Joint Press Conference with the Prime Minister, Attorney-General and Minister for Foreign Affairs

Prime Minister
The Hon. Tony Abbott MP

Attorney-General
Senator The Hon. George Brandis QC

Minister for Foreign Affairs
The Hon. Julie Bishop MP

5 August 2014

Subjects: New counter-terrorism measures for a safer Australia; Racial Discrimination Act; Malaysia Airlines Flight MH17; Baby Gammy.

Prime Minister: Thanks everyone for joining myself, Julie Bishop and George Brandis this afternoon. I am here with Julie as the Minister responsible for ASIS – the Australian Secret Intelligence Service and with George the Minister responsible for the Australian Federal Police and also for ASIO – the Australian Security Intelligence Organisation.

I think over the last couple of months every Australian has been shocked at the evidence on the internet of Australians participating in terrorist activities in Syria, Iraq and elsewhere. We have all seen truly shocking imagery of Australians born and bred doing absolutely horrific things to surrendering Iraqi police and military personnel. What we are now acutely conscious of is the danger posed back here in Australia by people returning to this country who have been radicalised and militarised by the experience of working with terrorist organisations overseas.

I stress that the terrorist threat here in this country has not changed. Nevertheless, it is as high as it has ever been. As a result the Government is determined to take a series of measures to strengthen our security and intelligence organisations. We will be spending some $630 million in new money over the next four years to boost the counter terrorism capacity of our security and intelligence agencies; such as the Australian Federal Police, ASIO, ASIS, and the customs and border protection agency. We are also, in addition to the legislation on agency powers which is already before the Parliament, preparing further legislation.

We need new legislation to make it easier to identify, to charge and to prosecute people who have been engaged in terrorist activities overseas such as, for instance, by making it an offence to travel to a designated area without a valid reason. We also need legislation which I have commissioned the Attorney to prepare, which the National Security Committee of the Cabinet has commissioned the Attorney to prepare to ensure that we are best able to monitor potential terrorist activity in this country. Obviously with the usual range of safeguards and warrants but that will include discussions with the telecommunications providers about the retention of metadata. We are also determined to engage in ever closer consultation with communities including the Australian Muslim community.

When it comes to counter-terrorism everyone needs to be part of ‘Team Australia’ and I have to say that the Government’s proposals to change 18C of the Racial Discrimination Act have become a complication in that respect. I don’t want to do anything that puts our national unity at risk at this time and so those proposals are now off the table. This is a call that I have made. It is, if you like, a leadership call that I have made after discussion with the Cabinet today. In the end leadership is about preserving national unity on the essentials and that is why I have taken this decision.

There will also be a review of counter terrorism to ensure that our counter terrorism coordination is as effective as it can possibly be in these difficult and anxious times. We have learnt the experience of Operation Sovereign Borders. Operation Sovereign Borders has been a success because it has brought together various agencies under one single coordinating body and we will be doing something like this imminently with our broader counter terrorism agencies.

What I want to be able to assure the Australian people is that everything that Government can reasonably do is being done to ensure that our community is safe. The highest priority of Government is the safety of our community and I want to ensure the Australian people that we will leave no stone unturned to ensure that our community is as safe as it can be.

I am going to ask George, first of all, to speak to some of the legislation then I will ask Julie to talk about some of the threats that we see emerging abroad.

Attorney-General: Thank you very much indeed, Prime Minister. As you know, ladies and gentlemen, in the last sitting week of the Parliament I introduced legislation to give effect to recommendations of the Joint Parliamentary Committee on Intelligence and Security in relation to the powers of the national security agencies. That legislation is currently before a Senate Committee and is due to report back in the first sitting fortnight of the spring sittings and we expect with the bipartisan support of the Australian Labor Party, which I acknowledge, that it will be through the Parliament in the first sitting fortnight of the spring sittings.

Today, the Cabinet approved a second tranche of legislation that will be called the Counter Terrorism Foreign Fighters Bill which will be introduced into the Parliament in the first fortnight of the spring sittings. That legislation embodies a number of the other recommendations of the Joint Parliamentary Committee on Intelligence and Security together with the review of counter terrorism laws conducted by the National Security Legislation Monitor in two reports and the review of those laws undertaken also by COAG.

Let me flag for you some important features of that legislation. We are going to change the definition of conduct prescribed as terrorist conduct. At the moment the scheme of the legislation is to require the identification of a terrorist act rather than terrorism. As such we are going to broaden the definition so that the legislation operates as well in relation to terrorism – not merely an individual terrorist act. We are going to extend the offence of advocating the commission of a terrorist act to include the promotion or encouragement of terrorism. We are going to expand the definition of the offence of undertaking training with a terrorist group. We are going to change the threshold criteria for applications for both an interim control order and a preventative detention order from ‘considers on reasonable grounds’ to ‘suspects on reasonable grounds’. As well we are going to make a similar change to the Commonwealth Crimes Act in relation to search warrants. The threshold test suspects on reasonable grounds is in fact the threshold for the application for search warrants in most state and territory laws. The Commonwealth criminal law has maintained a higher threshold inconsistently with the standards of the states and territories so those laws are going to be brought into consistency with the laws of most of the states and territories. We are going to redefine the definition of an imminent terrorist attack for the purposes of preventative detention orders. We are going to remove the provisions or repeal, in fact, the provisions of the Crimes Foreign Incursions and Recruitment Act and include a new division in the Commonwealth criminal code which will replicate and, in certain respects, expand those provisions.

One important provision that will be new is a provision that will prohibit travel to a designated locality certified by the Minister for Foreign Affairs on the basis that it is a locality in which there is a level of terrorist activity. So, that a person who travels to a designated locality commits an offence and will have to explain that the purpose of their travel to that designated locality was for humanitarian purposes, family purposes or other innocuous purposes. Naturally, that is a mechanism that will be used sparingly. We are going to extend the definition of what constitutes armed hostilities. The Terrorism, Incursions and Recruitment Act which was an Act of 1978 really pre-dated the era of modern terrorism and the definition of armed hostilities in our view is not sufficient to comprehend the full range of terrorist activities.

Finally, there are many other provisions but those are among the most significant. We will also, as we have previously announced, retain the office of the National Security Legislation Monitor. That was originally proposed to be abolished as a savings measure – not because we particularly wanted to do so but because we thought we could find a saving there. Given the range and scope of the new terrorism laws that the Government is introducing we think that there is a new reason why it is useful to have, to retain the office of the National Security Legislation Monitor.

Finally, as the Prime Minister indicated, I have also been asked to develop – in consultation with relevant stakeholders, in particular, in the telecommunications sector – a system of mandatory data retention. That legislation has been approved in principle and is in development from today and will be introduced into Parliament later in the year.

Foreign Minister: Prime Minister, Attorney, there is no doubt that Australia faces an exceedingly challenging security environment and I have been, over the past few months, meeting with Foreign Ministers, Defence Ministers, heads of intelligence agencies in South East Asia, in the Middle East, in Europe, in the United States. Across the globe there has been an increasing concern about the issue of foreign fighters and the risk that it poses to the respective domestic security situations of a vast array of countries across the globe.

As you know, I have just returned from Ukraine and there is a military conflict in Ukraine but that conflict is now being characterised by the presence of foreign fighters and mercenaries in Ukraine. We know that in Syria and Iraq the conflicts there, exceedingly complex, are becoming a breeding ground for extremism and there are extremists fighting in Syria and in Iraq and that includes Australians. We also know that parts of Lybia are now under the control of al Qaeda. So, preventing Australian citizens from becoming foreign fighters in any of these conflicts or others that may emerge is now one of our highest national security priorities.

Along with other countries, we are deeply concerned that this domestic security challenge will mean that Australian citizens fighting in these conflicts overseas will return to this country as hardened, home-grown terrorists who may use their experience, the skills that they have gained, to carry out an attack in this country. I stress this is a concern of a number of countries around the globe. Australia is not immune from this. To put the threat in context, prior to the NATO led experience in Afghanistan, our intelligence agencies were aware of 30 people – there were 30 people of interest – Australian citizens who were in Afghanistan fighting against the interests of the west and most definitely becoming extremists. They were of interest to our intelligence agencies. 25 of them came back to Australia; two thirds of those were thereafter involved in terrorist activities. Five times that number are now of interest to our intelligence and security agencies, either already fighting overseas or planning to become involved. So this is a far greater challenge for us in sheer numbers. In my area of responsibility, the Australian Secret Intelligence Service – our overseas intelligence agency – we will be increasing their capability and their ability to more deeply engage with other overseas intelligence agencies so that there is a sharing of information, a much greater awareness of what is happening in other parts of the world that can impact on our domestic security situation.

I also have responsibility for passports. Currently the law enables me to cancel a passport or refuse to grant a passport or issue a passport upon application based on security grounds on information provided to me by the relevant intelligence agencies. We now propose to amend the legislation to give me the power to suspend a passport in circumstances where I have received an intelligence assessment, but we need the flexibility to be able to act quickly in order to prevent someone from going overseas to partake in fighting, to become a foreign fighter or coming back to Australia. We need the capability, the flexibility to be able to respond very quickly. These enhanced powers will enable us to take action where our intelligence agencies have advised us we must.

Question: Just a legal [inaudible] covered by these provisions is the definition of terrorist or terrorist group, that’s the one determined by the Australian Government and not some other government because the definition of the word terrorism is used depending on what side of the conflict you’re on. One man’s terrorist is another freedom fighter so to speak. So does it have to be covered by Australian law?

Prime Minister: I’ll ask George to elaborate, but essentially yes. These are Australian laws designed to cover Australians to ensure that we are adequately protected if possible amply protected against the threat of domestic terrorism arising from people coming back to this country who are now hardened terrorists because of the work that they’ve been doing in places like Syria and Iraq.

Attorney-General: As the Prime Minister says, Phil, these are Australian laws. There is a definition of terrorism in the Commonwealth Criminal Code, but then in the offence provisions, the offence provisions operate upon association with or other forms of engagements such as financing or facilitation of an organisation which engages in terrorist acts or promotes the doing of a terrorist act rather than promotes terrorism. So that’s seen to us to be a shortcoming in the legislation. So the definition of terrorism won’t be changed, but the offence provisions which are limited to terrorist acts or involvement in organisations that are promoting, or encouraging, or facilitating terrorist acts will be extended to organisations or individuals promoting of facilitating or encouraging or otherwise engaged in terrorism.

Question: Prime Minister, I have another legal question to the Senator if I may. You talked, Senator, about advocating, promoting and encouraging terrorism and often social media is used for those purposes and we’ve seen some horrific atrocities promoted through Twitter, retweeted multiple times and so on. Is that covered under this legislation? Is that the activity that you’re targeting?

Attorney-General: It is the intention that activity of that kind would be reached by the new provisions, it’s not reached at the moment.

Question: Prime Minister, in terms of countries that could be identified that might be housing terrorists, or there are people we would describe as terrorists in Afghanistan and Pakistan and countries like Yemen and a whole range of others. Now people might go there because they have relatives there, they might go there to work, they might be academics, they might be journalists. Is this not going to be extremely difficult to police?

Prime Minister: We will only designate places based on the advice of our security agencies and it will be obviously a defence to any prosecution that you were there for a perfectly legitimate reason. What we do want to be able to ensure though is that if we have people of the sort that have come to public attention recently, if we do have them coming back to Australia we are able effectively to charge, to prosecute, and to jail these people because some of the individuals who we’ve seen highlighted on the front pages of our newspapers in recent times, were they to come back to Australia with the attitudes that they’ve got and the capacities that they now have would clearly be a threat to our community.

Question: Prime Minister, on this issue, does this mean that everyone coming back from the designated area will be subject to arrest and charge and then have the onus of proof reversed?

Prime Minster: Obviously, we have people who are of interest to our security agencies and we want to ensure that we have all the tools that we need to keep our community safe given that these people of interest are coming back to our country. At the moment most of them would probably just melt straight back into the community notwithstanding the potential threat that they pose. Now, it is and it has been for quite a considerable time an offence to go overseas to engage in terrorist activity, but we want to make it easier to ensure that people who do go overseas and do engage in terrorist activity can be appropriately dealt with here in this country to prevent them from being a threat to our people.

Question: Prime Minister, what safeguards are there to ensure that innocent people don’t get caught up in this widened net you have? And are you absolutely sure that you’re not asking people to give up too many rights and liberties in order to protect our own rights and liberties?

Prime Minister: Well there are a whole range of safeguards, Lyndal. Obviously we need to get legislation through the Parliament and I am confident that while the Labor Party has traditionally offered bipartisan support in the security area, we will need to get them onside, we will need to liaise with them and with other members of the Parliament in order to get the legislation through. So democracy in the end is the most important safeguard when it comes to any of these things.

We also have the ordinary range of monitors, including as George has pointed out, the retained monitor. We’ve got the Inspector General of Intelligence and Security, we’ve got the Joint Standing Committee on Intelligence and Security. And then of course we’ve got vigorous and independent courts which will obviously exercise the usual diligent oversight of the Government’s administration of law.

So the important thing here is to give us the tools that we need to ensure that people who are a serious threat to our country are appropriately dealt with. That people who have demonstrated an ability and readiness to engage in horrific terrorist activity and who are stating an intention in many cases to engage in mass casualty terrorist activities can be suitably dealt with in this country because the last thing any responsible government ought to be relaxed and comfortable about is credible threats of a mass casualty terrorist event here at home.

Question: Prime Minister, this statement here talks about lowering the standards [inaudible]. Obviously there’s been discussions about reversing the onus of proof. Is that a minor point or are you actually willing to consult on where the burden of proof might ultimately fall on this given that the idea of reversing the onus of proof came up under the Howard government 12 years ago, the Coalition backbench didn’t like it and it was dropped. So is there any room for movement on where the burden of proof lies?

Prime Minister: Well again, I’ll ask George to elaborate, but we don’t want to subvert Australian justice. We don’t want to do that at all. The last thing any of us would choose to do is to defend our system by damaging our system. We don’t want to be people like that. We don’t want to put our freedoms at risk, we want to defend our freedoms. But what we are determined to do is to ensure that where people have been involved in terrorist activities it is much more readily possible to secure convictions than it currently is given the difficulty of getting evidence of exactly what might be happening overseas. I mean if you take the activities that we’ve seen on the internet recently, finding a witness to testify in court, yes I saw person X do atrocity Y, is not exactly going to be easy. Nevertheless, I don’t think anyone doubts that some of these people have been involved in activities which are simply unspeakable and people of that readiness and predilection do need to be very suitably and carefully monitored if they return to this country.

Attorney-General: Can I just strongly endorse what the Prime Minister has said. We’ve approached this and I in particular have approached this task with a very strong prejudice against expanding the powers of the state and with a very strong prejudice against winding back traditional rights and liberties. That after all is what Liberal governments believe in. But the overwhelming obligation of a government is to keep our community safe and in the face of specific intelligence that we see that causes us to believe that this is a real, not a notional or fanciful concern. What we’ve sought to do is craft laws which impede as little as possible on traditional rights and liberties while at the same time making law enforcement more effective in relation to those few people that we are worried about. As I said in my opening remarks, I think this will be a sparsely used provision. It will operate by the certification by the Foreign Minister of the particular locality as a prohibited locality and on the question of the onus of proof, then a person who may have travelled to that locality can raise the fact that they were there for an innocent, for example a humanitarian reason and they would in the ordinary way in which criminal defence works have an evidential onus to demonstrate that innocent ground was available to them. And might I finally say in relation to those people we saw on the internet proclaiming that they had done these horrific crimes, don’t forget that the best form of proof is an admission.

Question: Mr Abbott, you’re committing a lot of money to this set of initiatives. Where are you going to find that money and will it be offsetting savings? And secondly, you’ve announced that your changes to 18C are going. Were you motivated in that only by the need to make a gesture to get community cooperation from ethnic communities, or were you already concerned about those provisions and the divisiveness of them?

Prime Minister: Thanks, Michelle. Well, as I’ve said several times this afternoon, the first duty of government is to keep our community safe and the $630 million is very much based on the expert advice that we’ve had from our agency heads about what they need in order to appropriately staff their organisations and appropriately maintain the various posts that their organisations need to keep our community safe. So, we’re operating on the basis of expert advice, interrogated and invigilated, if you like, by the Department of Finance to ensure that there’s no try-on being attempted here. So, the money will come from the Budget. I know we’re under a lot of Budget pressure at the moment, but the community won’t thank us if we skimp unreasonably in the area of national security.

As for 18C, look, I’m a passionate supporter of free speech. I absolutely am a passionate supporter of free speech and if we were starting from scratch with Section 18C, we wouldn’t have words such as ‘offend’ and ‘insult’ in the legislation.  But we aren’t starting from scratch – we are dealing with the situation that we find ourselves in – and I want the communities of our country to be our friend, not our critic. I want to work with the communities of our country as ‘Team Australia’ here and as I said in my opening remarks, the Government’s perfectly reasonable under different circumstances attempt to amend Section 18C has become a complication that we just don’t need and we’re not going to proceed with.

Question: Prime Minister, you said I think in your opening remarks that the terrorist threat has not changed. Do you expect that that will continue to be the case? And, in terms of these broad range of measures that you’ve announced, how many of them and which ones can apply retrospectively, if you like, to fighters that are already overseas fighting in these conflicts and might seek to come back? What can you do about those people that are already there?

Prime Minister: I’ll ask George to deal with the legal issues. In terms of the overall terrorist threat, yes it hasn’t changed. It’s been at medium since September the 11th. I think we can say that there is heightened concern about terrorism and certainly we have rather significantly greater numbers of Australians who are being radicalised and militarised by the experience of working with terrorist organisations in Syria and Northern Iraq at this time.

Foreign Minister Bishop gave some statistics earlier – we had some 30 Australians engaged with the Taliban in Afghanistan; some 25 of them came back and two-thirds of those were subsequently involved in terrorist activity here in Australia. If we see anything like the same ratios in respect of people coming back from Syria and Iraq, the potential for terrorism in this country has substantially increased, the numbers of people who might potentially need to be closely monitored have substantially increased, and that’s why we do need this carefully judged, but proportionate increase in the resources available to our security and intelligence agencies.

George?

Attorney-General: Criminal laws operate prospectively, not retrospectively, and that will be the case with these laws. But we do want these laws in place so that they can deal with people who are overseas at the moment engaged in war-fighting, particularly in the Syria and Northern Iraq theatre, which is why we want them through the Parliament soon.

James?

Question: Just a couple of questions for you, Senator Brandis. First of all, if I did hear correctly, the data retention laws will come in as a third tranche, is that correct? And sorry, following on from that, who will bear the cost of retaining the data basically?

Prime Minister: Well, the data retention laws will come in, if you like, as the third tranche, if the agency powers legislation be regarded as the first tranche and the laws I’ve announced today are the second tranche. The question of the cost is something that the Government is currently in discussion with the telcos concerning.

Question: A question for the Foreign Minister, I wonder if you could go into more detail about the discussions you had with regional leaders on their concerns about the terrorist threat and could we see Jemaah Islamiyah and organisations like that resurge?

Foreign Minister: I’ve certainly had very detailed discussions with Minister Natalegawa, for example, from Indonesia for some time now about the increasing number of Indonesians who are being attracted to conflicts, particularly Syria and Iraq, and their fear – Indonesia’s fear – that they’ll be returning as radicalised extremists. You may note that Indonesia has recently prescribed IS as a terrorist organisation. We’re very much engaged in intelligence cooperation with Indonesia, sharing information. Their threat is similar to ours. We have a common interest in preventing citizens of our respective countries from taking part in these conflicts as extremists, and so there is very close cooperation.

But this is not just a matter for Australia and Indonesia. It’s an issue I’ve discussed with my counterparts from Malaysia, from the Philippines, in Lebanon, in Jordan, the United States, United Kingdom, the Netherlands, Ukraine. It’s an issue that is affecting nations across the world and so the level of cooperation that is needed, the information-sharing, the intelligence cooperation is a priority for us and for many other countries.

So, we’re not doing this in isolation. It’s part of a coordinated effort of like-minded countries who see this as a real and present threat to their domestic security environment.

Question: Thank you, Prime Minister. What was the issue of concern behind the review of the counter-terrorism coordinating [inaudible]?

Prime Minister: Well, Tom, we want to ensure that our agencies are working in the closest possible harmony with each other and this is where the experience of Operation Sovereign Borders has been very effective. We haven’t changed the way the Navy works, we haven’t changed the way the Customs and Border Protection services works, we haven’t changed the way ASIO and ASIS plug their people-smuggling intelligence into the system, we haven’t changed the way the AFP works; what we’ve done is we’ve put it into a single entity, if you like, which can coordinate and direct all of this. We’ve put, if you like, one mind and one will into all of our activities and that’s what we want to achieve, something like that in respect of counter-terrorism.

Julie’s just reminding me that the way the National Security Committee has worked in respect of MH17 has been focussed, coordinated, decisive – in a similar way to the operation of Operation Sovereign Borders. Given the disruption, given the dislocation that would flow from a mass-casualty terrorist event here in Australia, it is important that as far as is humanly possible, all of the relevant people are talking to all of the other relevant people and everyone knows what is essential to know in this very, very critical space.

Nick?

Question: Can I ask a question on another matter? Is that ok?

Prime Minister: Well, I don’t want to cut short this, but on the other hand I know you’re all busy. So, are there any further questions on the announcement that I’ve made with Julie and George?

Question: Prime Minister, you’ve said that you don’t want to see Australians fighting in other peoples’ wars. Is it illegal for Australians to fight for Israel in that conflict, and if not, how is that any different from Australians fighting for the Assad regime?

Prime Minister: Well, the Australians who are returning to Israel and serving in the Israeli Defence Force are invariably citizens of Israel as well as of Australia and there’s no problem with an Israeli citizen serving in the Israeli Defence Force. If there was a dual Australian/Egyptian citizen, for instance, there’d be no problem with that citizen serving in the Egyptian Defence Force and so on. What we’re talking about here – what we’re talking about here – are Australians going abroad to work with terrorist organisations and there is a world of difference between a terrorist organisation such as Al-Nusra or ISIL and the military of a duly constituted state.

Question: ASIO’s warned about lone wolf attacks and people who hadn’t necessarily trained overseas but who have become radicalised in their own bedroom. What do these measures do to stop the risk from those people?

Attorney-General: You’re right to identify lone wolf attacks as one of the most lethal forms of attack because, as you rightly say, there aren’t the associations with other individuals. That is why we have to ensure that the agencies have appropriate surveillance powers and the Government’s decisions in relation to data retention will go some way towards addressing that threat. But, I don’t hide from the fact that lone wolf attacks – because they’re not contextual, they don’t involve associations with others – are far and away the most difficult to identify and to interdict.

Question: Sorry, just one question on baby Gammy. Can I ask the Foreign Minister if she’s had a briefing on this issue and also the Attorney-General if he’s aware of any laws that have been broken in this case?

Prime Minister: Well, look, could I just offer this thought on baby Gammy? This is a tragic human situation. It’s an absolutely tragic human situation. I don’t think there’d be anyone in the country who wouldn’t be really pretty cut up about what’s happening here. There are no easy answers when it comes to government, when it comes to institutional arrangements. For me, the one shining light to come from this most unfortunate and deeply regrettable situation is there appears to have been an absolute outpouring of generosity towards baby Gammy and his mother. So, that’s the one thing that I would like to say redeems this otherwise terribly, terribly unfortunate situation.

Foreign Minister: Just in answer to your question, Nick. This tragic situation has arisen as a result of a commercial surrogacy arrangement. So, I’ve asked the Department of Foreign Affairs and Trade to work with the Department of Immigration and the Attorney-General’s Department to consider what response the Australian Government should provide. So, we’re looking at it from every angle in terms of Foreign Affairs, Immigration and the Attorney-General’s office.

Prime Minister: Thank you so much.

[ends]