To The Point

Interviewer:

Peter Van Onselen

E&OE

PETER VAN ONSELEN:

Live from Parliament, thanks so much for your company.

MINISTER PORTER:

Good afternoon to you both.

PETER VAN ONSELEN:

This 18C change, let’s go to that first and then we can get to the Omnibus Bill that you’ve got carriage of – large carriage of.

This change to 18C – will it ever get to the House, in your opinion?

Because at the end of the day it’s starting in the Senate, and it’s hard to see, based on rhetoric up til now from the Xenophon party that they would support what the party-room had just supported.

MINISTER PORTER:

Well on its substance, my view is that it deserves to be passed through the Senate.

And I know that, of course, commentators love to jump straight into the politics before a particularly deep consideration of the actual issues and substance of the Bill.

But in my observation, it’s obviously a difficult area, an area where you need to find the right balance. Things are not working at all well at the moment. The relevant section has fallen into disrepute, it’s not doing what it was designed to do, and that is protect people from things that we would call ‘hate speech’. This is a very sensible, balanced approach to fix a section that is not working well.

So I think it certainly deserves passage through the Senate, and what I would ask for is, sort of, a pause and a sober consideration over the next several days of what’s actually in the Bill because I do think it offers a very, very fair path forward.

KRISTINA KENEALLY:

Christian Porter, the Prime Minister put to that press conference that the things that had changed since the election included the QUT case, and the Bill Leak case and he also pointed to the Parliamentary Committee Report.

Now, the Committee report didn’t make any particular recommendations about this relevant section – they talked about process more than they talked about coming to a unanimous view on…

PETER VAN ONSELEN:

It’s part of the changes.

KRISTINA KENEALLY:

Yes, the process is part of the change, but I want to go to, as the Minister invited us to, the substance of 18C.

All of the things that the Prime Minister pointed to about the substance of 18C were known before the election, there is nothing he knows today that he didn’t know before the election – so why did he rule out before the election making any changes to 18C.

MINISTER PORTER:

Your question is what has changed after the election – I think that the evidence has reached a tipping point to suggest that 18C, in its present formulation, where you have the offence formulation which is about someone’s feelings…

KRISTINA KENEALLY:

What is the evidence? What is that evidence?

MINISTER PORTER:

I think we’ve now had a very thorough scrutiny of an incredible high profile case in the case of the QUT students, and you’ve had young university students put through an absolutely excruciating, costly, career-disrupting process, which is the best and final evidence that suggests that the section in its present formulation is not doing what it was meant to do.

And when it was introduced…

PETER VAN ONSELEN:

Isn’t that more about the process though Minister?

I mean, I’m actually not against the suggestion that’s been put forward around ‘offend, insult and humiliate’ being replaced with ‘harass’ – I’ve got an open mind to that, but having said that, the situation for both Bill Leak and the QUT students – surely that’s speaks to the process of the Human Rights Commission?

MINISTER PORTER:

Well, the process of the Human Rights Commission leaves a lot to be desired, and there are significant elements in this Bill that will fix some of those, really quite awful processes. But process alone will not change the type of hurt and harm we’ve seen done to people who have been dragged into legal proceedings, quite unfairly and improperly in the case of QUT and in the case of Bill Leak. Both of which are evidence that’s available to us about how this is not working, that wasn’t available to us previously.

But the basic reason why process alone won’t fix this is because, as the Prime Minister noted, the formulation of words, ‘offend, insult and humiliate’ has now, basically, been shown simply not to be clear enough to sustain proper process no matter how we draft that process…

KRISTINA KENEALLY:

Minister, how would…

MINISTER PORTER:

So what you need to do is make it…

KRISTINA KENEALLY:

Go ahead.

MINISTER PORTER:

You need to make this section clearer. If you make it clearer you make it fairer and you balance people’s positions better. And if you make it fairer, you make the entire provision stronger.

And this word, ‘harassment’ or ‘harass’, has been used in the context of the West Australian legislation, which I was very familiar with from my time, both as a prosecutor and government over there, and it works very, very well. And you don’t see the type of terrible process, and awful outcomes that we’ve seen in QUT, in Bill Leak.

What we’re trying to prevent here is a situation where someone on the basis of a satirical cartoon is brought into a very costly, reputationally-damaging procedure, which of course has an effect on others ability to speak freely or to make a point in satire.

KRISTINA KENEALLY:

Ok. And I take your point, and I’m with Pete on having an open mind on the process changes and the reasonable person test.

But can you explain to our viewers how the QUT, or the Bill Leak case, would have been different if the language had not included ‘offend and insult’, but had included ‘harass’?

MINISTER PORTER:

When you look at the submissions that were made to the recent enquiry, for instance Justice Sackville, who’s eminent in the area, said that the difficulty here is that the objective test imports a subjective element - That if I say or do something which offends someone, the ultimate measure is how that person feels. Right?

To harass, or to engage in harassment, is a measure of what is done to a person. It can be seen, it can be heard, it can be witnessed and it can be objectively measured.

Now the difficulty is with that formulation of words – ‘offend, insult, humiliate’ – which many submissions to the recent enquiry noted, invariably involves a subjective element, and the difficulty arises…

KRISTINA KENEALLY:

So how would those two cases be different?

My question is not to explain to me the difference, explain to me how those two cases would have been dealt with differently?

MINISTER PORTER:

Well because the standard of complaint and standard of assessment by the Human Rights Commission would have been in accordance with a different formulation of civil wrongs.

KRISTINA KENEALLY:

And what would have happened then? Would they have been dismissed out of hand if these – if the law had been changed?

MINISTER PORTER:

Well, two things are going on here. I think procedurally they would have been dealt with in a much swifter and fairer fashion. Of course, what this Bill does is import a whole range of natural justice elements, compulsorily, into the process.

As to your second question – it is always impossible to tell the hypothetical of what would have happened had it gone under the new laws. But, what you would have to observe, I think, is that ‘harassment’ as a term meant that it would be less likely that those complaints would have made it to the point of complaint and into the Human Rights Commission. Keeping in mind that with the Bill Leak matter, Kristina, that the Aboriginal Legal Service in WA sent employees to the north-west of Western Australia to, in effect, harvest the complaint.

Now, the standard and clarity that you get from a word like ‘harassment’ is going to make it clearer from the very outset what sort of complaint is going to be properly sustainable, and that is very important, because what we have at the moment is complete lack of clarity as to what is the standard for a sustainable complaint, and indeed, what actually constitutes this formulation of words ‘offend, insult, humiliate’. This definitely makes it stronger because it makes it clearer, it makes it fairer and the system that we have at the moment in that formulation of words has become meaningless to the point of bringing the whole system into disrepute.

PETER VAN ONSELEN:

Just one last one on this before we move into your portfolio, if I can.

Do you at least see the irony – I can’t even think of the right word for it – of the fact that you’ve got a line-up of conservatives telling us, the absolute reason we can’t shift same sex marriage from a plebiscite to a free vote in the Parliament is because of the commitment we took to the election, yet here we are on 18C – I can drag through all the quotes for you of a commitment pre the election not to change 18C, which is now being changed.

Now that is, irrespective Christian Porter, of whether you think it’s a good or a bad change, do you at least see that it’s bizarre that the argument of ‘you can’t break a promise’ on one is applied as though it is an absolute, yet on the other you’re actually prepared to put good policy making, from your perspective, into the mix on 18C.

MINISTER PORTER:

Peter, you’ll accept or reject this proposition. I just think they’re two entirely different circumstances, two entirely different matters.

And the changes that we have seen in terms of the evidence available to us after the election about how the present formulation of words simply is not working and is dragging in students or cartoonists into this torturous process, where the process itself becomes a punishment, is a situation that is now so crystal clear in a way that it wasn’t previously, and known to be crystal clear by the wider Australian population, that the right thing to do is to come up with a better formulation to make this provision work better.

KRISTINA KENEALLY:

Alright Senator, let’s go to your portfolio.

PETER VAN ONSELEN:

I think he’d love to be in the Senate, things are very tight over there in the seat of Pearce.

KRISTINA KENEALLY:

Sorry, did I say Senator? I meant to say Minister, I apologise.

MINISTER PORTER:

I’m happy working for a living, thanks

KRISTINA KENEALLY:

I love the sledging that happens in the Lower House and the Upper House – oh parliamentarians. I’m with you by the way Minister, on that sledge.

Let me go to your portfolio, Minister, and ask you about your attempts to get a deal secured with the Senate, which is where I was going, on yours savings to fund the childcare reform package.

This package has been in the offering for several years now. I think children were born when you first promised it, and are now approaching school age. Is there any relief on the horizon, are you about to reveal to us on Sky News you’ve got a deal?

MINISTER PORTER:

I’m not giving you that exclusive, unfortunately Kristina. Mathias Cormann and I, a Senator who is working very hard on this, are involved in these negotiations – thought I better save myself on that one.

We are, obviously, heavily involved in those negotiations, they are at a sensitive point. They only work because we keep those negotiations in house.

But let me say that some of the difficulties that you’ve seen arise in the last couple of days are emblematic of what we do face in defining a path through the Senate. We’ve had some Senators basically say they don’t like so much being spent on childcare, and others Senators saying they don’t like so much being saved to pay for those expenditures on childcare. So it is a very delicate balancing exercise.

Those negotiations are at a very sensitive point. Both Senator Cormann and I are optimistic that we will come out of this process with a childcare package which, Kristina your point, has been waited for some time, and is very important and most desired by parents – they are screaming out for this. But look, I’m confident that we will find that path through, but it is a little bit of a threading the eye of the needle exercise, and rather delicate.

PETER VAN ONSELEN:

How important is it that you don’t lose savings measures attached to spending measures? I mean, at the end of the day it just seems so often that when governments try to find ways of improving the budget as well as policy structures, what gets carved out are all the things that are expensive from all the savings designed to help pay for it?

MINISTER PORTER:

Well its critical and it’s been a, I think, very virtuous feature of our government, as we have stuck to a very hard and difficult rule which is that if we’re going to spend more in a particular area, we have to fund that out of savings from another area. That’s the way that you prevent taxes from being increased, that’s the way that you get expenditure under control. So this is a very big investment, $1.6 billion to completely and substantially reform childcare – make it more affordable, make it more accessible – it’s what parents want, but we can’t do that by taxes and we can’t do that by borrowing. So the discipline of doing that by savings, and also having an amount left over that helps us return the nation to surplus, is the critical discipline we’re involved in.

As you see with the negotiations, it’s not a simple process but one we’re absolutely committed to and in our negotiations we are helped by the fact that our record has been consistent in its commitment not to spend money that we haven’t found by virtue of savings elsewhere.

PETER VAN ONSELEN:

But you are going to lose some – a lot, if not some, some if not a lot – of your savings on the way through, presumable through the negotiation process. Is there ambit in your claim, Christian Porter, because you knew that would be the case?

MINISTER PORTER:

No. We put up every single savings measure on its merits. We think that they can be publically justified, we think in all the circumstances of the fact that we are, effectively, borrowing money to fund the welfare system at the moment – that these are proper and appropriate savings measures.

So we don’t put things up expecting not to succeed, but equally we accept we will not be able to succeed on every single savings measure. So, the Senate is a process of negotiation, improvisation, adapt, overcome, and we are part of that process.