The government’s unwillingness to provide a detailed description of its national security proposals appears to be backfiring on Attorney-General Nicola Roxon, with Labor elder John Faulkner repeatedly raising the lack of public information about the proposals that form the basis of the Joint Committee on Intelligence and Security’s inquiry into them.
The committee was tasked with investigating a suite of 44 proposals in July, but only after a tussle with the Attorney-General over timing and the preparation of a discussion paper by her department. But the 60-page discussion paper provides little explanation or justification of some of the most controversial proposals, including two-year data retention, criminalisation of refusal to assist with decryption and the extension of surveillance warrants to social media platforms.
As Crikey reported last week, this has led to the peculiar situation of more detailed information about some proposals emerging from Roxon’s letters to newspaper editors than was provided in the paper itself.
However, JCIS member John Faulkner, the only Labor Left faction member of the committee, has pointedly commented on the dearth of information at the committee’s two hearings so far. At the first committee hearing in Melbourne the week before last, Faulkner repeatedly reflected on the lack of detail around the proposal that has absorbed most of the committee’s public hearings, data retention. In discussing how a data retention scheme could be structured to address privacy concerns with representatives of the Office of the Victorian Privacy Commissioner, Faulkner noted:
“I would be the first to say that the fact that we are not dealing with draft legislation but with a discussion paper certainly makes the work of this committee harder, particularly given that our terms of reference really outline a number of different categories of consideration for the committee.”
When a witness commented on the “broad brush approach of the discussion paper”, Faulkner replied:
“We acknowledge that. We acknowledge the fact that there are even different categories of consideration that the government has given to it, even in our own terms of reference, so that is a point well made.”
When Andrew Pam of the EFA complained about the lack of justification for the proposals, Faulkner went further:
“That is fair criticism. I have said before that there are no safeguards outlined. In fact, the detail about the proposal itself is obviously very limited.”
He then asked Pam: “Have you found generally in preparing your submission, which is very helpful from the perspective of this committee, that it is a challenge, given the lack of detail around many of the proposals?” He went on to ask:
“I would be interested in your view, first of all, about lack of detail and, secondly, the breadth and range of the issues the committee has before us. I would be interested in your perspective on how much of a challenge that was, or if you found that a challenge in developing your submission for the committee.”
Both witnesses and Faulkner contrasted the vague proposals in the discussion paper and concrete proposals in draft legislation. “It is two-and-a-half lines,” Faulkner said about data retention. “There is not a lot of certainty about what it does mean.” He then said bluntly:
“I am sick of saying that what this committee has been left with is a huge task … we would be better off if we had the government’s draft legislation or some of those proposals before us.”
Faulkner continued the complaint at last Friday’s hearings in Canberra, again noting that the proposal before the committee related to two-and-a-half lines, and quizzing telco representatives about what details a previous unreleased discussion paper from AGD about data retention had included in order to better understand the proposal.
The issue of data retention is especially vexing because of what seems to be a difference between Roxon and law enforcement agencies over the extent of the data to be retained. Roxon has twice insisted it would not extend to URL logging for IP addresses, and has preferred to use telephone examples in describing the proposal. But in August, AFP Assistant Commissioner Neil Gaughan used examples of child p-rnography, grooming and terrorism to justify data retention, all of which would be problematic without retaining the URLs visited by each IP address.
It’s also worth noting that this has meant that a committee focused on national security and intelligence matters is being required to make an assessment about the impact of proposals on crime-fighting and law enforcement, something beyond its remit.
Faulkner’s repeated comments appear to be a clear signal to Roxon that the ill-defined nature of the proposals put forward by her department will be an impediment to the committee reaching a clear position on them.
Of equal salience is the hostility displayed to the proposals by the Coalition joint party room last week, when a dozen MPs raised concerns. Under the Howard government, Coalition MPs waved through several draconian assaults on basic liberties launched by Howard and Phillip Ruddock (who is on JCIS). In opposition, however, Liberal MPs appear to have rediscovered the meaning of their party name. Put simply, Roxon’s proposals, a difficult sell as they are now, will become politically impossible if the Coalition opposes them.