Interview with Helen Dalley – Sky News Dalley Edition – Monday, 23 March 2015




SUBJECT/S: Malcom Fraser; press freedom; counter terrorism

HELEN DALLEY: Jason Clare thanks very much for joining us.


DALLEY: Now you had the condolence motions in the Parliament today for Malcolm Fraser. Not from your side of politics. What are your thoughts about a man who was before your time in politics? But he was the Prime Minister of Australia in a very tumultuous time.

CLARE: That’s very true. I was asking my mum and dad about it on the weekend. They never really forgave Malcolm Fraser for the Constitutional Crisis and the dismissal of Gough Whitlam. But my mother and father-in-law had a total different opinion. They were Vietnamese boat people, refugees, and they couldn’t thank him enough. For them Malcolm Fraser was the man that gave them a new life and a new opportunity in Australia. So I think depending upon what part of his life you look at you see a different person. A complex man, but a very important person in the history of Australia and there were some beautiful, touching eulogies today.

One of the other things to remember about Malcolm Fraser too was the great friendship that he established with Gough Whitlam in the years after they were both Prime Minister. It reminds me a little bit about the friendship struck between John Adams and Thomas Jefferson, they were ferocious political adversaries around 1800 after they had both been President of the United States they struck up a friendship afterwards and they both died fifty years to the day after the declaration of independence, on the 4th of July 1826. It’s quite touching that both of these great men, these giants, these titans of Australian politics have been lost to us in a very short period of time.
DALLEY: Jason Clare given that you mentioned the boat people and your parents-in-law were very thankful to him for that, do you feel embarrassed at all that Labor has gone so far to the right on the boat people issue?

CLARE: One of the things that is often forgotten about the Vietnamese refugees is that after the fall of Saigon, forty years ago this year, forty years ago next month [interjection].

DALLEY: Yes, I want you to stick to what I asked you about Labor’s position on accepting asylum seekers.

CLARE: Labor’s position on asylum seekers was we need to do whatever we can to stop people dying at sea. With the Vietnamese refugees people fled Vietnam and went to places like Malaysia and Thailand and the Philippines where the UN set up refugee camps and Australia took more than 50,000 people from those camps, usually by plane.

The objective under Labor and I’m sure you would say the same under this Government is to stop people dying at sea. What Fraser did and what the UN did in the 1970s helped to stop people dying and actually won a Nobel Peace Prize for the work that was done in helping the Vietnamese refugees who fled Vietnam after the fall of Saigon.

DALLEY: Let’s talk about the Government’s metadata retention laws, are you happy with the amendments supposedly protecting journalists?

CLARE: We have made 74 amendments all up. Most of those amendments arise out of the report from the Parliamentary Joint Standing Committee on Intelligence and Security that I was on. We have made additional amendments, better late than never, to protect journalists. The Government’s view all along was that journalists didn’t need special protection. My view and Labor’s view was that was the wrong approach and that there should be special protection for journalists in the form of a warrant.

I have always taken the view it shouldn’t be a tick and flick warrant either. There needs to be a standard or a threshold that a judge must be satisfied of before they issue a warrant. And there should be more than just a judge and the lawyer for the police in the court. There should be another person who can represent the public interest and so we pushed this case with the Government publically and privately. Finally the Prime Minister has caved in and I think we have got a good result.

DALLEY: So the new safeguards for journalists do have a notable exception, when ASIO seeks access to journalist’s metadata that might identify a source, it doesn’t need to seek the approval of a judge or an Administrative Appeals Tribunal member, it only needs the approval of a government Minister, namely the Attorney General. So in this case it will be up to a member of the government to weigh the public interest at stake. As Professor George Williams points out surely this is not appropriate.
CLARE: Whenever ASIO seek a warrant they go to the Attorney General, so this is just an extension of that existing scheme and the Attorney General is responsible to the Parliament and the public at large for the decision they make, they would also seek [interjection].

DALLEY: This goes against the grain of what your amendment was trying to achieve, which was a special protection for journalists to need to go to a judge.

CLARE: No, I disagree with that. I think there does need to be a special protection for journalists and there needs to be a warrant based process rather than what happens right now. If someone wanted your metadata today Helen, a law enforcement agency wanted your metadata then they could just simply fill out a form, pick up the phone and get that from Telstra or Optus or anywhere else. We said that that is not the way it should be and that there should be a warrant based process for all law enforcement agencies, to seek that warrant you go to court. The only exception to that is ASIO, where they seek a warrant from the Attorney General but they won’t be excluded from the process of having an individual [interjection].

DALLEY: Sorry Jason Clare if Labor says it is interested in protecting journalist’s work and their sources why have you allowed this to stay the status quo?

CLARE: I don’t think it is the status quo. What happens at the moment is that if law enforcement or ASIO want your metadata they just go and get it, under the amendments that are now before the Senate you won’t be able to get a journalist’s metadata unless you’ve got a warrant for it. Before that warrant can be issued, in the case of ASIO by the Attorney General or in the case of everyone else for a court the judge will [interjection].

DALLEY: Let’s just stick to the ASIO one.

CLARE: Sure. The threshold that the Attorney General will have to be satisfied of is that the public interest in accessing that metadata outweighs the public interest in that data remaining confidential. The other point is the role of the Public Interest Advocate, this independent person based on the Public Interest Monitor that’s been established in Queensland and Victoria. Just like in court they will have the right to make submissions to a judge, in this case, in the case of ASIO they will have the right to make submissions to the Attorney General.

DALLEY: I suppose the point is, what if there was something that the Attorney General either wanted to find out through that journalists or the sources that would protect the Government in some way?

CLARE: If an Attorney General issued a warrant because they wanted to find something out, not because ASIO believed that it was in the public interest as part of a national security investigation, then I think that that Attorney General when that became public information would be criticised very, very severely. The ultimate check here is that the Attorney General [interjection].

DALLEY: By whom? Who in the community is going to know that this has happened?

CLARE: Once a warrant is issued, whether it is issued by the court or by the Attorney General then they need to report that to the Ombudsman as well as to the Parliamentary Joint Standing Committee on Intelligence and Security and all of these things will ultimately be published in the Annual Report, so this information does become public.

DALLEY: Would you agree there are some serious problems, Professor George Williams is one who has pointed them out. There’s a new offence in section 35P I think of the ASIO Act that it imposes up to ten years in jail for any person, including a journalist or their source who reveals information in relation to a Special Intelligence Operation conducted by ASIO.

So a Warrant granting access to the metadata that identifies the source would surely be granted where these serious crimes are being investigated. But it could also include reporting on an operation gone wrong or a government mishandling or an innocent bystander being killed, so are you happy that journalists and sources could still be jailed for very long periods?

CLARE: The point George has raised about section 35 is a point well made, we are concerned about that as well. We made that point at the time when the first tranche of new national security legislation was introduced to the Parliament. Bill Shorten wrote to the Prime Minister about that and that’s now subject of a separate investigation by the National Security Legislation Monitor, so I think that’s a point well made. George has been of great assistance to the Parliamentary Committee looking at this legislation and if he’s got further ideas that he thinks will continue to improve the legislation then we would be very open to hearing them.

DALLEY: Jason Clare do you think, it’s certainly the Government’s case to prosecute, but do you think you on the Labor side and even the Committee have brought the community with you on these data retention laws. There’s a lot of opposition to it out in the community. Have you explained to people enough about what is being retained, who will have access to it and for what reason?

CLARE: That’s a good question Helen. Not everybody. This is complex and controversial. Not everybody knows that police have been accessing our metadata for decades. Not everybody knows that last year police and law enforcement agencies accessed our metadata on more than half a million occasions. Not everybody knows that at the moment there are very few rules and no oversight of the use or potential misuse of this data. Not everybody knows that in the case of telecommunications companies, some hold data for a couple of weeks or a couple of months others hold some data for up to seven years. And not everybody knows that we’ve got about 80 different organisations including local governments and the RSPCA that access this data at the moment.

I think one of the good things that this legislation will do is that it will reduce the number of organisations that can access our metadata down to about 20. And for the first time it will put in place real oversight of the use or potential misuse of this data. Until now there hasn’t been any. Now the Commonwealth Ombudsman will have the power to properly scrutinise, properly investigate the use of this data by law enforcement agencies as well as the Parliamentary Committee who up until now haven’t had the sort of powers that you find in the American Congress or in the UK Parliament to interrogate the operational activities of our law enforcement and national security agencies.

DALLEY: Jason Clare just on another aspect of this, do you think we are potentially putting too much funding and emphasis into I suppose, the end of the line in anti-terrorism? Meaning once young people have already left Australia to become foreign fighters and not enough into community engagement into why these suburban kids, perhaps in marginalised areas or communities are going to the Middle East and to engage with them before they become radicalised.

CLARE: I think the short answer to that is yes. Before I go into that in a bit of detail.

DALLEY: Not too much detail, we are going to run out of time, I’m sorry.

CLARE: It is important that people know, because I don’t think the Government has made this clear, is that the data retention legislation isn’t really about terrorism, less than 2 percent of the requests by law enforcement and national security agencies for metadata is about terrorism or about pedophilia. Most of it is your run of the mill law enforcement enquiries, criminal investigations big and small.

To your point about the work that you do on the ground, I think this is very important. I think it’s very undervalued. I think we need to invest more in programs in our schools. I think we need to invest more in outreach programs where people are contacting people on the street. I see it in my own electorate in the south west suburbs of Western Sydney where there are people that are filling people’s minds with vile, putrid, stupid ideas encouraging them to go overseas. They don’t even need to do that face to face, you can get it on the internet and it’s up to us to work as closely as we can with community leaders, with teachers, with health professionals to try to make sure that we can counter that and put in place the sorts of education programs and outreach programs that can make sure that people don’t do stupid things overseas or here at home.

DALLEY: Jason Clare we thank you for your time this evening.

CLARE: Thanks Helen.