Australia’s data retention laws, ostensibly justified only for serious crimes, could be used to pursue unionists for swearing or flying the Eureka flag — even though the construction industry watchdog admits it doesn’t handle criminal prosecution.
In a document obtained by Labor senator Doug Cameron under freedom of information laws, the office of the Fair Work Building Industry Inspectorate last June urged the Attorney-General’s Department to add it to the list of “enforcement agencies” that would have access to data retained under the Abbott government’s data retention laws. In a token effort to curtail the vast number of Commonwealth, state and local agencies that could access metadata, the government limited access to retained metadata to a number of security agencies but left the way open for other “criminal law enforcement agencies” and “enforcement agencies” to apply to be added to that list.
In defending what amounted to Australia’s biggest ever government mass surveillance scheme, Attorney-General Brandis — famous for not actually understanding what metadata is — insisted the data retained would only be accessed by security agencies for “the most serious crime”. He told the ABC’s Q&A it would only apply “to terrorism, to international and transnational organised crime, to paedophilia, where the use of metadata has been particularly useful as an investigative tool”.
The Australian Federal Police, which enthusiastically backed the laws, agreed. AFP Assistant Commissioner Tim Morris nominated terrorism as the priority for data retention, saying “metadata and telecommunications data is a vital aspect of all serious crime investigations, whether it’s child exploitation, serious and organised crime, cyber crimes, but yes, terrorism absolutely”.
But contrary to the statements of both Brandis and Morris at the time, the data retention legislation does not limit access to metadata to terrorism, paedophilia or organised crime. Instead, the criteria to be added to the list of enforcement agencies by ministerial declaration (which requires parliamentary approval, although agencies can be given temporary access) is the same as that applying before the data retention legislation was introduced. More than 60 agencies and government bodies have applied to be declared under the act, including the Fair Work Building Industry Inspectorate, known as Fair Work Building and Construction. It should be noted, though, that when the list of 61 agencies was first released (including FWB), AGD said no agency had been granted temporary access. Parliament also needs to approve any permanent additions to the list of agencies given access to metadata.
In its application letter to the Attorney-General’s Department, which has badly bungled the implementation of data retention, FWBC acknowledged not merely did it not have responsibility for “the most serious crime”, but it had no responsibility for crime at all. “FWBC does not contend that its functions extend to ‘the enforcement of the criminal law’,” it admitted. Instead, FWBC claims that it needs metadata for “serious breaches of civil penalty provisions”.
In fact FWBC and its predecessor, the Australian Building and Construction Commission, have a history of pursuing offences so trivial as to be vexatious. Unionists have been pursued for swearing, for flying the Eureka flag (or flags that look like the Eureka flag, even if it’s for a cancer fund) or having political bumper stickers such as anti-WorkChoices stickers. Cameron, who has long scrutinised FWBC and the ABCC, told Crikey: “FWBC has a track record of putting aside civil liberties, privacy, natural justice and procedural fairness in pursuit of its political objective as a taxpayer-funded union buster. If the Attorney-General doesn’t want FWBC to make a mockery of the intent of the data retention laws, then he must refuse FWBC’s request.”
Moreover, FWBC went on to justify its need to access metadata on the basis that judges would not automatically grant subpoenas enabling it to seize documents. “The cases on contested subpoena application,” FWBC told the department, “show that the court will consider whether the applicant has demonstrated that the subpoena for the production of documents has a legitimate forensic purpose… the issuing of subpoenas is discretionary and may require an ‘exercise of judgment’.”
Yes, you read that right — FWBC wants to be able to automatically access metadata because judges might decide that its subpoenas have no legitimate forensic purpose. Cameron accuses the FWBC of preferring to operate “in a secretive and opaque fashion,” even to parliamentary scrutiny. “Its view that judges are too unreliable to scrutinise whose metadata should be accessed by FWBC is consistent with its contempt for accountability to the Parliament.”
Has FWBC been successful in its application to get access to metadata for sticker hunts and flag investigations? The Attorney-General’s Department refused to answer Crikey’s queries, so we don’t know if it’s been given either temporary access or will be given proper approval under a legislative instrument. FWBC isn’t the only one that likes to operate in a secretive and opaque fashion.