Q&A from the Address to the National Press Club Canberra
Subjects: Ensuring Integrity Bill, Religious Discrimination Bill, FOI and Press Freedoms
SABRA LANE: Thank you, Attorney-General. One other matter that you didn't go to in your speech is the Ensuring Integrity Bill. I think the Government is hoping to get that passed before Parliament rises in just over two weeks. Today, Pauline Hanson and Jacqui Lambie have both called on the Government to make the amendments that you want to make to this bill public. And I'll quote here, Jacqui Lambie is saying: by hiding these amendments behind the silly excuse of this still being finalised is taking us for fools, and that she needs to get feedback from people who've got skin in the game as to whether these are going to work or not. Will you agree to the requests that are being made by senators Hanson and Lambie?
CHRISTIAN PORTER: Yeah, we'll release the amendments shortly. But I would note this; that in engaging with the Crossbench there are three basic parts of the Crossbench. Obviously, Pauline Hanson's One Nation, Centre Alliance, where a lot of our negotiations have been with Rex Patrick, and Jacqui Lambie. And the experience is that, using this example, we've been negotiating a range of amendments with Rex Patrick, and they are essentially finalised. We then were negotiating amendments that were sought by Pauline Hanson's One Nation, and I understand that Pauline Hanson intends to put those out today. And when you have that sort of bilateral negotiation, there's a final phase, as bureaucratic as this may sound, where you go to Rex Patrick and Centre Alliance and say: do your amendments still stand if we accept these amendments? And vice versa. If you don't do that, you get heavily criticised by the Crossbench, quite fairly. So we're in the final stages of that process. I think there'll be general agreement. I might also note, with respect to Jacqui Lambie - she's on the public record saying unequivocally, that if Mr Setka was still in the union movement, she'd be supporting the bill. So I'm looking forward to that support. But we've had very heavy negotiations around amendments with both One Nation and Centre Alliance. We'll crosscheck those and there'll be a release.
SABRA LANE: How confident are you at all it will be passed?
CHRISTIAN PORTER: I think it is just a critical piece of legislation. I mean, the MBA say that infrastructure in Australia costs about 30 per cent more than it needs to, which is borne by taxpayers because of unlawfulness on construction sites in Australia. I mean, when I was a prosecutor before politics, the extent and extravagance of the unlawful behaviour of the CFMEU is just off the charts. I mean, it's astonishing. And the courts are crying out for some way to deal with this because fines, as the courts have noted, have been built into the CFMEU's business model and have no impact on their offending. 2160 individual cases of offending, $16 million in fines, making every piece of infrastructure in Australia more expensive by a third than it needs to be. And the Labor position is: do nothing. This is totally unreasonable and unacceptable. So I think this is very reasonable legislation. I think, actually, the amendments we've been working on with those two parts of the crossbench are also very reasonable. I think it's very important legislation. And I do think it will pass, but that remains to be seen.
QUESTION: Judith Ireland from the Sydney Morning Herald and The Age, Mr Porter. Rex Patrick has said publicly what many people have expressed behind the scenes, and that is that the religious discrimination bill is a can of worms, quote, unquote, and is unlikely to pass Parliament. Can you tell us if there are any other significant changes planned to your draft bill when you're planning to bring it before Parliament, and what is your ultimate deadline for a vote?
CHRISTIAN PORTER: So I don't have a deadline for a vote in Parliament. I mean, that's going to be a complicated process. It'll obviously go straight off almost as soon as it's introduced to a Senate Committee. I expect that there'll again be a heavy round of consultation through the Senate committee, which would be the third round, because we had the Ruddock Review. Obviously, the consultations that I've conducted, and then you'll have Senate committees. So I don't have a particular date in mind for passage through Parliament, and I concede that that is going to be a complicated debate. And I actually think it's going to be a debate that's going to require a degree of bipartisanship and integration of ideas between Liberal and Labor. And that's a process in actual fact that I'll be starting very soon. As to when it will be introduced, my aim has always been to introduce it in this present sitting, so in the next two weeks. I can't give a watertight guarantee that'll happen, but that's the goal that I've been working to. Other changes - look, I've announced today that we're going to have some changes around the way in which we deal with the exclusion in employment for religious hospitals and aged care. That's probably the most significant of them. But there are other changes based on the consultation process, tightening up of drafting, and tightening up based on suggestions that have come from both ends of this debate, if you like. So it's not a major difference in terms of what we'll finally produce to what has been seen and consulted on heavily.
SABRA LANE: Greg Brown.
QUESTION: Greg Brown from The Australian. Just following on from that question, the religious groups have also been critical of this draft bill. Do you think the changes, the extra changes, will be enough to get the major religious groups on board? And if they're not, if they're not willing to endorse them, what's the point in this bill if they're not supporting something that's intended to protect them?
CHRISTIAN PORTER: Well, if you imagine a continuum of happiness that goes from very unhappy to deliriously happy, somewhere on that continuum is endorsement, where whilst the bill doesn't do everything that everyone might like, people nevertheless think that it's at a reasonable point that's worth supporting. So in answer to your question, I don't think that religious groups or other groups will be at the deliriously happy end of the continuum, but I think that - particularly with religious groups - there will ultimately be an endorsement, because the bill does some really important things. For instance, in the example that I gave in this speech, it protects people from being excluded from a club, or a room, or an association based on their religion. And it does some very important things in the present draft in Section 41 about how it gives some strength and protection to freedom of religious expression, particularly in the workplace environment. Now these are all things that religious groups have asked for. They're matters that, as substance, are delivered. But it would be a bad outcome if everyone felt that they got everything that they wanted out of this process. It is ultimately the most grinding process of balance and compromise. But ultimately, that process, like all democratic processes of compromise, can actually produce a sustainable result that does something better and achieves a better outcome than the circumstances we have at the moment.
QUESTION: Andrew Tillet from The Financial Review. Thanks for your speech, Mr Porter. Just going back to Sabra's question around the union integrity bill, and you said in your response how the CFMEU effectively just treats fines from the court as a cost of doing business. You're speaking at the Press Club today on a day where we've found out Westpac's accused of breaching money-laundering rules almost 23 million times; when Commonwealth Bank was accused of similar sort of behaviour, it ended up paying a fine of $700 million. In a year, it booked a $9 billion profit, a cost of doing business, perhaps, in your words - to borrow your words. Given the concerns of the union movement in which Senator Hanson and Senator Lambie seem sympathetic to, that a nurses' union could be rubbed out for failing to keep its books up to date, do you agree at the very least that you've got a problem with the perception that you're trying to use a sledgehammer to crack a walnut, and that it's very unfair, and you're out to get unions while the corporate end of the Australian community gets away with it?
CHRISTIAN PORTER: Well, I mean, it depends on- if I just might make a comment on the Westpac matter. I mean, obviously, that has been announced today. It is indicated that there are 23 million potential breaches of the relevant act as you point out, Andrew, and I supervised that settlement with the Commonwealth Bank, that related to 53,000 breaches of the AUSTRAC legislation, and that resulted in a settlement of $700 million. And I don't have the information, I don't know whether it's available, as to whether or not those 23 million fall into the same category or whether they're less or more serious matters, but that'll all get unpacked. That is a matter of the utmost seriousness. I mean, on its face, it's completely appalling. But we need to know more about it, which is APRA's job. But it's appalling. Now in answer to your question about, if you like, the analogy between different set of circumstances, do we honestly think that it is a minor matter - a walnut - that a CFMEU official bullies, intimidates, and lies to an electrical apprentice, turning up at student accommodation just trying to do their job to put solar panels on a roof? Because that's the behaviour that is going on. It is not a walnut. It's unbelievably serious. It's unbelievably costly. It's incredibly repetitive. It is a single union basically viewing itself as above the law. And the present laws have not been able to rein in that behaviour. So, I would hope that having a comparatively strong approach on corporate misfeasance and union misfeasance is an even-handed way to go about government trying to maintain the rule of law. And the other thing to recall is that, with the Ensuring Integrity Bill, it applies perfectly equally to employer and employee associations, as does the Workplace Benefit Fund Bill. So it's not one-sided. It's a reasonable response. And ultimately, this view that's been put out there that a nurses' union could get deregistered for a minor breach of industrial law is just wrong. It's just fanciful. And it actually shows, I think, where you retreat to when you don't have a good argument against reasonable legislation meant to fix a known problem where the problem is absolutely rampant unlawfulness on workplaces. It is not a walnut. Certainly not a walnut if you're in a workplace being bullied by a CFMEU member just because you're trying to turn up and do your job. It's disgraceful, and it's got to stop.
QUESTION: Lanni Scarr from The West Australian. If you don't succeed in getting the Religious Freedoms Bill through the Parliament, will you have failed the quiet Australians who voted for this government? And one of the biggest criticisms that has been levelled at you by your detractors has been that you're not a person of faith so you can't possibly be the right person to formulate this bill. How do you respond to that? Are you a person of faith? Are you an atheist? Should it matter?
CHRISTIAN PORTER: Well, yeah. I did read that criticism in the paper that I didn't believe in God and therefore, couldn't be Attorney-General with respect to this bill. I don't know how you'd appoint a temporary Attorney-General to deal with a religious discrimination bill. But equally, when I read that statement, I thought: how does this person know what I believe in or not believe in? I'm not a regular churchgoer but that doesn't mean I don't believe in God or don't have religious sentiment or faith, if you want to call it that. But ultimately, if I'm right that this is a balancing exercise, I think that it is actually probably best conducted by someone who doesn't have a very, very strong view one way or the other because you're trying to balance views and produce an outcome. But ultimately, the bill is about protecting people of faith from known problems. And my job is to get a bill that moves through our party room that can be endorsed, which is the word I've used earlier, by religious groups as fixing or potentially fixing those known problems. Now, I can't guarantee passage through Parliament. No one can in a Senate where crossbenchers and crossbench negotiation goes on. But I am looking at this in stages. The first stage is drafting. The second stage is consultation. The next stage is the final draft that goes into Parliament. And then the job turns to securing the passage of that final draft through Parliament. But the job at the moment is, after consultation with religious groups and other groups, to have a final bill that fixes known problems in a way that is balanced and fair to everyone involved.
SABRA LANE: You're not a regular churchgoer, but do you believe in God?
CHRISTIAN PORTER: Yeah. I mean, I believe in God. Sure. It's very dangerous not to. [Laughter] You never know what could happen. [Laughter]
QUESTION: Mr Porter, Andrew Probyn from the ABC. The Government has been facing a class action over the “robodebt” regime. In the short shadow of that class action, some changes were made to that regime. Can you confirm that this is partly inspired by some legal advice that the Government got about the unlawful nature of that regime? Perhaps, potentially, whether it was illegal? Could you tell us what advice you did receive, the Government has received, and whether it's about registering debts through algorithms or whether it's the reverse onus of proof?
CHRISTIAN PORTER: Yeah. So, in a global answer to your question in its general sense, will I waive privilege over government legal advice? You'd expect the answer's no. But there are matters that have been conducted through the courts. Two individual matters. And as you noted, there is a class action on foot. You could imagine that any government, depending on where those matters are in the process of litigation, seeks advice on those individual matters, and that's fed in, obviously, to decision-making in the Department of Human Services and in the Minister's office. But again, as Stuart Robert noted yesterday, I think it was, this is an issue that pertains to a group of people - the number of which is unknown but obviously that's the work that's being done - who were sent a notice to respond to the Department of Human Services based on the data income matching to explain a discrepancy but who made no effort to engage and did not engage with the department. So that is a group of people. How many in that group is obviously one of the issues that the Minister is dealing with at the moment. But at least with respect to one of those pieces of litigation, which is the class action, I think that they indicated that they've had 3800 people express interest in joining that class action. So- I mean, that's their number, not mine. But that gives some context for scope.
QUESTION: Paul Karp from Guardian Australia. Before the election, you promised a vanilla religious discrimination bill but the religious freedom package goes much further in overriding other discrimination laws, interfering with employers' ability to set codes of conduct and states' ability to require doctors to treat patients. So could I please ask: which of these bolt-ons to the basic bill would you be prepared to trade away to win Labor or Crossbench support? And why did the concerns that were raised about these, by state discrimination bodies and the Australian Human Rights Commission, not rise to the level that you considered changes in those areas before the final version of the bill?
CHRISTIAN PORTER: So you've mentioned three things. You've said that the bill overrides the ability of state governments to provide patients with services. Just as a legal description, what the bill does, that's not correct. You said it overrides state anti-discrimination law. I think that that is the wrong representation and description of what the bill does. You said it would limit employers' ability to, in effect, dismiss or disadvantage employees for making statements of religion. That's true. With respect to the middle one, which is the issue of its interaction with state-based discrimination legislation, the two very famous, well-known matters: one with respect to a Queensland Baptist community care organisation in Queensland; one with respect to the archbishop, Catholic archbishop of Tasmania. In the latter case, they were subject to an action under a discrimination Tasmanian Act 17-1. In the former case, they were subject to a more general discrimination complaint. In both instances, neither individuals did anything more, essentially, than put a pretty standard view about marriage based on their religion. And the view the Government has is that saying something like that shouldn't open yourself up to an anti-discrimination complaint. The view of the Government - and I think legally, the correct view - is that they were both unmeritorious, probably invalid complaints. This bill just makes that clear. And so, I would characterise that as noting that where there's an inconsistency in the operation of a state and federal law, the federal law prevails. So if that's a summary of the three issues you've raised, which of those issues would there be negotiation on? Well, the discussions and consultations with Labor really have not started but they will start in earnest around about now. And they may have views on those three things that you've raised. Equally, there may be people, and a great number of people in the Labor Party, who, because of their religious ethos think that each of those three changes is actually something that could be endorsed. So I'm not assuming that there's a unanimity of views inside the Australian Labor Party on the present draft. I doubt that there is. So of course- I mean, as Lanni noted earlier, it's going to be an interesting process through the Senate committee. It's going to be an interesting process with Labor. But just as there's a diversity of views in my party, there'll be a diversity of views in the Labor Party and on the Crossbench. That's why it's been a balancing exercise to try and accommodate those views.
SABRA LANE: Attorney-General, your speech went a little bit overtime. Are you…
CHRISTIAN PORTER: Sorry.
SABRA LANE: …happy to take more questions?
CHRISTIAN PORTER: Yeah, of course. Yeah.
SABRA LANE: Excellent.
CHRISTIAN PORTER: It wasn't a deliberate tactic.
SABRA LANE: No. I'd hope not. [Laughter]
QUESTION: [Brett Mason] It was a very thorough speech, Attorney-General. You mentioned that the defamation laws don't strike the perfect balance. I was hoping to direct your attention to my favourite piece of legislation - the Freedom of Information Act of 1982. We've seen some fairly laughable examples recently: entire documents returned blacked out, emojis blacked out, departments saying it would take 142 hours for a dedicated staff member to say how much a minister's trip to Europe was, 100 hours to reveal how much we're paying Scott Cam as our National Careers Ambassador, just to name a few. Is it time that we had a look at this legislation and made it better equipped to deal with journalism in the 21st century?
CHRISTIAN PORTER: Yes. I think that there's room for significant improvement on FOI. That's obvious. I mean, I might note that the ABC itself is an organisation that is regularly behind on responding to FOIs that come into it. Right? So, this is an issue that we all share. And it was noted recently by the Secretary of Home Affairs that a very, very significant number of individual full-time employees in Home Affairs are dedicated to nothing else than FOI. Now, FOI has been raised multiply and sensibly by media organisations in their submissions to the Parliamentary Joint Committee on Intelligence and Security. It is also looking into warrants and the classification of documents. I'd be very surprised if they don't have something to say about FOI or the potential for a review at the end of that committee, but I'll wait and see. But if I had to offer you one observation about FOI, in the way that the original FOI Act was drafted - because everyone has an equal right to the process - there's no triage in the process. And one way in which you can actually get better responses is trying to have some reasonable ability on departments, whether they're Home Affairs or the ABC, to work out which are the more and less substantive or important FOI applications. Some of those examples you've given, I think, are good examples of poor responses.
QUESTION: Mr Porter, Tegan George from Network Ten. Just to draw you back on the allegations levelled against Westpac, how can Australians be expected to trust the promises the big banks made in the wake of the royal commission? And are there, or should there, now be questions surrounding the practices of the other big banks?
CHRISTIAN PORTER: Well, I mean, in part, that's a question that has to be asked of banks. But when you look at the response of the Government to the recommendations of the royal commission, it's absolutely thorough going. Completely. When you look at individual instances where these matters have arrived and we've raised the one of the Commonwealth Bank, which matter because of the way in which the litigation rules work at the Commonwealth level. I was a large part of settling $700 million for 53,000 breaches of the relevant APRA legislation. Now, it is- I just have to stress early days on this Westpac matter but the matter looks to be incredibly significant. And it will be dealt with in accordance with that fact: that it is incredibly significant. And as I said, I used the word before appalling - and I'm sorry to have to use it today - but that's what it is. And you can imagine that it will be dealt with very, very thoroughly by government, by APRA, by executive government. But if there's any particular issue where people take a view that the response of the Government haven't been strong enough against the banks post-royal commission, we can ask individual questions on that. But every time we've had a recommendation, we've thoroughly adopted it. And I think the response has been strong, very strong.
QUESTION: Amanda Copp from National Radio News. We broadcast to community radio stations around the country. The Australian Human Rights Commission released their report card today on children's rights in Australia. The Children's Commissioner at the moment is calling for the age of criminal responsibility to be raised from 10 to 14. Europe has already- or much of Europe, has already done this. Why hasn't Australia?
CHRISTIAN PORTER: Well, I must say I personally I'm not an enthusiast for that particular reform. I, myself, have prosecuted matters, and there is what they call doli incapax, which is that the legislative rule around the instances where you can conceivably, pursuant to a very rigorous process, prosecute someone in between that age group that you've noted. So, I'll just say up-front I'm not a particular enthusiast of that change. I think the present system's actually quite well-balanced. It's a very, very difficult thing to prove that someone under that age had the mental capacity to understand what they were doing was wrong to the extent that, at law, you can actually prosecute them. As you note, there's a push by some- I'm not saying that they're completely wrong or anything like that, it's an alternative view. But there's a push by some to change that so that you could never have a prosecution of someone under 14. That was a subject of a Council of Attorneys-General paper put on, I think, by recollection, from Western Australia. So I didn't stop that paper going on the CAG agenda, but I would say to you I'm not a particular enthusiast of that reform move.
QUESTION: Katina Curtis from AAP. Attorney General, you flagged a start to deregistering the CFMEU within months. You've spoken at length today about some of their behaviour, their history of their behaviour. But in the construction industry, there were 24 workers killed last year. And today, there's PWC figures out that suggest that the industry is one of the biggest risks for wage theft, with some $320 million a year going unpaid. So do you see that it's inevitable that the policing of safety and underpayments would be collateral damage from a new regime?
CHRISTIAN PORTER: Well, the Ensuring Integrity Bill doesn't change the law one iota on the ability of union officials to act on safety matters or enter workplaces on safety matters. In response to wage theft, we've noted that we are going to bring in, and that'll happen shortly, a draft for a criminal offence of wage theft. I've noted that with respect to other types of underpayments that corporate Australia's performance has just been, I think my words, were beyond hopeless and I'm happy to say it here again. My view is that you need even firmer penalties for those types of underpayments which aren't criminal but are nevertheless unbelievably serious. That, I think, could be looked at in terms of people's ability to sit as directors, about the way in which you approach the fines. So in a consumer or tax context, very often fines are a percentage of the wrong doing. That is a model that needs to be looked at. We put out a discussion paper on that model. So I don't accept that our response hasn't been anything other than absolutely clear that this is totally unacceptable and there is going to be new standards that apply to it. I don't accept that anything in the ensuring integrity bill in any way diminishes a union's ability to inspect on safety or enter a workplace on safety. But let me finish by saying this. In Queensland, the public sector union has instructed its safety inspectors not to visit 17 worksites that are regularly frequented by the CFMEU because they are too scared to go there. Now, how does that help safety on worksites?
SABRA LANE: Just on the wage underpayment issue, why not consider criminal penalties? I mean you say that you are absolutely gobsmacked by the recent revelation of Woolworths, pointing out that you're sure they know how much stock is on their shelves and how much inventory is out the back and they can't be across how much they're paying their staff. I mean, why not criminal penalties?
CHRISTIAN PORTER: But we are. I mean we've undertaken to do that. We've put out a full consultation paper; all the submissions are in on it. We have said clearly that there will be criminal penalties for wage theft. What we ask is how do you define wage theft with respect to other types of underpayment? With other types of underpayment that don't meet a criminal standard of wage theft which we have absolutely undertaken to do, my view is that the penalties that apply to those should nevertheless be increased. When we came to government, we increased the penalties for serious instances of underpayment by a factor of 10, by tenfold. That message hasn't gotten through. What we have now said is that you need to look at other models where you adopt even more significant penalties looking at the way that we penalise people for tax avoidance; looking at the way that we penalise people in the consumer context where you take a percentage of the quantum of wrongdoing if you like. So we are doing a criminal penalty. We've already increased the penalties for serious underpayment and they will probably be subject to further increase. And further, even the things that are regular underpayments that we are seeing, clearly the penalties that exist aren't enough. Now, I don't know what more we can undertake to do. It's a pretty fulsome suite but I think like every Australian, everyone is just fed up with it. Absolutely fed up with it. And as I've said, large organisations with a sophisticated payroll from ABC, Maurice Blackburn, Woolworths, Bunnings, they should all be able to get these things right. And had they been playing at the same level of attention to these things, as it gets paid to a lot of other things, I'm sure they would have done a much better job. Our job as government is to now direct their attention to these matters. Rest assured that's are going to happen.
QUESTION: Dana McCauley. Sydney Morning Herald and The Age. Thank you for your speech. You've raised some issues with how a national integrity commission could unfairly damage reputations and ruin careers if not approached cautiously. Jacqui Lambie who says she still has concerns with the ensuring integrity bill, has said if you don't end the career of a union official or cancel the registration of a union on a lark, both she and Pauline Hanson are seeking amendments- further amendments to the bill. Rex Patrick is open to potentially raising the threshold for those demerit points that you've agreed to. Is that something that you are open to doing in order to get this bill passed this year?
CHRISTIAN PORTER: Yes, absolutely. As I said, the process has been - we've worked with Rex Patrick on a range of agreements - amendments. Essentially, those amendments set up a penalty unit system, like a three strike system, using the existing penalty unit structure of the act. I'm totally open that that's what we be looking at with him, which mean that in my view, the scenario that you've described is impossible under the bill as it is with the amendments. It is just inarguably impossible. Not even the unions could argue that was possible. I think the penalty unit system is a fair one. We've been negotiating those with Rex Patrick. There have been amendments that have been discussed and negotiated with Pauline Hanson. I believe she is putting those out today. The question becomes, does Rex Patrick want any changes to his amendments based on what One Nation has done? That process will happen swiftly. But the upfront answer to your question is what Rex Patrick has suggested to us, we have helped with drafting on, it is perfectly reasonable, it's precautionary and it still means the bill is able to do what it essentially seeks to do which is end the unlawful behaviour on Australian construction sites.
CHRISTIAN PORTER: To?
QUESTION: To raising the level of the demerit points?
CHRISTIAN PORTER: Yeah. Well that is the subject and substance of the amendments that we have agreed with Rex Patrick that we will release.
SABRA LANE: Ladies and gentlemen, please join me in thanking Christian Porter. [Applause] Thank you. We'll give you the gift of membership to say thank you very much for coming to the club.