Monday, 03 December 2018

ABC Radio Canberra – AM with Sabra Lane



Subjects: Malcolm Turnbull's comments, Encryption Bill, Religious freedoms

SABRA LANE: Joining us now to discuss the encryption bill among other things is the Federal Attorney-General Christian Porter, good morning and welcome to AM.

ATTORNEY-GENERAL: Good morning to you Sabra.

SABRA LANE: The former prime minister's made a rather spectacular intervention this morning effectively saying that Liberal MPs and members should defy a plan for the party machine to install Craig Kelly in his seat. How helpful is that?

ATTORNEY-GENERAL: Well not overly helpful, but the only thing that makes it more unhelpful is me talking about it for too long. As you've noted in your introduction we have a policy issue of the most serious quality before parliament this week and that's what I'm focused on and I'm not really all that interested in getting into personalities, even personalities as strong as the ones that you've been covering this morning.

SABRA LANE: Mr Turnbull says it was his plan to have a federal election on 2nd March next year to allow the New South Wales government a clean run in having its own election later that month. He says that there is brand damage to the Liberal Party because of his removal and that New South Wales should have its best chance. What do you think of the logic?

ATTORNEY-GENERAL: Well again, he's sort of acting as a commentator and you are a commentator. I'm not. I mean the reason that I'm in the studio this morning is because in July 2017 there were plans to blow up an Etihad flight from Sydney to Abu Dhabi and they remained undetected for four months. Eventually that plot was foiled but those plans remained undetected for four months because the terrorists were using an encrypted messaging application. We've got a bill before the Parliament that would allow appropriate assistance to government law enforcement agencies in those types of circumstances. There is no more important issue in front of Parliament or the Australian people and the issues that you've just raised, I've got to say, just are utterly trivial and insignificant compared to what we're dealing with in a policy sense this week.

SABRA LANE: Alright, onto the encryption issue. That example that you just raised, it was the Israeli security forces that picked it up, Australia didn't.

ATTORNEY-GENERAL: Well one of the reasons why it is very, very difficult to pick up plots like that is because what the AFP, what state police, what ASIO tell us is that right up in the high 90 percentile is the number of encrypted application use by terrorists in plotting terrorist events and serious organised crime. So, you're quite correct these are very, very difficult things to detect. What people have spoken about for years is terrorists 'going dark' and what the Victorian Police Commissioner said after those terrible events that we witnessed in Bourke Street is forget them going dark, they have gone dark. What the AFP Commissioner says is that without this legislation we don't have a fighting chance. He's not talking about giving us an edge over the people who plot and plan to do us harm. He's simply talking about us having a fighting chance to prevent these things.

SABRA LANE: Did you give an indication to members of the parliamentary security and intelligence committee or to Labor that the Government was prepared to allow a compromise bill to go through this week enabling an interim bill to be passed?

ATTORNEY-GENERAL: Well I've negotiated successfully with my counterpart, the Shadow Attorney-General one large piece of national security legislation in the counter (espionage) and foreign interference bills. I've been acting as Home Affairs minister all of last week. What I can say is that no one made a phone call to me during that period of time and clearly negotiations were going on. Then what happened was…

SABRA LANE: But to the point…

ATTORNEY-GENERAL: Just hold on…then what happened was a petulant letter was sent by Shadow Attorney-General which I didn't get to read until it had already been reported on an online news site. So negotiations were on track and then they just unilaterally stopped. In an issue as important as this I cannot understand why those negotiations stopped.

SABRA LANE: I'm sorry, Attorney-General to the point of the question. Did you give an indication to members of that committee or to Labor that there would be- that the Government was happy for an interim bill to pass?

ATTORNEY-GENERAL: Well, I've not given any commitments to committee members or the committee. What we have been committed to…

SABRA LANE: …Labor says it has proof that you were willing to compromise and it won't release that document because of an issue with privilege.

ATTORNEY-GENERAL: Well I can't say to you that I know what they are talking about. What we have always said is that we are willing to negotiate these matters and we are still willing to negotiate these matters and then as I noted to you a letter was leaked out to the media and reported before it even hit my desk saying negotiations are off. Now, the way these things actually work Sabra, is that people pick up the phone if they want to negotiate and they talk. And so the process that I went through with the Shadow Attorney-General on espionage and foreign interference was talking three or four times a day. And I can't explain to you why on an issue as important to national security as this, that path was taken by Labor which was just to put a guillotine down on negotiation, discussion and consultation between the two of us.

SABRA LANE: Well, Mark Dreyfus says that this is a bill in its current form, is not fit to pass parliament, it would make Australia a less safe place. How do you respond to that?

ATTORNEY-GENERAL: Well there are two issues that have arisen in terms of Labor's position on the bill. One is that they don't want to have the powers to require assistance with encryption allocated also to state police. So that's issue number one.

SABRA LANE: And they've also said that they're happy to talk with the Government about that to see if there can be some information sharing between the…

ATTORNEY-GENERAL: Well pick up the phone. I mean if they're happy to talk why write a letter saying negotiations are off and leak that to the newspaper on the most serious and urgent matter of national security the nation has faced in the last 18 months? I mean I just don't get it. The other issue is the issue about the term, designated communications provider, and we maintain that it has to be the case that these assistants notices apply to the tech companies who maintain and manage specifically encrypted messaging services like WhatsApp and Wickr and others, including Telegram which was what the Etihad plotters were using. These two issues are critical to the bill. I mean these two issues Labor want to have the Government give enormous ground on in a way that makes the bill ineffective. Can I give you this example…

SABRA LANE: It's not just Labor, it's the Australian Industry Group, the Australian Defence exporters, tech companies, Law Council, international experts, global corporations according to Mark Dreyfus that are saying that if this bill is passed in its current form would make Australia less safe.

ATTORNEY-GENERAL: No, well that's - I mean that is…

SABRA LANE: They're all wrong?

ATTORNEY-GENERAL: No, well that is not a correct summary. If there was one group, Senetas, who've made a bizarre submission, if I might say so, that somehow this would make the country less safe. Now other groups have indicated some concerns in some areas and the bill that we are going to put into Parliament this week has adopted many of the rational and reasonable suggestions that came through the committee and that were put by Labor. But a line has to be drawn at a point where suggestions would render the bill completely ineffective. The idea for instance, Sabra, that we would be able to use this power to have assistance with encrypted applications to investigate online child sex offences, but deny the power to state police to investigate actual physical child sex offences, paedophile rings and the like, is utterly absurd. And that's where we have drawn a line. And if this matter needs to be debated by Parliament today and Parliament has to make a decision whether it's on the side of tech companies who are modestly inconvenienced or on the side of our intelligence agencies who tell us they must have this ability if they are to protect us from paedophiles, from terrorist and serious and organised crime, then that's the debate we need to have.

SABRA LANE: So you're willing to put this into Parliament without Labor- with Labor saying we won't support it. Maybe the crossbench siding with them?

ATTORNEY-GENERAL: Exactly. I mean if Labor after this having been out an exposure draft since August have been unable to reach a final determination on these issues in December before Christmas, noting that we are told by our agencies that Christmas is the most dangerous period of the year for the types of things that we are trying to prevent. If negotiations have been pulled by Labor then we have to negotiate with the crossbench and we'll do that round a bill that we introduced this morning.

SABRA LANE: Will the Government present its own religious freedoms bill to Parliament or will you try to amend Labor's Bill.

ATTORNEY-GENERAL: We've circulated three amendments in the Senate on the Labor bill which is as good a way of trying to achieve the outcome as any. But this is…

SABRA LANE: ….but there'll be no Government bill on this I mean this is an issue…

ATTORNEY-GENERAL: Well the Government bill looks like the Labor bill with the amendment we've suggested in the Senate. So they're one in the same thing in effect. I mean what we have said is that, yes, we want to remove Section 38(3) and remove all the exemptions that allow presently discrimination against kids in schools based on gender identity and the like. But we also think there should be some very modest addition to the Act that protects religious schools in their ability to maintain school rules consistent with their faith. And the fact is that the schools tell us that if they do not have that amendment they have no confidence that they could have a school rule as simple in a religious school as requiring kids to go to chapel once a week. So we think that's a reasonable request. That amendment is before the Senate and we hope that it will find favour and we're negotiating hard with the crossbench on that amendment.

SABRA LANE: Attorney-General Christian Porter, thank you for joining AM this morning.