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Transcript of interview with David Speers: Radio National: 16 July 2014: discusses National Security Legislation Amendment Bill; Independent National Security Legislation Monitor; mandatory data retention.

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SUBJECT/S: National Security Legislation Amendment Bill; Independent National Security Legislation Monitor; mandatory data retention.

DAVID SPEERS: Joining me now is the Shadow Attorney-General Mark Dreyfus. Thanks for your time.

Can I start with that issue, the number of Australians who have already returned from the battlefield in Syria. How concerning is that?

MARK DREYFUS, SHADOW ATTORNEY-GENERAL: We’ve said all along that it’s concerning that any Australians are going to fight, to participate with terror groups, in the conflict in Syria. And more recently we’ve learned, because the border between Syria and Iraq is blurring, that they are in Iraq as well.

We have said now for more than two years that we are concerned about this, and one of the concerns was always and remains that some of these Australians are going to return further radicalised and trained and capable of doing harm here in Australia.

SPEERS: My understanding is no arrests or charges have been laid in relation to these people who have returned but they are being monitored.

Does it alarm you that number, or are you not so concerned about that sort of number. It was deliberately vague but David Irvine did refer to tens of Australians.

DREYFUS: The concerns remains, as it has been, and it is a concern and against the law for Australians to go and fight with these terrorist groups in Syria or in Iraq. And the concern always was and still is that some of them are going to come home.

SPEERS: Of course at the moment the law will only catch those who are fighting with a foreign power against Australia.

DREYFUS: No, that’s not right. The law also catches those who, the criminal code provisions prohibit an Australian from participating with, fighting with, funding, assisting, one of these listed terrorist organisations.

SPEERS: Okay, but is there adequate law at the moment to deal with Australians who are caught up in this situation?

DREYFUS: We have got laws that criminalise, both the Foreign Incursions Act and the Criminal Code, criminalise participating with these terror groups in Iraq and Syria.

SPEERS: Can I turn then to what is being proposed by the Government now, in terms of the first tranche they’re calling it, of anti-terrorist laws. Are you on board with everything they have announced?

DREYFUS: What we’ve seen is a bill introduced to the Senate today by the Attorney-General which acts on recommendations of the Parliamentary Intelligence Committee, bipartisan recommendations from the middle of last year.

Those recommendations were part of a report that Labor commissioned in government. And of course, these are our proposals which are being commented on and were recommended by the committee last year.

We are told that they have been given effect in this bill. It's part of the report and what is now to happen is there will be parliamentary scrutiny, there will be scrutiny most importantly by the Australian community.

Because it is very important, as part of maintaining confidence in our intelligence agencies, in the need for these kinds of powers, that the government properly explain why these powers are needed and that there be adequate opportunity for scrutiny.

SPEERS: But if they do reflect these changes, that came out of that Parliamentary report, you would presumably support it?

DREYFUS: What we’re waiting for is the reaction of the community. The comment that’s now going to come as part of this Parliamentary Intelligence Committee process and of course the comments of the Inspector General of Intelligence and Security.

And importantly, there is now going to be, because the government has reversed its proposal to abolish the Independent National Security Legislation Monitor and we welcome that. We welcome the reversal.

We said all along the Government should not be abolishing this important oversight mechanism and the Government has now agreed with that. They’re not going to do it and that’s another comment that is going to be available, when the Government appointments the National Security Legislation Monitor.

SPEERS: There was one announcement today that wasn't part of that Parliamentary report, and that is the tougher penalties for leaking intelligence information, a ten year jail term would be part of these change. Would you support that?

DREYFUS: I’ve looked at these provisions of bill. In fact there’s two parts to this, David. The first is toughening the penalties for giving over, to anybody for leaking, not properly called leaking, it is for releasing intelligence information or giving it to a foreign power, that is to have a higher penalty.

But in addition, there is a new offence being created for, what I would describe as the preliminary actions, that might be downloading information onto a disc, it might be just taking bits of paper home, provided the intention there is to release the information, then that simple act of taking the material home or downloading it that is going to be an offence. And I think that’s important because-

SPEERS: So you would back both of these changes?

DREYFUS: We have to look at the detail, we have to study the exact terms in the bill but in principle, yes.

SPEERS: Is there an issue here of trying to balance whistleblowing and the importance of protecting whistleblowers against those who are clearly trying to do harm to Australia?

DREYFUS: I think it is always important, I was the chair of the Parliamentary Committee which recommended a scheme of whistle blower protection for Australia and the minister who introduced and took through the Parliament a scheme of whistleblower protection in the Australian public service.

SPEERS: How do you do that here?

DREYFUS: You do have to balance it, and the importance is of knowing that there will be, but I suspect there are much rarer occasions than anyone thinks, occasions on which whistleblowing might be called for. Far too often people claim to be a whistleblower when in fact they are not.

SPEERS: And that all comes down to that intention, doesn’t it? As you used the word earlier, was the intention of downloading some material onto a disc, to blow the whistle on something that has gone wrong or to do harm.

DREYFUS: I think what we need to be very focused on is the importance of keeping intelligence information secret. That is the way in which the intelligence community needs to operate. And it needs to be very squarely understood that it is an offence to release intelligence information. I don't have any problem with that.

SPEERS: Now, can I ask you about this metadata issue, the Government has not yet moved on this front and nor did you in government. But we did hear from the ASIO chief today that this is crucial. The spy agencies want metadata -phone, email, internet records - kept for two years. Where do you sit on this one now?

DREYFUS: I announced when the Committee's report was tabled, the Intelligence Committee’s report last year, it of course declined to make any recommendations about mandatory data retention. It did say that if any scheme is to be considered it needs to be very carefully safeguarded, there needs to be oversight.

I said when commenting on this last year that Labor would not be introducing a scheme of mandatory data retention at that time and if a scheme is now proposed we will of course look at it in detail.

I understand the arguments that are being put forward by the Australian Federal Police, by ASIO, but equally I understand the concerns in the Australian community about the protection of privacy. And it’s not possible just to state in the abstract, as it were David, whether or not one supports mandatory data collection.

SPEERS: Has the situation changed since last year though, do you think? In terms of the threat being faced, the challenges the spy agencies have.

DREYFUS: I think we heard the Director-General of ASIO saying today that it is now possible for the agencies, for the Australian and Federal Police, to get access to data that is presently retained by telecommunications companies and of course that is the case.

The concern is one a little bit more going into the future, that more and more telecommunications companies are going to stop keeping data because they no longer need it for their commercial purposes and that is what this debate about mandatory data retention is about.

It’s not so much about the situation now, it’s looking at the risk in future that data simply won't be there, unless when agencies go looking for it or need it for the purposes of investigations. It’s whether we need to have some mandating of retention of data.

SPEERS: Shadow Attorney-General Mark Dreyfus, thank you.

DREYFUS: Good to be with you David.