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Transcript of interview with Kieran Gilbert: Sky News AM Agenda:17 July 2014: National Security



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SENATOR THE HON ATTORNEY-GENERAL QC

ATTORNEY-GENERAL MINISTER FOR THE ARTS

17 July 2014

TRANSCRIPT - Interview with Kieran Gilbert, Sky News AM Agenda

Subjects: National Security

E&OE

KIERAN GILBERT: The Attorney joins me this morning. Thank you very much for your time.

ATTORNEY-GENERAL: Good morning, Kieran.

KIERAN GILBERT: Are these laws designed to prevent an Australian Edward Snowden? Is that what this is about?

ATTORNEY-GENERAL: What they’re designed to do is to keep Australians safe from terrorist attack. The fact that, as the Director-General of ASIO revealed yesterday, there are tens of Australians who have returned to this country, having fought jihad in the Middle East - no doubt these people have been trained in terrorist tradecraft - should send an alarm bell to all Australians that this is not a problem that exists on the other side of the world. This is a problem that exists in our own suburbs and among some of our own citizens and we have to equip the intelligence agencies and the police forces of our country with sufficient powers to ensure that there isn’t a terrorist event on Australian soil.

KIERAN GILBERT: Given the broad nature of the clause here - that people could face five years in jail - any person that discloses special intelligence operations, critics of this bill suggest that that could catch journalists as well and would expose media outlets to this sort of punishment. Is that the aim of it?

ATTORNEY-GENERAL: No, it’s not. It’s not the purpose of this bill to place any constraints at all on freedom of discussion. We are a government that believes very strongly in freedom of speech and freedom of the press. That is one of the points of difference between my side of politics and the Labor Party, in fact. What this whole package of legislation is about is bringing ASIO’s powers up to date. ASIO operates under a 1979 act - an act that predates the internet and certainly predates social media. Most of the communication between terrorists and terror groups is now mediated through computer networks and through cyber space. So if the security agencies are going to be able to do their

job - and Australians want them to do their job properly - they need to be equipped with the tools to do it.

KIERAN GILBERT: The Greens senator, Scott Ludlam, says he can’t see anything that pre-conditions or carves out public interest disclosures. He says, “I can’t see anything that would protect journalists in this bill.” What’s your response to that?

ATTORNEY-GENERAL: I haven’t seen Senator Ludlam’s comments but I know his track record in this field. Senator Ludlam is one of the most poorly-informed and hysterical commentators. The fact is that the Commonwealth whistle-blower protection laws are unaffected by these provisions and as I say, Kieran, what we are concerned to do - and I’m sure the Australian community is right behind us - is to keep Australians safe from the real threat of terrorist violence on our own soil.

KIERAN GILBERT: I’m sure everyone is behind that but I guess it goes to the issue of whistle-blower protection, where it is in the public interest.

ATTORNEY-GENERAL: I just told you that these provisions do not affect the protections for whistle-blowers.

KIERAN GILBERT: Okay, let’s look at some of the specifics here. I want to ask you about the data retention issue first of all because David Irvine says it’s absolutely crucial to their work. You would be inclined then to allow the agencies to have that capacity, which requires phone and internet companies to keep data for two years. If he says it’s “absolutely crucial”, you would be inclined to support him on that, wouldn’t you?

ATTORNEY-GENERAL: Data retention is not part of the package that I introduced into the Senate yesterday. It is under very close consideration by the government. No decision has yet been made. We take the advice of the security agencies very seriously of course but equally we are very concerned to ensure that we don’t respond in a hasty or a reactive way that creates intrusions into peoples’ privacy. Now the reality is that the telecoms do retain data for billing purposes but because their billing practices are changing there is a diminution in the amount of data they retain. So if the government were to go down the path recommended by the security agencies, all we would be doing would be to mandate the telecommunications companies do what, up to now, they have been doing anyway and which, under the current law, is already accessible by warrant.

KIERAN GILBERT: Okay, so there would be no change then? Is that what you’re saying - in terms of the metadata?

ATTORNEY-GENERAL: Telecommunication companies have conducted their billing practices up until now has depended upon retaining data about phone calls, in particular. Billing practices have changed and they bill by time rather than individual telephone calls. Some of them are ceasing to retain the data because they no longer need it for billing purposes.

KIERAN GILBERT: What’s David Irvine, the Director-General of ASIO, talking about when he says it’s “absolutely crucial” that their powers be enhanced in this area?

ATTORNEY-GENERAL: Well, there’s no question that for the security agencies and the police to be able to identify a pattern of telephone calls, in particular, between particular telephone numbers is a crucial part of the data set that they rely upon in carrying out investigations. And what ASIO is concerned to do is to ensure that with a change in the billing practices of the telecoms, they don’t lose the ability to access that data set.

KIERAN GILBERT: And again, I would say you would be inclined to support them on that, if he’s talking about this being “absolutely crucial” to their work, you would be inclined to back him on that?

ATTORNEY-GENERAL: The government has not made a final decision on this matter. It is under consideration at this very moment. We take the advice and counsel of the national security agencies very, very seriously but equally, we take the rights and privacy of Australian citizens very seriously too. So this is not a decision that we’re going to make in a hasty and reactive way.

KIERAN GILBERT: On the greater legal protections for agents who “break the law”, what sort of things are we talking about here? Is it break and enter?

ATTORNEY-GENERAL: Let me give you an example. Let us say that there is an agent who, under deep cover, penetrated a terrorist cell and was involved in conversations concerning the planning of a terrorist attack for example. Technically, that person might be guilty of the crime of criminal conspiracy or guilty of the preparation of a terrorist event. That person would be undercover and the purpose of their conduct would be to conduct an undercover operation but at least technically, the conduct in which they were engaged in carrying out that operation might place them in breach of certain criminal laws. Now, we want to protect intelligence officers from exposure to liability in circumstances like that.

KIERAN GILBERT: I would have thought that that sort of thing would already be in place. How come that’s not already in place?

ATTORNEY-GENERAL: Well, it is in place under the Intelligence Services Act for some of the intelligence agencies but surprisingly, it’s not in place under the ASIO Act for ASIO officers. So that’s a gap in the law that we’re going to correct.

KIERAN GILBERT: On the tens of those that have been to Syria and Iraq and who have returned to Australia - how much of a potential threat are those individuals to national security?

ATTORNEY-GENERAL: The best way, Kieran, I can answer your question is to give you a comparison with the Afghan conflict of a decade ago. During the Afghan conflict, we think about 30 Australian citizens went to Afghanistan to fight with the Taliban. Of those, 25 returned to Australia. Of the 25 who returned to Australia, 19 were actively involved in the preparation of a mass casualty terrorist attack on Australian soil of whom 8 were subsequently prosecuted and convicted. So there is a very high correlation between going overseas and fighting jihad and being trained up in terrorist tradecraft and then returning to Australia with the intention of continuing jihad on Australian soil.

KIERAN GILBERT: So this is a significant threat?

ATTORNEY-GENERAL: It is the most significant threat to national security in decades.

KIERAN GILBERT: There’s been a lot said about stopping these individuals at the border. It obviously hasn’t worked if tens of them are already back. I know the government has said that you’ll be stopping them at the border where possible. The Prime Minister has indicated that that has been the government’s aim but they haven’t done that if tens have already slipped back into the community.

ATTORNEY-GENERAL: Well, that’s why we’re reviewing the entire suite of our criminal laws to deal with this problem. But can I just make this point to you - there is an existing criminal offence under the Crimes (Foreign Incursions and Recruitment) Act, which is a Commonwealth Act, which makes it offence to go overseas to fight in a civil war. And if people come back to Australia having done so, they will have committed a serious crime punishable by up to 25 years in jail. Now, there are issues of proof with people like that and as part of the review of Australia’s terrorism laws that the Prime Minister has asked me to undertake, we’re looking at ways to make it easier, for example, to facilitate proof.

KIERAN GILBERT: But it’s too late when it comes to these tens of individuals, because they’re already back in the community.

ATTORNEY-GENERAL: Well, they’re Australian citizens so they’re entitled to return but equally, what we want to do is to make sure that if Australian citizens come back to Australia with malevolent intent, we stop them at the border and pick them up.

KIERAN GILBERT: I want to ask you finally about Khaled Sharrouf and these tweets that he’s posted online. Your reaction to that and are there any signs that potential terrorists are being influenced by him.

ATTORNEY-GENERAL: Well, I think one of the problems we have in this area is the pervasiveness of social media. What Sharrouf says is to be taken seriously. This man is seriously dedicated to violence both in the Middle East and in Australia as well. And the tweets that have been published this morning illustrate so powerfully why our security agencies need to have the surveillance and other powers to deal with this man.

KIERAN GILBERT: Attorney-General, thanks for your time.

ATTORNEY-GENERAL: Thank you.

[Ends]