Subjects: industrial reform; family law, Maiden speeches; religious freedoms
PATRICIA KARVELAS: I want to bring in my first guest, Attorney-General Christian Porter, who is also of course the Industrial Relations Minister. Welcome, Minister.
CHRISTIAN PORTER: Thanks, Patricia.
PATRICIA KARVELAS: The House of Representatives will begin debating the Ensuring Integrity Bill. It allows for the deregistering of unions. Is the ultimate aim of this Bill to deregister the CFMEU?
CHRISTIAN PORTER: Well, the Bill only has a prospective application. So everyone starts with a clean slate, whether you’re a union official or a union itself. It’s not aimed at any one particular union. What it says is that when, in the future, any organisation effectively goes rogue and demonstrates a repeated pattern of unlawful behaviour – in many instances unlawful behaviour that works against the occupational health and safety of the members of the organisation, if that pattern of behaviour emerged again into the future, then there will be reasonable standards in place for a court to deregister the organisation.
It applies also to employer organisations, of course. It’s not just employee or union organisations. And equally, with respect to an individual, it will allow the court to determine whether or not someone’s a fit and proper person to hold a public official office in a registered organisation. And, again, that is a very reasonable thing to require. But it’s all about what future events may occur.
Now, based on the CFMEU’s past record – I mean, $16 million worth of court imposed fines for breaching the law, over 2,000 individual breaches; they’re averaging three or four breaches a week. They may reform themselves, but a Federal Court judge has indicated that they’ve shown no effort or appetite to engage in internal reform. They may have reformed themselves, but that would seem to be a triumph of optimism over experience, I suggest.
PATRICIA KARVELAS: Okay. The Government has sought to capitalise on the controversy surrounding John Setka, but he’d have to commit multiple new breaches before the legislation could be used against him. Do you accept that might never happen?
CHRISTIAN PORTER: Well, I hope that he would not engage in future breaches. I mean, I would hope that no official of an employer or employee organisation engages in criminal conduct that carries a penalty of two years or more. What we want to see is lawfulness inside the organisations, whether they’re employer or employee organisations, on workplaces around Australia. But you have to have a standard in place.
And the second Bill here, Patricia, is about workers’ benefit funds and their proper regulation. And as I’ve noted in Question Time over the last several days, these funds are set up to keep safe and secure workers’ money that is put aside to pay for future events like severance or long service leave. And we have got example after example of millions of dollars being siphoned out of these organisations and going back to unions or to other organisations with no benefit to the worker whatsoever, so…
PATRICIA KARVELAS: Well, the unions contest that claim. But I want to ask still on the Ensuring Integrity Bill. The Ensuring Integrity Bill says anyone with a sufficient interest can apply to the Federal Court to get a union official banned or have a union official banned. Will an employer or employer lobbyist in conflict with the union be able to apply for an order?
CHRISTIAN PORTER: Well, like in a range of other actions, the court itself determines who has standing. So the court would determine who has sufficient interest. But that type of rule, which is actually a formulation that was placed in the law many years ago – in fact, I think under a Labor Government – that formulation of a well-known rule is about ensuring that members of organisations, so members of a union themselves, if they thought their organisation had gone rogue, was not acting in the best interests of the members of that organisation, then they can make that argument before court.
PATRICIA KARVELAS: Yeah, but I’m asking about an employer. Could an employer do that and do you think that’s reasonable?
CHRISTIAN PORTER: Well, it would depend on all the circumstances. But a court would make that determination, whether or not that was reasonable in the circumstances. The Federal Court would make that determination.
PATRICIA KARVELAS: So clearly- but the rules would allow-
And the rules under the legislation, does it allow for an employer, in conflict with a particular union, to potentially be raising this?
CHRISTIAN PORTER: Well, that’s one potentiality but it’s no different from the rules that allow shareholders of organisations to make certain actions against the corporation that they’re a shareholder of. That test is already in existence in the law in industrial relations, the sufficient reasons test. So it’s not an unusual test at all.
PATRICIA KARVELAS: How serious would a complaint need to be before the court decided it warranted a hearing? For example, could this be used against a union that took unprotected industrial action?
CHRISTIAN PORTER: Well, the structure of the Bill is it sets out quite clearly what are the types of behaviour, unlawful behaviour, which could trigger an application either against a sitting public official or, where there’s lots of that behaviour occurring, against a registered organisation itself.
But of course the point I think, Patricia, is that these are triggers which then require an argument by someone with sufficient standing before the Federal Court as to why the pattern of unlawful behaviour warrants an organisation or part of an organisation – say, for instance, a branch – being deregistered. And then the court would have to consider whether that was just in all the circumstances. So there are all of the usual safeguards and steps and requirements and burdens and things that must be shown and proven. But this is just a minimum standard for lawful behaviour in the workplace.
PATRICIA KARVELAS: Alright. Centre Alliance wants the removal of the provision which enables the Minister to lodge an application to deregister a union. Are you prepared to consider that?
CHRISTIAN PORTER: Well, I think that’s a very important provision, I must say. It’s a provision that’s existed in a whole range of circumstances for Ministers for decades in this law. So, I mean, we’ll talk with the crossbench of course, but I think that is a rather important provision. But we’ll engage with them on the bill.
PATRICIA KARVELAS: But do you think it’s fundamental to the Bill? It’s not something you’re willing to negotiate on?
CHRISTIAN PORTER: No, that’s not what I said, Patricia. My answer is we’ll engage with them. But I think that that is a reasonable and fair part of the Bill as it presently stands.
PATRICIA KARVELAS: The original legislation included a 12-month amnesty for employers who haven’t fully paid workers’ super entitlements to own up without a penalty. Is that still Government policy? Where is that at?
CHRISTIAN PORTER: Well, I think that that remains in the Bill, but my recollection as to what precise amendment might have been made on that, I couldn’t quite say. I think that that is not one of the matters that was changed. But the Bill did go through a range of amendments based on committee recommendations. And essentially, those amendments were to bring the Bill as closely into line with corporations law as could possibly be achieved with respect to registered organisations.
PATRICIA KARVELAS: The Prime Minister said he was drafting laws on wage theft, but isn’t it a six to nine-month review first? And does that mean there may not actually be any action until the end of 2020, or perhaps even later?
CHRISTIAN PORTER: Oh, it’s absolutely not what it means. So there was a Migrant Worker Task Force and it made a number of recommendations, including criminal penalties for serious exploitation of workers. We’ve already accepted those recommendations. And what the Prime Minister announced yesterday was that part of the criminalising serious exploitation can be extended to serious, repeat, and substantial instances of underpayment, which would constitute, on anyone’s reasonable judgement, wage theft.
PATRICIA KARVELAS: So when will it be legislated, then?
CHRISTIAN PORTER: Well, I’m working on drafts of that now but that will take a little while to draft. But we’re not talking anything along the timeline that you’ve just suggested. It’ll be much swifter than that.
PATRICIA KARVELAS: End of the year?
CHRISTIAN PORTER: Well, I would hope that we would have drafts out for consultation in the next month or so.
PATRICIA KARVELAS: You’ve committed, as we were saying, to criminalising systemic wage theft. So is George Calombaris’ underpayment of his staff the sort of case where criminal penalties should apply?
CHRISTIAN PORTER: Well look, I’ve not sat down and read the judgement end to end in the Calombaris matter. But I think that what you’d be looking at, and part of a reason why you would need to consult with employer and employee groups is you’d need to consider precisely the level at which you would determine that criminal penalties are appropriate. But I think the things that you’re looking at there is the amount of underpayment very large? Is it sustained? Has there been clear evidence to show that the person who has underpaid their workers has done so knowingly? These are the types of instances, I think, that would see criminal penalties conceivably apply.
PATRICIA KARVELAS: Now, I know you say you haven’t read it, this whole judgement, the George Calombaris case – but it is actually the pivotal case here. It’s the one that people in the streets in Australia actually can refer to. So, with someone like George Calombaris, face those hefty criminal offences that you’re drafting in your changes? I think that’s a really important question in this discussion.
CHRISTIAN PORTER: Well, we haven’t drafted the changes yet.
PATRICIA KARVELAS: Should it then – should it? Should it, is the question.
CHRISTIAN PORTER: The whole point is this Patricia, is that you need to go out and consult with employers and employees to determine whether or not a case like the one we’ve just seen would be in or outside the criminal penalty range.
PATRICIA KARVELAS: What’s your instinct, do you think it should be?
CHRISTIAN PORTER: Well, my instinct is that in circumstances where there has been very large amounts of underpayment over a sustained period of time, where it has been knowing and there’s strong evidence of that, i.e. that the person knew they were underpaying their staff large amounts of money over long periods of time, and fourthly, where there were efforts to conceal that underpayment – that’s the type of scenario. Now, I think some of those criteria appear to be exhibited in the Calombaris matter, but not all of them.
PATRICIA KARVELAS: Okay, so if it’s not all of them, then it means he wouldn’t fall under these new laws?
CHRISTIAN PORTER: That’s not what I’m saying at all. What I’m saying is they’re the types of things you’d be looking at, but it would be a case-by-case determination. I think that many of those things are exhibited in the Calombaris matter, but not all of them. And I understand that it was self-reported in the Calombaris matter. But it was still egregious, it was a very, very large amount of money over a long period of time.
PATRICIA KARVELAS: You’ve said that the penalty handed to George Calombaris for underpaying his staff could have been higher. You’ve said that on the record. Why didn’t the regulator take him to court to seek a higher penalty, and should they have?
CHRISTIAN PORTER: Well, it’s a good question, and I’ve sought and received briefings on that. They made a judgement about the overall state of the business, about the behaviour of the employer, about the self-reporting in that matter. So they’ve used what’s known effectively as an enforceable undertaking. I’m very conscious that those are not overused, and that in some instances it will absolutely – in many instances – it will be absolutely appropriate to pursue the matter through the courts. But my observation was that in those circumstances, that penalty was on the light side.
PATRICIA KARVELAS: Isn’t the willingness of the Fair Work Commission (sic) to cut deals with underpaying employers through these enforceable undertakings; one of the reasons why companies think they can get away with underpaying workers?
CHRISTIAN PORTER: No. I don’t think that’s the case. I mean, we allocated an additional $10 million to the Fair Work Ombudsman. These instances of underpayment are now being investigated more than they ever have in Australia’s history. And under the term of the previous Labor government, they cut the funding to that investigatory body by 17 per cent and its staff by 20 per cent. So, it has been very heavily investigated and policed. And I think largely speaking the Fair Work Ombudsman is doing a very good job, and they’re certainly better resourced under this Government than they have ever been. But what I would make is this point: that these types of underpaying situations, there should be an absolute zero tolerance for them. But equally there should be zero tolerance for an organisation set up to keep safe and secure workers’ money, setting $32 million back to a union, for no possible apparent and acceptable reason. That is just the misappropriation of $32 million worth of workers’ money. And the Bills before the Parliament deal with that form of wage theft.
PATRICIA KARVELAS: The outgoing head of the Department of Prime Minister and Cabinet, Martin Parkinson, has warned that falling productivity is threatening Australia’s future, standard of living. What do you make of his comments, and what kind of industrial relations reform, given the Australian Industry Group is calling for it, are you looking at in your review?
CHRISTIAN PORTER: Well, I mean, obviously the two bills that we have before the Parliament at the moment are an important first stage in any reform of the system. Because where you have repetitive unlawful behaviour on work sites, so for instance $16 million worth of fines for the CFMEU, that builds in to increase the cost of infrastructure. And there have been estimates that that could increase the cost of infrastructure to the taxpayer by up to 40 per cent, which means that the taxpayer could be getting much more for their money spent on public infrastructure if you had lawfulness on work sites. That is a huge productivity issue. But there of course will be others. What the Prime Minister has noted is there will be three underlying criteria for any reform in this area. One, does the change put upward pressure on wages and thereby help employees? Two, does it help strengthen business? And three, does it make the Australian economy stronger? And if those three criteria can be shown in any particular potential area of reform, then there’s the possibility of building a consensus and moving that forward. Enterprise agreements is one example; they in my observation should be easier to conclude, should be faster to conclude. They provide great flexibility and increased productivity in the system. But at the moment they’re taking too long to conclude and they’re too complicated.
PATRICIA KARVELAS: Just a speedy – let’s do it like a quiz, these questions, because I know you’ve got to get out.
CHRISTIAN PORTER: I love quizzes.
PATRICIA KARVELAS: Okay, let’s do it like a quiz. A coalition of domestic violence service providers, family law, and child protection specialists want you not to reintroduce your planned merger of the Family and Federal Court, are you planning to revive that legislation?
CHRISTIAN PORTER: That merger must happen to reform a system that everyone says is broken. There is not a stakeholder in the system who does not acknowledge that it is a broken system to having two courts with two different sets of rules, forms and procedures, both dealing with the same types of matters and moving families between the two courts with different rules and procedures at enormous cost and expense. So, there has to be reform in this area, and we will be pursuing that reform.
PATRICIA KARVELAS: Okay, and what’s the time frame for that reform?
CHRISTIAN PORTER: Well, I think that I’d like to see that legislation back, moving before the end of the year.
PATRICIA KARVELAS: Okay. A quick one on religious freedoms or Religious Discrimination Act. I know you want to be a little more conservative in the way it’s constructed. When will we see it?
CHRISTIAN PORTER: We’re getting close very close to a final draft, and that will obviously go to Cabinet and I’ve been consulting over the last several weeks internally with my colleagues. It does follow an orthodox structure; you define the attribute – which is someone’s religion – you set out a whole range of circumstances where it would be unlawful to discriminate against them, and of course you need to have a range of exemptions so that, particularly religious bodies, can maintain their authority in and around their own organisation. So, it follows a basic and orthodox structure. And of course, all states I think from recollection other than New South Wales and South Australia have discrimination laws of this type that apply to their religious attributes. So, it’s not like it’s…
PATRICIA KARVELAS: Is there a state’s model you’re going to be mirroring or copying?
CHRISTIAN PORTER: I think actually the Victorian model is probably a good one, that I’ve always thought is a good workable model. But equally, what we are doing is following the essential structural architecture of the existing discrimination acts at a Commonwealth level, which exists for age, race, for Australians with a disability, and sex and gender. And our point of principle is this: if it’s fair and appropriate, which it is, that you not be discriminated against in circumstances like entering a public event, or in a range of other circumstances because of your age or your race; it should also be unlawful to discriminate against you in those circumstances because of your religion. That seems to me to be very basic.
PATRICIA KARVELAS: Okay, and will you be pursuing at the same time changes and amendments to the marriage laws?
CHRISTIAN PORTER: No. There is going to be, as we’ve outlined, an additional Bill which does a little bit of tidying up, making clear things, such as the fact that a religious charity who took a view about the traditional view of marriage couldn’t be deregistered as a charity. But these are minor technical matters. Nothing of a nature that you’ve just described.
PATRICIA KARVELAS: Okay, so let me give you one example. If a church hall somewhere didn’t want to allow a gay wedding to happen and was one of very few halls, as there are in some country towns, would they be able to say no?
CHRISTIAN PORTER: We have stated again before the election that one of the consequential amendments would be to clarify that religious schools wouldn’t have to allow their facilities to be used for a marriage that wasn’t in accordance with their doctrine. But we’ve said that publicly a number of times.
PATRICIA KARVELAS: That’s just schools. But is it just confined to schools?
CHRISTIAN PORTER: Well, my recollection is that the lack of clarity was with respect to schools and it was fairly clear – clearly the case that churches wouldn’t have to, and do not have to – even under the changes in the law – allow their premises to be used for versions of marriage that don’t accord with their doctrine. That’s already the case.
PATRICIA KARVELAS: What do you make of all your colleagues who are freelancing publicly on things like super and Newstart?
CHRISTIAN PORTER: Well Patricia, it’s maiden speech season, and everyone in their maiden speech is given a great amount of latitude to talk about things that are important to them, and to raise policy issues which very often aren’t policies that are part of our platform. But this happens at this stage of the cycle with maiden speeches every time that there is an election.
PATRICIA KARVELAS: Okay, just a little last question, did you say anything in your maiden speech that you don’t agree with now?
CHRISTIAN PORTER: No. In fact, I made some comments about the GST needing to be reformed in my maiden speech, and that was about six years ago now. And I and my West Australian colleagues worked very hard to ensure that was the case, and it was fixed. That is a really important thing to have occurred for my state, and as a representative of my state I was really pleased to see that that part of my maiden speech actually came true.
PATRICIA KARVELAS: Christian Porter, thanks for coming on.
CHRISTIAN PORTER: Thank you.
- July 26, 2019 at 8:23 am by Australia Editor (displayed above)
- July 26, 2019 at 8:23 am by Australia Editor