Tuesday, 04 December 2018

Doorstop Media Conference



Subjects: Federal corruption body, Encryption Bill, Religious freedoms

ATTORNEY-GENERAL: Thanks, everyone, for gathering. We're good to go. I'll be brief, but it is the case that we've now reached a fundamental resolution on issues that were outstanding with respect to the Telecommunications Access Bill or, as it's become known, the Encryption Assistance Bill. This, I might just say before we get into anything that even looks remotely like politics, is a massive win for the Australian people.

I spent many years as a prosecutor, prosecuting matters that relied very often entirely on the type of telephone intercepts that were common in the early 2000s, of course, always based on a warrant. Those same types of offences now - serious criminal offences - homicides, terrorism, child sex offences, are being facilitated by serious criminal networks communicating on encrypted applications. We've been told by our law enforcement heads and by ASIO that this legislation was necessary not to give them an edge, but in their words, to give them a fighting chance against the most serious offenders, terrorists, child sex offenders, people who have committed homicide in various Australian jurisdictions.

At the beginning of this week, the situation that we faced was a proposal from the Opposition for an interim bill that would have removed state police completely from the system designed to assist us with encryption. They would have also narrowed the range of offences to only two categories of offence and they were insisting on a, in our observation, very slow process of authorisation - which three things, had they been removed from the bill, in our view, would have made the bill very substantially ineffective.

The agreement that we've reached is that state police are in the system; that the oversight process is reasonable and timely; and that the offences that the system can be applied to a suitably broad and will include not merely terrorism and Commonwealth child sex offences, but serious offences that occur right across the state and Commonwealth statute books, including serious drug, gun, homicide, and child sex offences. So the position has moved very substantially from that which we faced as a Government at the beginning of the week.

I am incredibly pleased for the Australian people that it appears that we'll have the passage of this very important bill finalised and through both Houses of Parliament by the end of the week. We've been told repetitively by our security agencies that Christmas is a very difficult time for law enforcement, so it is very pleasing that these additional powers, which are very necessary when 95 per cent of the targets of organisations like ASIO who mean to do us harm through terrorist events are using encrypted applications.

JOURNALIST: Attorney General, the PJCIS is going to continue scrutinising the legislation, according to Labor, next year. What do you think the likelihood is of the Government agreeing to amendments to its own legislation after it’s passed?

ATTORNEY-GENERAL: Well, what I'm concerned with at the moment is having the legislation pass through both Houses of Parliament. There's a statutory review embedded in the act. We've also agreed to have the Parliamentary Joint Committee on Intelligence and Security review it in its first 12 months. These are not unusual things. It's frankly not unusual for pieces of legislation of this level of complexity to be amended down the track, whether that's 12 or 18 months. But what our intelligence agencies said to us was that the people that they are trying, through lawful, judicially authorised warrants, surveil in terms of their communications, are now to the tune of 95 per cent using encrypted communications. So, whereas 10 or 15 years ago, a warrant meant something - it meant we could actually intercept the communications of people who are planning terrorist events. Now the warrant is meaningless unless we get the assistance of the tech companies to assist our law enforcement agencies with encrypted product.

So this is a massive step forward for the Australian people in ensuring that our outstanding security and intelligence agencies are actually, in their words, back in the game.

JOURNALIST: In the original bill, there was quite a lot of authorities - you mentioned state police - have any other authorities been carved out, such as ICACs or those …

ATTORNEY-GENERAL: State corruption bodies, so ICACs have been removed.

JOURNALIST: Removed from the bill?

ATTORNEY-GENERAL: …every state- otherwise, as I said, the position we were facing - and Labor's position - was to not include and have some form of half or third or interim bill to not include Victoria Police or West Australian Police or New South Wales Police or TASPOL; all those agencies will now benefit. And as I said in Parliament yesterday, the view that the Commonwealth Government, the Liberal-National Government has taken, is that a life saved by the federal police is no different from a life saved by the state police.

JOURNALIST: Are there any other measures the Government would like to see included when Parliament does return in the new year?

ATTORNEY-GENERAL: I am very pleased with the outcome of this bill. It was always critical to us that we resist pushes to remove state police; that we resist pushes to trim down the list of offences to which the regime would apply to such a narrow range that the bill became ineffective, and it was always important to resist having oversight mechanisms and approval mechanisms for these notices to tech companies that were so cumbersome that it made them worthless. We've resisted all these three things. I am delighted with the product that is entering Parliament.

JOURNALIST: The deputy chair of the committee has accused you guys of politicising the bill, and he stood up in Parliament today and talked about that, and he said you were trying to get cheap headlines and that sort of thing and break bipartisanship over national security, which could exploited by Australian enemies. What's your response to that?

ATTORNEY-GENERAL: Well look, I've always negotiated with my counterpart, the Shadow AG, and I thank him for his involvement with me on recent negotiations in good faith. My interest, the Prime Minister's interest, is the foremost goal of government, which is to protect the Australian people from terrorists, from paedophiles, from murderers. This legislation does that, and negotiations are sometimes robust, but that is because there is so much at stake.

JOURNALIST: With those extra levels of oversight that you've put in these changes - were they worthwhile, do you think?

ATTORNEY-GENERAL: Well, I think that they can be added in without detracting from the speed with which these notices can be obtained. So my view is that they add something to the bill, but they don't cause a decrease in the effectiveness of the bill.

But again, at the beginning of the week we were facing the proposition from Labor of an interim bill with no state police, with unbelievably clunky approval mechanisms and with a tiny range of offences to which the scheme would be applied. That bill would have been not worth passing.

JOURNALIST: What's the threshold for a serious offence and can you clarify what you said in Question Time about the AFP's evidence having been previously circulated and not leaked from the committee? Where was that previous circulated?

ATTORNEY-GENERAL: So, the maximum offence trigger is now three years, maximum for the offences. All offences of terrorism and child sex offences are in, irrespective of the maximum that they might carry. That represents the three year marker change, part of the negotiations with the Opposition. I don't know how I can be any more clear about what I said in Parliament in Question Time. I enquired with the Commissioner of the AFP. He said the information in the document wasn't sensitive and wasn't secure information. I also availed myself of an inquiry into the relative distribution of that document before it went to the committee and became evidence and any one…

JOURNALIST: Where was it distributed?

ATTORNEY-GENERAL: Well, I'm not going to get into the ins and outs of who received what, when. But-

JOURNALIST: Well, how can it be …

ATTORNEY-GENERAL: …well, because any distribution at any level before the matter got sent to the committee and became evidence of the committee, if you read the offence, means that an offence couldn't have been committed by on-distribution. It's as simple as that. And look, if the Shadow Attorney-General takes a different view and he's so confident in that, let him refer the matter. But I'm not going to refer it because there's nothing to refer.

JOURNALIST: Just on the technical capability notice issue, because one of the key concerns is that businesses still - a lot of businesses and the Ai Group all sort of disagreed with this bill and they sort of still argue that it breaks encryption. One of the things has been that there's been some development over having more oversight over technical capability notices.

ATTORNEY-GENERAL: That's correct.

JOURNALIST: Can you just explain what will constitute a dispute under that and would experts be involved, or?

ATTORNEY-GENERAL: Sure. So, the bill specifically says that a government cannot request and cannot compel any company of any type to build something which would be a systemic weakness. We've agreed to define systemic weakness and we've agreed that where there is dispute about whether or not what's being requested or compelled by notice may or may not be a systemic weakness, that there will be a panel of two people - one who's expert in the area, the other a retired judge - who will in effect adjudicate that disagreement and then report to the Attorney-General.

So not only is it a double level protection, it's actually a triple level protection to ensure very clearly no one can be compelled or requested to build a systemic weakness.

JOURNALIST: Can you provide some examples around what may fall into that weakness and what won't?

ATTORNEY-GENERAL: It probably won't surprise you to know that my instructions from our intelligence agencies is not give examples of the types of things that might or might not be requested. But any company who thought that they were being asked to do anything that in their view even looked like building a systemic weakness can go to this panel situation of dispute, have an expert and a retired judge adjudicate on that issue and provide that adjudication to government. That is a very, very safe, very, very fair system. I’d add that it represents higher levels of protection than any other comparative type of legislation anywhere in the world.

JOURNALIST: Just on the so called Gay Kids Bill quickly, are you confident now of reaching a deal with Labor on that, and will that involve giving ground to Labor?

ATTORNEY-GENERAL: The Prime Minister wrote to the Leader of the Opposition today and I've obviously seen both that letter and the response. I can't give you a definitive prediction as to what will happen, but it seems to me that the door is now open for a resolution. What we have said from the beginning is that we want to remove s 38(3) in its entirety. We want to end any ability of schools to expel children based on gender or sexual identity, but we want a very modest insertion into an existing provision of the Act which merely draws the attention of the Human Rights Commission to the question, if they're deciding on the reasonableness of a school rule, they would need to draw their attention to the fact that the school was religious and then ask themselves whether the school took into account the best interests of the child. That's all we want. If that could be agreed, this thing could move through literally tonight.

JOURNALIST: Do you have reason to believe Labor will …..

ATTORNEY-GENERAL: Well, I think you would have all read the response from the Leader of the Opposition. It seemed to me that has left the door open, which I think is a very good thing. I mean, we all want the right balance here. We think we've offered a very balanced approach and I hope that those negotiations can reach a resolution.

JOURNALIST: And just to confirm, the Government's position won't move from that - you must have those two amendments included in that Labor bill to support it?

ATTORNEY-GENERAL: Well, one of those amendments, keep in mind, Labor has effectively inserted into their Second Reading speech in the Senate, so it seems that that's already agreed. The other amendment around school rules, we have put from the very early stages of the negotiation and we think that that's absolutely critical. So yes, that is a very important point for us.

Okay, one more.

JOURNALIST: The timetable on encryption, Minister Porter, has been dictated Christmas and New Year. Christmas is now three weeks away. Is the legislation really going to be sufficiently operational by then for ASIO, for instance, to actually request a technical capability notice?

ATTORNEY-GENERAL: ASIO have been dealing with encrypted communications for at least a decade now, and of course the reason that they and Victoria Police and New South Police and the AFP have come to us is because 95 to 98 per cent of their targets are using these applications, so obviously they have seen individualised situations where a technical assistance notice would have been of great worth. As soon as this bill is proclaimed, I would expect that you would start seeing those applied for.

JOURNALIST: Isn’t there a 28 day sort of …

ATTORNEY-GENERAL: That's with the capability notices.

JOURNALIST: Can we just go to systemic weakness one more. This is something that Labor is arguing they brought in, this definition of systemic weakness. Why did you give ground on this and can you take us through the definition of systemic weakness?

ATTORNEY-GENERAL: Well, we've always maintained that you could never have a bill and the bill could never allow for the development of systemic weakness. That is a very complicated definition - I won't even try and recite it to you here. And in fact, the final drafting is being done with Labor and by way of negotiation on that at the moment. But it is, as it sounds, it is a weakness that would affect all applications on all devices at any given single point in time. That can never happen under this bill. It could never happen. It was always the case that that was outlawed, but through the committee process - and this wasn't a direct negotiation between myself or the Shadow Attorney-General – it was through the committee process they determined that it was wise to have a thoroughgoing definition of systemic weakness.

But the point is that even with that thorough definition, we acknowledge that there are always going to be disputes as to whether or not a request may or may not meet that definition and we are pushing that dispute to experts and to former judicial officers so that that dispute can be resolved absolutely, fairly, and independently.

Thanks, everyone.

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