Oct 3, 2013

Revealed: Attorney-General’s drive for data retention law

The Attorney-General's Department pushed hard for data retention the moment Labor was elected, according to new documents released to Crikey under freedom of information.

Bernard Keane — Politics editor

Bernard Keane

Politics editor

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").

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6 thoughts on “Revealed: Attorney-General’s drive for data retention law

  1. robinw

    Is there such an offense as knowingly misleading a committee of the parliament and if so, what would the penalties be? It should be a cause for sacking, one would hope. This appears to me to be a case of Sir Humphrey here and without total honesty between the bureaucracy and the legislature our democracy is diminished.

  2. AR

    RobinW – I would have thought it common-or-garden Contempt of Parliament. Like lying to Parliament it used to be simply “not done”.

  3. bluepoppy

    AGD is notoriously bad for transparency. A colleague once asked for a document under FOI that was referred to in a Brief. Despite the reference in the Brief the department alleged that no such document existed.

    On this article, officials who lie to oversight committees should be sacked for breaches under the Codes of Conduct in the same way that lower ranked employees would be dismissed for far less serious offences. It is absurd that the anonymous tweets of an ex-DIAC employee resulted in her sacking while senior public servants are very often promoted and any offences selectively ignored.

  4. Malcolm Street

    Excellent hard investigative journalism. More please!

  5. klewso

    I always thought that Thud McClelland was put there for one thing – to prove that Rudd Labor had a sense of humour?

  6. Murray Thomasie

    All this just adds to existing questions about the AGD’s integrity and transparency.

    It is patently obvious they have misled everyone involved from the joint committee to the parliament.

    So, who is Roger “I don’t recall” Wilkins and Catherine Smith and why is/was every proposal or initiative so “essential” and or “urgent” that they should mislead to achieve an outcome?

    Who’s time-frame are they working to? Is it external or internal?

    Some background checks may reveal exactly what we suspect.

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