program. After nearly seven years in government, why have you only just realised it's a good idea to bring unions and employer groups together like this?
ATTORNEY-GENERAL: Well, it's always been a good idea it's just hard to achieve. We've been in extraordinary circumstances and the challenges that we face to grow our way out of the economic damage that the pandemic has caused are just colossal. So there's a coalescence of interests for the first time in a long time. So, we've all thought it was a good idea but actually achieving it has obviously taken extraordinary circumstances.
DAVID SPEERS: What, you couldn't have booked a hall in the past and invited both sides to come and talk?
ATTORNEY-GENERAL: You can book and you can invite but the willingness of all of the parties - this isn't a criticism of unions or business - all of the parties have in effect been arguing for many, many years around pretty considerable spoils of 29 years of uninterrupted economic growth and in whole industry sectors those spoils are gone. So the game has changed and the game now, the number one game in town is growing jobs, saving jobs, preserving jobs, and creating jobs of the future.
DAVID SPEERS: You're going to be overseeing five working groups as part of this process. On two of them you've said that you will be taking a lead. These are two areas where you were actually about to produce legislation anyway; one of them is on compliance or wage theft, the other is on greenfields sites. What is your position on these two areas now?
ATTORNEY-GENERAL: With greenfield sites, that's the issue about large construction projects, very often in mining, oil, and gas which generate thousands and thousands, tens of thousands of jobs and the agreements that cover them very often come up for renewal and renegotiation midway or partway through the project. Now what the businesses that generate those jobs say is that that is a very clunky system and it increases the cost of the construction and decreases the overall investment you can drive into Australia....
DAVID SPEERS: Do you support a life of project agreement then for those sites?
ATTORNEY-GENERAL: Well essentially. That will have to be a point of negotiation by what we would mean by life of project; how long that might be; are there limitations around that and that's obviously the conversation we want to have with unions and business. But look before the last election, I think Bill Shorten was even countenancing this is a possible policy and I think it just makes sense, particularly given that we are going to rely so much on construction, mining, oil and gas projects to help drive our economy out of the very difficult circumstances we find ourselves in.
DAVID SPEERS: But it may mean those workers can't renegotiate after four or five years, even if economic conditions are very different.
ATTORNEY-GENERAL: Well, and again this is a matter for discussion. Whether or not it's an absolute term of project agreement, or whether there's a cap on it, or whether or not there're some exceptions to the term of life agreement - these are the things we want to talk about. But there seems to be a large amount of agreement that the system as it's working now for these big projects isn't working terribly well.
DAVID SPEERS: On enterprise agreements, should the better off overall test go?
ATTORNEY-GENERAL: Well I think that we need again to look at that test and how it's being applied in practice. I think that Sally McManus's contribution that you showed as an introduction is something that I would largely agree with. Enterprise agreements were meant to be agreements between businesses and their workers which pay people more than Awards and Awards were meant to be the safety net. Now, what's happened over time is that the enterprise agreement system has become so difficult to navigate; the tests so legally applied; that there's more people now on Awards. Now that must mean they're missing out on better wages because they are not on an enterprise agreement which is meant to pay you more than an Award. So again there seems to be agreement that the enterprise agreement system is not working terribly well.
DAVID SPEERS: Ok just to be clear, your preference is the boot test should go?
ATTORNEY-GENERAL: You're putting words in my mouth that I haven't spoken.
DAVID SPEERS: I'm asking.
ATTORNEY-GENERAL: I think the BOOT test is something that needs to have a really, really fine look at because the way it's being applied at the moment is I think causing fewer and fewer enterprise agreements to be concluded which means ultimately people miss out on being paid more than an Award wage.
DAVID SPEERS: On casuals, should all casuals have the right to become a permanent employee after 12 months?
ATTORNEY-GENERAL: Well, again, this is a question that needs resolution.
DAVID SPEERS: What is your view, Minister?
ATTORNEY-GENERAL: Well my view is I want to listen to all of the parties involved - the people who have skin in the game - the employers who face the problems and the uncertainty around how you engage someone as either a casual or a permanent part-time. I want to hear from the unions and employee groups about how this issue affects their membership. But ultimately there has to be a clear definition of casual inside the Fair Work Act which there has never been. At the moment there's a right to request for many, many workers who have been in casual employment for a long period of time; they have a right to request to become permanent, but that's not a universal right. Now I think that there would be a strong argument to suggest that that right should be extended.
DAVID SPEERS: You don't have a fixed position on this yourself?
ATTORNEY-GENERAL: The point of these working groups is not for the Government to stroll into the room and tell everyone how it is and how it's going to be. The point of them is to look at known problems inside the system that are inhibiting us in our challenge to grow back hundreds of thousands of jobs and hear from the parties most affected with the skin in the game as to how we may best solve those problems.
DAVID SPEERS: OK, but ultimately, you'll have to decide - you're the Government - you'll have to decide what you want to move forward with, take to Parliament. So will you only take forward areas of agreement, or will you actually take forward things the unions don't agree with?
ATTORNEY-GENERAL: There might be levels of disagreement. So, for instance, around the issue of compliance and legislating for a criminal offence of wage theft, the unions are largely in favour of that, although they'll have some views about the precise wording and model that's used. The business groups are largely against that. But nevertheless, we have undertaken to legislate in that area. In fact we undertook to do that before this process. So…
DAVID SPEERS: ..and likewise on Awards, you might have employers saying let's get rid of all the Awards, and unions saying no way. Is that something you'll still move ahead on?
ATTORNEY-GENERAL: The purpose is to find the best compromise position. It might be a position that not everyone absolutely loves, but nevertheless there might be some level of agreement that the position helps grow you jobs. For instance, the Award we'll focusing on straight up is the hospitality award. It's got 61 different pay points with 14 different permutations at each pay point and what employers say is that that is excruciatingly difficult and costly for them to navigate.
DAVID SPEERS: The difficulty is saying which one should go, which one should go….
ATTORNEY-GENERAL: And that is a conversation that we need to have with both workers and business. But at the moment, right, in that industry, there has been devastation wrought by COVID. And so we're talking about probably the most complicated Award of the lot, which coincidently, happens to be inside the industry where there's been the most devastation to employment. So wouldn't we want the opportunity to work out if we can just do a little bit better?
DAVID SPEERS: Just coming back to the remarks from Sally McManus we did play this before. She makes it clear that workers really deserve a better share when productivity and profits of a business they work for are improving. Do you agree?
ATTORNEY-GENERAL: I wouldn't disagree with that. But, but in a whole range of industry sectors that have been devastated by the COVID-19 pandemic, that prosperity which we've been so used to for so long has just been pulled out from under them. So the first order of business here is to regrow businesses, regrow jobs, save and preserve jobs that may be teetering now. And yes, of course, there has to be a proper dialogue and discussion around how you share the wealth of any industry sector, but if an industry sector has been devastated and we as the Government can't find ways to assist in its regrowth in as rapid as a period of time as possible, then what are you arguing about? You're arguing about the rewards of jobs that don't exist unless we grow them back.
DAVID SPEERS: Let's move on. On the scale of government bungles, how does robo-debt rate?
ATTORNEY-GENERAL: It's a very unfortunate outcome, there's no doubt about that. There's a large repayment, there's litigation still on foot with respect to it. But the Government, once it had become clear the basis upon which the debts was being raised was insufficient, we've zeroed the debts, we've undertaken to pay them back as Stuart Robert the Minister noted this week and they all will be repaid.
DAVID SPEERS: When did you realise it was unlawful?
ATTORNEY-GENERAL: Well, you're talking about the sufficiency of the basis for which the debts were raised and there is still litigation going on, on this matter. We received advice at the time that the program was put together that it was lawful - and many governments have used ATO averaging data over many, many years, Labor and Liberal, it had always been the case that we had proceeded on the basis of advice that it was lawful.....
DAVID SPEERS: To be clear though Labor had a human involved in the process. The difference was taking the human element out of the process and automating the system…now
ATTORNEY-GENERAL: That's not what made it legally insufficient. It was the fact of the averaging of the ATO data, so...
DAVID SPEERS: …does that mean the Commonwealth can be liable then for cases prior to 2015?
ATTORNEY-GENERAL: Well there will be a statute of limitation on those. That system was also not a sufficient basis for raising debts, even before the automation.
DAVID SPEERS: But does that mean there could be compensation owed to those cases prior to 2015?
ATTORNEY-GENERAL: Well, we're refunding everyone who has been part of the compliance system using income averaging, whether the debt was wholly raised or partly raised, even for those people who acknowledged the debt - we're refunding - so it's a clear and simple solution to a problem but we're not going back that far…
DAVID SPEERS: But are you refunding everyone? 320,000 are being refunded under the statement that came out on Friday. There are far more than that who received these robo-debts?
ATTORNEY-GENERAL: Yes but these are the group inside those people who owed a debt to the Commonwealth who had been the subject of income averaging as the process that raised the debt. All governments have to deal with the fact there are large amounts of money that are paid out in the welfare system which exceed the amount that the person should have received and often that's a mistake on the part of the person who nominates their income - sometimes it's other matters. But every government has to try and work out a way to recoup overpayments. In this instance, we used a method that had been used for many years. It later became clear that was an insufficient basis and we're refunding the money.
DAVID SPEERS: Sorry, to pretend that nothing changed, I mean you were the Social Services Minister who oversaw the expansion of this program. I've got the press release here with your name on it, announcing what the Commonwealth was doing - enhancing the integrity and compliance of the social welfare payments through improved employment income and non-income data matching. So this was a significant change, you were boasting about the change. Do you now apologise for putting this flawed system in place?
ATTORNEY-GENERAL: The system was flawed. I'm not going to use that word because there's litigation ongoing and as Attorney-General I can't use that sort of language in the context of the litigation.
DAVID SPEERS: You can't apologise because of the prospect of further damages?
ATTORNEY-GENERAL: There's an argument which we will resist in the courts about the way in which the Government ran the system. But what we do acknowledge is that using average, annualised ATO data, which many governments – Labor and Liberal – have done has, as it transpired been shown to be an insufficient basis for raising those debts.
DAVID SPEERS: So this was a flawed system, you were wrong to do it, but you won't apologise?
ATTORNEY-GENERAL: Well there's litigation ongoing and that litigation argues amongst other things negligence and we don't concede that.
DAVID SPEERS: Does legally insufficient mean illegal?
ATTORNEY-GENERAL: There wasn't a lawful basis, that's what it means
DAVID SPEERS: Is it illegal?
ATTORNEY-GENERAL: You can you use that, but that's a criminal term very often, but civilly, it was unlawful. There was no lawful basis for it.
DAVID SPEERS: And will you repay the interest lost for those who had to wrongly repay these alleged debts? Will you pay damages as well? Because that's what this what is the class action, the largest ever in Australian history, is still seeking.
ATTORNEY-GENERAL: That's something that will deal with in mediation and no doubt that's a position that will be put by the class action litigants...
DAVID SPEERS: What is your position?
ATTORNEY-GENERAL: There are other ways in which there might be compensation that might be acceptable. We'll discuss those with the litigants in the matter. But there's no position finalised on that yet.
DAVID SPEERS: So the cost to the Commonwealth could be well above the $721 million.
ATTORNEY-GENERAL: At the moment, those monies have been refunded. There will be an argument as to whether or not we undertake to never try and recoup any debts using other methodologies. There will be arguments about interest and those arguments will occur in the context of the mediation and the settlement.
DAVID SPEERS: The cost could go up?
ATTORNEY-GENERAL: Well I wouldn't want to say that at this point, because no-one knows the exact answer to that question.
DAVID SPEERS: Moving to just a few other issues, Federal Police have decided not to prosecute Annika Smethurst or her source - nearly a year after raiding her home. The threat of prosecution does still hang over the two ABC journalists Dan Oakes and Sam Clark for the story they wrote back in 2017 about alleged war crimes in Afghanistan. I note in the interest of full disclosure, Sam Clark is the Executive Producer of this program. Should police now rule out prosecuting them?
ATTORNEY-GENERAL: Well I'm very frustrated at how long it took to reach that position, but these are independent requests for an investigation in the matter that has now been resolved that came from the Secretary of Defence, I think it was. Then the AFP make an independent decision as to whether to commence an investigation; they've now made the decision to conclude and not proceed with that investigation. That did, in my observation, take a long time. But David as you know, that's a decision making process that is completely separate from government....
DAVID SPEERS: This one is taking even longer.
ATTORNEY-GENERAL: Well, I share a level of frustration. I think that there has to be decisions made in this much sooner rather than later.
DAVID SPEERS: You could declare today you will not consent to the prosecution of these two journalists.
ATTORNEY-GENERAL: Well, I couldn't do that, actually because that power exists only when there has been a decision made by the DPP to prosecute. So, I can't properly engage in my role as Attorney-General by second-guessing something that may or may not happen in the future. That just wouldn't be lawful or sound.
DAVID SPEERS: Bottom line, should police have the power to raid a journalist's home or office?
ATTORNEY-GENERAL: Well I mean, that depends on all the circumstances, obviously. But what I wouldn't accept is the contention there will never be a circumstance where a journalist can't be the subject of a warrant.
DAVID SPEERS: Alright just a couple more just quickly: Bernard Collaery faced court in Canberra this week. He stands accused of sharing intelligence information by helping his client expose Australia's bugging of East Timor's Cabinet Office back in 2004. Journalists were banned from the court this week, thanks to an intervention from the Commonwealth. Why don't you want anyone hearing the evidence against him?
ATTORNEY-GENERAL: So, the action is applied under what is known as the National Security Information Act and there are both requirements and abilities in that for the Attorney-General to protect matters that our intelligence agencies tell us should be, for the benefit of the nation, protected. I take advice from them and we make applications. But what's happening in that matter at the moment are applications and arguments being heard in court as to what material will be able to be publicly available and what material won't. Now, you know there are court cases all the time where some matters are not made public. I mean, that in itself is not terribly unusual.
That might be the names of witnesses for their protection or a whole range of other matters.
DAVID SPEERS: But this is the whole hearing. Is this really transparent justice?
ATTORNEY-GENERAL: No it's not. It's not, David. This is an argument about what matters may need to be heard inside the court and only inside the court and what matters can be heard publicly. That's what the argument is about. That argument occurs in a range of contexts, in courts, all the time.
DAVID SPEERS: Just a final one, it is Reconciliation Week. Is a referendum on constitutional recognition still going to happen in this Parliamentary term?
ATTORNEY-GENERAL: Well, that's a matter that Ken Wyatt as the Minister will bring in due course to Cabinet, no doubt.
DAVID SPEERS: He said on Friday to the Guardian, 'unfortunately a referendum is unlikely in this term of government.'
ATTORNEY-GENERAL: I think that Ken had a degree of optimism before the pandemic hit and the world got turned upside down. Obviously that level of optimism hasn't lasted through this enormously challenging time. But I've not spoken to Ken about that. I'm sure he'll present his views after an enormous amount of consultation to the Cabinet in due course.
DAVID SPEERS: Christian Porter, thanks for your time this morning.
ATTORNEY-GENERAL: Thanks David, cheers.