If it wasn’t so serious, it would be the stuff of high comedy: the shambolic nature of the process of establishing new national security laws was on vivid display this morning.
The government today rushed into Parliament its new data retention bill, and is apparently desperate to have it passed before the end of the year. Parliament only sits for two more weeks after today, finishing for the year on December 4. Passage of the bill will require the Joint Committee on Intelligence and Security to conduct a review in around four weeks on the most controversial aspect of the government’s national security reforms, a proposal that constitutes a major attack on free speech, privacy and a free press. But Attorney-General George Brandis seems to think the committee can tick and flick the bill because it has already considered data retention, following then-AG Nicola Roxon’s referral of the issue to the committee along with over 40 other proposals in 2012.
And by “referral of the issue”, I mean two and a half lines in a paper the head of the Attorney-General’s Department admitted was a poor document that didn’t help the committee understand exactly what it was being asked to consider. Committee veterans are unlikely to be impressed with Brandis’ view that all the work has already been done — especially since the previous inquiry, of which Brandis was a vocal part, specifically discussed the need for detailed legislation so that it could properly consider data retention.
And there’s the next problem: there’s no actual detail in the data retention bill. Brandis himself acknowledged this, saying it was a short bill, “just 47 pages”. That’s because the technical detail of what, specifically, the data that telcos and ISPs will need to retain is, isn’t explained. That’s to be left to regulations. Why? Well, with regulations it’s easier to add to the list of data later, without legislation. But it’s mostly because the government still doesn’t know what data it wants retained — even though AGD has been working on this issue since 2008 at least. There has been an industry consultation process underway in recent months to nail down the detail about metadata — and that process isn’t anywhere near finished. That’s why this morning’s introduction took the industry by surprise (and some in the industry were very surprised and very angry). Instead, the government will establish a “working group” to finalise that consultation process while JCIS considers the bill.
Quite how JCIS is supposed to adequately assess the bill when the crucial definition of data and details around the implementation of the scheme are missing isn’t clear. And they are crucial, as iiNet has explained in detail.
Nor does the government know how much the scheme will cost, although it is clear that it won’t be paying the full cost of it — that will be for consumers to pay via their monthly bills.
What we do know, courtesy of AFP Commissioner Andrew Colvin sticking his police boot deep inside his mouth at the data retention media conference, is that data retention will also be used to pursue filesharing, at the behest of copyright industries and their minions — an admission the government has been at pains to stay away from.
The unanswered question in all this is, what’s the rush? The government dawdled away on national security in the first half of the year, ignoring calls to bring forward legislation so that it could be debated calmly and thoughtfully. Now, suddenly, data retention is a must — despite no one specifically linking the need for data retention with the current Islamic State situation.
At the same press conference this morning announcing data retention, Brandis declared he would be altering arrangements relating to prosecutions for revealing information about Special Intelligence Operations so that the Commonwealth Director of Public Prosecutions could not undertake a prosecution without the authorisation of the Attorney-General. That is, if you’re a journalist and you reveal something about an SIO, George Brandis and his successors will have the final say on whether you get charged and, if convicted, locked up for a period ranging from five years to ten years.
It was in response, Brandis said, to the unfounded claim that journalists could be locked up for doing their job, which he dismissed as impossible anyway, but we were meant to take comfort from the idea of Brandis getting to decide which journalists should be charged.
Opposition Leader Bill Shorten had overnight written to the PM urging reconsideration of this issue, just weeks after Labor helped the government vote through the laws, with only backbencher Melissa Parke voicing her concerns publicly. Labor sources say Shorten had been encouraged by News Corporation to raise the issue. While The Australian has enthusiastically supported the government’s national security reforms, a number of the company’s senior commentators and executives have expressed concern about the SIO provisions.
So, an opposition that waved through the laws backtracked on them within weeks and a government that insists there is absolutely no issue has politicised prosecutorial decisions in response, with encouragement from a media company whose outlets are officially relaxed about the matter.
Fortunately it’s only our basic rights to free speech, a free press and a functioning democracy in which the powerful can be held to account, that are at stake. Otherwise, you might be worried about how our leaders do things.