Subjects: Encryption Bill, Section 44, Federal corruption body
PETA CREDLIN: Welcome back, well there are some big challenges ahead for the coalition, encryption laws although I'm hopeful we're going to hear some good news now from the Attorney-General. Of course, section 44 challenges and a debate about a new federal corruption body. As I said last night, these encryption laws need to be passed before Christmas, which means Labor needs to put the safety of the Australian public before political games. Coalition MPs and even state police have come out strongly on this issue. So joining me tonight for the latest is Attorney-General Christian Porter.
Welcome to the show Attorney, great to have you.
ATTORNEY-GENERAL: Thanks Peta, good to be here.
PETA CREDLIN: Breaking news, I'm told this afternoon you look like you've got to some level of agreement with the Labor Party to support these encryption laws. Take me through what the detail is and what if anything has changed in relation to the bill before the Parliament.
ATTORNEY-GENERAL: Sure. Well the Prime Minister Scott Morrison made this the absolute key priority for this last sitting of parliament to protect Australians with an appropriate system to deal with encrypted communications used by terrorists and other organised crime syndicates, that was looking very difficult on Monday. Labor were saying that they wanted to pass only half a bill or an interim bill that they wanted to take out all state police forces from the regime, that they wanted a very overly process-driven and very, very slow authorisation scheme in it. And they also wanted to really limit the number of offences it would apply to. Now we thought that all those things together made the exercise totally ineffective. We've stood our ground. I think we've reached now a very sound agreement. We've agreed where we think there were changes that could be reasonably made. But things we've not moved backwards on - state police are in the scheme; it has a broad range of offences, it won't just be limited to terrorism or Commonwealth child sex offences and importantly, the notices won't be so hard to get that they'll be ineffective. So this is a landmark change that will help protect Australian citizens.
PETA CREDLIN: Yesterday in the Parliament - and I played a grab of it on my show last night - you talked about the Etihad incident from July 2017 I think it was, you'll correct me if I'm wrong, the terror plot involved a plan to bring down an Etihad airliner. Now it went undetected for four months and we were assisted from other agencies - I won't be too specific about them on camera - but in the end it came to light and it's going through a legal process. This went undetected because they were using encryption devices, am I right? And this it he sort of thing you're trying to guard against with this law change.
ATTORNEY-GENERAL: Correct, I mean for your viewers they'd all be familiar with the system of warrants. So if a police officer considers that there's reasonable suspicion that someone's committing or about to commit a serious offence, whether it's terrorism or murder or some other serious offence, they go to a court and they get a warrant. And that warrant might allow them to access the voice communications on a phone. Now during the 90s and 2000s that was very effective because the warrant would actually allow you to listen to what two terrorists were saying to each other on their mobile phones. The difficulty now is that terrorists are communicating up to the tune of 95 per cent using encrypted text applications like Wickr or WhatsApp and we have been unable to get into those applications. So we might have the warrant, dutifully authorised with a judge who's absolutely convinced that there's reasonable suspicion that two terrorists are about to commit an offence, but they're communicating via an application that we can't get into. What this scheme does is allows us to request, and if they decline, to compel, an organisation who's running one of those apps or a tech company who has the platform like an iPhone, once a warrant has been given to assist us to make the warrant work. And that is a huge step forward because terrorists now are communicating in a way that we could get into in the 1990s and early 2000s, but now have been unable to.
ASIO tell us that 95 per cent of their terrorist targets are communicating using encrypted applications the Victorian Police tell us it's 98 per cent of their serious targets. So the Victorian Commissioner said to us - people have been talking about terrorists and other organised criminals going dark. They've gone dark. And this gets us back in the game. The Federal Police Commissioner says it's not about getting an even footing, it's about getting back into the game and that's what we're allowing our law ….
PETA CREDLIN: Yeah. Getting back what you have. Yeah.
ATTORNEY-GENERAL: Yep, exactly.
PETA CREDLIN: This has been the case for the whole time, where really we've had a telecommunications legal framework in Australia that they could via a warrant have access to these communications. And most people at home who are watching this show will have kids or themselves are using Wickr or using WhatsApp, these are freely available applications, very easy to put on your smartphones. So they're not sophisticated tools that criminals are using. Worse I think, Christian, you will have had the briefings that I had in government in relation to the activity of paedophiles and paedophile networks and how adept they are at using encryption technology. So if people at home are watching and thinking well you know fingers crossed I won't come across a terrorist incident, you would probably have young children in your lives who would be at risk under these technologies. So it's so important that these changes are made, not just for terrorism but from bikie gangs, from the movement of drugs around this country and paedophiles. I mean, you were a police prosecutor before you came into the Parliament; do you think we're winning the war on all of these issues?
ATTORNEY-GENERAL: We have excellent federal agencies in ASIO and the AFP, great state police forces and what you say is sad, but very true. These applications are very easy to get, you don't have to be a genius to use them, but they are being ill-used by criminals. And I mean, what Labour wanted us to agree to on Monday, which we refused to agree to was taking out all state police forces. That would have let the ridiculous situation emerge where the Federal Police could compel a technological company to assist, make good on a warrant for an online child sex offence, but a state police force couldn't have the same notice helping them investigate an actual physical offence against a child by a paedophile ring. I mean that would have been absolutely absurd and we've held ground on the very important things, given ground where we could. But this is, in answer to your question, the game changer for law enforcement because it's going to put us back to the situation that we were at in the 1990s, where getting a warrant over a very bad person's mobile phone actually meant something because you were able to intercept their planning, their conspiratorial communications and stop them from doing harm, whether that's to children or Australian citizens.
PETA CREDLIN: And you also uncovered a network. I want to shift tack to another issue. This is this report today in the Courier Mail - a woman in Nauru, she was Iranian by background, was airlifted out due to a stomach complaint. She ended up in a hospital in Brisbane, it turned out to be nothing more than constipation. She was let out of hospital within a couple of days. Of course, there was a legal injunction for her to be flown from Nauru to Australia in an air ambulance - not a commercial flight; it was done by Maurice Blackburn Lawyers. She is now out of hospital, as I said, but she has not been returned to Nauru and according to the report today, it's unlikely she'll be returned because her lawyers will seek to injunct her being removed from Australia and sent Nauru. Now, this cost taxpayers $100,000. The systems are being gamed, isn't it Attorney?
ATTORNEY-GENERAL: Well Peta, you won't be surprised to hear me say that - and I'm acting Home Affairs Minister at the moment -
PETA CREDLIN: That's why you got the question, yes.
ATTORNEY-GENERAL: Indeed, that we don't comment on individual cases. But I might say that the Government, our hard working public sector staff and indeed the Minister himself, are placed in very difficult circumstances and there is a tendency to always err on the side of caution and that has the benefit of ensuring that we don't make mistakes that ever jeopardise people's safety. But it is always difficult and the more generous and precautionary we are, the more difficult it is to control sometimes people utilising the system to their benefit.
Now I'm not going to comment on the individual case, but we are very live to the fact that we need to scrutinise all these matters carefully. But I've just got to say - we take a very safety-based, precautionary approach.
PETA CREDLIN: Okay. Well I will ask you now about the review by former High Court Judge Ian Callinan into the Administrative Appeals Tribunal. If you look at the statistics in relation to the Appeals Tribunal, decisions can be made - go very much against the complainant - they then seek to appeal those cases - thousands of them, at last count 15,000 in the last calendar year were appealed. 58 per cent of the appeals get knocked off - so almost two-thirds. Huge cost to the taxpayer because a lot of them obviously are on legal aid. You've had a review into this system; when is that review going to be on your desk and when will we hear about the findings from Justice Callinan?
ATTORNEY-GENERAL: So Peter Dutton and I jointly commissioned that review and the former High Court Justice Ian Callinan has conducted it, he's been outstanding. The review is due with us, I think, in the next 10 days or so and he really had an open-book ability to look at all of the operations of the AAT, the way it's organised, the way it puts matters through its systems, looking at individual matters, groups of matters, including of course, migration matters that you've mentioned. So I haven't received it yet, but what I would say is the reason that Peter and I commissioned that review is because it is a challenging agency to work in. It has a high workload. It is nevertheless very well resourced; it has a large bureaucracy around it, hundreds of decision makers. The view that I took looking at it is it is clearly time and this was a statutory review that was required - to try and make it as efficient as it possibly can be, both for the people that appear in it, but also, of course, for the taxpayer who funds it. And I think that there's a great deal of reform that we can have applied to this organisation to make it better for the people in it and for the taxpayer.
PETA CREDLIN: Will you make the report public before the Government announces what it will do in terms of recommendations?
ATTORNEY-GENERAL: My general view about these things is to release responses to reviews at the same time as you release the review, but I've not received it yet so it may be the type of review that would need some public consultation around it. But I will read it first. But look, Ian Callinan has been able to look at everything. He's been able to look at the balance between bureaucrats to decision makers. He's been able to look at the rules of evidence in migration matters. I mean one of the issues in migration matters that is well known to people in the system is there is a tendency to bring evidence into an AAT hearing very, very late, which evidence you could argue was reasonably available at the first instance decision made by the Minister. Now in other civil and criminal proceedings, you'll have rules about evidence in very late points only being brought in in exceptional circumstances. I'd be very surprised if Ian Callinan doesn't have something to say about those types of rules, but everything's on the table.
PETA CREDLIN: All right, well we'll look forward to the review if we get to see it, but at least your response when we do see that before the election. Thanks very much for your time, Attorney General Christian Porter.
ATTORNEY-GENERAL: Pleasure, Peta.
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