Data retention reform in a Labor limbo
Considering the urgency argument as part of the push for reform of data retention, the slow process of the Attorney-General's Department and the national security inquiry is damming.
The parliamentary committee charged with investigating a wishlist of proposals to strengthen the surveillance and enforcement powers of security agencies will miss its end-of-year reporting deadline, almost certainly guaranteeing there will be no legislation before the next election.
Attorney-General Nicola Roxon originally asked the Joint Committee on Intelligence and Security to investigate a range of proposals to streamline and increase national security powers in May, with a reporting deadline of July 31. After the committee baulked at the deadline, it was pushed back to the end of the year, and the Attorney-Generals' Department prepared a discussion paper to enable the committee to inform public debate and the committee's own hearings.
The AGD discussion paper proved a disaster, requiring multiple explanations and clarifications from both Roxon herself and the department. The committee itself complained about the vague nature of the paper, particularly around the most controversial proposal, data retention, with shadow attorney-general George Brandis concerned about the lack of clarity and Labor veteran John Faulkner criticising departmental officials for failing to provide more detailed discussion of the proposal in the paper, despite having extensively worked on it.
Separately, Greens Senator Scott Ludlam has pressured AGD and its agencies from outside the process (the Greens are not permitted to sit on the JCIS), and obtained from AGD officials the first detailed definition of the content they wanted captured by the data retention proposal.
But data retention, which the government says it does not wish to progress at this stage, was only one of 44 proposals the committee was asked to consider, and the constant focus on data retention in public hearings meant a number of other controversial proposals – such as those relating to refusal to assist in decryption, wiretapping social media and giving ASIO officers immunity from prosecution for most criminal acts – received little attention.
The sheer number of proposals and the amount of time absorbed in trying to work out exactly what data retention was meant to encompass appears to have ensured the committee won't report until next year. The committee secretariat confirmed this morning the original deadline for an end-of-year report wouldn't be met.
This is likely to ensure the already slim chances of any bill to implement the proposals – which were divided into those the government wished to progress, those it was considering and those it wanted the committee to examine – being passed before the next election are virtually zero, unless such a bill is restricted to the most unobjectionable proposals, such as updating the archaic language of some sections of the ASIO Act. The Coalition joint partyroom has expressed concern about the proposals, suggesting that at the very least any bill will be subjected to a thorough Senate inquiry.
This is despite AGD admitting to the committee it had already prepared draft legislation on data retention after industry consultation in 2009 and 2010 following the establishment of a taskforce within government on the issue. With the committee unlikely to table its report before late January, the introduction of a bill in the Autumn sittings may be problematic: there are only four sitting weeks before the budget, and in any event a bill will be referred to a Senate committee inquiry that will be able to do something JCIS members have expressed frustration about being unable to do: consider draft legislation.
There are only two Senate sitting weeks after the budget before Parliament rises for its winter recess and, most likely, we go into election mode for an August/September election. Any bill introduced before Parliament is dissolved and must be reintroduced after the election.
If this transpires, the Attorney-General's Department has only itself to blame. Despite doing extensive work on data retention, up to and including draft legislation, it barely mentioned the proposal in its discussion paper and getting additional detail from the department has been like pulling teeth for the committee. A similar lack of detail plagues other proposals in the paper as well. The result has been a visibly frustrated committee that has been unable to meet the deadline requested by the minister, which sees any chances of legislation before the election and, realistically, before 2014, evaporating.
Given the logic employed by AGD in justifying the proposals – existing national security legislation is increasingly inadequate because of changes in communications – and the considerable work apparently done by the department and agencies in areas like data retention, it's also curious that the Independent National Security Legislation Monitor, which is explicitly charged with reviewing the effectiveness of national security legislation, has yet to be engaged on these issues.
Something for AGD officials to muse on over the break.
This story first appeared on www.crikey.com.au on December 17. Republished with permission.