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Transcript of interview with Alison Carabine: ABC Radio National: 17 July 2014: National Security Legislation



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SENATOR THE HON GEORGE BRANDIS QC

ATTORNEY-GENERAL MINISTER FOR THE ARTS

17 July 2014

TRANSCRIPT - Interview with Alison Carabine, ABC Radio National

Subjects: National Security Legislation

E&OE

ALISON CARABINE: George Brandis, thanks for coming in.

ATTORNEY-GENERAL: Good morning, Alison.

ALISON CARABINE: George Brandis, the common criticism of these proposed changes is that you are ushering in the growth of the surveillance state. You recently said that, as a lawyer, you have a bred in the bone respect for due process and civil liberties. How do you reconcile the two?

ATTORNEY-GENERAL: Well, this is always a problem for policy-makers - to reconcile the two very important values of respecting peoples’ civil liberties and their privacy and at the same time, discharging the most important function of government and that is to keep the community safe. Now, Alison, I am a liberal so philosophically, I have a very strong predisposition against big government and against expanding state power. And that is why, in the legislation that I introduced into the Senate yesterday, we have taken the most conservative possible approach in empowering the national security agencies with additional powers but it was necessary to contemporise the legislation. The ASIO Act is an act of 1979. It is 35 years old. It predates the internet age. There is no doubt at all that when it comes to counter-terrorism, the most important field, as it were, is online and traffic through computers. And I think that most people would accept that when we are talking about an act of 1979, to deal with a problem largely mediated through computers and computer networks, it’s not inappropriate to contemporise it.

ALISON CARABINE: So we are facing a modern threat and you’re going to have to prosecute the argument for enhancing security powers. You have said that the threat posed by returning foreign fighters from the Middle East is the most significant risk to Australia’s domestic security that we have faced in many years.

ATTORNEY-GENERAL: That’s correct.

ALISON CARABINE: They’re quite alarming words. What do you base it on?

ATTORNEY-GENERAL: I base it on the advice I receive from the professionals. I base it on the advice I receive from the Australian Security Intelligence Organisation and our other national intelligence organisations.

ALISON CARABINE: But the number of these so-called “jihadists” returning to Australia is quite low. The ASIO Director-General, David Irvine, says they number in the tens, not the hundreds - is it possible to quantify what kind of a risk they pose to our society?

ATTORNEY-GENERAL: Well, I think Mr Irvine did quantify it when he said that there are tens of these people so far and of course, this is an evolving situation. Let me give you a comparison, Alison. A decade or so ago, during the Afghan conflict, about 30 Australians travelled to Afghanistan to link up with the Taliban and engage in jihadist war-fighting on behalf of the Taliban. Of those 30, 25 returned to Australia. Of those 25, 19 were involved in preparing and planning mass casualty terrorist attacks within Australia and of those 19, 8 were actually prosecuted and convicted. So there is a very high incidence of returning jihadists who engage in terrorism.

ALISON CARABINE: Well, that suggests the existing laws were effective.

ATTORNEY-GENERAL: Well, as Mr Irvine has said on the public record, there have been four mass casualty attacks on the Australian homeland interdicted in the last decade or so. So this is not a fanciful notion, this is something that we are very concerned about and the advice to me and to the Government from ASIO and from the intelligence services is that the threat has become significantly greater because of the significantly greater numbers of Australians travelling to the Middle East, to the Syria and Iraq theatres, to engage in jihad.

ALISON CARABINE: So that’s the case for enhancing some of these security powers. If we could look at some of the proposed changes. First of all, to the increased computer access - will that lead to ASIO being empowered to plant spyware on computers operated by third parties or innocent third parties?

ATTORNEY-GENERAL: The provisions of the legislation do allow for third party access but only in very limited circumstances where there is a reasonably-held belief by ASIO that access to that third party computer is necessary to deal with a national security situation.

ALISON CARABINE: Could that potentially mean that every Australian could come under some form of surveillance?

ATTORNEY-GENERAL: That’s not going to happen and I think we should be very wary of making wild claims like Mr O’Gorman in your interview earlier in the morning. People need to understand that ASIO and the national security agencies operate under a very

comprehensive regime of safeguards and scrutiny and oversight and that’s not going to change.

ALISON CARABINE: You are also creating a new offence, punishable by jail, for anyone who discloses information related to a special intelligence operation. This is the so-called “Wikileaks” or “Snowden” provision. Are you specifically going after journalists who report information they receive about operations?

ATTORNEY-GENERAL: No, we’re not and I think there’s been a little bit of erroneous commentary on that provision. It’s designed to plug a gap in the existing legislation. Under the existing legislation, it’s a criminal offence for an officer of a national security agency to disclose intelligence material to a third party but it’s not an offence for an officer to copy or wrongfully remove that material. In other words, communication to a third party is an element of the current offence but it seems to us that it should be wrong and it should be an offence to illicitly remove intelligence material from an agency. That’s all that’s about.

ALISON CARABINE: So it’s not an attempt to crack down on whistle-blowing.

ATTORNEY-GENERAL: No, it’s not and there are provisions for the protection of whistle-blowers elsewhere in Commonwealth legislation that are unaffected by these changes.

ALISON CARABINE: Well, we’ll move on. The first tranche of these reforms do not include data retention but it is under active consideration.

ATTORNEY-GENERAL: That is correct.

ALISON CARABINE: One analogy is being used is that it’s like the

government forcing everyone to hand over their personal diaries, just in case the information might be needed down the line. How do you think Australians will respond to that proposal? Do you think they’re prepared to accept it?

ATTORNEY-GENERAL: Well, I don’t know the author of that remark but it’s a very silly remark. The fact is that telecommunications companies have always retained data of telephone calls for their own billing purposes.

ALISON CARABINE: But specifically for those billing purposes. They don’t hand that over to agencies.

ATTORNEY-GENERAL: And that’s accessible by the agencies under warrant. Now, if the Government were to proceed in this direction and as you rightly say, this is under active consideration - we haven’t made a final decision yet - all it would mean is that the telecommunications companies would be obliged to maintain what is their existing practice.

ALISON CARABINE: Governments overseas are legislating data collection laws. Navi Pillay, the UN Commissioner for Human Rights, says they are out of place in a democracy: “mass surveillance programmes create an interference with privacy”. If the

Government does proceed with metadata collection, won’t the onus be on the Government to demonstrate that this interference with privacy is not arbitrary and is not unlawful?

ATTORNEY-GENERAL: You’re absolutely right. The onus will be on the Government.

ALISON CARABINE: And how do you guarantee that?

ATTORNEY-GENERAL: As I said, the Government has not made a decision on that issue yet but you’re also right when you say that Western governments are moving in that direction and if this Government were to make that decision, then it would absolutely need to be hedged by safeguards. That’s what the bipartisan parliamentary committee recommended last year and that is how we would approach this. As I said at the start of the interview, Alison, I am a liberal - I am against big government. I have a bred in the bone suspicion of big government and arbitrary power so I, of all people, am going to ensure that whatever reforms in order to underwrite public safety are essayed in this area will be subject to appropriate safeguards.

ALISON CARABINE: George Brandis, just to finish up, a Swedish court has upheld the arrest warrant against Julian Assange. Should he return to Sweden and face those allegations of sexual assault?

ATTORNEY-GENERAL: I think Mr Assange should be man enough to face the allegations against him of being a sexual predator.

ALISON CARABINE: George Brandis, thanks so much for your time.

ATTORNEY-GENERAL: Thank you, Alison.

[Ends]