Transcript: Interview with Fran Kelly on Data Retention and Media Ownership

March 24, 2015
Transcripts

TRANSCRIPT OF THE HON MALCOLM TURNBULL MP

INTERVIEW WITH FRAN KELLY

RADIO NATIONAL, ABC

 

Topics: Data Retention, Media Ownership and Newspoll

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FRAN KELLY:

Minister, good morning.

MALCOLM TURNBULL:

Great to be with you, Fran. 

FRAN KELLY:

Welcome to Breakfast. 

MALCOLM TURNBULL:

It’s good to be here. 

FRAN KELLY:

The most contentious element has concerned journalists – well maybe it’s contentious to some of us and not others. If we can just look at that first, you did the deal with Labor last week which means that agencies will have to seek a warrant if they want to access a journalist’s metadata. There will be a Public Interest Advocate as another safeguard there but I think the question now is how will that advocate do their job because last week on this program Brett Walker SC told us that if journalists can’t provide instructions or explain their position to the advocate, and they’re not to be communicating with the advocate, it won’t be clear what points the advocate is trying to make. Constitutional lawyer George Williams says it will be like punching custard for the advocate.

MALCOLM TURNBULL:

I don’t agree with that. This is a pretty well used technique – there is a public interest monitor in Victoria and Queensland in similar circumstances. And the job of the Public Interest Advocate who will be notified that the police are seeking a warrant to access the telephone records of a journalist because they are looking – they want to identify a source – the Public Interest Advocate will be there to remind the judge of the important balancing issues of public interest, privacy, the public interest in free and unfettered press and so forth, the public interest in journalist having access to information and access to informants. All of those counterbalancing factors will be raised with the judge as he or she considers the police application for the warrant.

FRAN KELLY:

But as a journalist would argue that the reason why they need to protect the source, the public advocate might not necessarily understand all the sensitivities of a story. Even the importance of a story, where it’s heading, or the fragility of a source, the vulnerability of a source. 

MALCOLM TURNBULL:

But if you think about it, if you notify somebody that a warrant is being sought to access information that they are holding or that somebody is holding relating to them, if you notify them in advance then invariably you will undermine the whole purpose of the warrant. The evidence may vanish, the person who is being investigated may no longer be there, people do not get to go to the police, go to the Magistrates Court and argue against a warrant being issued to search their house, for example, for drugs or stolen goods. 

FRAN KELLY:

What about other professions, because David Leyonhjelm and the Greens, at least two, will move an amendment today requiring warrants for anyone’s data. And they argue that lawyers, doctors for instance, also need confidentiality in their work. Once one gets it, why not others? 

MALCOLM TURNBULL:

I think it is very, very different however. Journalists -- the issue with journalists is protecting the identity, the concern is the confidentiality of their source.  The fact that they are talking to somebody is, in the case of journalists, can be a very sensitive thing. With lawyers -- lawyers’ communications with their clients are subject to legal professional privilege and that is absolutely rock solid; that is very well established. But the fact that you or I have spoken to our lawyer, have sought advice from our lawyer, is not privileged. What is privileged is the content of that communication. 

FRAN KELLY:

Many people would not like you or anybody else to know that they have gone to a certain doctor, they would not like you to know that for very good reasons. 

MALCOLM TURNBULL:

Well that’s fair enough.  But the fact of the matter is that that information could be obtained if someone is standing outside the doctor’s surgery and sees me walking in, they will know that.  The only information that could be obtained in the context of metadata – and you’ve got to remember, this can only be obtained in the context of investigating a criminal offence.  So this is not just for the police or anybody else to rummage about in, it’s got to be part of the criminal investigation process and the only thing – let’s say there was a concern that a doctor was breaking the law in some way and his telephone records were looked at to see who he had been talking to, and they came across your telephone number, then they would learn that you had been speaking to that doctor.  But so what?  You’re entitled to speak to doctors.  We all are. 

FRAN KELLY:

What about -- the Greens have suggested an amendment a ‘serious’ convention so that it can only be accessed when there’s a serious crime or a serious offence.  Is that realistic? 

MALCOLM TURNBULL:

No I think that’s taking it too far.  You’ve got to remember most of the metadata checks that are done by the police are simply to identify who is the owner of a phone.  You know, they see -- let's say someone is killed and they find on their phone a number of received calls from certain telephone numbers.   They use this metadata access ability to go to the telco and say, ‘right here are all these numbers, who are the account holders of these numbers?’  They give the policy those names and then they can contact those people and say, ‘what do you know about this?  The person you called an hour or so ago is now dead.’  And so the vast majority of these checks are designed actually to just find out who owns a phone and who is using it. 

FRAN KELLY:

It’s 19 to eight on breakfast.  Our guest is the Communications Minister Malcolm Turnbull.  Minister, media reform is back on the Government’s agenda, if a leaked report to The Australian last week is any guide.  And here on the program we spoke to Harold Mitchell from the lobby group, Free TV Australia.  He said any moves to deregulate current media ownership laws will happen slowly because of the deep disagreement within the industry about how to proceed, lest one broadcaster gets a commercial advantage over another.  We’ve seen that already as we have done again and again.   But can the Government afford to proceed slowly on reform here when rapidly changing technology, not to mention the arrival of the new streaming entertainment services, is making a mockery of the old cross-media ownership and reach rules.  They are done, they are past their use-by dates.  As you have said, they need to change now don’t they? 

MALCOLM TURNBULL:

Well I certainly think they do.  I think that all of those ownership rules – 

FRAN KELLY:

So are you going to push this? 

MALCOLM TURNBULL:

Well my views are very clear.  Everyone knows I think they are out of date.  I think everyone agrees they’re out of date.  They were designed in a pre-Internet era and they relate to a media landscape that doesn’t exist.  The ‘two-out-of-three’ rule, which for instance states that you can only control two out of a newspaper, radio station or television station in the same market was designed in an era when the only forms of media were newspapers, radio and TV.  Well of course, that has completely transformed. 

FRAN KELLY:

Everything is changing and the business models are changing and collapsing, I think it’s fair to say if you talk to Ten, or you might talk to Fairfax.  And you know they’re struggling. And the answer for some of these for survival is to get bigger and to be able to merge with others. Whenever you move on this, one or other media proprietor seems to get irate – NewsCorp chairman Rupert Murdoch came out swinging at one of the reforms you were looking at, in terms of anti-siphoning rules --    

MALCOLM TURNULL:

Well hang on just to be clear. Anti-siphoning is a completely separate issue to media ownership laws -- 

FRAN KELLY:

That’s true but as soon as you talk about changing one the other says what about me we’ve got this issue, this is holding us back? 

MALCOLM TURNBULL:

And let’s be clear. The anti-siphoning laws were designed, and they were introduced 20 odd years ago, they were designed to give the free to air stations first crack at iconic sports, at major sports. There is, obviously the pay TV industry, Foxtel and FoxSports, wants to reduce that list and in particular they want to be able to determine which games of football, that is to say Aussie Rules and League, got on free to air as opposed to pay TV. And at the moment the way it works is the free-to-airs basically determine which three games in the League competition go on the free to air on Nine and which games in the AFL competition go on 7, although they are of course simulcast on Foxtel. And that’s basically what it’s all about. And of course the more premium sport is exclusively on a pay TV platform the more it can drive subscriptions. So that’s basically the argument.  But of course to turn around and say to people you’re going to have to start paying to watch games of football that you were previously able to watch for free on TV is unlikely to be popular. 

FRAN KELLY:

Sure people won’t like that, but I think people -- 

MALCOLM TURNBULL:

Can I just make this point too, Fran? We are urged to do this, right, by the Pay-TV industry and I absolutely respect and understand their commercial position. But it is important to understand that what they are seeking would not be popular, it would be most unpopular, and in any event it would need to be approved by the Senate. Now why does anyone imagine that this Senate would be likely to approve changes that would be clearly as unpopular as that? 

FRAN KELLY:

I think you’re right there, but the question to your government it that you need these changes to occur, the other changes we’re talking about, the two-out-of-three rule and the reach rule.

MALCOLM TURNBULL:

Well not to anti-siphoning, can I just say I think there are other changes that can be made to anti-siphoning, the anti-siphoning list, but I think the big issue, the hot issue, 99.9 per cent of the heat in the debate is about football. 

FRAN KELLY:

Leaving that aside; the other changes that need to be made -- is your Government going to take this on?  Is it going to take this to the Parliament and say we need to do this? 

MALCOLM TURNBULL:

Well we’ve got a process, everyone knows what my views on it are and I’m not detracting anything from The Australian but my views have been well know before The Aus’s story of last week, because I’m pretty open and transparent about this stuff. But this is something for the Prime Minister to consider and for the Cabinet to consider all in due course. But you’re right, those rules have passed their use-by date a long time ago. 

FRAN KELLY:

You’re listening to RN Breakfast. Malcolm Turnbull joins us in the Parliament House studios. Malcolm Turnbull, Foreign Minister Julie Bishop delivered her now quite infamous eye-roll at Joe Hockey over the Budget razor gang when it was mentioned. So there are tensions, I think it is fair to say, on display within the Government for all to see. You’ve criticised the budget process in the past – would you roll your eyes too? 

MALCOLM TURNBULL:

I think the eye roll has been taken a bit out of proportion. Joe was making an ironic point. Joe was attempting to be humorous in a black, human sort of way by talking about the expenditure review committee which of course everybody hates and he knows that.  And he was essentially inviting his colleagues to roll their eyes and grimace with pain, so I think Julie was in effect responding in exactly the way that Joe wanted her to.  So I don’t think that indicates any deep tensions between the two. 

FRAN KELLY:

Well, Julie Bishop had told this program earlier in the day that she would issuing a please explain to the Treasurer over media reports suggesting that the foreign aid budget would be cut again. What does it say about the level of trust between very senior minister in the Government if a story like that pops up, from a senior journalist, and the minister involved doesn’t know about it, and she clearly was not happy about it. 

MALCOLM TURNBULL:

Well, I would, I would say, with all due respect to the senior journalist, I can’t recall who it was now – 

FRAN KELLY:

Greg Sheridan. 

MALCOLM TURNBULLL:

Okay, well I don’t think the story was right; ah because frankly we are, what are we now, six or seven weeks from the budget, if there were any major cuts or changes in anybody’s portfolio, the minister would know about it, certainly know about it well before now.

FRAN KELLY:

And can I just ask you about today’s Newspoll?  It shows the Coalition very much back in the game, 51-49 two party preferred, it hasn’t been there since September, hasn’t been in that area really much since before the last budget. It was said six weeks ago after that failed spilled motion against Tony Abbott said by many you know that Tony Abbott’s leadership would rise and fall by the polls. Does this mean that the PM is safe from any leadership challenge do you believe? 

MALCOLM TURNBULL:

Well the first thing I’d say, in order to preserve one’s sanity which is often a challenge in this building, you shouldn’t pay too much attention to opinion polls, because you’ve got opinion polls that come out at the same time that are completely contradictory. You’ve have polls that are up one week and down the next, up the next, so I don’t place a great deal of store on any particular poll. 

Having said that, if there is a message in this poll, I think the public are starting to look at Labor, and they’re starting to look at the failure of Labor to come up with any alternative economic story, any alternative budget narrative of their own. That’s why I said the other day that when the budget is brought down in budget week in May, yes the spotlight will as always be on Joe Hockey and Tony Abbott, but it will also be on Bill Shorten and Chris Bowen, because Labor cannot just keep sitting on the sidelines throwing stones at the government. Labor, who spent $2 for every $1 of revenue, additional revenue that they received, they created this debt disaster.  They created this deficit disaster, they created the problem that we’re trying to clean up, they’re opposing our efforts to fix it up, and I think that the penny is now dropping with the Australian people that Labor has done so much to prevent the budget being repaired, but has no alternative narrative or policy proposal of their own. 

FRAN KELLY:

Malcolm Turnbull, thank you very much for joining us.

MALCOLM TURNBULL:

Thank you 

FRAN KELLY:

Malcolm Turnbull is the Federal Communication Minister, you’re listing to RN breakfast. 

ENDS

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