Subjects: Encryption Bill, Section 37
LAURA JAYES: Christian Porter, the Attorney-General is with us now, at Kieran- Christian Porter, thank you so much for your time. I want to talk about this encryption bill. Reports that it will be passed today. Is that correct and does that mean that police will have the powers they've asked for over the Christmas period?
ATTORNEY-GENERAL: Certainly an agreement has been reached and we would expect that the legislation will go through Parliament this week and it will be introduced today. It is critical and landmark legislation and the way that I've described what is, at points complicated legislation, is that when I was first a Crown Prosecutor, in 2002 when a police officer went to a court and a judge and got a warrant over a person's phone where that person was suspected of plotting terrorism or homicide or a paedophile offence, that warrant really meant something because we could listen to the phone conversation between the two criminals.
Now, unfortunately those same criminal elements aren't talking to each other. They're communicating by encrypted application like WhatsApp. What this legislation does is give the Government the power to send a notice of request to the tech companies to help us execute on the warrant that we've otherwise gotten.
KIERAN GILBERT: So will the tech companies be required to do that in the immediate term or have they got some capacity for appeal? I mean will the agencies have the powers they need in terms of these tech companies and their technology during Christmas?
ATTORNEY-GENERAL: So there's two types of notices. One is called an assistance notice and that's immediate. The other's called a capability notice and that would be a longer term request for the tech company to help build a capability that could be executed, pursuant to a specific warrant for a specific person's device where we have high degree of belief that they're about to commit an offence or are committing an offence. So it's very very targeted and very specific. But there is a short term ability and I would expect that our agencies; ASIO, the AFP, the state police agencies which by the way, Labor wanted to keep out, but are coming back in - those agencies will use these powers as soon as they are proclaimed. Because the fact is that we're being told by the agencies that 95 per cent of the targets at a federal level, up to 98 per cent at a state level are now using encrypted applications and in the words of the Victorian Police Commissioner they've gone dark. So whereas in the 1990s and early 2000s a warrant meant something because it meant we could actually intercept communications between people intending to offend against children or intending a terrorist attack, now the warrant becomes ineffective because we can't penetrate the communications.
LAURA JAYES: Attorney-General, practically if this legislation passes today and there are warrants that are issued, when is the shortest amount of time, will police have this capability in some cases within a week, within a number of days or will it take longer than that?
ATTORNEY-GENERAL: Well, as soon as the legislation is proclaimed it would be open for the AFP or ASIO or NSW Police to send a notice off to Microsoft or the manufacturers of the WhatsApp application and seek their assistance if they thought that that was reasonable and necessary. There are a lot of safeguards and protections built into the Act but it's a critical power to have and the power will be used. The intelligence agencies, the law enforcement agencies tell us that the terrorists, the paedophiles, the organised criminals who have gone dark and that is putting us at a massive disadvantage. The words of our agencies are that this doesn't give them an edge or an advantage, it just puts them back in the game.
KIERAN GILBERT: Why has it taken so long though? Because we've known this for some time haven't we, that those sorts of individuals are communicating with encrypted technologies, as you say they've gone dark. It's not just terrorists, paedophiles, organised criminals, why has it taken so long?
ATTORNEY-GENERAL: Well it's not uncomplicated legislation. We're a Government utterly committed to keeping Australians safe. We knew that there'd be push-back from the tech companies who will frankly be inconvenienced at different points in time but that's not the primary issue for us. The primary issue is keeping Australians safe. So it's been complicated. There's been exposure drafts; Angus Taylor who is the Minister who devised the scheme in the first instance had to travel to Silicon Valley and consult with a range of companies that could be affected. So it has been a difficult process. And at the last minute on Monday, Labor wanted to pass half a bill that would take out state police which would have narrowed the offences and made the notices too slow to obtain. We resisted all those positions. We've compromised where we think it was rational to compromise. The legislation that will go through this week is a massive win for the Australian people in terms of their safety and security.
LAURA JAYES: Can I ask you about any possible bipartisanship on the protection of gay students at religious schools. Is there any agreement on that this week before Parliament rises for the year?
ATTORNEY-GENERAL: The Prime Minister sent a letter to the Opposition Leader and he responded and just the tone of that response seemed to me to at least open the door to negotiation. One of the developments this morning that I think is absolutely critical is a letter signed by the most senior religious leaders in Australia. They've said that Labor's anti-discrimination changes to Section 37 of the Act would extend beyond the school yard and into churches, synagogues, mosques and temples nationwide wherever their actions are concerned with the provision of education, censoring doctrines that are thousands of years in the making. This is an extraordinary and unprecedented incursion on religious freedom in this country. I have to say not being a religious person but being a legal person, legally these church leaders are absolutely right. The Labor amendments that have been put in the Senate go beyond schools and school children. They seek to amend a section of the Act, Section 37. that protects all religious organisations in their practices from discrimination complaints. Labor's amendment would strip that protection away and that would make unlawful and would outlaw all practices of a teaching and instructive nature in all religious organisations that anyone considered to be discriminatory.
So for instance in a synagogue, a rabbi wanting to teach the Torah to boys separately to girls, that would be an outlawed practice. Any type of teaching of the traditional view of marriage inside churches, Christian churches would be an outlawed practice. I think under what Labor are doing it would be discriminatory and open to complaint at the human rights to teach Adam and Eve.
KIERAN GILBERT: The crossbench believe - yeah, well it's interesting and also the mosques which have women and men in different parts of those holy sites, but the crossbench are confident that they've got the numbers to get the amendments through as put.
ATTORNEY-GENERAL: Well I've spoken with Senator Rex Patrick last night and did my best to explain what this particular amendment does. And I think that many are coming to realise late how utterly radical this is. This amendment that Labor want to make to Section 37 goes well beyond schools and school children. It goes to every church and religious organisation in Australia and it should send shock-waves through religious Australia and it is sending shock-waves.
LAURA JAYES: Attorney-General Christian Porter, thanks so much for your time this morning.
KIERAN GILBERT: Attorney, thank you. Appreciate it.
ATTORNEY-GENERAL: Thank you.