Monday, 03 December 2018

3AW – Mornings with Neil Mitchell



Subjects:  Encryption Bill

NEIL MITCHELL: You would hope politicians would agree that they work for us regardless of the side of politics when it comes to national security, when it comes to our safety.  But that is not what's happening. There's this debate, argument, dispute going on about the encrypting legislation. That's the rights of law enforcement agencies like ASIO and Federal Police to go through these encrypted apps like WhatsApp. Now, I use WhatsApp myself. I use it several times a week. I get a lot of information from sources who don't want to be identified. But they wouldn't be able to access mine unless I was suspected of committing a major crime. Anyway, we'll have it explained. I spoke earlier this morning, because he's in meetings now, to the man who's in charge of the changes, the Attorney-General Christian Porter. The problem is - the problem is this: he's drawn up-well, he and the Government have drawn up this list of changes. They want - they say it will make Australia safer and the Opposition won't agree to them. So, they should be walking through the House of Representatives today. They won't be, they won't be. It's turned into a political fight which is obscene. I spoke to Christian Porter earlier.

ATTORNEY-GENERAL: Good morning, how are you?

NEIL MITCHELL: Is there really no hope that you lot with Labor can't put aside petty politics and worry about national security? This is bizarre that we're going through this situation.

ATTORNEY-GENERAL: Well, I tend to agree with you, I mean, we were negotiating in good faith with Labor and then I've read a copy of a letter on a newspaper website which then later arrived on my desk saying negotiations were off. So, I've been acting Home Affairs Minister over the course of last week. I've been through a negotiation on a serious national security matter with the shadow Attorney-General; involved talking three or four times a day and I just got a unilateral letter saying negotiations are off - no phone call, no conversation and when the nation's security is at stake, that is not good enough.

NEIL MITCHELL: …well you're being accused of compromising national security. What's your answer to that?

ATTORNEY-GENERAL: Well, we're trying to affect a solution to the major national security problem that we face and that is the fact that people who mean to do us enormous harm are using encrypted applications which we can't read.

NEIL MITCHELL: Well, let's go back a step. How do you deal with that? What do you want? What do you want to do here?

ATTORNEY-GENERAL: Well, for your listeners, it's relatively simple. So what our agencies tell us is that, say for instance, 95 per cent of ASIO's most dangerous counter-terrorism targets actively use encrypted messages to conceal their communications, we need to be able to have technical assistance, so that where there is a warrant, which is approved due to all judicial and proper process, we can actually execute on that warrant. So that is essentially the issue…

NEIL MITCHELL: Sorry, just explain that. That means if you want to get into the secret areas, then you need to go to court to get approval from the court. Correct?

ATTORNEY-GENERAL: Yeah. Absolutely. Just…

NEIL MITCHELL: So you're not going to get into mine?

ATTORNEY-GENERAL: Well, it depends what you do and I'm sure that you aren't planning to promote terrorism or have a terrorism plot but…

NEIL MITCHELL: Well, no, no, but there's probably a lot of stuff in my encrypted app that you and the Government would like to see and the Opposition, for that matter, because sources come to me and give me things in this method.

ATTORNEY-GENERAL: Well, nothing about the fact that we would need to obtain a judicial warrant based on all the standards that there's a very serious criminal offence going to be conducted or in the process of being conducted changes. What this is, is a requirement that tech companies could receive what we call an assistance notice or a capability assistance notice. And by those notices, they would be required pursuant to a warrant, to give us assistance in terms of going into the particular communication, the subject of the warrant. So, it's as simple as that. And the problem that has arisen is that, if I could put it in this summary way; the Labor Party does not want a scheme to apply both to ASIO and the Australian Federal Police equally to state police forces.

NEIL MITCHELL: So, they want it with ASIO and AFP but not the state force. Is that right?

ATTORNEY-GENERAL: Correct, and that would lead to the utterly ridiculous situation, for instance, where the AFP could investigate an online child sex offence using this notice system but a state police force could not investigate a paedophile ring actually committing physical offences against children using this notice regime.  Now that is absurd.

NEIL MITCHELL: Our own police in Victoria have said it's wrong. It's absurd. They do need that sort of access. What's the reason behind it?

ATTORNEY-GENERAL: I can't explain to you why Labor has taken the position about state police forces. I've been both a state and a federal attorney-general now. Our state police forces are utterly excellent as is our Federal Police force. They both investigate the most serious crimes including drug conspiracies, including paedophile rings, serious and organised gang crime, murders. The idea that you acknowledge that this capability is utterly necessary but want to give it only to one police force in Australia and not the other police forces dealing with equally important, grave, and potentially deadly scenarios is just beyond my comprehension.

NEIL MITCHELL: The phrase they told me is 'going dark', and our own Chief Commissioner has said here, not only are they going dark, they've gone dark. Terrorists, in particular, are using encrypted apps, encrypted techniques to organise potential terror attacks. So it's an - is that the key to it? I mean, is that the reason for it? Why is it so important?

ATTORNEY-GENERAL: Well, I can't put it any better than he did. I mean, as we said, the Etihad Airways plot from July 2017 went undetected for four months because the plotters were using encrypted applications. Obviously, the Bourke Street matter has occurred and will be the subject of thorough review. However, what we do know is that in attacks like that and others, the perpetrators very often - and in fact far more often than not - engage in encrypted communications practices. So even if we have a warrant over their phone or their device or on their person, it becomes very difficult, in fact, near impossible, for us at the moment to actually find out what they are saying to each other, which in this case was the types of planning of attacks with respect to Etihad. Now, that plane could have come out of the sky, hundreds of lives lost; and that was being plotted on an encrypted application. And we now agree, Labor and the Government, that you need this type of legislation.  But they cannot agree to allow all the appropriate police forces in Australia to have this type of legislation.

NEIL MITCHELL: So as of now, can people of ill repute use those apps without being accessed?

ATTORNEY-GENERAL: Yes, because we can't access them.


ATTORNEY-GENERAL: We can't technically- well-

NEIL MITCHELL: You can technically but not illegally?

ATTORNEY-GENERAL: Well, we can't technically. I mean, legally, we can. So we get a warrant - if there's a person where we can convince a judge that we need to be able to look into their communications because we have a reasonable suspicion that they are planning or imminently about to undertake a terrorist attack, then we can get a warrant from a judge to intercept their communications. If they are communicating just on voice-to-voice telephone, then we have no problems getting into that. If they are using Wickr or WhatsApp, we are finding it incredibly difficult - and in many circumstances completely impossible - to actually execute on the warrant. All this legislation does is allow us and our investigative agencies like ASIO and the AFP the power to require the assistance of the tech service company providers for us to execute on the warrant. It's that simple.


ATTORNEY-GENERAL: Some IT experts are saying it won't work; that encryption will effectively wound back and be easier to hack. What's your answer to that?

ATTORNEY-GENERAL: Well, it's just- I mean, it is nonsense. I saw one of the submissions that said that and it really was- it smacked of a tech company not wanting to be modestly inconvenienced by something as important as national security, if I'm being frank about it.

NEIL MITCHELL: We keep saying how important national security is. What about we take politics out of it? You and the shadow Attorney-General lock yourselves in a room and sort it out…


NEIL MITCHELL: …and stay in that room until you sort it out.

ATTORNEY-GENERAL: I'd love to. The door is open.

NEIL MITCHELL: Really? You're happy to meet him any time?

ATTORNEY-GENERAL: Of course. But what I got was a letter, which had already been reported in the newspapers, saying negotiations were off. And I have gone through the process of negotiating complicated legislation like this - it takes numerous phone calls over the course of numerous days. If they are unwilling to do that, then we will introduce the legislation, I think, it will be as early as tomorrow, and we will go to the crossbench to seek their support for this legislation because what the intelligence agencies tell us is that Christmas is the most dangerous period. These laws need to be in place before then.

NEIL MITCHELL: Thank you for your time. One issue that is political - you going to have an early election do you think?


NEIL MITCHELL: …Malcolm Turnbull wants an early election.

ATTORNEY-GENERAL: Yep. You'll see-

NEIL MITCHELL: ….Malcolm Turnbull.

ATTORNEY-GENERAL: Well, he is commentating. You are a commentator and I might avoid that and just get on with the job of trying to make Australians safer.

NEIL MITCHELL: Well, I guess the one point of it, though, is with Craig Kelly, the MP, it could lead to a numbers problem for you.

ATTORNEY-GENERAL: Well, look, again-

NEIL MITCHELL: …in getting this legislation through.

ATTORNEY-GENERAL: These are matters for commentators. My job is to try and get legislation to protect the Australian people through Parliament and that will absorb my entire week.

NEIL MITCHELL: And if I can get Mr Dreyfus to turn up at your office, you'll go in a room, lock the door, and sort it out?

ATTORNEY-GENERAL: Well, Mark and I generally get along well. We've negotiated the full rewrite of Australia's national security offences - espionage, foreign interference and foreign influence - which is why I find it rather perplexing that he took the unilateral decision to close down negotiations in a letter that was leaked to the media.

NEIL MITCHELL: And you can see this will irritate the public because they're saying they're - again, they're putting politics ahead of our security…..

ATTORNEY-GENERAL: …well, it irritates me. I'm sure it irritates the public, but ultimately, if Labor don't want to negotiate on this, then we'll negotiate with the crossbench. And ultimately, we just need to find a way to secure the passage of this legislation; and the legislation that we will introduce tomorrow adopts many of the suggestions that Labor members put during the committee process, which are ultimately reasonable. But we can't adopt a suggestion that says that this power is utterly necessary, but it should be only given to the AFP and not to VICPOL or West Australian Police Service or New South Wales Police who investigate murders, who investigate paedophile rings, who investigate gang crime. And the problem is that all of these offences tend to converge, so it's not neat or simple - terrorists don't just commit offences according to a narrow definition in the criminal code. They're often deeply involved in organised crime and a whole other range of matters, which is what actually puts us on to the fact that they're planning terrorist events in the first place.

NEIL MITCHELL: Thank you very much for your time.

ATTORNEY-GENERAL: Thank you. Cheers.

NEIL MITCHELL: In our Canberra studio, the Attorney-General Christian Porter.