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Doorstop – Perth



Subjects: Border closures, Ruby Princess; paid pandemic leave

ATTORNEY-GENERAL: Thanks everyone for being here. We've just opened a fantastic new facility at MineARC Systems. It's a company that's been benefitting from JobKeeper – is growing its way out of the difficulties surrounding the pandemic and employing about 135 West Australians locally here so a great success story and it was a great pleasure to open their new facilities today. No doubt you've got some questions on some of the issues of the day which I'm just very happy to get into.

QUESTION: Let's talk about the hard border closure. What are your thoughts on it? Do you think that Clive will be successful?

ATTORNEY-GENERAL: I think that there are arguments that are going to be mounted which may well be persuasive to the High Court that the complete uncompromising hard border closure that exists at the moment may not be a constitutionally sustainable position. And I think many people are concerned that that may be the decision that comes out of the High Court. Ultimately that's their decision but of course that's a risk that exists in the High Court proceedings.

QUESTION: What's your personal opinion? Do you think WA's border should be opened?

ATTORNEY-GENERAL: Well we intervene in the court case to assist the court and we assist the court by making available commonwealth medical experts just like WA makes available state medical experts. But I think that as a matter of legal principle, the more total; the more uncompromising the border closure - the more unlikely it is to be found by the High Court to be unconstitutional. So if there's absolutely zero compromise to the present situation that increases the risk.

QUESTION: Are you just doing your job? Are you obliged to take a side…?

ATTORNEY-GENERAL: We're not taking a side. We're intervening in the proceedings and trying to put a moderate middle-ground here. But you do have two sides arguing all or nothing - a complete zero compromise border closure and the other side arguing that that policy is totally unconstitutional. So we are assisting the court and it may be a convenient thing for people to try and blame the Commonwealth or some other party for a loss that hasn't even occurred yet but the more uncompromising the policy, the higher the risk that it can be found unconstitutional. There's one sort of policy that can't keep West Australians safe – that's one that the court might ultimately find unconstitutional.

QUESTION: Is the Premier …..that Liberals are against him?

ATTORNEY-GENERAL: Well, I just, I don't think that is a very fair description of the situation at all. This is a litigation between a private citizen and the WA Government. The Commonwealth Government intervenes to assist the court and that's exactly what we've done; we don't take sides in these matters. What we do is assist the court. So the litigation is going to run to its completion with or without the Commonwealth intervening. But it would be highly unusual if the commonwealth didn't intervene. But I think what people need to understand is that the final decision in this matter is some distance down the track - and we're talking about October, perhaps, and in the interim period there is ample time for the state government - for the Commonwealth to cooperate and try and anticipate various scenarios and one of those scenarios is that the case is unsuccessful - one of those scenarios is the case is lost but we should be planning for those scenarios now.

QUESTION: How do you think Mark McGowan's handled this so far?

ATTORNEY-GENERAL: It is a very difficult decision for any Premier to make as to precisely how hard you make your border closures. That's clearly a very difficult decision. But if you have a decision on a hard border closure that has zero compromise in it, then you elevate the risk by taking an all or nothing approach. And the very point about the Commonwealth intervening is that we don't want to see an all or nothing approach - a very high risk approach. It would be better perhaps to compromise and plan for various outcomes.

QUESTION: So are you suggesting he should soften a little bit on his stance?

ATTORNEY-GENERAL: Well, the harder and more uncompromising and the border approach the more risk there is that it will be found unconstitutional. I think there's very few constitutional lawyers who would disagree with that proposition.

QUESTION: Are you worried about how it might…..rightly or wrongly that you are backing Clive Palmer and are you worried that that perception could bite you at the election?

ATTORNEY-GENERAL: Well, it's not true. So we had a Labor Member of Parliament yesterday write that the Commonwealth was funding the action. It's just totally untrue. So it's no wonder that you get that sort of perception when totally untrue things are being said. But the reality here is that a private citizen brings a case under the Constitution in the High Court as is his right or the right of any other Australian. We intervene in that matter - we don't take a side. But that decision is going to be made in October one way or the other. What we would say is that you should be planning for that decision. And the more uncompromising - zero compromise - elevates the risk that you get a decision that's not in the interest of West Australians.

QUESTION: Are you concerned…..(unclear)…that there could be backlash?

ATTORNEY-GENERAL: Well, in these circumstances, what is constitutional and what is popular is not the same thing. So we are trying to act in the best interests of West Australians and all Australians by having protected borders which are also constitutionally sustainable. There is not much point to a very popular policy that you can't sustain for more than a month and a half. That is actually not in the interest of West Australians. Now it might be popular but it's ultimately not in the interest of the people that you're elected to serve. The alternative is to work out what is the next best compromise. What is a very, very stringent border control measure but one that is more resilient to constitutional challenge. That is actually in the best interest of West Australians. So there is not a perfect alliance between what's popular and what's constitutional here. And you have to plan for what's constitutional. If it were as easy as going into the High Court and saying 96 per cent of people in Western Australia would prefer this we wouldn't have an issue on our hands. But that's not the question that's being resolved in the High Court.

QUESTION: In your opinion what is the next-best compromise?

ATTORNEY-GENERAL: Well that's something to be worked out based on the medical evidence and by the Commonwealth and Western Australia talking to each other and considering all of the Commonwealth resources that can be brought to bear through the ADF – through Customs or the AFP at airports and the types of rules and stringent rules that we can apply. So the whole point about reaching a compromise is it has to be done on a cooperative basis. But if one side of the debate simply has a zero-compromise, total-closure policy; you run a high risk of people challenging that in the High Court; you run a high risk of the decision in the High Court going against you; and you run the risk that you haven't planned for that scenario and so therefore you are actually not protecting the people that you are trying to protect.

QUESTION: Do you believe the Premier is unwilling to compromise?

ATTORNEY-GENERAL: No I don't, I don't believe so. But of course that's a matter that will be discussed between the Premier and the Prime Minister in the in the coming days. And there is time to plan here because the High Court will not be likely to decide this matter until about October. So there is time to plan. But you know what? The best time to plan for real-world scenarios like the High Court finding against the policy is to start planning now - not on the day that the decision is going to get handed down.

QUESTION: Is it not potentially a waste of time and money given that the sands have shifted sob dramatically……result until October5 at the earliest; couldn't this just be a waste of time and money?

ATTORNEY-GENERAL: Well the conditions have changed very much since the pandemic was first declared a pandemic. The conditions have changed since the action was first brought. The conditions will likely change again between now and October. What I'm suggesting is that you plan for a variety of scenarios of possible change. And you should do that in anticipation of the fact that there is a real risk that the High Court may find that the present zero-compromise total-border closure is not constitutional. And I can't wish away that potential outcome. Contrary to some of the public statements that have been said you can't just get the Commonwealth waving a magic wand and making the case go away. It's just not how it works.

QUESTION: Did the Government cover up the fact that Border Force mistakenly allowed the Ruby Princess passengers to disembark?

ATTORNEY-GENERAL: Look, I don't know what that's been based on but we are cooperating with the inquiry. We have given full and frank evidence to the inquiry, I've not seen any suggestion based on evidence that that's the case. So if there is some evidence that anyone is suggesting that's the case they can put it in the proper forums. But I've not seen anything that would suggest that's the case - I actually find that a somewhat outlandish proposition.

QUESTION: ….But why …..blame placed on the NSW Government….?

ATTORNEY-GENERAL: Because there are lines of clear responsibility and the assessment of health of passengers and the ability of those passengers, according to law, to disembark is the responsibility of state health whether that is a New South Wales or in other states. I mean that is a well-known matter of a demarcation of responsibilities between states and the Commonwealth in these scenarios.

QUESTION: Do you intend to extend the moratorium on insolvent trading laws beyond the September deadline?

ATTORNEY-GENERAL: Well that that is squarely inside the Treasurer's portfolio and I think unfortunately those sort of questions would ultimately need to be directed to him. But look that moratorium I think has had some success in dampening the effects of bankruptcies in Australia during a high stress time for business. But of course one of the things that we have been doing is collecting data, trying to assess the success or otherwise of those types of policies. So in making a decision whether it to be continued or whether or not it would end as was originally anticipated would be based on data and evidence and I know that these are matters that are being discussed and considered inside the Treasurer's Office at the moment.

QUESTION: Are you concerned if the government and the Treasurer doesn't extend then some small businesses might collapse?

ATTORNEY-GENERAL: Well I mean a lot of businesses in Australia are under an enormous amount of pressure. And that pressure comes in a variety of forms - it's all traceable back to this pandemic. And we have done everything that we can conceivably do to alleviate that pressure - that policy measure was one of those things. Whether it needs to be continued is something that will be considered based on evidence and the effect of continuing.

QUESTION: Are all of the government supports hiding the fact that a lot of businesses are now not viable?

ATTORNEY-GENERAL: Well the government supports aren't meant to be cosmetic or hide anything. They are meant to support businesses. But of course reconfiguring a second stage of JobKeeper recognises that the importance in this whole policy area is to try and keep sustainable jobs. There will clearly be some jobs which are not sustainable. And no government is going to be able to change that fact. But what we have done is make sure that those jobs that are sustainable with a period of government help will be sustained and you'll get businesses growing out of the pandemic with the support that the Federal Government's provided.

QUESTION: Will paid pandemic leave be just another cost that businesses can't bear?

ATTORNEY-GENERAL: Well there are so many assumptions in that question I'm not quite sure where to start. With respect to the Fair Work Commission, three weeks ago they made a decision declining to decide in favour of pandemic leave. Very recently there was a partial reversal of that decision to have pandemic leave applied in the aged care sector. $850 million has been placed into the aged care sector by the Commonwealth government which alleviates some of that cost that you're talking of. Of course in determining whether or not you would have a broader issue of paid pandemic leave, you have to take into account that it represents a cost impost potentially on businesses at a time where they can least afford that cost impost. But you now have several systems running; you have Daniel Andrews with a system of one-off payments for people who need those payments to self-isolate; you have the Commonwealth Government having put $850 million into the aged care sector to allow them to accommodate for those sorts of eventualities - and you also have a Fair Work Commission decision that formally applies pandemic leave to the aged care sector, which practically speaking means Victoria at the moment. Now whether or not there is room for some consolidation and consistency of those three approaches is something that we're looking at, at the moment. And of course when you look at those types of consolidations or consistency of policies you look at what the effect on businesses, in this case the aged care sector, might be.

QUESTION: Do you feel personally conflicted as a West Australian and benefitting from the….?

ATTORNEY-GENERAL: Again the language is that we're somehow taking it on. It's not a Commonwealth challenge. We wouldn't have mounted a challenge. We didn't mount that challenge. It was mounted by a private citizen. It's being defended by the state government. And we are the middleman intervening as we always do in matters of this type. As a Western Australian with a family here, of course, I want Western Australians to be as safe as can be absolutely possible. But they're not safe or protected by a policy that would be likely to be found unconstitutional by the High Court. Because it's not a sustainable policy. So in those circumstances how do you best protect West Australian families? You work out what are the compromises that give the same level of protection but are constitutionally-sustainable but can go on for months and months and months or longer.

QUESTION: ……apologise for human error in border force – documents – (inaudible) disembarking….?

ATTORNEY-GENERAL: I just, I'm not aware of the document that you're talking about. It's just impossible to intelligently comment on that.

QUESTION: I just got one on the pandemic leave – will the Federal Government step in and pay for that …..about the three areas before, will the Federal Government step in at any point?

ATTORNEY-GENERAL: As I said, there are now systems of payment being allocated by the Andrews Government. There's a Fair Work Commission decision that says pandemic leave should exist in the aged care sector in certain scenarios. That is a cost on the aged care sector - that cost has already been substantially defrayed by $850 million worth of Commonwealth money going into the sector. So the decision to allocate pandemic leave to workers in the aged care sector has already been the subject of significant financing by the Federal Government.