The Attorney-General George Brandis will today move to introduce in the Senate the National Security Legislation Amendment Bill (No. 1) 2014, containing a set of national security law reforms purporting to reflect chapter four of last year’s Joint Committee on Intelligence and Security inquiry report.
The bill will manifestly fail to reflect that chapter, however, since that committee was clear that any such changes should be preceded by an exposure draft of that legislation, parliamentary committee consideration and consideration by the Independent National Security Legislation Monitor. Brandis was a member of that committee and backed those recommendations about an exposure draft, committee consideration and the role of the INSLM. But there’s no exposure draft, and the government hasn’t replaced the departed INSLM, Bret Walker, because it wants to abolish the position, saying it was just “red tape”. Greens senator Scott Ludlam – who is currently chairing an inquiry in telecommunications interception — has proposed Brandis’s bill not proceed until an INSLM is appointed and examines it.
We’ll deal with the National Security Legislation Amendment Bill when it emerges, but the key issues will be whether Brandis wants to give a power to law enforcement and security agencies to plant data on a target’s computer, and the nature of the anti-whistleblower addition to the bill that he has flagged — a “Snowden amendment” aiming to punish anyone who leaks intelligence documents (presumably, of course, only for unofficial leaks, not leaks the government makes itself).
Meanwhile something of a kerfuffle has erupted over data retention, after the former head of JCIS and its current deputy head, Labor backbencher Anthony Byrne, spoke on Monday about the need to bring forward data retention and the rest of the proposals contained in the other chapters of the JCIS report. Byrne was interpreted as warning of a major terrorist attack and wanting data retention and other powers brought in now. In fact, he was arguing that national security reforms rushed through after a terrorist incident had Buckley’s of being calmly considered on their merits, and if the government wanted to bring forward reforms, it should do so in a way that ensured they could be properly debated. Talk that Labor has rolled over on data retention is — so far — wrong.
“Brandis likes to pose as the cerebral type, a kind of legal philosopher-prince … But for such a super-heavyweight brain, he gets an alarming number of things plainly wrong.”
Brandis added to the issue by telling the Coalition joint party room yesterday that data retention was “the way the West is moving”, although there are no current plans to bring data retention, which JCIS declined to endorse, forward. Perhaps that’s in the National Security Legislation Amendment Bill (No. 2) 2014, which Office of Parliamentary Counsel records show has been being worked on since late 2013, along with the current bill.
Brandis likes to pose as the cerebral type, a kind of legal philosopher-prince somewhat above the political fray because of his vast intellect. Perhaps that explains why he’s bungled issues like the RDA changes. But for such a super-heavyweight brain, he gets an alarming number of things plainly wrong.
It is true that the UK government has suddenly rushed in data retention laws in the last week — this is its second attempt after its “snooper’s charter” failed in 2012. But elsewhere in “the West”, the way is away from data retention. Only last Friday, Slovenia became the latest country to join the list of European Union states, including Germany, where laws implementing the EU’s data retention directive were declared unconstitutional. In any event, in April, after an Irish court challenge, the whole directive was declared invalid by the EU Court of Justice.
Still, that’s the Europeans: lots of them don’t speak English and maybe don’t fit in Brandis’ understanding of what “the West” is. How about across the Atlantic? Surely in the United States, the land of the internet mass surveillance, the nation where your personal data will always find a home, they’re full tilt in favour of data retention? Well, four weeks ago, the Republican-controlled House of Representatives used a budget measure to ban the National Security Agency from using a technicality to bypass its notional restriction on collecting metadata of Americans. It also prevented the NSA from requiring companies to install spy equipment for the NSA.
The vote came just before The Intercept revealed that Muslim academics, lawyers and civil rights leaders had been the subject of extensive NSA and FBI electronic surveillance. The group included a Republican Party operative who had worked in the Bush-era Homeland Security Department — yet again illustrating that the Obama administration is happy to use electronic surveillance for political ends.
What’s this sort of intrusive electronic surveillance got to do with data retention? Let’s be clear: data retention is mass surveillance. It’s not “billing data” as the Prime Minister laughably tried to claim. Data retention means being able to extensively profile you and anyone who contacts you from your phone calls and their timing, in many ways more effectively than monitoring your phone calls or your emails, and it means being able to physically track your movements through your mobile phone anywhere you go.
Moreover, despite the claims of police, the evidence from Europe shows data retention does nothing to help solve crime. Danish police have said data retention (albeit an even wider scheme than likely to be proposed here) has not had any benefit in solving crimes because the information was too unwieldy to use. A German parliamentary study concluded metadata collected under now-defunct data retention laws in Germany had led to an increase in the crime clearance rate of 0.006%.
Still, if Brandis doesn’t believe the evidence from Europe and wants to bring data retention on, Byrne is right: he shouldn’t wait till a terrorist incident gives him political cover to rush it through.