Kim Landers reported this story on Friday, July 14, 2017 07:13:30

KIM LANDERS: The Attorney-General is George Brandis and he joins me now.



Attorney-General, good morning.



GEORGE BRANDIS: Good morning, Kim.



KIM LANDERS: How would your new laws work?



GEORGE BRANDIS: What we would do is: we would apply to internet companies, to device makers essentially the same obligations that apply under the existing law to enable provision of assistance to law enforcement and to the intelligence agencies, where it is necessary to deal with issues: with terrorism, with serious organised crime, with paedophile networks and so on.



And can I make this point to you, Kim: I heard the piece that you've just run. Of course, information security is important. The Government acknowledges that but national security is also important and it is possible to reconcile the two.



KIM LANDERS: I guess I'm trying to get at exactly how it would work because end-to-end encryption, used by WhatsApp or Signal for example, means that the messages are scrambled so people only on either end can read them. They're not stored on an app server, for example. They can't be read by WhatsApp. So how would this work? What are you asking the companies to do?



GEORGE BRANDIS: There are various claims that have been made. Last Wednesday I met with the chief cryptographer at GCHQ, the Government Communication Headquarters in the United Kingdom. And he assured me that this was feasible.



So there are various claims made by experts in the field, but what the Government is proposing to do is to impose upon the companies an obligation, conditioned by reasonableness and proportionality.



Now, I want to stress...



KIM LANDERS: What if they say, "It's not reasonable, it's not proportionate, we won't do it"?



GEORGE BRANDIS: Well, then let them argue that point in court.



But the other point I want to stress to you, Kim, is that our first preference, our very strong first preference is to work collaboratively with the companies so that there is a voluntary approach to this. So imposing legal obligations, coercive legal obligations is very much a default position.



KIM LANDERS: But you're going to hold that possible penalty out...



GEORGE BRANDIS: Potentially, as the United Kingdom has done with its Investigatory Powers Act, as the New Zealanders did in 2013 with their equivalent legislation.



And what this does is merely contemporise for the modern era what is a well-established legal principle and that is: persons, including companies, can be subject to an obligation to assist law enforcement in resolving crimes. And that principle shouldn't depend upon the nature of the technology. It applies to all communications.



KIM LANDERS: In the UK they're drafting regulations on Technical Capability Notices, which are requiring operators to install specific technical facilities. Is that your intention?



GEORGE BRANDIS: Well, we don't propose to require "back doors," as they are sometimes called - though there is a debate, of course, about what is or is not a back door.



What we are proposing to do, if we can't get the voluntary cooperation we are seeking, is to extend the existing law that says to individuals, citizens and to companies that in certain circumstances you have an obligation to assist law enforcement if it is in within your power to do so.



Now, the laws that exist at the moment pre-date the development of encryption. All we are seeking to do is to apply an existing principle to a new technology.



KIM LANDERS: And are you trying to get them to do that in near-real time? And if so, what would that actually mean?



GEORGE BRANDIS: Yes, because this is time-critical.



Let me give you an example. In 2015 there was a plot, that was interdicted by the intelligence agencies and the police, to have a mass-casualty attack on the Anzac Day ceremony in Melbourne.



We now know from investigations undertaken overseas that one of the vectors to plan that attack was encrypted messaging.



So of course, we need to be nimble. We need our intelligence agencies and our police need to be able to act in real time to intercept and decrypt these messages to keep people safe.



KIM LANDERS: The UK system also has a prime minister appointing commissioners, who then will approve the warrants to be issued.



GEORGE BRANDIS: Yes.



KIM LANDERS: Is that what you envisage?



GEORGE BRANDIS: Like the United Kingdom and, indeed, like the existing law that governs electronic surveillance in Australia, this would be on a warranted basis.



KIM LANDERS: How do you legislate against a terrorist suspect or a criminal creating their own encryption system: just hiring their own cryptographer, just like a criminal might use a money launderer?



GEORGE BRANDIS: Well, this is a matter for technical expertise. But as I said before, I've been assured by the leading experts in the world with whom I've spoken, including as I said before the chief cryptographer of GCHQ, that this is technically possible.



KIM LANDERS: When will you propose to put these laws into Parliament?



GEORGE BRANDIS: We are preparing the laws at the moment and I'll be introducing them between now and the end of the year.



KIM LANDERS: If I could ask you about something else: are there merits in the idea of a new Home Office or Homeland Security-style super department and ministry?



GEORGE BRANDIS: Well, as the Prime Minister has said many times - and he's right - we have the best intelligence and policing services in the world. They have prevented 12 attacks on Australian soil since September 2014, including some that would have been mass-casualty attacks.



KIM LANDERS: So that's a no?



GEORGE BRANDIS: However, I agree with what the Prime Minister has said: that we must always be on the balls of our feet about this to make sure that, even though the arrangements as they exist at the moment are working well, that they can't be improved.



The Australian people ...



KIM LANDERS: So is it going to happen?



GEORGE BRANDIS: The Australian people are entitled to know that the Government always has arrangements under review, just as we always keep laws under review, to make sure that they are as good as they possibly can be.



KIM LANDERS: But knowing that, is that sort of rearrangement going to happen?



GEORGE BRANDIS: Well, that's a discussion that is going on inside government at the moment. And we will - starting from the proposition that the existing arrangements work very well and have protected Australians from 12 attacks in the last three years; nevertheless, we know that they must be kept constantly under review to make sure that they are as good as they possibly be.



KIM LANDERS: There is a review of Australia's intelligence community that I understand will be released sometime in the next week. Is it going to shed further light on that possible restructure?



GEORGE BRANDIS: Well, this is the L'Estrange review to which you refer. Let us see what the L'Estrange review has to say and let us see what it recommends.



KIM LANDERS: Attorney-General, thank you very much for speaking with AM.



GEORGE BRANDIS: Thanks, Kim.