Remember George Brandis? The pompous, bungle-prone lawyer who confused spouting Latin with actual legal expertise? These days he’s High Commissioner in the UK. But back in 2015 he was the attorney-general who didn’t understand data retention, in charge of implementing data retention.

One of Brandis’ key selling points of the mass surveillance scheme was that not only would it not increase the surveillance powers of security agencies (rather, Brandis argued falsely, it would maintain the status quo that existed before the internet made it harder to get telecommunications data), but that he would reduce the number of agencies that could access metadata.

That was in line with his claim, and that of security agency bureaucrats, that the scheme would only be used for the most serious crimes (a claim unfortunately destroyed when the AFP commissioner Andrew Colvin said he’d be using data retention to pursue “illegal downloaders”).

Deriding his critics as guilty of “outrageous hyperbole” in March 2015, Brandis was adamant. His scheme:

…builds in new protections, new privacy protections that aren’t part of the existing law. Let me mention three of them. First of all, the number of agencies, the number of government bodies that can get access to metadata has been reduced from some 80 to about 20. So, it is now limited only to ASIO, the police forces, state corruption bodies and the three big economic regulators…

Brandis repeated the claim in the Senate. “The number of agencies that can avail themselves of this power is reduced by more than three-quarters, from 85 at the moment to 21.”

Yesterday, parliament’s joint committee on intelligence and security, a committee chaired by Liberal Andrew Hastie and of which Brandis used to be a member, released its review of the scheme, and made it clear that Brandis’ claim about the number of agencies that would access data under his scheme was completely false:

Notwithstanding the committee’s 2015 report and the clear intention of the definition of ‘criminal law-enforcement agency’ under section 110A of the TIA Act, at least 87 other agencies are gaining access to telecommunications data … those agencies include various local councils, a number of state and Commonwealth government departments (e.g. the Commonwealth Department of Agriculture and the WA Department of Commerce), the Office of State Revenue NSW, South Australia Fisheries and the RSPCA.

The committee didn’t leave it there. It sought a response from those 80-plus agencies that Brandis falsely said wouldn’t be allowed access, as to why they needed it:

The committee sought, via its secretariat, the Department of Home Affairs and the Department of Infrastructure, Transport and Communications, to give interested state and territory government agencies the opportunity to put their case as to why these powers should remain. There were very few submitters that took this opportunity up. Those that did were unable to convince the committee of the need for this broad access to telecommunications data.

The committee — this is a Liberal-controlled committee, remember — wants access limited. It recommended a significant tightening of the list of agencies that can access data, and that the government do what Brandis said he would do and never did — prevent any access to metadata by those who aren’t authorised to get it.

But whatever Brandis did or failed to do, the committee is also unhappy that Mike Pezzullo’s Home Affairs Department failed to work with the committee on the scheme while it was being abused:

The committee was disappointed that the Department of Home Affairs, which was aware of the concerns the committee had with the section did not seek to assist the committee in finding a way to amend this section.

Yesterday, committee deputy chair Anthony Byrne went further, expressing his disgust that Home Affairs failed to alert the committee to abuses:

One disappointment for me in listening to the evidence was that the department that was supposed to be monitoring this, the Department of Home Affairs, did not bring this to the committee’s attention. Given that the committee has done so much work in terms of its involvement in the architecture of the subset of data that was kept in 2012, 2013, 2014 and 2015, you would have thought that the Department of Home Affairs would have had the courtesy to inform the committee of a substantial breach of the metadata regime by agencies. That disappointed me a very great deal.

Byrne’s harsh words effectively put Pezzullo on notice that the failures of his department in regard to the scheme, and its refusal to co-operate with the committee, may yet have significant consequences for the scheme in the future.

The committee also wants substance to another core argument used to sell the scheme by Brandis and agencies: “In promoting the importance of these powers, and the undesirability of imposing a warrant requirement, agencies emphasised the importance of the data retention regime in aiding the investigation of serious offences.”

The committee recommends access be strictly limited to a serious offence; or an offence against a law of the Commonwealth, a state or a territory that is punishable by imprisonment for at least three years.

It also wants to tighten up the circumstances in which ASIO is allowed to get metadata, because currently it can obtain metadata for pretty much anything connected to its operations.

The report makes a number of other recommendations to improve the mass surveillance scheme, 22 in all. But for anyone with a memory longer than five minutes — which excludes pretty much everyone in the press gallery — it demonstrates, in forensic detail, just how much we were lied to by security agencies and the attorney-general who represented their interests five years ago.

Are we finally learning the truth about the government’s surveillance obsession? Let us know your thoughts by writing to [email protected]. Please include your full name to be considered for publication in Crikey’s Your Say section.

Peter Fray

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Peter Fray
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