When Attorney-General Roxon handballed the issue of data retention to the Joint Committee on Intelligence and Security last year, she was looking for political cover. This was legislation her department had – we later learnt – already begun preparing, after an extensive industry consultation process. Rather than taking a decision to press ahead, Roxon invited the committee to conduct an inquiry into the proposal and offer its own view, in effect outsourcing the decision.

A year later, the Committee has declined her invitation and handballed the issue right back to the government and Roxon’s successor, Mark Dreyfus: if the government wants data retention, the committee says, then here is a model of what a scheme should look like — but it’s a decision for government.

It’s a defeat for the Attorney-General’s Department, which was not merely severely upbraided by committee chairman Anthony Byrne in the report forward, but which has had to watch a data retention scheme (which it strongly supports) delayed at least until 2014, with Mark Dreyfus responding to the report by ruling out a scheme for the time being. Moreover, the committee has laid the basis for a minimalist scheme – one limited to meta-data, and where meta-data can’t be extracted from content data, it won’t be stored. Internet browsing data of any kind won’t be stored. Storage will be left to industry, but with government funding the cost. And there’ll be audits to check content data isn’t being caught, as well as oversight of access by the Inspector-General of Intelligence and Security and ombudsmen.

If a government decides in the future that it wants data retention, it will have to explain why it wants a broader scheme than the one the committee described.

It’s a stinging rebuke, says Greens senator Scott Ludlam. “The Government now should announce it has learned its lesson and drop the policy once and for all.” But Ludlam is critical of the report’s failure to address the Edward Snowden revelations. “The report is notably silent on the PRISM scandal which blew up after the committee had concluded taking evidence. The possibility of large-scale warrantless surveillance over Australian citizens is absent from this report. Instead, the bulk of the report is concerned with the minutiae of surveillance regulations in Australia which may have been rendered wholly redundant by transfers of data from the US.”

Some might complain that in ducking a recommendation for or against data retention, it squibbed it. It was apparent during hearings, however, that there were differing views among members on data retention. The committee has a strong tradition of unanimous reports, one continued with this one. And more to the point, it was Roxon who originally squibbed it; the Committee has merely declined to take the responsibility Roxon sought to push onto it. The Committee doesn’t have access to operational reports from agencies, it is not involved in the minutiae of intelligence gathering as the Attorney-General and her counterparts on the National Security Committee of Cabinet are. It is not the government.

But some credit must be given to Roxon: even if inadvertently, she generated a significant debate about data retention and other issues around national security legislation. And she commenced a process that has seen her department exposed to scrutiny and given an absolute bollocking by the committee – rarely has any department been so mauled by a parliamentary committee controlled by the government as this report does. That’s the real benefit to emerge from this nearly-year long, very complex inquiry.

Committee chairman Anthony Byrne says he wants the debate on national security that the inquiry established to continue. “The process of updating national security legislation certainly isn’t finished, it will be ongoing. I want the dialogue we’ve started to build between the committee, national security agencies, civil liberties groups and online activists to continue.” And Byrne rejects the idea that critics of national security legislation are less interested in safety and security than advocates. “People trying to protect online freedom are no less interested in protecting the community than intelligence agencies or police forces. It’s important for their views to continue to be heard and I’m committed to that.”

It’s a dreadful outcome for a department that developed an entire data retention régime in secret. But at a time when the price of national security secrecy has been on painful display in the United States, it’s a strong outcome for greater accountability and transparency for national security laws.

Peter Fray

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