What a mess data retention — until recently on track for passage through Parliament with bipartisan support — has suddenly become.

The media awakening to the threat data retention poses to journalists, whistleblowers and their sources continues apace. On Saturday, Australia’s most senior political journalist Laurie Oakes slammed the government’s proposed mass surveillance scheme for its impact on journalism. Attorney-General George Brandis was already working last week to try to assuage media concerns about the bill; you can bet the Oakes column caused almighty consternation in both the Prime Minster’s Office and Brandis’ office, run by former chief spook Paul O’Sullivan.

And on Friday, the CEOs of the major media companies are due to go to Canberra to talk to the Joint Committee on Intelligence and Security about protecting journalists’ sources from data access requests.

According to sources at two of the big media companies, Brandis has underwhelmed in his efforts to mollify the media. One concern is that the data retention laws will let outfits like ASIC — the discredited corporate regulator that has been added to the list of agencies that can access retained data — and crime commissions snoop around media email and website search traffic. As one executive said, “it is just a wholesale expansion of criminal investigatory powers [that] 20 agencies can access — the government says reduced from 80, but so what? ACCC, ASIC they can all have a go.”

Investigative journalists are particularly in the firing line. Another executive made the point that Fairfax’s Kate McClymont could have been shut down by Eddie Obeid using the laws, while The Age’s gun investigative team, Richard Baker and Nick McKenzie, would have likewise found their reporting and probing stifled by aggressive searching of their metadata by some of the government departments and ministers they have embarrassed over the years. And aside from journalists, there is no discussion of preserving legal professional privilege, important for all companies, including the media.

Brandis has also relied heavily on Australian Federal Police commissioner Andrew Colvin to convince media. Apart from the pros and cons of using a serving police officer for political purposes, did no one in Brandis’ office stop to wonder whether it was a good idea to have the head of the police force that had been forced to apologise for raiding the Seven Network last year telling the media what to think? Not to mention Colvin’s spectacularly poor judgement in admitting that data retention would be used to do the dirty work of the copyright cartel on file-sharing, rather than going after “serious” offences.

The media companies wonder why Labor and Opposition Leader Bill Shorten are not standing up for civil rights in this case. Labor, in its eagerness to avoid being wedged on national security, has now created a problem for itself: all of a sudden the media have woken up to the threat of data retention and want protection from it (most likely via a judicial warrant requirement for efforts to identify journalists’ sources, as per the UK model) but it is likely to be the Greens, who will seek to amend the bill this week, not Labor, which is formally committed to the JCIS process.

Complicating the matter is that if Labor changes its mind now and agrees to support amendments to the bill that will protect journalists’ sources, it will be breaking the deal hammered out within JCIS between the government and the opposition — back the bill as amended by the committee, and the issue of sources will be handled by the inquiry. The government will feel betrayed if Labor welshes on the deal, and whatever the merits or otherwise of data retention, it will have every right to feel that way.

It would have been better for all concerned if the media and its heavy hitters had woken up to the threat of data retention earlier than this — but then, it’s not as if JCIS didn’t give them ample opportunity to do so. The JCIS inquiry into access to data identifying sources is supposed to run until June. It might be awfully convenient if it issued a preliminary report recommending the current bill be amended.

That would protect journalists and their sources. But not politicians themselves. And not lawyers. And not doctors, or anyone else who routinely relies on confidentiality to do their job. And not ordinary Australians, for whom mass surveillance is also a threat. Still, politicians are scared of the media in a way they’re not scared of other professions, or of voters.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey