Interview with Rafael Epstein - 774 ABC - Melbourne

14 September 2014

Subjects: National Terrorism Public Alert System

E&OE

Rafael Epstein: George Brandis, good afternoon.

Attorney-General: Good afternoon Rafael.

Rafael Epstein: Why is the threat level being increased?

Attorney-General: The threat level has been increased by the Director-General of ASIO on the advice of the committee of the senior officials of ASIO who keep an eye on these things, because their assessment is, for a variety of reasons, that that is an accurate description of the security situation in Australia today. I want to stress the point that politicians don’t make these decisions, the intelligence professionals do. What the Prime Minister announced this afternoon was the Government’s publication to the public of an assessment made by the professionals. It’s not a political decision.

Rafael Epstein: Can I ask, I mean people are entitled to be curious because Britain increased its threat level two weeks ago.

Attorney-General: Yes.

Rafael Epstein: America hasn’t increased its threat level; we have, so it’s clearly at some point an arbitrary decision.

Attorney-General: Well it’s not an arbitrary decision. I entirely reject that characterisation Rafael. In fact what it represents is a very mature and sophisticated judgement by intelligence professionals on the basis of all the information before them. Now this is a judgement that is specific to Australia and Australian conditions. So it wouldn’t be surprising that different countries might have different assessments. In the United States for example, they have less direct exposure to the issue of returning foreign fighters than Australia does….

Rafael Epstein: Are there more Australian than American foreign fighters?

Attorney-General: Yes there are. There is a number of Americans but Australia has, per-capita, a relatively large number and in absolute terms, this is a problem that affects Australia and Western Europe much more immediately than if affects the United States.

Rafael Epstein: Is it specifically tied, I know there’s no information of a specific, planned attack, but is the threat specifically about Islamic State, that group, or Jabhat al-Nusra, the group in Syria?

Attorney-General: I think there’s no doubt, and the Director-General in the press conference a little while ago made this clear that one of the several considerations that produced this conclusion was the developments in northern Iraq and Syria and the fact that those developments have a direct relationship with events in Australia because, as we know, there are some 60 Australians who have been recruited to go and fight with ISIL and Jabhat al-Nusra, another terrorist organisation. There are a number, the Director-General hasn’t put a precise figure on it, but he said publicly earlier in the week there are more than 20 who have come back to Australia, having participated in this war fighting so those considerations were among the mix of considerations that caused the agencies, in exercise of their professional judgement, to make this decision.

Rafael Epstein: I’m curious about the phone number; I assume that phone line has been up and running for a while, the 1800 1234 000 number. Has any good information ever come from that?

Attorney-General: Yes it has, yes it has and obviously I’m not able to tell you what specifically it is but like all of these public telephone numbers that government’s put up to harvest information from the general public, there is a variety, a lot of it is not useful but on occasions there has been information come through on that number that has been of intelligence value.

Rafael Epstein: And should we, why do you think people are so sceptical? I’m not saying everyone is sceptical but there’s a significant number of those who see this as a politicised threat.

Attorney-General: Rafael, I don’t think it’s right to say that people are sceptical. No doubt there will be sceptical, cynical people in the community but I think they are very much a minority. All the evidence we see from opinion polling and from the way in which the mainstream political parties on both sides have responded to this issue suggest to me that there is a broad, community consensus that this is a real problem and there’s a broad community expectation that the Australian government will respond to it appropriately and that’s what we’ve done.

Rafael Epstein: I just wonder if you have a thought on where the scepticism comes from?

Attorney-General: Well I don’t know where. I suppose there will always be people in any community who will turn their face against the most obvious evidence in the world. When the Director-General of ASIO says that there are some 60 Australians fighting with Islamist-terrorist organisations in the Middle East, he’s not making that up. He’s saying that because that’s what the intelligence tells him. There are at least 60. Now there are a few paranoid fantasists in the community who might think this is a conspiracy against the Australian people by the national security agencies. People who think that are crazy.

Rafael Epstein: Just on the counter-terrorism laws that are coming I think in the next sitting.

Attorney-General: Yes.

Rafael Epstein: I’m not if you released the wording for the foreign fighter legislation precisely.

Attorney-General: No we haven’t.

Rafael Epstein: Can you give it some explanation? I know the Foreign Minister has said that there will be no reversal of proof. How could there not be a reversal of the onus of proof if it’s about proving you’ve got a good reason to go to an area.

Attorney-General: Well let me take you through this carefully. We haven’t yet released the draft legislation. The draft legislation is being finalised at the moment. I had a very long meeting with all my senior officials in Canberra the day before last to go through the final draft and so it has come to a point of a final draft which will be signed off by me in the next few days so it will be able to be introduced in the first week of the next sitting fortnight. Now on the provision about which you ask, that is the proposal that the Foreign Minister be able to declare an area as a no-go zone. There’s no reversal on the onus of proof, simply because the form the prohibition takes is a prohibition. It says that if the Foreign Minister declares a particular locality to be a declared area because it is an area for, instance of, in the possession of terrorist war fighters or there are reasons why people….

Rafael Epstein: The bad guys are there…

Attorney-General: …should not travel there, then it is against the law to travel there. But the legislation also then provides for a number of circumstances in which a person who is in breach of that prohibition, might be able to say, well I had a valid justification for being there. So, what lawyers call an evidential onus falls on them to raise a defence. Now that’s the most common place thing of all in the criminal law for there to be a prohibition of a particular act, so that if you do the act, you’ve committed a crime, but then for there to be defences which a person charged with that crime can bring themselves within the defences.

Rafael Epstein: Ok well I look forward to seeing the legislation. Will the metadata issue be clarified in the next few weeks?

Attorney-General: Well, in relation to metadata that is what I’ve described as the third tranche of legislation. The first tranche being the agency powers legislation currently before the Parliament. The second tranche being the foreign fighters legislation which we’ve just been speaking, and the third tranche will be in relation to metadata. Now at the moment, ASIO is in with discussion with the ISPs and the telecos in relation to various methodological issues and issues of cost, because there will be a cost associated with this, so that we can reach a common government and industry position in relation to that.

Rafael Epstein: So that would be done by the end of the year?

Attorney-General: Well our intention is to have that through the Parliament by the end of the year.

Rafael Epstein: I just wanted to ask you are personal question if I can?

Attorney-General: Yes.

Rafael Epstein: When you sit there with someone who has access to a lot of classified information, like the Director-General of ASIO and other officials, do you, I’m not asking if it is scary, but I wonder when you hear of all of the possible threats I am interested in what, how you feel I guess.

Attorney-General: Well that’s a very good question Rafael and the honest answer is that a year ago, when I was about to come into the job as Attorney-General, I was generally aware from briefings I’d had as the Shadow-Minister of the nature of the threat. When you go into government and you become the Attorney-General, you are made party to very specific and particular intelligence and I am deeply, deeply aware of the gravity of this threat.

Rafael Epstein: You know of course the idea of being captured by, you know, one view of the world.

Attorney-General: Yes.

Rafael Epstein: Is there a way of ensuring you don’t fall victim to thinking, well you know, if only my critics knew what I knew?

Attorney-General: Well that’s a fair question too and to which my response is this - first of all, I do have confidence in both the integrity, and the professionalism, and the thoroughness of Australia’s intelligence community. Secondly, the information that is briefed to me is specific and granular. It’s not as if anybody is making sweeping generalisations. It is specific, it is granular and it is detailed. Thirdly, I don’t profess to be an expert in this field, no politician is or should. But I think people should expect of the Attorney-General that they would have the capacity to read a report and to interrogate the author of the report to ensure that there is nothing slip-shot about the logic, that the inferences that are drawn from the primary facts are fair inferences, that there is no deficiency in the reasoning. That’s the sort of thing I used to do for many years when I was a barrister. So one can interrogate an expert report without being a specialist.

Rafael Epstein: Ok I appreciate your time, thank you

Attorney-General: Thank you Rafael.

[Ends]