Subjects: encryption bill; gay students
TOM CONNELL: Welcome back to the programme. Well the big stoushes this week in Parliament are set to be all around the issues of the Attorney-General. First of all religious protections for students, those one's, of course, that the PM said would be removed - the ability, of course, of schools to discriminate. And also encryption, which has blown up after, initially, this release from Mark Dreyfus late last week.
The Attorney-General Christian Porter is here in the studio with me. Thanks for your time today.
CHRISTIAN PORTER: Good to be here.
TOM CONNELL: A lot of questions on encryption from Labor to do with this seeming leak from a submission from the AFP and Victoria Police regarding this encryption matter. Do you have any knowledge at all of the leaked letters?
CHRISTIAN PORTER: Look, I don't. I'll obviously talk to the Commissioner, but it's quite often the case that letters by way of submission will be written to committees and sometimes they're published by the person who sends the letter off on their own website, but what was put today is that some letter, by way of submission, may have been or could possibly have been the subject of a possible unauthorised disclosure. Look, forgive me for wanting to go back and speak with the Commissioner to try and work out the circumstances around that, but frankly, if the Labor Party have got any specific allegations they want to make with respect to a specific piece of correspondence that they can demonstrate was disclosed in an unauthorised way by someone, let them make it. But that was probably one of the more vague accusations against unknown people at a point in time clearly designed to take the attention away from the key issue, which is whether or not this utterly critical piece of legislation is going to be passed with Labor's support.
TOM CONNELL: And we will absolutely get right into that, but just on this element of it: so, it's not on the website of the committee. Are you going to take steps to find out if it was, in fact, leaked?
CHRISTIAN PORTER: I'll have a conversation with the Commissioner about it, but to find all the circumstances in which the information was provided to the committee. I haven't looked at the website myself. The pressure on a busy day …
TOM CONNELL: …and I appreciate that …
CHRISTIAN PORTER: … So, we'll have a look at that.
TOM CONNELL: But if it's found to …
CHRISTIAN PORTER: Well I'm not going to get into hypotheticals about it. What I'll first of all do is get some information …
TOM CONNELL: But would it be serious enough to have, for example, an investigation …
CHRISTIAN PORTER: Well that's a hypothetical about it. And what I'll do is get the facts around it first.
TOM CONNELL: It's not a very far removed hypothetical though, right? We know that the letters are out there.
CHRISTIAN PORTER: You're in degrees of hypothetical now.
TOM CONNELL: So, you're not saying yes or no; whether you investigate if it was leaked?
CHRISTIAN PORTER: Well what I'm saying is that before I would make any determination to that end, I would get all of the facts around the circumstances, and there were very few facts put in Parliament today - if any - and what I'll do is have a look at it.
TOM CONNELL: Because there's only two steps: you find out if it was leaked and then you make a decision on - do we investigate?
CHRISTIAN PORTER: Well, those are very complicated steps - factually complicated. And as I say, I'll get the facts first.
TOM CONNELL: Right, so you'll have a response on whether you investigate once you find out if it's …
CHRISTIAN PORTER: I will go and talk with the Commissioner about all the circumstances pertaining to that particular submission.
TOM CONNELL: Now, you're back negotiating with the Labor Party?
CHRISTIAN PORTER: Yes I am, and I'm very pleased that that's the case, and there are a few central issues that we're speaking around. I mean, it's no secret that those issues are about whether or not the encryption legislation should also apply to state police so that they can avail themselves of the notice powers inside the legislation. The types of offences that the notice powers would apply to; so we're discussing around these issues now and the authorisation processes that would be placed upon the issuing of a notice to a firm whose assistance we were seeking.
TOM CONNELL: In the short term, is it likely? This is complicated stuff - which the Law Council has pointed out - that we'd need an interim agreement by the end of this week.
CHRISTIAN PORTER: We're not having any interim agreements. There'll be a bill put before Parliament and the bill with either be agreed or it won't be agreed, but we will be dealing with this this week.
TOM CONNELL: Why would you not consider an interim one just for example, for the holiday period which the Government has mentioned before about a possible increased risk?
CHRISTIAN PORTER: Well, I use the example of the issue that are live now. Why would you have a bill pass through Parliament that says that it’s necessary and appropriate to protect Australians - the AFP and ASIO have the ability to offer notices to companies that run encrypted applications to seek their assistance, but it's not at the same time reasonable for a state police to also have that assistance. Now that's not a question of principle, it's not an overly complicated theological question; it's simply a question of degree and practical application. In these things, we are paid as Parliamentarians to thrash out and reach agreement.
TOM CONNELL: And fair enough. And Labor has said it's open on that very matter …
CHRISTIAN PORTER: And we're talking about that.
TOM CONNELL: … on the state police. I understand that. But again, this is complicated stuff. The idea of an interim is that if you can't be entirely in agreement with Labor on every aspect of it, you give perhaps a sunset power over the next few months and you agree to keep working on it. That's the logic of it, right?
CHRISTIAN PORTER: Well I don't think that that's what is actually being suggested here. What has been suggested was that certain parts of the bill be taken out and held in abeyance - not moved through Parliament. Now what would that mean? A whole range of offences couldn't utilise these powers to be investigated. State police couldn't utilise these powers to be investigated. You'd effectively be passing half a regime, which would be totally ineffective. I mean, this bill operates as a conjunctive whole. So what we are trying to do is have a whole bill.
And when you say it's complicated, sure, there are some complications to it, but this has been consulted on. There was an exposure draft out in the middle of this year. I mean, near on six months from exposure draft is a very considerable period of time to actually reach a decision on key issues like: do you think state police should have this ability as well as federal police?
TOM CONNELL: Fair enough. But when you say it has to work as a whole, the Government's spoken a lot about the terror threat, the imminent terror threat. Now, if you're faced with nothing or an interim measure that gives police the ability to decrypt this - for terror acts or terror allegations - doesn't that make sense?
CHRISTIAN PORTER: Well, if you look at the correspondence that's come in from the Victorian Police to the Committee, what they say is why on Earth would you allow this ability to be exercised by the AFP with respect to terrorist offences that it investigates, but that their terrorism command in Victoria would not have that ability? What possible reason …
TOM CONNELL: Okay, but if Labor is open on that within the interim measure as well?
CHRISTIAN PORTER: Well if they're open on that it may be that they're open on other issues, and that's what we're discussing now. And these aren't issues of grand theory or principle; once you've determined, as a matter of principle, that it should be the case that we have the assistance of the tech companies, once a warrant has been dutifully authorised by a judge or the authorising authority - their assistance to make good on that warrant and make it effective - once you've decided that in principle, there are questions about degree and application which we're negotiating at the moment, but there's no need to have an interim bill, because what we can do is thrash out detail.
TOM CONNELL: Well, perhaps you can't in this short period of time. If nothing's done - there's a stalemate when we rise on Thursday - are Australian's going to be less safe over the holiday period?
CHRISTIAN PORTER: Well that will depend on whether or not - if there is a stalemate - we can get the support of the crossbench. But in negotiations with my counterpart I'm hoping that there won't be a stalemate. But what I can say and what all of the evidence to the committee has been, is that Christmas is a very, very dangerous time - that 95 per cent of ASIO targets in terrorism and other related matters are using encrypted applications. That's as high as 98 per cent in Victoria according to their police force. So if we are to properly be able to protect the Australian public we cannot be in a set of circumstances where our intelligence and law enforcement agencies have effectively gone dark, in that they cannot pursue into the types or warrants that we regularly get, get into a communication …
TOM CONNELL: But Labor is offering them to go light, if you like, on the terror elements. So, you're still willing to turn that down if you don't get your bill through?
CHRISTIAN PORTER: Well I don't think that's an accurate reflection of the conversations that I'm having with Labor at the moment. What we are trying to do is work out once the principles are agreed, which generally speaking they are, some of the details about their application and I'm hopeful that we can do that. But there's no point in passing half a bill. There's no point in allowing half of our law enforcement agencies to be able to have this assistance in investigating terrorism, but not the other half.
TOM CONNELL: Yeah, but that's the point. If they're willing to go on the other half, which my discussions are, indicate they are very open to that, their initial offer of just the commonwealth agencies to do with terror was just that – an initial offer, so that if an interim measure is the only one that can be agreed upon they would extend that, to give it to state police.
CHRISTIAN PORTER: Our job as a Government is to present legislation that protects all Australians, in every state and territory, from all of the people who with serious criminal intent mean to do them harm.
TOM CONNELL: But there is one…
CHRISTIAN PORTER: And what we are trying to do is produce a bill which can get enough parliamentary support to give that protection to Australians. Now I'm negotiating with Labor around that, but we're not in the business of putting in half bills or interim bills. There's been six months, it's time for people to make a decision whether or not they think this is the appropriate response or not. Now I know that there are issues around some of the tech companies saying that they're going to be inconvenienced and perhaps even have a modest financial impost. But I've got to say, that is not the important issue that we are dealing with here.
TOM CONNELL: Another bit was Scott Ryan saying, because the information is accessed covertly, no parliamentarian would be able to argue for parliamentary privilege.
CHRISTIAN PORTER: Well that's just about a notice regime with the President of the Senate and the Speaker of the House of Representatives ….that can be clearly sorted through which we’re doing at the moment…
TOM CONNELL: So they would be made aware, it couldn’t be covert on them for example…
CHRISTIAN PORTER: …very much a side issue.
TOM CONNELL: Okay. I want to talk about religious as well with, these protections because this was something that you and the Prime Minister were adamant would get done this year. Is that still going to happen?
CHRISTIAN PORTER: Well, it may happen. I understand that it's just been sent to a committee in the Senate with crossbench support to consider the Labor bill, which we have offered amendments to.
But look, we have had before Labor and amendments now before the Senate, reasonable amendments, in fact, merely one of them could amend the removal of section 38(3) of the Sex Discrimination Act and this legislation could pass, no problems. What we as a Government say is we're utterly committed to removing all of the exemptions that allow discrimination against school students based on gender identity or sexual orientation. And at the same time you have to have, albeit a slight change, an important change, that would protect religious schools in maintaining school rules that reflect their religion. And it's a very modest amendment. And if that could be agreed we could do this tonight.
TOM CONNELL: Just on that, because I understand, there’s agreement, there’s a technicality here but how does that work because you mentioned about schools having to be able to tell kids to go to chapel or give religious education? Would for example, parents of a gay student be able to say - no, we don't want him to be told marriage is between a man and a woman?
CHRISTIAN PORTER: Well these are questions that ultimately a decision maker at the Human Rights Commission, if there ever were a complaint would have to decide. Tom, all that we are asking…
TOM CONNELL: But you can set a parameter where that is or is not allowed, right?
CHRISTIAN PORTER: Well governments do not generally get into the habit of legislating for every potential hypothetical circumstances among the thousands that might arise in the school context.
TOM CONNELL: What's your view on whether that should be allowed?
CHRISTIAN PORTER: What happens here - what the - well I'm not a maker of school rules, right? The process is that the reasonableness of a school rule is determined, if it's questioned, by the Human Rights Commissioner. All we are saying is that in making that determination, that the Human Rights Commission should have additional regard as well as all the things that already are in the Act that they have to have regard to, additional regard to two things - is the school religious and do they feel that the rule is necessary to protect their religion? And did they, at the same time, take into account the best interest of the child?
Now, no one has said to me that that is an unreasonable thing to do so that we can draw the decision makers attention to the fact that there are two rights being balanced against each other here - the right of the student not to be discriminated against and the right of religious Australians to organise themselves in schools, that reflect their religion.
TOM CONNELL: How would it work in that situation though? You've got sort of- they're competing aren't they? What trumps the other?
CHRISTIAN PORTER: Well that is an answer that can only be given in all of the circumstances of the case, which is why the mechanism since 1995 has worked relatively well. That mechanism being that if someone wants to complain about the reasonableness of a school rule, or a workplace rule because they think it indirectly effects them in a way that they perceive to be discriminatory, even though it's a rule of general application, they would complain about that rule to the Human Rights Commission and the Human Rights Commission having been set up for decades now to consider the reasonableness of those types of circumstances makes that judgement. That's what we've done. But all we are asking is that decision maker be required to also consider the religious ethos of the school and whether the school took into account the best interest of the child. This is not unreasonable, it could pass very soon if that we're agreed to.
TOM CONNELL: Just finally the ethos as well to do with teachers, this seems to be where you're landing at, that again, the school ethos needs to be upheld by a teacher. To give you an example because I don't like sort of talking in the esoteric here, a teacher that is gay and there is a school event where partners are brought along, can they bring along their gay partner?
CHRISTIAN PORTER: Well I know like all of the law students that I've taught over the years that everyone wants to talk in hypotheticals. But…
TOM CONNELL: This is not a hypothetical, this is an example. This is how the law's working.
CHRISTIAN PORTER: Well if you've got an example where that has been the subject of complaint then we would always have a look at that and see how that has been determined. But the point is this - there needs to be a balancing between rights of people to not be discriminated against and the rights of religious people to have schools that reflect their religion. How you balance those in terms of drafting is not easy which is why the Senate seems to have determined to send this off to a committee. But the teachers issue is even further complicated by the fact that there's a whole range of federal issues here to do with the Fair Work Act that require consultation under the Act. So these are not simple drafting exercises. And one of the greatest disappointments here is that the Labor motion that sought to bring this one, gagged debate, which is probably why crossbench Senators determined to send this to a committee because gagging debate on something as important and fundamental and complicated in a drafting sense as this is not the right approach.
TOM CONNELL: Well I have to gag debate here, but I've gone well and truly over the instructions in my ear. Attorney-General Christian Porter, thanks very much for your time today.
CHRISTIAN PORTER: Pleasure.