Thursday, 08 February 2018

ABC AM – With Sabra Lane



Subjects: Foreign interference laws; MP citizenship

SABRA LANE: The Federal Government is proposing to water down its foreign interference Bills, after Labor threatened to torpedo the laws. The Opposition argued the legislation wasn't offering enough protection to journalists. The Government is this morning saying it's prepared to make some changes.

Joining us now is the new Attorney-General, Christian Porter.


SABRA LANE: Morning, welcome. Many companies warned that this Bill, as previously proposed, could penalise journalists up to 15 years in jail for simply receiving or handling classified information, not even publishing it. Will you water that down now?

ATTORNEY-GENERAL: Well, that assessment of the way that the law would operate is not actually correct, and that's not to say that some of the critiques raised by journalists and others don't need to be taken seriously and addressed, which is what we're doing.

But for instance, the Shadow Attorney-General, Mark Dreyfus, said that with respect to that recent ABC filing cabinets matter that we're all very familiar with, he said, and these are his words: the person who bought the filing cabinet not knowing what was in it would be committing a criminal offence. Now, that is just wrong. That is wrong. However, there are some issues that we think can be improved in the drafting of this Bill, and I've given instructions to improve those, and that's underway.

SABRA LANE: Okay. So what exactly are you looking to do?

ATTORNEY-GENERAL: What I'm looking to do is to more tightly define the two trigger circumstances that would apply to Commonwealth officers who are breaching the law, and those trigger circumstances are a definition of inherently dangerous documents and a definition of conduct likely or that does cause harm to Australia's national interests. And we've given instructions to separate out the offence that would apply to non-Commonwealth officers – so journalists, lobbyists, academics – and strengthen the defence for journalists. So we would remove any requirement that reporting be ‘fair and accurate', but rather if a journalist reported something that they reasonably believed was a report in the public interest, then they would have a very strong, broad defence.

SABRA LANE: Defence, now. Now, media companies and journalists lobbied for these changes. Have you subsequently spoken to the key groups that you've been dealing with to let them know that these are the changes you're proposing, and are they happy with them?

ATTORNEY-GENERAL: Yeah. Not all of them. In the media, as you know, there's quite a few people who consider themselves key groups, so I'm working through them and I want to do this in a collaborative way. But what the Government and what the PM and I discussed was that there can't be, in this legislation, a blanket exemption for any category of person; lawyers, journalists, or whoever they might be. I think the reasonable expectation of the Australian public is that where conduct truly endangers the national interest, or indeed lives, that has to be appropriately criminalised. And that's what this legislation does, and this is the ninth of nine tranches of legislation in the national security area that have come into being. They've all gone through this committee-based process, and on my last count, those nine tranches of legislation have been subject to 273 amendments that the Government's drafted. So, refining and improving is not at all an unusual process.

SABRA LANE: You might need to make further modifications, and I understand some of these changes that you're making now are also stem from the Prime Minister's own concerns that the drafting of the original Bill didn't match what your intention was. Is that right?

ATTORNEY-GENERAL: Well, I think that the drafting created a lack of certainty and clarity in some areas, which caused people to submit or believe that its outcome and operation was different from what it would actually legally be, and that's our responsibility to ensure that there's that clarity. And since taking this portfolio, I've worked very closely with and have many submissions from the Prime Minister about his views as to the operation of the laws. But Malcolm Turnbull, as leader of this Government, has presided over the single largest change and reform and modernisation to our national security laws.
And I think it was telling that when you listen to, say, for instance, the Deputy Commissioner of the AFP talking about the Etihad Airways near-disaster, so, where we prevented a terrorist attack on an airline full of Australians, he said that in large part, the ability to detect and prosecute was due to the modernisation of the laws that this Government has undertaken. So laws of this nature are very, very important to our national security, and we've had ASIO and their Deputy Commissioner say we're living in a time of unprecedented challenge in terms of espionage and domestic terrorism.

SABRA LANE: Sure, but you've had people like Brett Walker, the former independent monitor of Australia's national security legislation. He says that Australia already has adequate counter-espionage laws, and these are just over-reach.

ATTORNEY-GENERAL: Well, we would disagree with that view. These espionage laws that we're updating haven't been updated effectively since the 1970s. And as you and I both know it was an incredibly different world in those times. Technology was different, and the ability now with espionage to carry a mobile phone and thereby make copies or record documents is elevated to a level well beyond what it was 30, 40 years ago when this legislation was created.

SABRA LANE: Alright. What about whistle-blowers? What happens in the example of a government worker witnessing misconduct in a theatre of war, for example, who sees someone passing false information up the chain of command; that worker gathers evidence about misconduct, but in fact is found out by a boss and reported for an offence before they're able to blow the whistle. This example was used by the New York Times recently. Would they be charged under the Government's bill?

ATTORNEY-GENERAL: Well, that's a very general set of circumstances, but my answer would be that the Public Interest Disclosure Act, which is operated very effectively in the Commonwealth jurisdiction for many years, enables great protections to people who see wrongdoing or criminality or unlawfulness during the course of their employment as a Commonwealth officer, and there are channels and ways in which they can go about unveiling that wrongdoing. This legislation also provides defences for that type of proper conduct.

SABRA LANE: OK. On to the Susan Lamb case, she gave a very tearful explanation yesterday on why she hasn't been able to secure a key document. She was abandoned by her mother when she was

ATTORNEY-GENERAL: Well, I mean, it's not moved the law which is what we understand it to be based on the High Court decision. I think it moved all of us to hear and have Susan share that experience as she did. I mean, no one could be more empathetic for that set of circumstances. And equally though, Fiona Nash had a not dissimilar set of circumstances where some of her difficulties in renouncing citizenship were due to the fact that she had a troubled and estranged relationship with her father. But the two points are that this is an issue about what the law is, and in the previous, now well known, High Court decision, our view, the Government's view about what the High Court said is this: they said that there is a reasonable steps test, if you like, but that applies specifically and is activated only in circumstances where the foreign government makes it impossible or near impossible to announce. That is not the Lamb set of circumstances or the Nash set of circumstances, so we can't change the position at law, no matter how empathetic we are.

SABRA LANE: Will you use your numbers today to refer this case to the High Court?

ATTORNEY-GENERAL: Well, I've said previously this should be referred by Susan, as difficult as her situation is, or more properly, by Bill Shorten as the leader of that party. Because others in very similar circumstances have referred themselves, or have, in consultation with the leader of their party, had their referral occur. And that's what should happen here. This shouldn't come down to a matter of partisanship. But in any event, the Gallagher decision is pending, and if that view of the law that I've expressed is correct, soon that will be absolutely beyond any reasonable doubt.

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

ATTORNEY-GENERAL: Thank you Sabra.