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Sky News – Tom Connell



Subjects: NPC speech; Religious freedoms, press freedoms; Ensuring Integrity; secondary boycotts

TOM CONNELL: Joining me now though, our next guest is the Attorney-General, amongst other portfolios. Christian Porter here in the studio, who's kind of the minister for difficult government issues, if you look through some of the things having to deal with an extensive speech today at Press Club. Let's go through a few of them; religious freedom laws, first of all. So you've outlined the hospitals will be included. You mentioned it was not a practice from your consultations to ever refuse a patient on religious grounds. Is that going to be a right though?

CHRISTIAN PORTER: No, we don't intend to change from the draft bill to the bill that will be introduced with respect of patients. And the idea of the consultation was to get a better idea of actually how religious hospitals operate in practice. But - whereas in the first draft - we included religious schools as an organisation, which meant that they could employ based on faith, but that is only an exemption from this bill. So a religious school can determine, say for instance, a Catholic school can determine to employ a Catholic or not employ someone because they're not a Catholic.

TOM CONNELL: Yeah, or not religious.

CHRISTIAN PORTER: Correct. That's an extension that we would make for religious hospitals, but it only applies to staff, it's only about decisions to employ or not staff on religious grounds.

TOM CONNELL: And what about the care they get? Because some religious hospitals won't prescribe birth control for example or give advice on it. Is that fit and proper?

CHRISTIAN PORTER: Well that's totally a matter for how they engage with a state government who effectively will fund a hospital. So there's nothing in this bill that will affect the way in which a state government contracts with a Catholic hospital for instance, what they do and don't require. That's totally a matter for those …

TOM CONNELL: Okay. But federal governments obviously help fund hospitals. Does that strike you as being a bit of an issue? The Government is helping fund it, but they're picking what sort of care they give to people?

CHRISTIAN PORTER: This this happens now.

TOM CONNELL: It can still be an issue though.

CHRISTIAN PORTER: Well it can be, but these are matters for state governments to sort out with hospitals. I mean I was a State Treasurer in Western Australia where we contracted with St John of God to run a very large hospital, and they of course didn't want to conduct abortions. And in the contract a separate clinic to the hospital was established so that St. John's, who are the best and most effective tenderer, could run everything else at the facility. So some state governments will make that decision, some won't; but that's a matter for them.

TOM CONNELL: Okay. Whistle-blowers, you want to clarify the Act saying it's not all that clear. Is this going to mean in effect, without going into detail - unless you want to - more protection for whistle-blowers?

CHRISTIAN PORTER: Well I think it will do, because at the moment, the Public Interest Disclosure Act does something very important and central, is that it defines when a person is and is not a whistle-blower. And we use the term obviously fairly broadly in a public sense, but this Act says that these are the steps you must take before you're able to go outside the chain of command...

TOM CONNELL: Raising things internally, and so on.

CHRISTIAN PORTER: And there's a lot of clarity-lacking for any average reader of this bill - whether the person receiving the public interest disclosure in a department or whether they’re the person attempting to make a public interest disclosure as to when it happens, what its form should be. So the Moss Review made a range of recommendations. Very shortly, the Government will be responding to those. But equally, part of that project as I anticipated today is to do more than what was recommended in Moss by way of just actually making the drafting simpler so that people know where they stand in the process.

TOM CONNELL: But beyond just clarity, more protections for whistle-blowers, more situations where they'd be able to safely be a whistle-blower?

CHRISTIAN PORTER: Yes. The Moss Review goes into a range of issues that I think would certainly benefit - what we would define as whistle-blowers under the Act?

TOM CONNELL: Right. The union integrity bill- the one big push back from the union are circumstances in which they say it would be unfair on this demerits-based system, demerit point based system, for people to be deregistered. So one example, failure to remove non-financial member from the register of membership which they’re saying is a paperwork issue, that’s 60 penalty units. So that happens three times in someone’s deregistered.

CHRISTIAN PORTER: Well first of all, it shouldn’t happen three times but even if-

TOM CONNELL: But it might be, you know, you’re chasing someone’s credit card details, it turns out they’re not …

CHRISTIAN PORTER: Sure. But even if it did happen three times, that just institutes a process. It doesn’t conclude a process. Indeed a court wouldn’t be able to conclude a process i.e. have someone no longer be able to sit as an official or deregister a union unless they applied a fairness test that it was unjust in all the circumstances. So the idea that someone is going to be stopped from being an official for a minor matter or that a division of a union or a union at a large would be deregistered for minor matters is just factually not true.

TOM CONNELL: That’s open to the court at the point, is it not? What happens at that point?

CHRISTIAN PORTER: Well the court has to make a final decision as to whether in all the circumstances something’s unjust i.e. that someone being prevented from being an official is unjust or a union being deregistered is unjust. Clearly, you have to have a trigger for a process, but clearly if you’re talking about three paperwork matters, very minor breaches, no court is going to determine that to be unjust. But you still have to …

TOM CONNELL: Why would you say no court would find that unjust? Maybe one court would say well we’ve got a recidivist on our hands. They’re out of the union.

CHRISTIAN PORTER: Ahh, but then you’re not - then you’re talking about someone’s record outside of those three breaches. So, I don’t think the three breaches would, of a tiny matter, would ever be considered by a court to be unjust, just as I don’t think one breach of a small matter would ever be considered by a court to be unjust. I mean it’s just - it’s an absurd proposition. But what we have to have is a situation where you could have a reasonable standard for the organisation to make an application to a court, a reasonable standard for the court to determine whether in all the circumstances someone should be able to have the privilege of being a union official or an official for an employee organisation, or whether a union should be deregistered.

TOM CONNELL: So that you do accept that it’s a very low point at which someone would enter that process, but you don’t think that person would ever be deregistered…

CHRISTIAN PORTER: Not at all. I mean, you call something a paperwork offence, 60 penalty units is not a necessarily minor matter…

TOM CONNELL: Failure to remove non-financial member from registered membership. I mean it's an updating thing; you haven't updated your paperwork.

CHRISTIAN PORTER: Well it may be that or it may be something more serious, significant or more serious but that's something the court would have to determine in all the circumstances.


CHRISTIAN PORTER: But you're talking there about the standard for simply bringing an application to a court.

TOM CONNELL: Comments on Facebook sites, you addressed this in your speech as well but previously there was a ruling that a Facebook site of a news organisation, the news organisation is responsible in a defamation sense, and you don't think that's a level playing field. Are you saying that it would be up to the social media site to police that?

CHRISTIAN PORTER: So this goes in the context of wider reform to defamation which is one of the areas that the Right to Know campaign have been seeking. Next Friday at the Council of Attorneys-General, there'll be a discussion around a first stage of reform for defamation that covers a whole range of very important matters. One thing likely that will have to be dealt with in a second stage is how you treat online platforms like Twitter and Facebook. Do they get treated as publishers in a similar way to your organisation or a newspaper? That clearly is a complicated issue. My own personal view is that they should be treated in a very similar way to traditional publishers. But of course you have issues about volume that you have to understand and that have to be accommodated. So there has to be a sensible, cautious approach to how you would even that playing field.


CHRISTIAN PORTER: The case that you're talking about was a case recently where the court found that if a news organisation had a Facebook page, that the news organisation was effectively the publisher of a private individual's comment on their Facebook page. Now in my observation - and it's open for the court to decide - that that actually makes this unlevel playing field worse not better.

TOM CONNELL: I wanted to ask you about secondary boycotts. These are laws, possible laws, alluded to by the Prime Minister that you've spoken about since. He spoke about what example, banks not lending to coal mine projects because of pressure from an environmental groups. So what would you seek to make illegal here?

CHRISTIAN PORTER: Well in that type of circumstance it's already the case that consumer law says that in all other circumstances, you can't have that type of circumstance occurring but that there is an exception for environmental reasons. And the Prime Minister, with which I fully agree, makes the point that that seems to be a rather arcane exception. That, why should a decent small business who works for a mining project be refused finance when for all other reasons they legitimately would be given the finance. Why should that happen? And in all other circumstances that would be called a secondary boycott and would not be in accordance with law.

TOM CONNELL: Well the secondary boycott in this is usually for example a union directly stopping a third party from acquiring goods or providing them to the fourth party. This is not stopping. This is public advocacy isn't it?

CHRISTIAN PORTER: Well I don't think it necessarily is and I'll give you another example of the type of public advocacy….so there's an organisation called the Galilee Blockade – and they encourage people to call up a company who contracts with the Carmichael coal mine, Adani – and they ask the people who call up that company to deliberately try and keep the sales representatives on the company on the phone for as long as possible to do commercial damage to that business. Now I just think that's totally unfair, that extends beyond what people would accept as legitimate advocacy and gets into the realm of deliberately damaging a business, which does a business particularly well.

TOM CONNELL: What would you seek to make an offence in all of that?

CHRISTIAN PORTER: Well this is what we're working on now. This is what the Prime Minister's foreshadowed. But we have recently made a range of offences for the use of a carriage service to deliberately incentivise people to damage an agricultural business...

TOM CONNELL: Okay so that's quite specific but when we talk around public advocacy, for example the superannuation sector is pressuring companies to take climate risks seriously about their investments. Would you crack down on that in any way?

CHRISTIAN PORTER: Well that is a slightly different set of circumstances but the most obvious set of circumstances that we face at the moment is that some people, particularly using online platforms, are going beyond what most Australians would regard as legitimate advocacy and deliberately trying to commercially damage businesses who happened to be working in an industry sector that they don't like, i.e., oil and gas or coal, or mining.

TOM CONNELL: So when you say going beyond legitimate advocacy, is some advocacy allowed under these new laws? Is that what you're thinking that if you simply say I have a concern about the environment, I urge Australians that they should not go with this financial institution because they're bankrolling a coalmine? Would that be legitimate advocacy?

CHRISTIAN PORTER: When you say is some advocacy allowed, we have no intention of preventing advocacy. But what we're looking at is looking at ways in which you can have effective laws which distinguish between completely legitimate fair advocacy that we'd all expect and deliberate commercial damage being done to a business because of a sector it happens to operate in. And in the latter circumstances, there should be reasonable prohibitions against that happening.

TOM CONNELL: What about Matt Canavan urging Queenslanders to boycott Westpac because it refused to finance the Adani coalmine?

CHRISTIAN PORTER: Look I haven't heard those comments …

TOM CONNELL: That happened a couple of years ago.

CHRISTIAN PORTER: Well look, as I say …

TOM CONNELL: Where does that fit in the legitimate advocacy or injuring businesses?

CHRISTIAN PORTER: Well we're in the process of designing laws. But the first tranche of those laws is going to be about legitimate damage to a legitimate business. And I don't think that would necessarily fall inside that scope. But what we have seen is we've seen individuals particularly using online platforms deliberately incentivise people to commercially damage a business because of the sector it works in.

TOM CONNELL: But isn't that what Matthew Canavan wants to do because of a …?

CHRISTIAN PORTER: As you say some things are legitimate advocacy.

TOM CONNELL: And that is?

CHRISTIAN PORTER: Well I don't know all of the circumstances of what it was that people were asked or not asked to do. You have to always put this on an individual basis.

TOM CONNELL: Okay. He was urging Queenslanders to boycott Westpac though.

CHRISTIAN PORTER: Well people indicating a preference for one business or another is a completely legitimate way for consumers to behave. But third parties refusing to finance someone who otherwise would lawfully get finance because of the sector that they're working in, or people using online platforms to encourage others to deliberately damage a business because of the sector it is, I don't think most Australians consider that legitimate behaviour.

TOM CONNELL: It's an interesting area; we'll watch carefully what comes out of it. Appreciate your time today.

CHRISTIAN PORTER: Sure. Thank you.