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How not to launch a public debate, by the A-G’s Department

Several months after the Attorney-General initiated an inquiry on data retention, we finally got a definition of “data” this week. It’s all a bit of a shambles.

It’s become clear over the course of several months that the Attorney-General’s Department has produced what will become a classic how-not-to example of shaping public debate on important issues.

Its discussion paper on its 44 proposals for reform of national security laws to be considered by the Joint Committee on Intelligence and Security is, not to put too fine a point on it, a shambles, one that has created more problems than it solved for the government.

To be clear, Nicola Roxon and the government are to be commended for initiating a public inquiry into national security reforms. Previously, both this government and the Howard government took the view that even the most draconian national security laws should be rushed through parliament with as little scrutiny as possible. Roxon’s approach is a welcome change which, hopefully, will become the template for future amendments to national security laws.

But the whole exercise has been undermined, to the point of dysfunctionality, by the AGD, a department unused to public scrutiny or explaining and justifying its demands for extensions of national security powers. This was, after all, the department responsible for the hilarious “illegal fishing” justification for the WikiLeaks ASIO amendment.

As a result of considerable toing and froing between the government and the Joint Committee after Roxon’s initial attempt in May to establish the inquiry, the timeline for the inquiry was considerably extended and a discussion paper was prepared by AGD to supplement the terms of reference around the 44 proposals. Despite its length of over 60 pages, it was clear from the outset that the paper was badly put together. In particular, on the most controversial proposal of all, a two-year data retention scheme, there was, literally, no discussion at all.

That this omission was cleared through the various levels of AGD suggests real problems with that department’s basic political sensibility. Assuming it was cleared by Roxon’s office, it was also a startling omission there as well.

As the inquiry got under way and data retention began to garner the predictable attention, the magnitude of the error became clear. After repeated public complaints about the vague nature of the data retention proposal in particular from committee member John Faulkner, Roxon wrote to the committee to clarify the nature of the data retention proposal — stressing that she of course hadn’t made up her mind on the issue — and citing the European data retention directive as a model.

Roxon also had to clarify another proposal that was undiscussed in the Discussion Paper, criminalising failure to assist decryption, via a letter to a newspaper.

This week there was a further clarification, via Estimates. During the Legal and Constitutional Affairs Committee’s hearings with the AFP, AGD produced a definition of non-content data that would be captured by a data retention scheme in response to questions from Greens senator Scott Ludlam. This led to an exchange that seemed to infuriate AGD Secretary Roger Wilkins, over whether the URLs that an IP address visited would be captured by the definition. Wilkins insisted, threatening to resort to “words of one syllable”, that URLs fell outside the AGD’s and the AFP’s definition of non-content data.

This of course differs from the view of an agency in another portfolio, the Australian Securities and Investments Commission, which wants full retention of every single piece of internet traffic an IP address generates.

But the AG-portfolio definition aligns broadly with the EU data retention directive, which specifies about internet usage

(i) the date and time of the log-in and log-off of the Internet access service, based on a certain time zone, together with the IP address, whether dynamic or static, allocated by the Internet access service provider to a communication, and the user ID of the subscriber or registered user;

(ii) the date and time of the log-in and log-off of the Internet e-mail service or Internet telephony service, based on a certain time zone;

The problem in Europe, however, has been that in a number of instances the directive was misinterpreted — whether deliberately or otherwise — and URL data retained.

This definition might have been useful in the AGD submission to the inquiry (as distinct from the discussion paper), recently made available. In its section on data retention, in which AGD downplays the problematic nature of the EU directive, the department provides no definition whatsoever of “telecommunications data”.

But the AGD submission also re-confuses an issue that had seem clarified by the Attorney-General herself. In her letter to the Herald Sun, Roxon said about the proposal for the criminalisation of failure to assist with decryption that

There is also no proposal to enforce people to give up passwords. There are already powers for law enforcement agencies to compel suspects to decrypt data such as child p-rnography held on a computer to turn unintelligible information into compelling evidence against these serious criminals. The question we’re asking the committee is whether this should extend to live communications like chat rooms for crimes like p-edophilia.”

This contradicted the discussion paper, which referred very vaguely to industry decryption. The AGD submission initially makes the same contrast Roxon does between decrypting material obtained under a warrant, currently allowed under the Crimes Act and inability to demand decryption live communications intercepted under a warrant, but then widens the proposal again by saying “a consistent approach to that contained in the Crimes Act would ensure that information lawfully accessed for national security or law enforcement purposes under the TIA Act was intelligible”.

Nor does it fit well with Roxon’s assurance “there is no proposal to enforce people to give up passwords”.

As Faulkner pointed out, one of the problems with having an inquiry into mere “proposals” is that, without detailed legislation to assess, everyone’s in the dark about exactly what they’re talking about. And until this week AGD has done little to shed any light.

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  • 1
    David Sattler
    Posted Thursday, 18 October 2012 at 3:47 pm | Permalink

    ”..To be clear, Nicola Roxon and the government are to be commended for initiating a public inquiry into national security reforms..”

    Well, yes of course Bernard. And as you pointed out, the Howard Govt was only too happy to ram through what ever it could to avoid any rigorous oversight.

    But a lot of us see Roxon’s attempt at this as flake and floss. More to the point, she and the govt are just covering their backsides so they can’t be accused of being open and accountable. As you also said, hence all the confusion and continued muddying of the waters.

    Great article BTW.

  • 2
    John Bennetts
    Posted Thursday, 18 October 2012 at 4:01 pm | Permalink

    If the extent of information gathering and the purposes for same is ever publicly defined, the spooks will demand that, in the interests of national security, their powers must be widened again and protected by secrecy.

    Is there nothing about a right of a person or corporation to find out what access has been made by the spooks and fuzz in respect of themselves?

    Catch-22.

    More power without responsibility.

  • 3
    Helen Wheeler
    Posted Thursday, 18 October 2012 at 4:06 pm | Permalink

    I agree with David Sattler. Working within the parameters of proposals is too vague and directionless.

    Having a legal background would enable me to write a treatise in this regard, but using plain-speak, it seems the AGD is treating us like mushrooms….and Roxon needs to watch her political step here.

  • 4
    Bev McCart
    Posted Thursday, 18 October 2012 at 4:28 pm | Permalink

    (But the AGD submission also re-confuses an issue that had seem clarified by the Attorney-General herself.)

    Is this surprising? The Attorney General is a politician and her job is to get this through with a minimum of fuss and there is a time-line she must stick with.

    She will occasionally check and see what her department is doing and as long as there is an absence of accountability and prying eyes she won’t interfere with the process. Hence the confusion between what Roxon is actually saying and what the AGD is actually doing.

  • 5
    David Sattler
    Posted Thursday, 18 October 2012 at 5:16 pm | Permalink

    That should have been “so they can’t be accused of “NOT” being open and accountable.”

    Menial, what is it good for? Thanks to Andrew Barton for the heads-up.

  • 6
    AR
    Posted Thursday, 18 October 2012 at 8:25 pm | Permalink

    There seems no understanding or insufficient will amongst the times server shiny pants, aka politicians, of the Draconian nature of these proposals.
    therefore, as long as they think it all hunky-dory & benign, the obvious thing to do would be to grant the Citizen (you know, the person in whose name they act and from whose sweat they are paid, lavishly…)full & total access to the information gathered on them, ON REQUEST, no FOI fartarsing about, no equivocations and obfuscation.
    If They have anything on Us, the We are surely entitled to know, if only to check that it is correct.

  • 7
    Helen Wheeler
    Posted Thursday, 18 October 2012 at 9:04 pm | Permalink

    The times server shiny pants, aka politicians are sleep walking.Priorities for them equals superannuation funds, perks, retirement and less time in the breach.

    Serving their constituents is well down the list, although there is the odd exception.

    But if you want to know if they have a file on you, AR? I can answer that.

  • 8
    John Bennetts
    Posted Thursday, 18 October 2012 at 11:21 pm | Permalink

    @HW:

    You state that priorities for politicians include “retirement and less time in the breach”.

    Sure that this isn’t “more time on the beach”?

    BTW, which politicians do you have in mind. I only know my locals plus a few… they seem to be very highly motivated and conscientious, to the point of exhaustion. This goes for both sides of the House.

    Those few who I know personally, at least started out dead straight, motivated by ethical concern for their constituents. By retirement, they have given their all.

    Perhaps, you have unfortunately been represented (or not) by fabled lazy-bones and dolts. That has not been my experience.

    Conversely, the Federal Fuzz and the Spooks from ASIO and beyond are other breeds entirely. Motivated by what, exactly? Who do they serve? What are the rules by which they operate? There, perhaps, are the ultimate timeservers, beyond scrutiny and immune from disclosure.

    I fear not from politicians. In Douglas Adams’ words, they are “mostly harmless”.

  • 9
    Person Ordinary
    Posted Friday, 19 October 2012 at 9:10 am | Permalink

    Well done Bernard. Recently you have been giving a negative and lazy spin on what are essentially the good and necessary workings of our system, perhaps swept along with the whipped-up garbage flows of your colleagues in the mainstream media. But if you can continue to think for yourself, to shine a light on what is really happening, and to distinguish between benevolence and malevolence within the political realm, we might just make a journalist of you yet.

  • 10
    Helen Wheeler
    Posted Friday, 19 October 2012 at 10:30 am | Permalink

    @JB

    Strangely, you are in good company with that comment.

    I can still remember John Howard making that exact same comment when parliament in general copped a spray from some independents years back and he praised both houses for their hard work and dedication in reply. Do you recall that? I am sure you do.

    A breach is a rupture, a gap or something along those lines, so maybe not standing in the gap of draconian security laws and lacking a national and moral conscience would be a more applicable comment.

  • 11
    John Bennetts
    Posted Saturday, 20 October 2012 at 10:16 pm | Permalink

    HW, I recall that which you refer to. JWH is/was occasionally somewhat descerning.

    I happen to regularly vote for Members of various parties, always on the basis of my perception of their smarts and ethics. An observer might conclude that I am left-ish, which is probably true. However, above party politics I have, for decades, valued personality.

    Such, as Ned would say, is life.

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