SENATOR THE HON GEORGE BRANDIS QC

ATTORNEY-GENERAL
MINISTER FOR THE ARTS

21 September 2014

TRANSCRIPT Television Interview, Australian Agenda, Sky News

Subjects: National security legislation; Royal Commission into Trade Union Corruption
and Governance; constitutional recognition for the first Australians

E&OE
HELEN DALLEY: First, can we stick to the police raids of this week. They were very major
raids. As I said at the outset the media had access to them. 800 police officers went along. There
were something like 15 people arrested, two charged, one charged with terrorism. In the wash up of
all that, are you happy with the strike rate of what you achieved in those raids and are you expecting
more charges to be laid?
ATTORNEY-GENERAL: The question of whether more charges will be laid, thats not for me
to comment on, thats a matter for the Director of Public Prosecutions and the police. In relation to
the execution of the raids themselves, I think what they show is how effectively our intelligence and
policing agencies work together and are able to work very swiftly. This network of people had first
been identified as early as May of this year, but specific intelligence was received in the early part of
last week, only a matter of a couple of days before Operation Appleby was executed that made the
level of concern much greater because it appeared that the intention of these people to attack a random
Australian citizen, or one or more random Australian citizens in the streets, the kind of terrorist
conduct we saw in the United Kingdom a year ago for instance when Trooper Lee Rigby was
murdered in the street in Woolwich, was something that they were about to give effect to. So the
intelligence agencies and the police were able to responds very effectively and well. And lastly,
Helen, I wouldnt assume that merely because only one person was arrested that that means the
operation wasnt a success. I mean the man who was arrested was the person, at least within
Australia, who was the principal person of concern.
HELEN DALLEY: Yes, that charge for a terrorist related offence was the one person. But
Senator Brandis, how imminent was the threat?
ATTORNEY-GENERAL: I think I can say it was days away. The police prefer not to act until
as late as they responsibly can because for as long as their surveillance is covert they can gather more
evidence, but on the other hand of course they act when there is an imminent risk to public safety. So
thats a professional judgement that they have to make in every case. As I said before, these people
have been under surveillance since May but after specific intelligence was received in the early part of
last week they decided there was a sufficiently tangible risk, an imminent risk to public safety that
they should act at once, and they did, and they acted very effectively.
H: And Senator Brandis, was that information this week, was it a phone call, an intercepted
phone call from the alleged Australian fighter in Iraq who is very senior in IS?
ATTORNEY-GENERAL: Yes it was.
PAUL KELLY: Attorney, there was also another person in Brisbane charged from an earlier
activity. To what extent was there planning for a second attack, a further attack there in Brisbane?
ATTORNEY-GENERAL: There is no doubt that there was a level of concern in relation to the
Brisbane operation similar to the level of concern about the Sydney operation, but beyond that Paul, if
you dont mind, Id prefer not to go.
SIMON BENSON: Attorney, it was said to me that there was, while a degree of relief and
satisfaction that the operation on Thursday was a success, there was some degree of frustration that
the police had to act earlier and perhaps compromise, or risk compromising a longer term intelligence
investigation. Arising from that there was the offer made by the Prime Minister of greater powers for
detainment or whatever was needed to ensure that the AFP could keep people off the street. You
mentioned yesterday one area of concern was control orders. I was wondering if you could go to the
specifics of that of what youre talking about in terms of perhaps changed control orders. Are you
talking about lowering the threshold for evidence to obtain control orders?
ATTORNEY-GENERAL: Let me put this in context if I may Simon. The Government, as you
know, has prepared two packages of legislation so far, one dealing with the powers of the national
security agencies which I introduced into the Parliament at the beginning of July and which comes on
for debate early this coming week. And secondly, the so called foreign fighters bill, which I will be
taking to our Party Room on Tuesday, and assuming as I expect it is endorsed, I will be introducing
into the Senate on Wednesday. Now those two packages of legislation, which were of course
prepared before this operation was executed on Thursday, in fact anticipated virtually everything the
police asked for. And when the Prime Minister, and Minister Kennan and I met with the Acting
Commissioner of the AFP and the Director-General of ASIO and the New South Wales police
authorities on Thursday night, and the Prime Minister said words to the effect tell us if there is any
more you need and we will look at it with a view to giving you all the powers you need and asked
the police to come back to us. They came back to us overnight on Friday and Im pleased to say they
were to say that they were very satisfied with what the Government was proposing. In the legislation
currently before Parliament, ASIO said that they didnt want anything beyond what was in the
legislation, they recommended no changes at all. The Australian Federal Police said pretty much the
same thing although they did raise the question of obtaining control orders in urgent circumstances.
At the moment, to obtain an interim control order you have to make an application to the Attorney-
General, you have to take a document before the Attorney-General that addresses 12 issues set out in
the Act, in the Criminal Code, and the Attorney-General has to be satisfied and then the application is
made to a judge, thats for an interim order. So one issue that the AFP have raised with us is the
question of expedited control orders in more urgent cases. Theyve merely raised it as an issue. They
havent put a specific proposal to us but thats something Ill talk to Andrew Colvin, the Acting
Commissioner, about tomorrow.
SIMON BENSON: From what I understand the legislation allows for a control order to be
obtained without seeking agreement from the Attorney-General in urgent circumstances and
ATTORNEY-GENERAL: Thats true, although even in relation to that provision for an urgent
interim control order, there are certain limitations and restrictions including bringing the application
then to the Attorney-General within four hours of making the application. I think, frankly, that this is
something in a very narrow compass. The response of the AFP and ASIO to the Prime Ministers
invitation was to say, well youve really given us now all the powers that we need. The AFP said,
well look, can we streamline the interim control order process a little more. Well, as I say, look at
that. But Im pleased to say that the police and intelligence agencies basically gave the legislation
their strong endorsement.
SIMON BENSON: Attorney, can I ask you this then, weve that there have been preventative
detention orders made. Will you, or have there been sought control orders for any of the people
arrested or temporarily detained in those raids on Thursday? Have control orders been sought or will
they be sought for any of those people?
ATTORNEY-GENERAL:
No, control orders havent been sought and one of the reasons for that, and you asked me a little
earlier about other changes to the control order regime, these are not changes arising from our
discussions on Thursday night. These are changes that the Government had already put into the draft
legislation. The basis on which control orders can be obtained is too narrow. They are only available
in two sets of circumstances. First of all, where the Attorney and the courts are persuaded that there is
a likelihood that issuing an interim control order will substantially assist in preventing a terrorist act,
and secondly, in circumstances in which a terrorist act is itself anticipated but the person the subject
of a control order is shown to have engaged in training with a terrorist organisation. The current
scope of control orders wouldnt, for example, be able to apply to somebody returning from war
fighting in Syria or northern Iraq if authorities had a level of concern but they werent able, or at least
werent initially upon the return of that person to assemble sufficient evidence to charge them with the
offence.
HELEN DALLEY: Under your current laws, you and the authorities have foiled the plot this
week so we didnt need the foreign fighters.
ATTORNEY-GENERAL: Can I just make this point Helen, the authorities have foiled this. I
dont like it when politicians claim credit..
HELEN DALLEY: That is absolutely true, the authorities have foiled this plot without the use of
the need for tougher laws, they used the current laws. So why do you need.
ATTORNEY-GENERAL: Thats true. We need tougher laws. For example, I just explained to
you the two bases on which control orders are available.
HELEN DALLEY: Just on that second point, you made the point about foreign fighters returning
and that the current control laws wouldnt cover those. The man youve charged, the man the
authorities have charged, is not returning from Syria or Iraq as we understand it. He is a home grown
young man. He is, what, five years out of high school in western Sydney. These people are not going
to be caught by tougher laws are they?
ATTORNEY-GENERAL: I think you, if I may say with respect, are confusing two things. The
man who was charged was charged with a crime under the existing criminal code, that is the crime of
conspiracy to engage in a terrorist act. It was a preparation offence. But there were 15 people taken
into custody. A second person was charged with a relatively low scale fire arms offence and the other
13 were let go. Now it may be, it may be, that if the bases on which control orders were available
were broader that some of the people who were released might have been the subject of an application
for a control order, just as David Hicks when he came back from Guantanamo Bay was the subject of
a control order. So I do think that the discussion about control orders is an important discussion
because it is a gap and the capacity of the police and the intelligence agencies to monitor people about
whom there is a serious level of concern, but about in respect of whom there isnt enough evidence
actually to prosecute.
PAUL KELLY: Attorney, can I just go to the foreign fighters bill which you will be
introducing soon. Are you confident that this bill can get through, and will it have the reverse onus of
proof provisions in it?
ATTORNEY-GENERAL: Well the answer to the first question is yes, and the answer to the
second question is no. Let me elaborate. I had a meeting with Mr Dreyfus, the Shadow Attorney-
General, and Tanya Plibersek, in her capacity as Acting Leader of the Opposition, on Friday morning
and I gave them a detailed briefing on the provisions of the legislation. I should also point out that
this legislation will be the subject of thorough parliamentary scrutiny. The Opposition have offered
us bipartisan support on these measures. I will provide a copy of the bill in its final integration to Mr
Dreyfus as soon as it has gone through the Government Party Room on Tuesday, so he will have at
least 24 hours.
PAUL KELLY: The point I want to clarify though
ATTORNEY-GENERAL: Let me just finish Paul, on that point. I am confident that the
Opposition will be satisfied that these measures are needed and I am confident of bipartisan support
for it.
PAUL KELLY: Now given that the Opposition was very concerned on this onus of proof
issue after the initial press conference in early August, have you altered the provision to the bill?
ATTORNEY-GENERAL: There has never been a reverse onus of proof and I think there has
been some confusion here, so let me explain. We are introducing two new criminal offences in this
bill, one of advocacy of terrorism, and one visiting an area declared by the Minister of Foreign Affairs
to be, in effect, a no go zone. So the offence is visiting a no go zone. But then there are a series of
defences or exemptions provided. For example, if a person visits the area solely for the purpose of
providing humanitarian aid, or if the person visits the area solely for the purpose of engaging bona
fide in the profession of journalism to make a news report and so on. Now this is the ordinary way in
which the criminal law works. There is an offence provisions and there are defences and if a person
wishes to say that they are entitled to rely on one of those defences, they have what lawyers call an
evidentiary onus to put material before the court to demonstrate that the defence applies to them.
Thats not a reversal of the onus of proof.
PAUL KELLY: Okay, well we accept that proposition. Could I just move on to another
proposal and this relates to encouraging terrorism. You are expanding the law here to capture people
who are advocating terrorist activities. Again, have you got the support of the Labor Party to pass this
and who are the sorts of people you intend to capture through this provision?
ATTORNEY-GENERAL: The answer to your first questions is I expect the Labor Party will
support this provision. Its important to bear in mind what the actual provision is. It prohibits a
person from counselling, encouraging, urging or procuring another to engage in a terrorist act or to
commit a terrorist offence. So its not a general provision, its quite specific. There has to be a link
between the commission of a terrorist offence or the engagement in a terrorist act, and the conduct
constituting the advocacy. So its a more specific application in the case of terrorism of a general law
principle that has been part of
PAUL KELLY: Who are you chasing with this provision?
ATTORNEY-GENERAL: We are chasing anybody who violates it. The view that was taken
was that the general law in relation to incitement of violence, which requires a very close correlation
between the words and the violent act, were insufficient to deal with a circumstance in which people
actually go out and call on other citizens in a general way to commit a terrorist act.
PAUL KELLY: Its been suggested in the media that Islamic preachers may well be the focus
of this activity.
ATTORNEY-GENERAL: Well theyre not. This is law of general application. Its not directed
at any section of the community and the people who are the focus of the provision are people who
engage in the activity. It doesnt matter who they are. You cannot urge other citizens to engage in
terrorism, or at least you wont be able to after this law passes. Now Im at pains to make the point,
Paul, that this is not about prohibiting people from, for example, engaging in political commentary or
commentary about international affairs. Of course we are not prohibiting that. It is absolutely against
the DNA of every man and woman in the Government to impose limitations on freedom of speech.
But there is all the difference in the world between expressing opinions and urging violence.
HELEN DALLEY: Minister, I just wanted to go back to the no go zones. Presumably youre not
going to make Turkey a no go zone, but we know that a number of these fighters, or we understand
that a number of these young Australian men whove been urged into the fight with IS have gone into
Syria through Turkey. Are you saying that theres some way you can stop that route or are you going
to make every Australian tourist who goes to Turkey have to justify that theyre going?
ATTORNEY-GENERAL: No, not at all. I think theres been a little bit of over analysis of this
provision. For a start, it only applies if the Minister for Foreign Affairs declares a particular locality
to be a no go zone.
HELEN DALLEY: But we know that this area is part of the world where those fighters are
getting into Syria, so presumably that should become a no go zone.
ATTORNEY-GENERAL: That doesnt mean that we would be declaring any locality through
which foreign fighters might pass to be a no go zone and you gave the example of Turkey. Of course
we are not going to be proscribing Turkey, in my view, although its ultimately a matter for my
colleague Julie Bishop. In my view these localities should be quite narrowly described. For example
we know there are certain areas in Syria and that there are certain areas in northern Iraq which are, as
it were, hotspots for terrorism, for headquarters of ISIL or Jabhat al-Nusra. A town or even a village
might be the subject of such a declaration. The point I made when I announced this with the Prime
Minister on 5 August is I expected that this power would be used sparingly. And please, Helen, dont
make the mistake of assuming that merely because a law exists it will be used in a gratuitous or a
wide fashion. It wont. What we need to do is have every tool in the legal armoury that is available
to us. But it doesnt follow from that that we will necessarily be using these laws in every case,
because we wont.
HELEN DALLEY: I just want to clear up one thing about in the new terror laws that are going to
be proposed. David Leyonhjelm, who sits in the Senate, although you may not need his vote from
what youre saying about support from Labor. But he is arguing that your new laws will enable the
wider immunities from prosecution for the security agents, will enable them to torture. I know youve
counted that out but what can you say about that because that does give them very wide discretion
doesnt it?
ATTORNEY-GENERAL: As a matter of fact it doesnt. Its an immunity provision, its not a
power conferring provision. And I think, with respect, Senator Leyonhjelm has not appreciated that
distinction. ASIO can only act within its statutory powers and it can only engage in operations that
are authorised. In the course of an authorised operation it may be, for example, if an ASIO operative
were to penetrate covertly a terrorist network or a terrorist cell and had to, as it were, play along with
the planning, technically that ASIO operative might be liable but for an immunity for the offence of
conspiracy. Therefore there have to be statutory immunities to enable covert officers in particular to
do their jobs. But the point I make is that because ASIO does not have the power to torture, never
would have the power to torture, then conduct constituting torture could never be the subject of an
authorisation. So this issue simply would never arise, it could never arise, as a matter of law. But
beyond that, and out of abundant caution, the immunity from prosecution provision exempts certain
conduct and among the conduct that is exempted is conduct causing serious harm which is both
physical harm and mental harm which is what most people in common speech would regard as
torture. So even within the exemption, within the immunity, were it to apply, which it doesnt, there
is an exemption would prohibit in any event. This is a red herring this argument. And lastly, Im
sorry this has been such a long answer, but lastly might I point out that the special intelligence
operation regime that will cover ASIO is modelled on the controlled operations regime under which
the Australian Federal Police have operated successfully, and without abuse of power, for almost 20
years now. So this is not new in our law.
SIMON BENSON: One final question on this, last week the terror threat was raised from
Medium to High. But in the process you were having discussions about rewriting the entire public
alert architecture, if you like. Is that still going to take place or have you abandoned that process
because of the change in the level?
ATTORNEY-GENERAL: We havent abandoned the process. What we decided to do is to
have a look at the terror alert system, both the calibrations and the descriptors, and that is part of an
overall whole of government review of our posture in relation to terrorism, not from an operational
point of view but from a governance point of view. That is being looked at at the moment. Its not a
decision we have made. Its something that I think as a prudent government we have decided to keep
under review to be satisfied that the current calibrations and descriptors are as appropriate as can be.
HELEN DALLEY: Minister and Attorney-General, I just wanted to broaden it out briefly, just to
ask you one question about the Iraq contingent. Paul Kelly mentioned in his opening commentary
that it needs to be contained. How contained will Australias new role in Iraq be?
ATTORNEY-GENERAL: A couple of points Helen. First of all, remember that we actually
havent made a decision to commit to any mission yet. We have made a decision to pre-position so
that in the event, Im bound to say in the likely event, that we are asked to participate and that we
agree to participate, then we are ready and in theatre. Australias role will be defined by the decision
of Cabinet that commits us and the appropriate status of forces agreements and other agreements with
the Iraqi government. We would only participate in a mission of this kind at the request of the Iraqi
government. And the last point I want to make to you, Helen, is this is a humanitarian mission. It
obviously has a military element because the objective is to degrade and ultimately to destroy ISIL,
but we are doing this for a humanitarian reason. These people have inflicted the most unimaginable
savagery on people in northern Iraq, the Christian population, the Yazidi population, the Islamic
populations, and the world needs to stop this. So this is first and foremost a humanitarian mission but
obviously with a military element.
JUDITH SLOAN: Attorney-General, I might cast your mind to the Royal Commission into
Trade Union Governance and Corruption. I think theres been so much in the news that perhaps some
of this is being moved from page one, two, three, four and the like. But there are some very important
revelations that have been exposed. I guess the point I would make is it concerns me a little bit that
we are kind of just scratching the surface and if we compare it to the Cole Royal Commission, which
was only about one industry, there was double the number of senior counsels, double the number of
sitting days and the like. Are you giving any consideration to whether this Royal Commission
actually needs to be more resourced, perhaps given a longer timeframe because there are some very
very important principles at stake?
ATTORNEY-GENERAL: You are right about that Judith, there are important principles at stake
and what the Royal Commission has uncovered so far is deeply deeply disturbing. The Royal
Commissioners Letters Patent require him to report by the end of this year. If the Royal
Commissioner were of the view that that is too short a time frame given the material that has already
been uncovered by the Royal Commission, then the Government would consider any request that he
might make that would enable him to sit for longer or to examine broader issues that are raised by the
evidence that has already been before him. Now no such request has been received to date and
therefore no such decision has been made. Were a request to be received it would be considered at
the time.
HELEN DALLEY: Minister, how alarmed are you by reports this week that a counsel assisting at
the Royal Commission was assaulted, that witnesses have been intimidated? I mean whats going on
and what can be done to prevent this sort of outrageous behaviour.
ATTORNEY-GENERAL: Im very distressed to learn.it wasnt a counsel assisting, it was one
of the senior solicitors working for the Commission, a young lady was very seriously assaulted in
Melbourne. I did ring Dyson Heydon, the Royal Commissioner, on Friday to express my concern for
her wellbeing. He told me when we spoke on Friday morning that there was no evidence that the
assault was related to her work with the Commission. So rather than set hares running here, I think
its enough to say that obviously its a terrible thing to have happened. Can I again extend my
sympathies and concern on behalf of the Government to the lady concerned. Im not saying it wasnt
related to the Commission. There is no evidence however, that Im aware of and Mr Heydon was
aware of when we spoke on Friday, to show that it is.
JUDITH SLOAN: Just still on this topic, there was a view, perhaps a narrowly expressed view,
that because no smoking gun was released as a result of the former Prime Minister Julia Gillard
appearing that the Royal Commission is some sort of waste of time, a witch hunt. Can I ask a
question in two parts, would you expect there to be charges made as a result of the material that has
been presented before the Royal Commission, and I guess the second point is, I mean at this stage,
would there be a view that the Government will need to take legislative action to clamp down on
some of the malpractices that weve heard about?
ATTORNEY-GENERAL: Judith, I think were getting a bit ahead of ourselves, at least I would
be getting ahead of myself if I were to respond affirmatively to that question. Weve had a lot of
evidence but of course we havent had the report of the Royal Commissioner. When the Royal
Commissioner delivers his report, or if the life of the Commission were to be extended when he
delivers an interim report, then no doubt he will make some findings and he will make
recommendations if there is evidence that one or more individuals should be charged. Can I also
make the point to you Judith, that although its been said by some that this is a witch hunt, you
couldnt possibly sanely maintain that view today given, as you say, some of the evidence in relation
to systemic corruption and disrespect for the rule of law by some elements of the trade union
movement.
PAUL KELLY: Just to finish up, Attorney, on another subject. Theres been a lot of criticism
of the proposed referendum to recognise the Indigenous peoples in the Constitution on the grounds
that the principle here would be very divisive if the Constitution recognised one racial group, that is
Indigenous peoples. We have already seen a lot of commentary to this effect. Im wondering in
general terms, because I know the question is not yet finalised, but in general terms, what is your
response to that critique?
ATTORNEY-GENERAL: Paul, you know, there was always going to be discussion about this
issue, the issue of the referendum and thats a healthy thing. People of good will have taken different
positions in relation to it. So if your point is that theres controversy about this well there was always
going to be.
PAUL KELLY: I thought you might want [inaudible]
ATTORNEY-GENERAL: What I want to say Paul, if I may finish, is the Government is
committed to this. The Prime Minister is intellectually, and if I may say so, emotionally committed to
this as is every member of the Government. But I am strongly of the view, and I said this to the Prime
Minister, that only a relatively conservative proposal will succeed, has any chance of succeeding, and
that might mean that people whod like a more adventurous proposal are going to be disappointed
because in any constitutional referendum, this is no different, the principal audience that you need to
address and to persuade are people who are sceptical because Australians are rightly sceptical of
constitutional change and therefore their scepticism and their doubts need to be addressed and
assuaged. But dont forget also Paul that the 1967 referendum, which was in a sense a precursor for
this, was also the most successful referendum in Australian political history, I think the yes vote was
something like 91%, and what we want to do by putting forward a modest proposal in circumstances
of goodwill is to replicate the spirit of 1967.
HELEN DALLEY: Attorney-General, I know we have to let you go. Thanks very much for
joining us.
ATTORNEY-GENERAL: Its a pleasure.

[Ends]