Senator LUDLAM: Mr Wilkins, is there any update on whether data retention is being pursued?
Mr Wilkins: No updates about that.
Senator LUDLAM: Senator Brandis, having had time to muse on the responses that you have given me in answer to my earlier questions, you have distinguished for me the difference between commercial spying-which is a question I put to you-and national economic well-being. Could you describe for me what distinction you are drawing there-what are the differences between the two?
Senator Brandis: I merely pointed out to you that the phrase in the statute, 'national economic well-being', was not the same thing as what you have called commercial espionage.
Senator LUDLAM: Would the instance of surveillance of Indonesian prawn and clove cigarette export negotiations to the US fall under a commercial matter or national economic well-being?
Senator Brandis: For a start, I do not know if that is a hypothetical case you have dreamt up or something that has been asserted in the press.
Senator LUDLAM: No, it is an actual case. I would not waste your time with hypotheticals.
Senator Brandis: Without conceding that there has been any surveillance in the instance to which you refer, I repeat that, as you know, the government does not comment on, or confirm or deny, the fact of intelligence operations.
Senator LUDLAM: If I did bring you something that was pure fabrication you would have no difficulty in shutting it down. I am bringing to you an instance different from the one where we allegedly spied on the Timorese cabinet. Could you confirm or deny whether we had lawyers from the United States who were engaged by the government of Indonesia in trade negotiations relating to prawn and clove cigarette exports?
Senator Brandis: I cannot do any better than repeat my earlier answer.
Senator LUDLAM: But there was not an answer to repeat.
Senator Brandis: Without conceding the premise of your question, my answer was that the government neither confirms, denies nor comments on intelligence matters.
Senator LUDLAM: There appears to be a lot of really dodgy stuff going on behind that curtain you have drawn across intelligence matters. Spying on trade officials-how does that keep us safer?
Senator Brandis: You, if I may say so, are making some very wild and loose assertions, none of which are accepted.
Senator LUDLAM: Fascinating. A moment ago you said I had been editorialising-I think that was the word you used.
Senator Brandis: No, I did not use that word.
Senator LUDLAM: I referred to Mr Snowden as a whistleblower-
Senator Brandis: I said you used the term for rhetorical purposes.
Senator LUDLAM: Are you using the term 'traitor' for rhetorical purposes? Are you aware of a particular allegation or a charge of treason in the United States?
Senator Brandis: No, I am not using the term for rhetorical purposes.
Senator LUDLAM: So if Mr Snowden has not been charged, let alone convicted, on what basis are you prejudging him as a traitor?
Senator Brandis: On his own admissions as to his own conduct.
Senator LUDLAM: That he has referred to himself as a traitor?
Senator Brandis: No. He has made numerous admissions as to his own conduct. It is on that basis that I used that word.
Senator LUDLAM: You are using the word rhetorically, then?
Senator Brandis: No, I am not.
Senator LUDLAM: So he has referred to himself as such?
Senator Brandis: No. But if somebody admits to conduct, it is perfectly appropriate, in my view, without being rhetorical, to characterise that conduct for what it is.
Senator LUDLAM: Isn't it a bit irresponsible to prejudge a matter that is not even before the US courts, let alone concluded?
Senator Brandis: I do not think so. I do not think that, in the event that Mr Snowden were ever to return to the United States from Russia and be put on trial, an American jury would likely be prejudiced, influenced or corrupted by any observations I may have made in Australia.
Senator LUDLAM: From my recollection, you were quite critical of Prime Minister Gillard for prejudging Julian Assange as having committed illegal activities. Are you not doing exactly the same?
Senator Brandis: No. I simply made the observation-which was subsequently corroborated by the then Attorney-General, Mr McClelland, and by advice I understand he received from the Australian Government Solicitor at the time-that, on the basis of the material in the public arena at the time, Ms Gillard's claim that Mr Assange had breached Australian Criminal Law was incorrect. And, in fact, it was incorrect.
Senator LUDLAM: So what laws are you alleging Mr Snowden has breached, effectively prejudging his guilt? Isn't it a bit of an amateurish mistake for an Attorney-General to make?
Senator Brandis: I do not have any hesitation in describing Mr Snowden as a traitor.
Senator LUDLAM: I have noticed that. You do it at every opportunity. You had a Dorothy Dixer thrown at you last week just so that you could repeat the use of that word.
Senator Brandis: I believe that Mr Snowden betrayed his country. He betrayed the United States of America by putting into the public domain extensive, highly classified material that prejudiced the interests of the United States and its intelligence partners in very important ways.
Senator LUDLAM: Are you aware of the report I referenced earlier that was handed to President Obama by the review panel that he established late last year?
Senator Brandis: Yes, I am.
Senator LUDLAM: That report could not identify a single instance where a terrorist attack had been thwarted by mass surveillance.
Senator Brandis: I do not think that is an accurate paraphrase of that report.
Senator LUDLAM: How would you paraphrase it?
Senator Brandis: Read the relevant paragraph. Have you got it in front of you?
Senator LUDLAM: No, I have not.
Senator Brandis: I suggest that you go back and consult because your paraphrase of that report is inaccurate when you say 'could not identify'.
CHAIR: We might leave that there.