JOINT PRESS CONFERENCE

SENATOR THE HON GEORGE BRANDIS QC

ATTORNEY-GENERAL, MINISTER FOR THE ARTS

THE HON MALCOLM TURNBULL MP

MINISTER FOR COMMUNICATIONS


30 October 2014

TRANSCRIPT Press conference announcing the introduction of the
Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014
with Mr Duncan Lewis, Director-General of Security, and Mr Andrew Colvin,
Commissioner of the Australian Federal Police.

Subjects: Data Retention Bill, Mohammad Ali Baryalei, Coalitions Direct Action plan

E&OE

GEORGE BRANDIS: Well thank you very much indeed ladies and gentleman. On the
5
th
of August the Prime Minister and I announced an in principle decision of Cabinet to
introduce a system of mandatory data retention in Australia. As the then Director-General of
ASIO said at the time, access to metadata is an absolutely crucial tool for counter-terrorism.
The need for a mandatory data retention regime arises from the fact that, due to changing
commercial practises by telecommunications providers, metadata which has hitherto been
kept and was therefore accessible will soon no longer be kept, in fact that is already
happening. Unavailability of access to metadata will be a very significant degradation of
Australias counterterrorism and general crime fighting capabilities. Since that
announcement, legislation has been in development in consultation with the national security
law enforcement agencies, industry and other relevant stakeholders. As you know, a short
while ago the Minister for Communications, Mr Turnbull introduced into the House of
Representatives the Governments legislative response.
Metadata is information about the circumstances of a communication as opposed to the
content of a communication. It is defined by the Bill by reference to certain types of
information. The identity of the subscriber to a communications service, the source and
destination of the communication, the date, time and duration of a communication, the type
of the communication and the location of the equipment used in the communication. For the
avoidance of doubt, the bill makes it explicit by Section 187 A4 that nothing in the bill
requires a service provider to keep information about the content of a persons
communications and specific provision is made to exempt from the scope of the bill a
persons web browsing history. The obligation to retain metadata is for two years. The
obligation applies to carriers, within the meaning of the Telecommunications Act and ISPs
providing the services enabled by means of infrastructure located in Australia.
Mandatory retention of metadata is an international best practise standard for counter-
terrorism and the investigation of serious crimes, for instance; paedophile networks. Data
retention regimes currently operate in some 29 countries including most European countries
and the United States. I want to stress, as Mr Turnbull stressed in his second reading speech,
that this bill confers no new powers on ASIO, the AFP or on law enforcement agencies. They
can already access metadata under the existing law; the purpose of the bill is to establish a
common, industry wide standard for metadata retention and to ensure that metadata continues
to be retained so that the investigative capabilities of the intelligence agencies and the police
are not degraded.
The retention of metadata was considered by the Parliamentary Joint Committee on
Intelligence and Security (PJCIS) as part of its comprehensive review of Australias national
security legislation during the last Parliament. The scheme adopted by the Government has
ben guided by the recommendations of that committee in chapter five of its report. Those
recommendations were of course, bi-partisan. The Government has today referred the bill
back to the PJCIS for review.
Now before I ask Mr Turnbull, Commissioner Colvin and the Director-General to make some
remarks, I want to touch on another matter. There has been a lot of public discussion about
the effect of Section 35P which was passed recently as part of the first tranche of counter-
terrorism legislation. Almost all of that public commentary was wrong. In particular the
suggestion that Section 35P was directed to journalists or somehow constituted a constraint
on the freedom of the press is simply wrong. That provision applies generally to all citizens.
It was primarily, in fact, intended to deal with a Snowden type situation. It was based on a
pre-existing provision of the Crimes Act, Section 15HK which contains analogous
protections for protected operations by the Australian Federal Police. An analogous provision
again was introduced into the Crimes Act as part of the delayed notification search warrant
regime which was considered and passed by the Senate yesterday as part of tranche two. Im
concerned that so much discussion about those provisions, that is Section 35P and the
analogous provisions is misguided. There is no possibility, no practical or foreseeable
possibility, that in our liberal democracy that a journalist would ever be prosecuted for doing
their job.
Therefore I have today decided to take advantage of the powers available to me under Section
8 of the Commonwealth Director of Public Prosecutions Act to give a direction to the
Commonwealth Director of Public Prosecutions (DPP) that in the event that the Director had
a brief to consider the possibility of the prosecution of a journalist under Section 35P or under
either of the two analogous provisions which I have mentioned, he is required to consult me
and no such prosecution could occur without the consent of the Attorney-General of the day.
That would mean that in the barely foreseeable, barely imaginable event that a journalist was
subject of a prosecution brief to the Commonwealth DPP, the Attorney-General, as a political
official, as a Minister, would assume immediate responsibility for allowing that prosecution
to proceed. Let me stress that does not mean the Attorney-General could instruct the
prosecution, the Attorney-General can never instruct a prosecution. The prosecution can only
be brought by the Director of Public Prosecutions but this would add a very powerful safe
guard by providing that the Attorney-General would be required to consent to and therefore
accept personal and political responsibility for a prosecution in the barely imaginable event
that such a prosecution were brought.
MALCOLM TURNBULL: Well thank you Attorney-General. The important thing to
understand about this metadata bill, these amendments, is that it is not creating new classes of
data to be retained. And what it is seeking to do, simply, is to ensure that the ability of our
law enforcement agencies, security agencies and police are not diminished because changing
technologies and changing business practises no longer require telcos to retain that type of
data. It is routinely used, as I mentioned in the second reading speech the ability to resolve
internet protocol addresses to customer accounts is a routine, fundamental, vitally important
part of the work of our police and there is nothing new about it. The challenge is that these
records are not being retained for either very long or indeed for barely any time at all. So
what this is seeking to do is to create a standard.
As George has said, it is not giving the police any new powers, it expressly precludes any
obligation to retain your destination IP addresses, what youre doing on the web and the
typical example is where an IP address is identified, it may be identified as Commissioner
Colvin can describe in more detail in the context of a ring of people that are sharing child
exploitation material and an IP address is actually identified as an Australian one. The ability
to go back to the ISP that dynamically allocated that IP address and say, who was the account
holder at this time and date is critically important and again as I mentioned in the second
reading speech, you can see examples where the unavailability of that IP address record, the
inability to resolve it to a customer account actually prevents law enforcement from catching
the criminals and preventing them from doing further harm. So thats what this is about, its
about preserving the status quo and ensuring that there is a consistency across the board and
we are very satisfied that we have protected, weve taken account of privacy considerations.
Again as George just mentioned, I said in the House a moment ago weve substantially
reduced the range of agencies that have warrantless access to this type of telecommunications
metadata and it is essentially now limited to what you might describe as traditional law
enforcement agencies, police, crime commission, ASIO, customs and so forth.
DUNCAN LEWIS: Attorney, thank you, ladies and gentlemen I just want to make a
few remarks, firstly access to telecommunications metadata history is critical and central to
ASIOs work as we go about protecting the security and the safety of we Australians, our
families and our interests. We have used communications metadata for more than half a
century in one way or another within the Australian Security Intelligence Organisation. This
is not new, as has been pointed out, we are not receiving any new powers. What has changed,
as the Attorney and the Communications Minister have made plain, is that the holding of
metadata have been diminishing, thats a technologically and commercially driven reality.
We seek to halt that and we seek to have access, continuing access to these metadata stores in
order that we can fulfil our function.
In particular, for my organisation, this is important for counter terrorism operations that we
have and continue to conduct. Weve had four major mass casualty attack plans, executed or
planned in this country in recent years. One of those you may remember; Operation
Pendennis, in 2005 in Sydney and in Melbourne were particularly important. All four of those
mass casualty plans, terrorist plans, were thwarted in large part because of access to metadata
and if you have a look at the Operation Pendennis example, we had 18 convictions, we
currently have eight of those individuals still in jail, five of them for terms of in excess of 20
years. So the seriousness of the crimes that are addressed by us, or resolved by us in a way
through the access to metadata is critical. Now its not only for counter terrorism but it also
applies in ASIOs case for foreign espionage and foreign interference in this country. So for
us to perform our function of protecting Australians, and Australian interests, we need this
access. Thank you.
ANDREW COLVIN: Thank you, Attorney, thank you Malcolm, Good morning
everybody. The Director General has already stated how important this is to law enforcement
and security agencies and a lot has been said about this before so I dont wish to repeat what
has already been said, except to underline I know I speak on behalf of all law enforcement in
this country when I say how fundamentally important this is to us, not just in a national
security context but so fundamental in most of the crimes, particularly serious and organised
crimes, that we investigate on a daily basis.
As we said this is not about new powers for police, its about seeking to retain that which is,
at the current stage, retained in an inconsistent and unfortunately rapidly degrading manner.
Id like to put on the record a few matters that I think will help the public and people in the
room understand how that we use this data.
Weve already spoken, the Minister has mentioned child protection matters and child abuse
matters, many of us in the room today are wearing a red badge which is to support the Daniel
Morcombe Foundation and Day for Daniel events are taking place around Australia today
and tomorrow. That is a classic case of an investigation which I have absolute confidence in
saying would not have been as successful as it has been without the ability for the
Queensland police to access metadata of the type that this bill is seeking to retain. Contrast
that with a number of other matters where we know that metadata is rapidly degrading as new
players come into the market and as businesses devise their systems in such a manner that
metadata is no longer retained.
If I could just give you a couple of examples of some child protection matters. Ill be
reasonably generic but youll understand the gist of the matter. A recent EUROPOL matter
that identified 371 potential suspects for child abuse material in the UK, of that 371 IP
addresses if you like, because the UK have solid data retention laws UK authorities were able
to identify 240 individual suspects in that matter of which they prosecuted 120. Contrast that
with another major, leading European country, quite sophisticated and developed in the way
that it does business, the same investigation, a very similar number of IP addresses were
identified in that country; 350 odd. They were only able to identify seven and didnt
prosecute anybody because there are no data retention laws in that country and the data
wasnt able to be made available.
We have very similar cases in Australia as well, a recent investigation of 460 odd IP
addresses that resolve back to Australian addresses of people who are actively going online,
viewing, downloading, sharing, child abuse material and of course many of these people, it
troubles us that while they may be offending online, there is also a high likely hood,
potential, that they are offending offline as well. Of that 460, over 150 of those could not be
identified, that was several months ago. My real concern is that as time passes we will
probably have more than 150 of those that could not be identified today.
So this is a real, pressing issue for law enforcement around the country at the moment, it is a
matter that we deal with each and every day, not just in child protection operations, in serious
and organised crime investigations, in our national security work, our physical assault, sexual
assault, murders metadata is that fundamental tool that we use. Its the tool that we use often
to place people at the scene of a crime, or remove them from suspicion. Its the tool that we
use to help us refine what further intrusive matters or powers we may need to use down the
track. As I say I cant underscore enough how fundamental it is. I might leave it at that, a lot
has already been said.
JOURNALIST: First of all, Minister Turnbull, in your speech you said that the
government expects to make a significant contribution to the costs that the providers will
bear, is there any ball-park figure on that and Attorney you said that you would like to refer
this on to the joint committee, what about the timing youd be expecting[inaudible] what
are your expectations of trying to get this through Parliament?
MALCOLM TURNBULL: Well just dealing with the costs, yes, I said that we expected to
make a substantial contribution both to the implementation and operational costs as indeed
the commonwealth does presently. It makes a financial contribution when it asks telcos to
provide access to metadata now. So we understand that were asking these companies to do
things that they dont have a business need to do and there is an expense. As to the ball-park
figure, yes there are some ball-park figures being thrown around but they are at this stage not
of sufficient accuracy for me to be citing at the moment, theres a wide range and we will
obviously work through that with the Parliamentary Joint Committee on Intelligence and
Security will not doubt take an interest in this and of course we have a working group
consisting of the two gentlemen on the far left and far right and the Secretaries of the
Attorneys department and my department.
JOURNALIST: So you dont know? You dont know how much the two years
storage will cost?
MALCOLM TURNBULL: We dont have a final figure Malcolm at this point, there are a
number of estimates and the estimates are getting more accurate. It is something that will be
refined in the course of the consultation.
GEORGE BRANDIS: In relation to the PJCIS that is a matter that is being discussed
today between the Government and the opposition. I spoke a little earlier on to Mr Tehan, the
Chair of the PJCIS, and he is engaging the Deputy Chair, Mr Byrne, in order to resolve the
timing issue. Whatever inquiry there will be will be a thorough inquiry. But can I just make
this point to you? Most of the work that the PJCIS needs to do about this has already been
done. It was done in the last Parliament as a result of a very and youre familiar with a very
large report that was produced and tabled in June of last year which dealt among a range of
topics with the question of data retention. So the policy issues, the questions of the safeguards
regime, all of those issues have already been addressed. So the function of the PJCIS inquiry
is essentially to go through the Bill, it is not a particularly long Bill, its some 47 pages, to
satisfy themselves that it is fit for purpose, that it meets the policy and safeguards objectives
that were established by the earlier report.
JOURNALIST: On 35P you announced that extra safeguard. Is that your
alternative to what Bill Shorten is asking for the appointment of the National Security
Legislation Monitor? Are you still going to do that?
GEORGE BRANDIS: We have made it clear that we will be appointing a National
Security Legislation Monitor. The selection of the appropriate person will be announced very
soon. It is not an alternative to that, we will be doing both. The reason that I have given the
direction to the Commonwealth DPP today is to put to rest, what as I said in my initial
remarks, is really an entirely false story. That provision is not about journalists, it was never
directed to journalists. Journalists have taken umbrage at it and rather than let this false story
continue to run I have installed what Im sure you will see is a very powerful safeguard by
having the Attorney-General take personal and therefore political responsibility for any
prosecution were any ever to be considered. But as I also said it is barely imaginable in this
country that that would occur.
JOURNALIST: And you will refer the legislation to the Monitor when he or she
is appointed as Shorten has asked?
GEORGE BRANDIS: I havent seen Mr Shortens remarks earlier today. I havent
seen those remarks.
JOURNALIST: The legislation was rather unexpectedly introduced this
morning, it didnt go to the joint party room on Tuesday, is there a particular urgent matter
that either ASIO or police are looking at that demanded that demanded that this legislation
come in and that they needed these powers rather quickly?
GEORGE BRANDIS: Well the parliament has been very busy with national security
legislation all week as you know and the Government took the view that it was appropriate to
sequence the introduction and announcement of these measures. Michelle
JOURNALIST: Was there a reason it didnt go to the party room?
GEORGE BRANDIS: It did go to the party room this morning and it was approved
unanimously.
JOURNALIST: You have to get it through by the end of the year? Is that
correct?
GEORGE BRANDIS: Thats not what I said. I said that there are discussions going
on today between the Government and the Opposition in relation to the manner in which this
bill will be dealt with, both by the PJCIS and by parliament.
JOURNALIST: Sorry Attorney, just on 35p, you seem to be offering some
protection for reporters there. What about their sources? And are you now saying that it is
specifically about Snowdon-like cases?
GEORGE BRANDIS: No, no, no. Im not saying its specifically about Snowdon-like
cases; in fact, Im saying the opposite. Im saying its a law of general application. The event
that inspired our concerns about this was the Snowdon event and Snowdon-like cases. But if
you simply read it, as Im sure you have, youll see its a law of general application. It will
continue to be a law of general application but the Government has -- we dont need
legislation to do this, I have made a direction to provide a very powerful safeguard to
journalists.
JOURNALIST: Mr Turnbull, what safeguards will be put in place in terms of
data retention with the telecommunications companies and just as a matter of principle, were
moving from something that is their commercial requirement to store what they want to store,
to something that the Government is obligating them to do. So does the Government then
take some responsibility if there is some sort of data breach in the future? If there is a
security breach? So basically there is specific question there about what measures will be put
in place for safety and the principle.
MALCOLM TURNBULL: Okay well the first point there is the securing of data safely is
the responsibility of the telcos. And of course, they are very alert to data security already and
they are very sophisticated in that regard. We will, we are, preparing new legislation which
will strengthen as I said in the second reading speech the security of Australias
telecommunications structure or system and that would add to that security. And we expect
those new laws, new amendments, to be in place before the 18 month period is complete. But
the responsibility for securing data is clearly in the hands of the telcos, as it is at present. I
mean, just so everyone understands, most of the categories that were talking about in terms
of data, for example telephone metadata, are being kept by telcos for very long periods, for
seven years for example, so this is really anticipating a change in that. There are some ISPs
that have been storing data that they have hitherto kept for very long periods, for years, down
to very short periods or barely at all. And because there isnt in, an IP world as the
Commissioner said earlier, there isnt actually a business need for them to do so. So were
asking them to do something which they are either doing or are supremely capable of doing
but which they may not in the future, if not at the present, have a business need to do so. And
so this is why we talk about protecting the degradation of this resource which has been so
important for law enforcement. So theres nothing new in these gentleman and their agencies
accessing metadata. So this, is in effect, a measure designed, in large measure, to preserve the
status quo.
JOURNALIST: With regard to 35P, with that you say youve instructed the
Commonwealth DPP to take this new course. How durable then is that defence? For example
do you expect it to survive beyond your time as Attorney-General and beyond the life of the
current Commonwealth DPP? Will it become an excepted approach to dealing with
journalists in these cases?
GEORGE BRANDIS: Well thats a matter for future Attorneys-General. Direction
under Section 8 of the Commonwealth DPP Act are revocable, having given this direction it
stands until if it were ever to be revoked by a future Attorney-General.
JOURNALIST: Is it a safeguard that can be revoked at any time?
JOURNALIST: Is that really a true safeguard?
GEORGE BRANDIS: I think its a very powerful safeguard. Its a very powerful,
practical safeguard because what it means is that the Attorney-General has a double capacity,
hes the first law officer and hes also a Minister and therefore a politician. It is a very
powerful, practical safeguard for a Minister who is a practising politician to assume some
personal responsibility for authorising the prosecution of a journalist. You can well
understand Im sure from a practical point of view how powerful a safeguard that is.
JOURNALIST: Commissioner Colvin you gave a couple of broad examples on
data retention for child exploitation, can you explain how it might have been relevant to say
Operation Appleby, or if you dont want to go into that operational detail perhaps a
hypothetical similar example for national security.
ANDREW COLVIN: Thank you. Again, fundamentally its a part of everything we
do. In terms of an operation like Appleby very similar to what the Director General has
spoken about in relation to Operation Pendennis or Operation Neath - the big investigations
youve seen. At a basic level it helps us establish networks. It helps us bring together who are
the groups, who are the communications between. In this regime what were asking to be
retained is not the content, that is a warranted regime, which is very different to legislation
before the Parliament today. But it helps us establish those networks, it helps us work out
who may be talking to who. And in the case of Appleby, as with Pendennis and Neath, we
need to do that so we can narrow in our investigation to where we think we need to focus our
resources.
JOURNALIST: Once the legislation is through, could it be used, for example,
to target illegal downloads? Those responsible for that?
ANDREW COLVIN: I havent even touched on some of the other range of crimes.
Absolutely, I mean any interface, any connection somebody has over the internet, we need to
be able to identify the parties to that connection. Again, not the content, not what may be
passing down the internet. So illegal downloads, piracy sorry, cyber-crimes, cyber-
security, all these matters and our ability to investigate them is absolutely pinned to our
ability to retrieve and use metadata.
MALCOLM TURNBULL: If I could just flesh it out in terms of copyright. A lot of internet
piracy, downloading and sharing copyrighted material unlawfully, is done by way of file
sharing. Im sure no one here has any experience of it! But the that works is that a torrent
stream typically is created in which there are a whole number of computers all with their own
IP addresses which are sharing this pirated content. What the rights owners do is use
different programs, Detectee is a very common one, the participate in the swarm, they
therefore identify the IP addresses computers that are infringing copyright, and then they seek
from the ISPs and they are able to do this with a subpoena of course the account details of
the holder. Now generally they do this pretty much in real time so the two year, holding that
data for two years, probably doesnt make a big difference in terms of copyright infringement
because they are dealing much more with the here and now. Whereas the Police
Commissioners interests often tend to be much longer-term. But that process of resolving an
IP address to an account name is relevant and it happens all the time.
JOURNALIST: Youve mentioned that theres a lot of national security
legislation going through this week and I was just wondering, Senator Faulkner has put out a
very long paper talking about the [inaudible] accompanying greater oversight with all these
new powers going to the intelligence agencies. I was wondering whether youve thought
about that and whether you have any particular proposals about the powers of the joint
intelligence and security committee and also when well see more details about more
resources given to the IGIS.
GEORGE BRANDIS: Well, thank you Laura. Ive read Senator Faulkners paper. I
read firstly in your paper, an extract from it, and then Senator Faulkner was good enough to
give me advance notice of the fact that he was publishing this paper. I think its a very good
paper. Broadly speaking, the approach that Senator Faulkner takes which is that the
agencies in this day and age need strong powers but that those strong powers should be
balanced by strong oversight mechanisms and strong safeguards is my approach. It is a
view that Ive expressed very often long before I read Senator Faulkners paper so he and I
are largely of one mind in relation to the approach to be taken here. We dont want weak
agencies. We want strong agencies with sufficient powers but we want to have a rigorous
oversight regime and rigorous safeguards to ensure that they conduct themselves as of
course they do in accordance with the law. Now, there is already a very considerable
architecture. The fact is that we have an IGIS a unique officer specifically dedicated to this
area of policy. One of the proposals that the Government has adopted as part of the
recommendations of the PJCIS in its report on tranche two of the national security legislation
was to give the PJCIS oversight, as well, of the counter-terrorism functions the Part 5.3
functions of the Australian Federal Police. And that has been done. So the approach you have
recommended to me is my own approach, and the safeguard and oversight mechanisms are
already strong and are being enhanced.
JOURNALIST: [inaudible]
ANDREW COLVIN: Can I just quickly answer that as well. The bill that has been
introduced this morning doesnt make it explicit that the Ombudsman, if he doesnt already in
his own motion provisions, has oversight of the AFP. But this makes it clear that the
Ombudsman will have oversight of the Australian Federal Police in relation to our access and
our use of the metadata. And that we will need to bring forward a report to Parliament, much
like we do with other Acts surveillance devices Acts so there is additional safeguards for
the community in this.
JOURNALIST: Under what circumstances did our agencies require a warrant to
investigate metadata and has that changed with the legislation today?
ANDREW COLVIN: If you want me to answer, nothing in this Bill changes our
access provisions, our access requirements. If we wish to access content, then we currently
and nothing will change need to get a warrant to do that. That could be a
telecommunications interception device warrant; it could be a stored communications device
warrant. Those are different regimes. The warrant requires us to go before a judicial officer
and establish the grounds and the means of which we believe we need to access that content.
Nothing in this bill today changes any of that. As it stands at the moment, an authorised
officer, a senior police officer, on the reasonable grounds to suspect that a crime was being
committed, can authorise metadata to be released to the AFP.
JOURNALIST: Is there a case to issue a similar direction to the DPP in relation
to the provisions that are affecting the AFP rather than other agencies?
GEORGE BRANDIS: I mentioned that Section 15HK of the Crimes Act is the
equivalent analogous provision for the AFP to Section 35P of the ASIO yes it does and in
fact Section 35P of the ASIO Act was modelled on Section 15HK of the Crimes Act. I
discussed the matter with both the Commissioner and the Director-General because this is a
fanciful notion that anyone would be prosecuting journalists. Theyve both told me theyre
perfectly comfortable with that direction being given. Ive also discussed it with the
Commonwealth Director of Public Prosecutions whos also comfortable with it.
JOURNALIST: Is there scope to build into the TIA Act a provision that
prevents agencies going after the sources of journalists?
GEORGE BRANDIS: Well were not dealing with that at the moment.
JOURNALIST: Its a possibility is it not? Its a possibility is it not?
JOURNALIST: A question for you or the Director-General or the
Commissioner, is there any further clarity on reports that Mohammad Ali Baryalei has been
killed?
SENATOR BRANDIS: Do you want to say something about that Duncan?
DUNCAN LEWIS: Yes, Ive seen those reports. Weve been checking those
reports very carefully over the last 48 hours and at this stage I am still unable to confirm
whether he is alive or dead.
JOURNALIST: Can I ask a non-question a non-terrorist question? [laughter]
To Mr Turnbull?
MALCOLM TURNBULL: Ive never been asked a non-question before.
GEORGE BRANDIS: [inaudible] a non-question?
MALCOLM TURNBULL: Ill give you a non-answer.
GEORGE BRANDIS: Hes given a few non-answers!
JOURNALIST: Minister whats your view on the Direct Action Bill that was
signed yesterday with Clive Palmer?
MALCOLM TURNBULL: I think its a triumph of negotiating skill on behalf of the
Environment Minister. Thank you very much.
[ENDS]