Did the Attorney-General’s officials mislead a Senate committee last night when staff answered questions about the extent of their consultations with industry on data retention?

This would normally be of limited interest, except that what that department did on data retention and when it did it has become a mystery that not merely fascinates opponents of its data retention proposal but even the joint committee on intelligence and security, which has publicly complained about the department’s unwillingness to provide details about either its own position or the consultations it undertook from 2009 until — we eventually found out — 2012.

The reason we have some limited understanding of the department’s consultations with industry on data retention is because the Pirate Party’s Brendan Molloy requested documents through freedom of information from the department relating to those consultations. Seeking further information, last night Greens Senator Scott Ludlam — the Greens aren’t on the JCIS; Andrew Wilkie holds the non-major party spot — asked Attorney-General Department officials at an estimates hearing about its consultation.

What was interesting was that the secretary of the department, the ever-bowtied Roger Wilkins, was eager to play down the department’s consultations with industry as almost a frolic by a middle manager. “I think there were some informal discussions,” said Wilkins. “I think the consultation was done without, for example, my authority, it was done by the initiative of officers thinking they were just talking, having a chat about what might this involve … It was done as an initiative by officers at a lower level. They were interested in seeing, getting details about what it might cost or how it might work … I wouldn’t want to elevate this concept of consultation.”

How many meetings were there? asked Ludlam. Two, he was told.

That sits poorly with what we know from Molloy’s documents, which reveal 12 AGD-industry meetings dealing entirely, or partly, with data retention:

  • Data retention consultation meetings on August 26 and November 30, 2009, March 2 and March 12, 2010
  • Industry consultation meetings at which data retention was an agenda item on August 5, 2011, October 21, 2011, December 5, 2011, February 27, 2012, and May 17, 2012
  • A “privacy forum” on September 6, 2011
  • a “policy directions meeting” on September 7, 2011
  • Another unidentified meeting August 25, 2011

Why did they tell Ludlam there were only two meetings? Ludlam did ask originally, at a much earlier point, about consultations “around 2009”. He meant consultations starting in 2009. But as any good public servant knows, at estimates you never answer the question the Senator meant or answer the question the Senator should have asked — you answer strictly what he asked. Officials aren’t there to do senators’ work for them.

Thus, AGD officials said there’d been only two meetings in 2009, which there were.

But the extensive list of meetings, consultations and forums very much gives the lie to Wilkins’ claim that consultation about data retention was a mere frolic, a bit of a chat, by a Band 1 senior executive service officer (Catherine Smith) who off her own bat went and organised four specific meetings about data retention with industry and had it put on the agenda at five other meetings with industry to discuss more general issues. It looks awfully systematic, and there’s a lot of travel involved, for “informal discussions”. And that’s before you include the number of times AGD discussed the matter in inter-departmental committees with other departments.

We also learnt from the AGD appearance before the joint committee on intelligence and security last year that the department prepared draft legislation on data retention. We also know from the FOI documents that the department had begun preparing a regulatory impact statement, a key step before legislation goes to cabinet. Moreover, the department’s meeting notes even refer to a consultant having been engaged on the issue, although it’s possible the consultant was working on another task only distantly connected to data retention.

However, officials were similarly dismissive of legislative preparations. They initially denied any drafting had taken place, although they became more forthcoming when Ludlam demonstrated he understood the legislative process and the fact that the department would have engaged the Office of Parliamentary Counsel to draft the bill. “There have been discussions with Parliamentary Counsel,” Ludlam was then told, only it was on “the broader need for reform of the telecommunications interception legislation”. The department also denied it had spoken with the Office of Best Practice Regulation, which oversees the preparation of regulatory impact statements.

That discrepancy between what the consultation documents reveal and last night’s evidence is harder to reconcile.

And more broadly, the department appears to have taken a tactical decision in its estimates preparation to try to play down its pushing of the data retention proposal. it was all a frolic by one official, who didn’t do much consultation, there was no legislation drafted, none of the internal government paraphernalia that goes with legislation was undertaken.

Nothing to see here, move along.

Unfortunately, it doesn’t seem to be quite true. 

Peter Fray

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