Tuesday, 04 December 2018

Radio National – RN Drive with Patricia Karvelas



Subjects: Encryption Bill, Religious freedoms, NEG

PATRICIA KARVELAS: The Federal Government has scored a major win today, securing Labor's support to pass controversial national security legislation. The bill gives police and security agencies the power to access encrypted communications. The Government says 95 per cent of people being watched by domestic spy agencies use encrypted messaging. But the bill has been criticised by civil liberties organisations and technology experts as over reach.

The Attorney-General Christian Porter negotiated Labor's agreement and he's with me in the studio. Welcome.

ATTORNEY-GENERAL: Good to be here. Certainly a big win for the Australian people. This is a landmark change to the way in which our law enforcement and intelligence agencies will be able to go about their business of protecting Australians.

PATRICIA KARVELAS: So, take me through the agreement you've struck with Labor to get this legislation passed. What's changed?

ATTORNEY-GENERAL: Okay. So, the context to it is, of course, you can have access at the moment to a telephone call by a warrant, which you've got to go get in front of a judge. The difficulty is that people aren't talking on the telephone anymore, and particularly criminal groups, terrorist, organised crime, are using encrypted applications like WhatsApp and Wickr. So, even if you have the judicial warrant, it's impossible to get into the communication. What this scheme does is require companies to help us, once there is a warrant, be able to read the communications on an individualised basis according to warrant. So, it's a system of notices where the companies are either first requested, but if they decline that request, they're compelled to assist us.

Labor wanted to exclude all state police; they wanted to very much narrow the definitions that this scheme would apply to. They wanted, in our observation, an overly clunky and slow process of authorising these notices. And on all those things, we reached agreement on our side of the ledger: state police are in; the offence categories will be broad that this will apply to; the process for getting the authorisations is fair and reasonable in our view. So, it is a very, very significant reform and very good news for the Australian people.

PATRICIA KARVELAS: You've agreed to limit the offences under which encryption can be broken and provide greater oversight of how these powers are used. Is that a concession that there were genuine problems with the legislation initially?

ATTORNEY-GENERAL: No. It's just a negotiation to get the best outcome. What Labor wanted to do was limit the ability to compel the assistance of tech companies with encryption to only terrorism and child sex offences. Now, there's two reasons why that's not a good idea: firstly, there are whole range of other offences, including those of murder and drug running and gun running, that are equally as heinous and need to be investigated just as badly. But also, the fact is that it's not a neat business – offending - and very often it's the case that we come across potential terrorist planning because of the fact that we're investigating inside a homicide scenario or inside a money laundering scenario or a drug running scenario. So, to be able to ensure that we protect Australians from the most serious offences, you have to be able to use this power across a broad range of serious offences.

PATRICIA KARVELAS: Police will only be able to use it for serious crimes. Why did the Government think that they were needed for lesser crimes?

ATTORNEY-GENERAL: Well, it was a very broad sweep of crimes, but in our view, they're all serious. But what we have negotiated with Labor is that the offences now that would activate this notice power would have to carry a maximum of three years or above. So, that's a modest change. But what Labor wanted to do was limit the category so narrowly to just terrorism and child sex offences, that you'd have an absurd situation, say for instance, if you did what Labor wanted in the first instance, which is only terrorism and child sex and only Federal Police would be able to access it, that you might have been able to use these types of assistance notices to investigate an online paedophile ring, but a state police wouldn't have been able to use the assistance notice powers to investigate the actual sexual assault of children by a paedophile ring in their state. I mean, that would've just been absurd. So, we think that the outcome that we've reached is a far superior one than what was being put to us at the beginning of the week.

PATRICIA KARVELAS: Labor says there are still unresolved issues they want scrutinised further - I'm going to be speaking with Jenny McAllister in a minute. So, what happens, then? Because they - say they've - you know, there'll be a review still into these laws - if you get it passed by the end of the week, what kind of power do they have to keep reviewing and to keep tweaking?

ATTORNEY-GENERAL: Well, there's a statutory review built in to the in legislation itself and we've agreed that the Parliamentary Joint Committee on Intelligence Security, who've done a good job on this bill, should continue to review it. It's not uncomplicated legislation, but those aren't unusual things.

But the bottom line is that ASIO tell us that 95 per cent of terrorist suspects are communicating by encrypted applications, that they use those encrypted applications to plan. Victoria Police tell us that 98 per cent of their serious targets use encrypted applications. I mean, when I was prosecuting, you would get a warrant over a telephone for a person who was suspected of committing or being about to commit a serious offence and Telstra would be able to get us into the communication. And now that has all changed because those people, who mean to do Australians harm are using Wickr and WhatsApp and we've not been able to penetrate that. Victorian (Police) Commissioner - and of course his state recently had this terrible event happened in Bourke Street. The Victorian Commissioner said that we've been talking about terrorists going dark for some time. The fact is that terrorists and organised criminals have now gone dark. What this does is give our law enforcement agencies a fighting chance, that we used to have in the 90s, to be able to detect this type of criminal activity appropriately and lawfully subject to a warrant.

PATRICIA KARVELAS: In New South Wales, a Sri Lankan man allegedly framed for terrorism offences by the brother of cricket star Usman Khawaja is suing New South Wales Police and the media. He was held in solitary confinement for a month on evidence that turned out to be quite thin. Is this the risk of the increased powers police have been given?

ATTORNEY-GENERAL: Well, I'm not going to comment on an individual case, particularly not one that's in a state jurisdiction. But the idea - and I think that the inference that you're putting is because there are, from time to time, failures in state and indeed federal services of law enforcement, that they shouldn't have appropriate powers. The point is that the appropriate powers have to be appropriate and they have to be appropriately scrutinised. And there's very, very heavy scrutiny in this bill, just as there is with the existing warrant system. I'm very satisfied that that reaches the right level. And, as it transpires after negotiations, so are Labor. So, this is a really landmark day. And look, people have said that this is a Parliament that's not working or a Government that's not getting on with business - this is a massive change to help protect the Australian people. And I've got to say, having previously been in law enforcement, I think that this is a fantastic legacy of this Government for Australians in terms of enhancing their protection.

PATRICIA KARVELAS: Labor wants the leaking of an AFP submission to the Security and Intelligence Committee referred to the AFP for investigation; are you prepared to do that?

ATTORNEY-GENERAL: Well, they want something referred - I'm not quite sure what they want referred. They refer to it as a leaking. I've spoken with the Commissioner. The document in question wasn't sensitive or protected. I've received what information I needed to, to make a judgment on it as to how the document was distributed before it ever reached the committee. My view is that it couldn't possibly be the case that an offence of any type was committed. But look, if Labor have a different view, let them refer it on. It's a non-issue, I've got to tell you.

PATRICIA KARVELAS: Oh, well, they think it is.


PATRICIA KARVELAS: Is this a done deal now? Is this going to pass by the end of the week or are there any potential roadblocks.


And look it's been very helpful negotiating with my counterpart, Mark Dreyfus. I'd like to publicly thank him for those negotiations over the last couple of days. We have reached agreement, not merely in principle but around a high level of detail. The final amendments are being drafted. They'll be in Parliament, we expect, tomorrow. This should pass, with bipartisan support, through both Houses of Parliament. And at the end of the day, what does that mean for Australians? Well, it means that where it was the case in the 1990s that our law enforcement agencies could get a warrant in front of a judge and be able to get into the communications of terrorists and serious organised criminals, but that they were unable to do that in the last eight, 10 years because of encryption, that they now are back in the game with a fighting chance to protect us from terrorism, from child sex offences, from serious organised crime. And that's a huge win for the Australian people.

PATRICIA KARVELAS: I'm wondering if you can help me here. Mathias Cormann is saying that there is agreement on religious freedom, on the discrimination on gay kids and teachers. Is there something you can share with us?

ATTORNEY-GENERAL: Look, I'm not following that on a minute-to-minute basis. Many in the media are better at that than I am, and I've been busy with this matter, but it is the case, the Prime Minister has written to the Leader of the Opposition. I think that the door to negotiate a final end point here is now back open. We have always said - and the Prime Minister's been very clear - we want to remove completely that section of the Sex Discrimination Act that presently allows for the discrimination of children by religious schools based on sexual identity or gender orientation. However, we also think it's very important to put in a very modest change to the Act that protects the ability of religious schools to maintain things like school rules in a way that accommodates their religious views.

PATRICIA KARVELAS: But there was a threat, wasn't it, that if they're maintaining school rules that then go back to the discrimination of gay kids - that's the issue, isn't it?

ATTORNEY-GENERAL: But the point is that the Sex Discrimination Act has a provision at section 7B which has long been there to deal with this situation. But quite often in workplaces and places like schools and universities, there's rules of general application that aren't meant to discriminate against anyone, they are just meant to maintain agreed upon standards of conduct or behaviour, or even like in police forces, certain physical requirements. Now, some people might argue that that disadvantages one group based on a gender identity or sex. But what the Human Rights Commission does and has routinely done, is ask: is that a reasonable rule in all the circumstances? All we are asking for, as a Government, is that to ensure that all this discrimination can be removed, that we add in a clause that simply says: when the Human Rights Commission determines the reasonableness of a school rule, like a rule that says that all kids should go to chapel at our religious school once a week, that the Human Rights Commission should take into account the fact that the school is religious and also ask the question: did the school take into account the best interests of the child? That does not seem to me, or indeed anyone that I really talk to, to be an unreasonable suggestion. And if that suggestion could be agreed to, then the removal of the discriminatory provisions can get through this Parliament this week no problems. So, we're just trying to reach that resolution. The door seems open. I hope we reach that sensible resolution, it's better for everyone.

PATRICIA KARVELAS: Just a final question. Malcolm Turnbull says that you should return to the National Energy Guarantee, that it's the best policy. Are you going to take his advice? Do you find his advice helpful?

ATTORNEY-GENERAL: Well, as the former Prime Minister said: he is out of Parliament and out of politics. So, we'll probably take our own counsel on those matters. What I would say is that we've met our previous emissions reductions targets. We're on track to meet our existing ones. We're the only country that manages to do that.

PATRICIA KARVELAS: Do you wish that Malcolm Turnbull stop giving you advice?

ATTORNEY-GENERAL: Well look, I'm not going to talk about advice that's given by others.

PATRICIA KARVELAS: But he's the former Prime Minister, that's why he gets such a strong run.

ATTORNEY-GENERAL: We've got plenty of good advice inside governments, inside our departments.

PATRICIA KARVELAS: So, you don't need his advice?

ATTORNEY-GENERAL: We are doing very well, I think, as it is demonstrated by the passage of this very important legislation.

PATRICIA KARVELAS: So, you don't need his advice?

ATTORNEY-GENERAL: Well, look, you can draw your own judgments about what I've said. But we're the Government and we're governing.

PATRICIA KARVELAS: Why do you take John Howard's advice, then? I mean, you know, John Howard often says things and the Government is more - treats him a bit more warmly, I feel, than Malcolm Turnbull.

ATTORNEY-GENERAL: Well, you're commentating. I'm not going to get into that business of commentating.

PATRICIA KARVELAS: You don't think that's true?

ATTORNEY-GENERAL: Well, I'm just not going to speak about various people's views about various people's emotional states. How's that helping anyone? My job is to ensure that landmark legislation protecting Australians gets passed. That's what I'm focusing on.

PATRICIA KARVELAS: Thanks for joining us, Minister.

ATTORNEY-GENERAL: It's a pleasure.

PATRICIA KARVELAS: That's the Attorney-General Christian Porter live with me in Canberra.

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