Revealed: Attorney-General’s drive for data retention law
The Attorney-General’s Department began pushing for a two-year data retention regime virtually the moment the Rudd government was elected, newly obtained documents reveal, and the Department’s secretary appears to have misled a Senate committee about his own role in the development of the plan.
Heavily redacted documents obtained by Crikey under freedom of information laws provide further detail of AGD’s strategy to convince the new government to implement a two-year data retention scheme, with the support of a wide range of agencies. Under AGD’s proposal, telecommunications companies and ISPs would have been forced to retain all data about Australians’ telecommunications and internet usage other than content and browsing history. The Joint Committee on Intelligence and Security earlier this year declined to recommend a data retention scheme after being asked to consider it along with a number of other national security reform proposals by former attorney-general Nicola Roxon.
The department approached Roxon’s predecessor, Robert McClelland, mere months into the job, when assistant secretary Catherine Smith sent him a brief in March 2008, barely four months into the Rudd government, requesting his approval to develop “in consultation with other relevant Australian government agencies … a model for a mandatory data retention scheme”. Smith appeared to dismiss privacy concerns. “Any mandatory data retention scheme risks being seen as increasing the threat to privacy,” her brief stated. However, the privacy implications were “perhaps not as significant as may first appear, since much of the information is already collected and stored by carriers”.
McClelland approved the proposal in early April and the Department set to work. An “Inter-Agency Working Group”, chaired by AGD, was established, composed of the departments of Prime Minister and Cabinet, Broadband and the Digital Economy, the Australian Federal Police, the Australian Competition and Consumer Commission, the Australian Crime Commission, Australian Securities and Investments Commission, Australian Security and Intelligence Organisation, Customs and South Australian Police. Commonwealth enforcement agencies, AGD later told McClelland, “are strongly supportive of a mandatory data retention regime. State and territory agencies are equally supportive.”
While AGD has redacted details of the model agreed by the working group, we know from a later letter from McClelland to former communications minister Stephen Conroy that the scheme included retention for two years (later versions of the scheme proposed “up to two years”).
In June 2009, Smith went back to McClelland and urgently sought his approval to consult with industry on the model that had been developed by the working group. “Consultation with industry is essential for further consideration of the two year model for data retention,” she said.
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