Q&A at National Press Club Address

1 October 2014

Subjects: National Security Legislation; Racial Discrimination Act; Senate Inquiry


Question: David Speers from Sky News. Senator, can I take you to the comment in your speech that there could be no greater error than to demonise the Muslim community. Do you have any concerns about Muslims wearing the burqa? Do you have a preference that they should or should not be worn, both in the community and in secure buildings?

Attorney-General: I have no concerns with Muslims wearing the burqa, and I don't have a preference either because frankly it's none of my business. The way in which, in a free country, people choose to dress is a matter for them. It's not a matter for governments to dictate to them how they are allowed to dress. Now, that principle applies to everyone. It applies to you and me, it applies to every Australian. That's not to say that in certain circumstances people shouldn't be required to reveal their identity. There may be particular circumstances in which people should be required to reveal their identity, and those rules should apply equally to everyone, regardless of what garment they may be wearing that might conceal their identity. I know the example has been given of visiting Parliament House. That's really a matter for the police to determine, not for me, not for politicians. But do I think people shouldn't be allowed to wear the burqa? No, I do not. This is a free country. People should be allowed to wear what they like.

Question: David Wroe from the Sydney Morning Herald and The Age, Attorney. Thanks for your speech. There has been talk over the last week or so of a homeland security-style super ministry under a new Cabinet minister. I just wondered if, as the current Cabinet Minister who would stand to lose most, or your role would stand to lose most as the result of such a restructure, could you give us your views on that? Particularly given at the moment you have the first law officer of the nation signing things like ASIO warrants, that would no longer be the case, you would have a Cabinet minister doing that sort of work. Do you have any concerns about that?

Attorney-General: I think it is good governance to always keep our institutions and our institutional architecture under review to make sure that they are as fit for purpose and effective as they can possibly be. And I was one of the national security ministers who made the decision to have a review about two months ago. That being said, I agree with my colleague Julie Bishop, who was reported yesterday as saying that if the institutional arrangements were to be changed then obviously those who would seek to change them would need to persuade, to demonstrate that they're not working.

The point of my speech, or one of the points on which I touched in my speech, was to demonstrate to you how effectively our current national security arrangements are working. People should be confident in them. People should be reassured that whether it be the Australian Federal Police, now led by Andrew Colvin, whether it be ASIO, now being led by Duncan Lewis, whether it be the architecture of governance, now under the stewardship of Chris Moraitis over there, people should be confident that our arrangements work well. Should government look from time to time see if it's possible to improve them? Of course we should. But as a wise man once famously said, if it's not broken, you shouldn't fix it.

Question: Sid Maher from The Australian, Senator Brandis. Just following on from David's question, so you're against the idea of a homeland security department. Can you tell us are there any things in the inter-agency cooperation which need to be improved, and could you detail that? Secondly, I notice the extra funding for ASIO is to make up for the effects of efficiency dividends. Is the rest of the $400 million also to make up for the effects of efficiency dividends on other agencies, and is there an argument for reviewing efficiency dividends [inaudible] like Attorney-Generals and other areas that are pertinent to national security?

Attorney-General: Thank you very much, Sid. As to the last part of your question, I'm not going to open up a war with the Minister for Finance by announcing any agencies or elements of my portfolio that ought to be spared the efficiency dividend. The answer to the middle part of your question, is this all to made up for efficiency dividends—no, the answer is no. This is new money that will fund new capabilities. And as to the other matter, I really responded to your colleague and said all I have to say. I think this has become a bit of a phony issue. As the Prime Minister said a little earlier on in the morning, this is speculation upon speculation. I was a participant in the decision to have a look at the arrangements to ensure that they are optimal. I believe they are optimal, but of course as a national security minister, I want to be reassured that they are as good as they can be.

Question: Steven Scott from the Courier Mail, Senator. I'd like to ask you a question on another area in your portfolio. The Senate inquiry that's been set up into the Queensland Government, have you sought or will you seek any additional advice about the legality of that inquiry? Do you think there are any grounds under which the Queensland Premier or his ministers or public servants could simply refuse to cooperate, including if they are called as witnesses?

Attorney-General: Steven, what the Queensland Government's response is, is a matter for the Queensland Government and the Queensland Premier. I did have a conversation with him this morning about the matter and I think you'll see from the Queensland Premier a very robust response. I think, as I said in my contribution to the Senate yesterday, that what we saw yesterday was an atrocious and a very cynical abuse of process. You had the Labor Party, the Greens, and the Palmer United Party combining to vote in favour of a motion, which was virtually identical to a motion that they were not prepared to vote for only a week ago. This is a political stunt. It is an abuse of the process of the Senate. In the view of many, including the late Harry Evans who in his lifetime was regarded as the authoritative, indeed exponent of Senate practice and procedure, an unlawful and a breach of comity, a breach of a principle that lawyers known as the Melbourne Corporation Principle—that is one element of government in a federation does not interfere with the operation of another element of government in a federation. So for a variety of reasons, as a matter of politics, convention and probably law, what was done by the Labor Party, the Greens and the Palmer United Party in the Senate yesterday was a disgrace, but I think Premier Newman and his government are very well able, willing and ready to deal with it.

Compere: Is there any clarity at all around the capacity of one jurisdiction to call the member of another Parliament?

Attorney-General: A member of a Parliament, whether it be a state or a federal Parliament, may purport to summon a member of another Parliament or a public servant employed by another government. But applying the principles to which I just referred, the respondent to that summons would, in my view, be on good ground in declining to attend, and that's happened before.

Question: Daniel Hurst from the Guardian Australia. Attorney-General, I want to take you to the mandatory data retention scheme which is the third tranche. We know that under current arrangements agencies can apply to access metadata without a warrant and it's not just ASIO and police, there are other organisations such as RSPCA and local councils, even the taxi directorate have sought access to metadata in the past. I just wanted to ask whether you're willing to consider as part of the forthcoming legislation, any curb on what agencies, or any change to what agencies can seek to access metadata without a warrant? And secondly whether you're willing to consider a change to the approval process to access metadata?

Attorney-General: Thank you. I was rather hoping the metadata question might come from David Speers, but nevertheless. I want to assure you that what is being considered at the moment does not constitute the grant of any additional power, nor does it involve anything beyond what the telcos do at the moment. But the issue here, the concern is that as their record-keeping practices, their business practices evolve and change, metadata that they currently retain is not going to be retained, it's going to be lost, and on metadata, is as you would know as a correspondent in this field, a vital investigative tool. The former Director-General of ASIO David Irvine described it as absolutely crucial. So, at the moment, as I said in my scripted remarks, the Attorney-General's Department and ASIO are in discussions on the design of the system and because those discussions are under way, you'll forgive me if I don't go into the detail of your question. But I want to assure that the legislation will merely mandate that to be done which is currently being done, and will not involve the vesting of additional powers.

Compere: Is there a legal definition of metadata yet?

Attorney-General: We will be defining it in the legislation.

Question: Paul Bongiorno, Ten News, Attorney. I notice that in the May budget, the National Security Legislation Monitor was ditched and you've announced you are bringing it back. Was there an indication that maybe when Julie Bishop was saying that other people had dropped the ball on terrorism, that the Government itself maybe was responsible for this given that the $630 million wasn't included in the May budget but has come later down the track? The other point here in regard to this is that it does seem that the two major parties, that is Labor and the bloc, the Coalition, the two most likely to form government in this country, have, if I can use the loaded word, colluded to ram through these changes to the national security laws, where it has been the Greens and the crossbench, particularly in the Senate, that have pointed out grave concerns for the freedom of the press when it comes to special intelligence operations. How can we be assured that this won't be abused, that an SIO can be declared simply to save a government from embarrassment?

Attorney-General: Well, thank you, Paul. So, let me take those questions in sequence. First of all, in relation to the Independent National Security Legislation Monitor, there was a decision, as a savings measure to do with away with the Independent National Security Legislation Monitor. That decision was made only as a savings measure because the view that was taken at the time was that there is a variety of other agencies or officers in the Attorney-General's portfolio, including the Law Reform Commission, the Inspector-General of Intelligence and Security, parliamentary committees and so forth that can do what the Independent National Security Legislation Monitor does. So, in looking for savings measures we thought that was, if not superfluous, was something we could do without it.

However, having decided that we would renovate, as I said in my scripted remarks, a once-in-a-generation change to the architecture of our national security legislation, we revisited that decision because I think the case for having an independent statutory officer specifically tasked and with the expertise to conduct reviews of the national security legislation is a good thing. The decision to abandon it, as I said, was a savings measure, not an expression of the view that it was not a useful thing to have. But given the breadth of our reforms in this area, we decided to revisit that decision, and also, by the way, to reassure the public that yet another of the many checks and balances would not be removed from the legislative and executive architecture.

It is instructive by the way, Paul, because a lot of hypocrisy is expressed about the National Security Legislation Monitor, it's instructive to remember the history of it. The idea came from a Liberal, Petro Georgiou. It was introduced as a private member's bill during the Rudd Government and defeated by the then Labor Government. It was introduced as a private Senator's bill by former Senator Judith Troeth and me, and defeated by the Labor Government the day. They saw the error of their ways, they reinstated the office with our support, without acknowledgement, but our support and, as I have said, we have decided to preserve it.

Now, your other question was about special intelligence operations. These are, of their very nature, covert operations. They are unusual operations. They require unusually the fiat of the Attorney-General. That is one of the safeguards that's been built in for the special intelligence operations regime. The idea that these could be simply rubber stamped to cover up or gloss over anything that ASIO might choose to do is a nonsense. There are various statutory tests that the Attorney-General of the day has to apply to be satisfied, to certify or authorise or give his fiat to a special intelligence operation.

Compere: Specifically on the freedom of the press, how would you respond generally to the risk that that legislation poses?

Attorney-General: Well, the main point I'd make to you, Laurie, is that this legislation doesn't change the law. These provisions exist in existing Australian law, federal and state. They exist in particular in relation to the Australian Federal Police and controlled operations. So we're not changing the law. We are applying an existing law to ASIO. Secondly, might I say, although journalists have taken umbrage at this, this is not a law about journalism, it's not a law about journalists. It's a law of general application about the disclosure of something which ought not for obvious reasons be disclosed.

Question: John Kerin from the Fin' Review. I just wanted to ask you, since you've moved to the higher terror alert level, is the Government getting the cooperation it requires from the business community in terms of protecting critical infrastructure, I guess terror financing is another area, and is there a need just for greater vigilance?

Attorney-General: There is a need to be vigilant, particularly about critical infrastructure, there is no doubt about that. Basically the answer to your question is, yes, the Government is happy with the level of cooperation that it's getting from the business community. I might say that I think the business community is happy with the level of cooperation it is getting from Government. ASIO and the Australian Federal Police have established channels and relationships with the business community to give them advice on the protection of their infrastructure as well as the protection of their computer networks too, and other things, by the way. I have reinstated a business roundtable on security that was left in abeyance by the previous government, so there is a greater level of engagement with business on the issue of security concerns that affect them than there has been in the past, and the level of cooperation and collaboration is good.

Question: Michael Brissenden from ABC, Attorney-General. I know you say those laws aren't specifically designed to target journalists, but clearly journalists are the one who're going to be dragged into this because journalists are the ones generally who tend to publicise information that a government thinks shouldn't be tell, publicised. Who determines what is a special intelligence operation, to start with? And would something like the Indonesian spying allegations have been considered or could it have been considered a special intelligence operation and would the people who publicise that be at risk of going to jail?

Attorney-General: Well, the answer to the first question is that a special intelligence operation is defined by the Act. There are certain statutory tests. It has to be authorised by the Attorney-General as I said in response to your colleague. It's an unusual operation. The Attorney-General has to be satisfied that the various statutory criteria are met, that the operation is appropriately defined and appropriately limited in scope. In relation to the second of your questions, I'm not going to comment on any individual case or how hypothetically legislation might apply to a set of circumstances which have been the subject of a degree of conjecture.

Question: Sophie Morris from the Saturday Paper, Attorney. I'm interested in your journey from small-l liberal and defender of free speech to the Attorney-General who is introducing right now these extending restrictions on reporting and increasing powers of surveillance. You've said the more intelligence you read, the more conservative you become. Without disclosing anything that would compromise a special operation, I wonder if you could tell us when that journey began for you? Was it in your first briefing as Attorney-General, that you realised the problem would be bigger than you understood before, or was there a gradual progress, or was there any point where that that became clear to you that the existing regime was not enough? Also, you've often said that you have a very strong prejudice against extending the powers of this state. It's easy to say that. Sometimes it's hard to see evidence of it. I wonder if you can point us to instances where you have perhaps rejected agencies' request for more powers.

Attorney-General: Well, Sophie, that's, if I may say so, a very good question, to which the answer is, you really encapsulated it in some of the premises of your question. I do approach these issues as a Liberal. I do approach these issues with a philosophical commitment to keeping the power of the state as small as is reasonably necessary and keeping the freedom of the individual as large as we possibly can, and everything that I have done and there are many people from the Department here who work with me in devising this legislation will remember the long conversations we've had and which I've said to them, look, we need to give the agencies the powers that they need, but we must make sure we don't overreach.

The disposition, the philosophy with which a law-maker approaches a task like this does matter, it does matter. And I don't want to be overly partisan, but frankly I think the side of politics which has in its DNA to keep governments small and to keep freedom large, can be better trusted to handle these matters without overreaching on the side of politics which believes that expansion of the power of the state is the solution to every problem. That is the spirit with which I've approached this legislation, and can I give you any examples. I can't give you any examples but there are many occasions when… well, not because I can't, but I'm not at liberty too, but there have been many occasions, not just one or two, many occasions in which I have said no.

Question: Paul Osborne from AAP. Thank you very much for your speech, Senator Brandis. I have a double-barrelled question. The first relates to your announcement today about the ASIO extra funding. I'm just wondering how far does the Government's blank cheque book go for national security, and should taxpayers be concerned that you're taking your eye off the ball in trying to balance the budget in the short term? And secondly, just on the possibility of things not going well for ASIO, mistakes being made, what ability is therefore for whistleblowers to blow the whistle on problems within ASIO and other agencies?

Attorney-General: I don't think anybody would think that the Abbott Government, under the stern Teutonic gaze of Senator Cormann and the imprecations of Mr Hockey, is ever take its eye off balancing the budget, so, not in a million years. But I think you would also, I'm sure the community would accept that the protection of the safety of the public and the investment into the capabilities of the national security agencies is an investment worth making. So this is an exceptional case, openly and declaredly we say this is an exceptional case and it is what the public expects of us.

Question: And the second part of my question...

Attorney-General: There is a very simple answer to that. There is no abridgement of the rights of whistleblowers in this legislation, nor is there any abridgement, by the way, in the capacity of people to approach the Inspector-General of Intelligence and Security. Because of the sensitivity of this area, because it is so important that agencies would sometimes have to operate covertly, maintain the confidence of the public, as ASIO does, that there should be super-added protections and there are. So not only are there whistleblower protections which are unabridged, but there is a special statutory officer—the Inspector-General of Intelligence and Security—whom an officer with a concern may approach and their capacity to do that is without impediment. It is given to gods and angels to make no mistakes. If mistakes are made, there is not only the usual architecture, but a super-added architecture peculiar to the intelligence services to deal with them.

Compere: There is a view of course, in some areas, that the IGIS—the Inspector-General— is not necessarily adequately funded.

Attorney-General: I think the IGIS is adequately funded, and I don't think there is any empirical basis for that observation.

Question: Amelia Brace from Seven News, thank you for your time. Three senators, including one of your Liberal colleagues, have introduced a private member's bill to repeal section 18C of the Racial Discrimination Act. If that was to go to a vote, would you vote against your own election commitment to repeal that section of the Act in order to stay on Team Australia?

Attorney-General: Well, I hope that I, like everybody in this room, will always be on Team Australia. Everybody in this country ought to be a member of Team Australia.

Look, the Prime Minister made what he called a leadership call to take section 18C off the agenda. It was a very crowded agenda. One of the reasons he gave, which I fully understand and accept, is that particularly at a time like this when we are trying to message to the Muslim community in particular, we didn't want a contrary messaging as it were that would then be distorted, as our messaging on section 18C was by our political opponents, to complicate the thing. So, that was the Prime Minister's call, I accept it, and the matter is now off the table.

Question: So how would you vote?

Attorney-General: Well, I accept the decision not to proceed with this matter, that is the position of the Government of which I'm a member. We do have a Cabinet process. I've just been reading Paul Kelly's marvellous book about the Rudd-Gillard Government. One of the reasons that Government failed is because it didn't have an orthodox Cabinet process. We do, and I respect it.

Question: Attorney, Bernard Keane from Crikey. Thank you for your address today. You said the paramount duty of any government is to keep our people safe. In the last decade, between 700 and 1,000 Australians, nearly all of them women and children, have died at the hands of their partners and parents. The reported incidence of domestic violence is on the increase in a state like NSW. Where is the extra half billion dollars in funding to address that? Where are the additional powers for law enforcement agencies? Where is the rhetoric about existential threats for something that actually does kill Australians, rather than merely threaten to kill them.

Attorney-General: I think you are foolishly conflating two completely unrelated issues.

Compere: Do you think there might be more of a focus on this though? I mean this is an issue that does come up and clearly it is a critical social issue which….

Attorney-General: It's an important social issue, and I've recently asked the Family Law Council to in fact take up a new reference that looks at the way that the Commonwealth and the state courts deal with children's matters. So it is something that this Government has been very active to deal with. But the conflation of that important social issue with the question of protecting the community from terrorism is a foolish conflation of two entirely unrelated issues.

Question: Peter Jean from The Advertiser, Attorney. Attorney without asking you to get into operational matters, and noting the fact that we remain on a high terror alert level, have the recent operations by police and intelligence agencies, has that at least stabilised the threat, given that we've had warrants executed, people detained and so on. Can the public take a bit of comfort in the fact that perhaps the risk may not have been as great as it was a number of weeks ago, or is the situation still as it was?

Attorney-General: I think it's very dangerous to editorialise on, or be a commentator on, what is an established standard, a standard established by the specialists in the national security agencies. ASIO advised the Government, and the Prime Minister and I announced, that the Government had accepted the advice to lift the threat level from "Medium" to "High", which means a terrorist event is likely. We saw in the weeks since that has occurred that that was a prescient judgment by the agencies, and I don't think it would be wise at all for me to be a commentator on gradations within that standard. The threat level is "High", it remains "High", and it will continue to remain at that level for as long as the specialists advise us that that is the situation.

Question: Jessica Marszalek from the Herald Sun, Attorney-General. Going to the money that you've announced, and one of the reasons why is for extra officers, we heard from David Irvine a couple of weeks ago here who spoke about the trouble that the agency has had in getting Muslim Australians to work for it. It stands to reason that Muslim Australians would be quite an asset to an agency like ASIO, and what might happen in this space, how government can address this problem?

Attorney-General: I think particular questions about ASIO's recruitment policies are best addressed to the Director-General, but can I respond more generally to what you say. ASIO is an equal opportunity employer. It seeks to recruit from all groups across the community. Obviously, particularly because of language issues, there are certain groups of language speakers who are of particular interest to it, whom it seeks to recruit. So, beyond that I don't think I can usefully add anything to your question. But ASIO does seek to recruit from the Muslim community.

Question: Michael Keating from Keating Media, Attorney. Ian Harper has suggested that section 46.7 in the Competition and Consumer Affairs Act to reduce the purpose effects test to a simple effects test is warranted. Do you think this is a good idea?

Attorney-General: I'm aware of Professor Harper's report. You are probably aware that this is an issue that I am very involved with because it's what I used to do for a living, section 46, before I came into Parliament, so I do have very strong views about it as a matter of fact, and but I will share them with my Cabinet colleagues.

Question: Roger Hausmann for Inside Canberra, Attorney-General. Given that you told us earlier there may be some robust response from the Queensland Government should the Senate inquiry go ahead, could you see yourself, in a twist of fate, see—as a defendant in that case protecting the Senate from a very upset Queensland Government?

Attorney-General: Well, Roger, a couple of things. Don't please construe my response that my answer to an earlier question that the Queensland Government would have a robust response is necessarily predicting the Queensland Government would take the matter on in the High Court. I don't want to breach the confidence of my conversation with the Premier this morning, but just don't make that assumption that that is what robust response means.

Were the matter to be litigated, the Commonwealth would not be the defendant. This is a decision of the Senate, not the Commonwealth of Australia as a body politic. It is not a decision that the Commonwealth government supports. It is not a decision that the Commonwealth Government would defend. It would be a matter for the individual senators who convened the hearings of that committee to respond to what presumably would be an injunction to restrain them from doing so. But I'm by no means predicting that that will happen.

Compere: We'll conclude on that point.