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Interview with Warren Moore: 2GB Afternoons with Warren Moore: 2 July 2018: AHRC; serious overseas criminal matters



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2GB - Afternoons with Warren Moore

attorneygeneral.gov.au

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E&OE

Subjects: AHRC; serious overseas criminal matters

WARREN MOORE:

Well, you don't need me to tell you that the Australian Human Rights

Commission has lost the plot - if they ever had the plot - they certainly lost the plot. I mean,

time and time again we're reminded of how useless they can be. Today's no different. No

different whatsoever. It's been reported that the Turnbull Government will investigate a

decision by the Commission to demand insurance company Suncorp give compensation to

a convicted child pornographer for refusing to hire him. And it does sound bizarre doesn't

it?

The Federal Attorney-General, Christian Porter, will meet with the Commission about it

because it just doesn't make sense. Not only that: he's also seized control of a legal aid

scheme - separate story - which granted more than $0.5 million to defend paedophile Peter

Scully as he faced trial in the Philippines. Can you believe that: it’s half-a-million of

taxpayer's money? It's under the same scheme. People like cocaine Cassie [indistinct] also

had access to a lot of money to help with their defence. So, a couple of big issues to talk

about there with the Federal Attorney-General Christian Porter, who's on the line right now.

Thanks for your time.

ATTORNEY-GENERAL:

Pleasure to be here.

WARREN MOORE:

Well, I mean obviously this would not pass the pub test to say the very

least. But even beyond that, it just makes no sense at all - both of these issues - but

particularly first up about the Australian Human Rights Commission and the Suncorp case.

ATTORNEY-GENERAL:

Yeah, I find it a decision that doesn't accord with my sense of

common-sense and I think it would probably be a decision that most people find doesn't

make a lot of common-sense. There's two competing principles here. The first principle is

that a criminal record shouldn't rule you out of all future employment, and most Australians

would accept that. If people have done the time or paid the fine then we don't want them on

welfare queues forever. They should be able to, with a reasonable protection from

discrimination, apply and get work. That's what we all want to see. But the second principle

which is meant to be established in the relevant legislation is that employers nevertheless

should be able to decide if someone's individual criminal record means that they're

unsuitable given what the regulations call the inherent requirements of the job.

Now I, having considered this decision from the first time it was sent to my office - have

some difficulty in seeing how that conclusion could be drawn that for what was effectively a

claims assistant consultant at Suncorp that the level of dishonesty that was shown in the

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application process wouldn't actually itself mean that the person was unsuitable given the

inherent requirements of the job, because claims assistant consultant requires you to make

judgments about the accuracy and honesty with which people make claims.

WARREN MOORE:

Let's just clarify that little point there, Christian. When I say - actually

it's a big point. So not only was there the criminal record, it was not on the application.

ATTORNEY-GENERAL:

Well, he eventually disclosed it but he did not initially disclose the

criminal record in its entirety and certainly didn't let on the extent and severity of the

criminal record in the initial online application. And I mean my legal reading of a decision

here is that that would have been a very prominent feature of the decision-making. But

look, ultimately it comes down to these words: inherent requirements of the job, and

whether the criminal record means that someone's unsuitable for those. And, my own view

reading this case is that you could have made the decision the alternative way: to say that

the lack of honesty in the application process without more, meant that the person wasn't

suitable given the inherent requirements of the job of claims assistant consultant. But

nevertheless, I'm also going to have a look at the law and particularly the regulations that

are at play here, because if there is a lack of clarity and an organisation like Suncorp

doesn't feel safe in making what I think is a fairly responsible decision - not to employ

someone with this criminal record into this particular job - I think that it just represents a

result we need to try and work to clarifying and reversing.

WARREN MOORE:

I take what you said on board before. Just because somebody's made

a mistake in life doesn't necessarily mean that their employment prospects should be

written off for their entire career. But having said that, if you have this information, if it's

volunteered the way it should be, surely you as an employer have the right to take that into

account when determining whether that person is of the type of character you want within

your business.

ATTORNEY-GENERAL:

I think it's more - slightly more - than whether the person’s of the

character. I mean, people can and do reform, right? That happens. And as you say, we

don't want everyone with a criminal record unable to take a job. But if the inherent

requirements of the job, which I see claims assistant consultant as being about assessing

honesty and accuracy in claims, and the person themselves hasn't honestly and accurately

at the first reasonable instance declared their criminal record, I think you've got a problem

there. And the way in which the law has allowed this type of decision to come out of the

Human Rights Commission concerns me. And, as you say, I think that there has to be a

reasonable ability for employers to look at the job, its inherent requirements and decide

whether or not particular criminal offending in someone's past would mean that they're

actually an unsuitable person for that job. That seems to me to be pretty basic and I must

say I was concerned about this decision.

WARREN MOORE:

Well obviously, Suncorp's taken it on as more of an ethical issue than

anything else, because within their size, the $2500 fine isn't that much but yet they're

refusing to pay it.

ATTORNEY-GENERAL:

That's right, and I understand why they might take that position.

WARREN MOORE:

I think we all do.

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ATTORNEY-GENERAL:

Indeed. So for me, it's a matter of looking into the law and seeing

whether or not we can make it clearer and whether or not there's a way through the

regulations, particularly to try and give a little bit more certainty and clarity for employers

doing the right thing and trying to protect their clients and trying to employ the right people.

WARREN MOORE:

To look at this in a more broader scope, though, if somebody has been

refused a job for their criminal record, something of a different type maybe and something

not as serious, do you think there are cases where they should have a right of appeal

based on that?

ATTORNEY-GENERAL:

Well I think that if someone's criminal record exists, it should not

be a permanent barrier to employment. Like that would be a very bad result in Australia.

And as I say, people who have done the time or paid a fine should be able to search for

employment without undue and unfair discrimination. But the question is whether or not the

discrimination is undue and unfair, and if the nature of the job means that a certain type of

criminal offending indicates that you as a person are unsuitable for that job, then there

should be clear and certain latitude for the employer to not employ you. And I think that this

is something that needs to be looked at with a view to clarifying it, so that we don't get

decisions at the margin like the one that we've had.

WARREN MOORE:

Okay. We've got two big issues, so I'd better move on to the second

one; that is the serious overseas criminal matters scheme. Part of legal aid, isn't it?

ATTORNEY-GENERAL:

It's actually part of a - it's separate to legal aid. It's very much like

legal aid, but what it was administered by my department effectively, and it applied only to

Australians overseas who were either facing the death penalty or charged with charges

with a penalty in excess of 20 years' imprisonment. And if you met either of those two

criteria, your ability to get the payments was effectively automatic. Now, the Peter Scully

case gave rise to a very serious and reasonable question, which was whether or not the

people who were getting this money were getting it in circumstances that met community

expectations, and the view that I formed after looking at the Peter Scully case was no, they

weren't, that the community wouldn't expect that someone like Peter Scully would get in

excess of half a million dollars to fund his legal defence overseas on the most incredible

and terrible charges relating to a range of child sex offences.

So I looked at it, made two decisions or three decisions: one, it shouldn't be automatic in

circumstances where the penalty is 20 years or more. What we need to do is limit it to the

death penalty and then also consider other factors such as whether or not the person has

had a long history of similar criminal offending, either here or overseas. And in Peter

Scully's case, he was - actually left Australia to avoid prosecution and arrest in Australia,

and I think that should also be a consideration. And thirdly, I've brought the decision-making

up to my office and to myself as Attorney-General. I think it's the sort of decision-making

that people want their elected representatives to make on a case-by-case basis and not

have them made at the level of the civil service, even the highest civil service. So it's a

pretty substantial reform to the scheme. Obviously we still want to ensure people get

adequate defences to avoid the death penalty overseas, but there shouldn't be this near

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automatic guarantee if you face other serious criminal offending, even if you've had a long

history of that criminal offending, even if you've fled Australia to avoid arrest, that you would

automatically get the funding. I think that's quite wrong.

WARREN MOORE:

Yeah, well, I think most people would agree with you on that. No

doubt, no doubt whatsoever. And look, just turning back to one of your previous portfolios

for a moment, I know you've had some comments to say about the Child Care Subsidy

arrangements today. Do you think that's a generally- a good move?

ATTORNEY-GENERAL:

Yeah, I do. I think that - well, first of all, it's a multi-billion-dollar

investment, and that money eventually goes into the, directly goes into the pockets of

Australian families. And just in my electorate, I've gone round and avoiding that dreaded

cap that used to hit people in January or February or March after which they'd be paying

the full amount for child care, avoiding that cap helps families to the tune of thousands of

dollars, depending on the individual circumstances of the family. So it's a much simpler

system, it's a much clearer system, it is skewed towards the people on the lowest and

lower incomes, and the people who work the most, which is fundamentally what child care

is meant to facilitate. And it also means more money in the system, so you don't hit that cap

which, you know, for some families, wipes out the benefit of working.

WARREN MOORE:

Well, that's exactly right. You end up with some people essentially

paying to go to work.

ATTORNEY-GENERAL:

Completely, and that takes the incentive out of dual-income

households. And what I find in my electorate is that dual-ling the income of households is

how people get ahead. That's how they afford a little bit better for themselves and for their

kids, and you've got to make sure that for mums and dads that are working and raising their

kids that they've got a proper, simple, fair system of child care and child care rebates. And

this condenses the multiple number of payments into one, gets rid of that cap, is skewed

towards the families that work the hardest and towards the families on the lower and middle

incomes. It's a really significant change and people will feel it.

WARREN MOORE:

Thanks you for your time, as always appreciate it.

ATTORNEY-GENERAL:

Cheers, thank you.

WARREN MOORE:

Federal Attorney-General Christian Porter across a few issues there,

and I think a sensible approach to pretty much all of them.

ENDS

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