news The Federal Attorney-General’s Department has been forced to admit that statements it made in May in a Senate Estimates committee hearing that it had not drafted any legislation around the contentious issue of data retention were untrue, in a move which adds to existing questions about the department’s integrity and transparency.

In May last year the Federal Government unveiled a wide-reaching program to substantially reform its telecommunications interception and surveillance powers, the most controversial aspect of which was a project that would have resulted in a massive database of telecommunications data for access to details of all Australians’ telephone calls and emails, in a technique known as ‘data retention’.

The data retention and surveillance package has been almost universally opposed by a wide range of political, commercial and special interest groups since it was handed to a parliamentary committee to examine several months ago, with groups as diverse as the Institute of Public Affairs, the Greens, Electronic Frontiers Australia, telcos such as iiNet, the Pirate Party of Australia, Shadow Communications Minister Malcolm Turnbull and Liberal Party backbenchers, Victoria’s Privacy Commissioner and many other segments of the community vehemently opposing the package as a dramatic and unnecessary intervention in Australians’ private lives.

Currently, the only organisations known to support the package include the Attorney-General’s Department, which has been discussing data retention issues internally for at least four years, as well as law enforcement groups such as the Australian Federal Police (AFP) and the Australian Security and Intelligence Organisation (ASIO). Attorney-General Mark Dreyfus said late in June that the data retention reforms had been “shelved” for now, after the parliament released a wide-ranging report into the surveillance reforms in general, noting that that the data retention proposal specifically needed more work.

A number of key AGD bureaucrats — including Catherine Smith, assistant secretary of the department’s Telecommunications and Surveillance Law Branch — and overarching secretary Roger Wilkins — attended a Senate Estimates hearing in May, and took questions on the data retention proposal, among other matters. At the time, Greens Senator Scott Ludlam questioned the pair very closely in regard to the development history of the data retention proposals.

At the time (the Hansard transcript is here), Smith said that she had initiated meetings with the telecommunications industry as early as 2009 on the data retention issue, and that the issue had also been discussed at an interdepartmental committee to examine the potential to amend the Telecommunications (Interception and Access) Act to deal with the changing telecommunications environment.

At one point, Ludlam asked Smith and Wilkins: “When did the department begin the process of drafting data retention legislation?” Smith answered: “We are not drafting data retention legislation. We had in the past consulted, and now we are awaiting an outcome of the Parliamentary Joint Committee on Intelligence and Security.”

“So at no stage were parliamentary counsel engaged to draft a bill?” asked Ludlam. “Not on data retention, no,” responded Smith.

The bureaucrat clarified that there had been discussions with parliamentary counsel on the broader need to reform the telecommunications interception legislation, of which data retention was an aspect. “We have certainly engaged with the OPC to discuss the ways in which we could potentially modernise the legislation, but there have certainly been no decisions made on any of that,” Smith added.

And then, after some further discussion about the issue and how the broader issue had been discussed with the Office of Parliamentary Counsel, Ludlam asked: “But there was no such thing as a draft of a bill that included data retention provisions?” “I do not know — nothing that I have got,” replied Wilkins. “No, there were some very vague draft provisions, not to do with data retention though,” replied Smith.

However, as Crikey reported in June, the comments by the Attorney-General’s Departments ran counter to comments which Wilkins had personally made in a similar parliamentary hearing in November last year (PDF). The publication also noted that a recent Freedom of Information request regarding such documents had revealed that there had been communication, including “drafting instructions” on the issue between the department and the Office of Parliamentary Counsel. The OPC assists departments with drafting legislation.

In a new letter sent to the Senate Standing Committee on Legal and Constitutional Affairs last Friday (PDF), however, the department changed its tune once again.

“On page 88 of the transcript, in an exchange with Senator Ludlam in relation to the existence of a draft bill that included data retention provisions, Ms Smith stated that there were some very vague draft provisions, but not to do with data retention,” the letter stated. “The department would like to clarify that Ms Smith was referring to the fact that there was no draft Bill on data retention. However, there were two draft provisions on data retention, but they did not detail a comprehensive data retention regime.”

Ludlam on Friday issued a statement highlighting the letter.

“In May I asked the AG’s Department for details of its consultation with the telecommunications industry on data retention and any legislation that had been drafted for it,” the Greens Senator wrote. “At the time, Department representatives said there had been no formal discussions with the sector and that no legislation had been drafted. Today the Department has written to the Senate Legal and Constitutional Affairs Committee to correct their misleading answers.”



“I was told there were some ‘vague draft provisions’ not related to data retention. For the Attorney-General’s Department to now claim they were referring to the fact a complete Bill had not been drafted is mischievous at best. There were two draft provisions on data retention and the Department did not reveal this under specific questioning.”

The Attorney-General’s Department came under substantial fire for its secretive approach to the issue recently, when the Parliament’s Joint Committee on Intelligence and Security released its report into the wider surveillance reforms proposed by the department.

The committee’s chair, Labor MP Anthony Byrne, wrote that the committee had been faced with a number of key difficulties in its work. “… the lack of any draft legislation or detail about some of the potential reforms was a major limitation and made the Committee’s consideration of the merit of the reforms difficult. This also made it hard for interested stakeholders to effectively respond to the terms of reference,” Byrne wrote in the report.

On the data retention issue specifically, the Labor MP added: “This lack of information from the Attorney-General and her Department had two major consequences. First, it meant that submitters to the Inquiry could not be sure as to what they were being asked to comment on. Second, as the Committee was not sure of the exact nature of what the Attorney-General and her Department was proposing it was seriously hampered in the conduct of the inquiry and the process of obtaining evidence from witnesses.”

“Importantly the Committee was very disconcerted to find, once it commenced its Inquiry, that the Attorney-General’s Department (AGD) had much more detailed information on the topic of data retention. Departmental work, including discussions with stakeholders, had been undertaken previously. Details of this work had to be drawn from witnesses representing the AGD. In fact, it took until the 7th November 2012 for the Committee to be provided with a formal complete definition of which data was to be retained under the data retention regime proposed by the AGD.”

Last week Ludlam said that the report had “rightfully slammed the Attorney-General’s Department for its secretive approach”. “It is now confirmed the Government’s approach on data retention was even worse than initially thought,” the Greens Senator said.



Ludlam has put a Freedom of Information application to the Attorney General’s Department for “letters, emails, file notes, records of phone conversations or meetings, memos or reports about the drafting of legislation or regulations on data retention between the Attorney General’s Department and the Office of Parliamentary Counsel” dating from 1 January 2009. The Department has acknowledged it received the request on 19 June.

opinion/analysis

So, did senior AGD bureaucrat Catherine Smith, and/or department secretary Roger Wilkins, blatantly lie to Parliament about the fact that the department was drafting data retention legislation? And what would the consequences of that be?

Let us remember that this is a very serious question. While it is very common to accidentally mislead a Senate Estimates hearing or similar parliamentary committee hearing (for example, in the case that a witness would be unknowingly wrong on an issue, or where their honest opinion was given and later proven to be incorrect), knowingly misleading parliament is completely different matter.

It is common at the beginning of committee or senate estimate hearings for the chair of the proceedings to read out a reminder to witnesses on this issue. This is the statement read by committee chair Anthony Byrne on 2 November 2012, when Wilkins appeared before the Parliamentary Joint Committee on Intelligence and Security (the occasion on which he hinted that data retention legislation might exist):

“Today the committee will take evidence from the Attorney-General’s Department. Although the committee does not require you to give evidence on oath, I remind witnesses that this hearing is a legal proceedings of parliament and warrants the same respect as proceedings of the House and the Senate. The giving of false or misleading evidence is a serious matter and may be regarded as contempt of parliament. The evidence given today will be recorded by Hansard and will attract parliamentary privilege.”

In my opinion, in the May hearings, Wilkins skirted the edge of misleading Parliament but did not cross the line. He gave many less answers than Smith on the question of data retention, and in one case he said he did not know the answer. While these obviously aren’t comprehensive answers, neither did they directly contradict the truth.

However, in my opinion, Smith went much further and did mislead Parliament, crossing a crucial line. I note particularly Ludlam’s question: “But there was no such thing as a draft of a bill that included data retention provisions?” To this question, Smith answered: “No, there were some very vague draft provisions, not to do with data retention though.” This answer was factually incorrect.

Despite her answer, it is reasonable to assume that Smith knew that the draft legislation which had been put together by the OPC contained data retention provisions, as admitted by the department late last week. Smith is assistant secretary of the department’s Telecommunications and Surveillance Law Branch which oversees this aspect of the law, and has been one of its lead public servants taking point on this data retention issue for the department since back in 2009. It would be very surprising for Smith not to know that the OPC had drafted legislation containing data retention provisions. The bureaucrat is an expert on the situation.

And yet, when asked directly about this issue by Ludlam, Smith said there weren’t.

I would point out that there are fairly serious consequences for misleading Parliament. The appropriate legislation defines contempt of Parliament as: “Conduct (including the use of words) …[which] amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member’s duties as a member.”. I’m taking this from the Parliament’s website, which also states:

“The punishments for contempts which either house may apply are set by the 1987 Act as fines of $5,000 for individuals and $25,000 for corporations, and up to six months imprisonment for individuals.”

Will either the committee, Ludlam or the Parliament as a whole bring action against Smith? No. Of course, it will not. This kind of thing is routinely ignored by the Parliament. There is a very high bar for the Parliament to take action against a public servant, and we very rarely see contempt proceedings brought against anyone, even when they have demonstrably misled Parliament. This case does not come close to reaching that bar. In some sections of Australian society, the act of misleading Parliament might even be seen as something of an act of civil disobedience, or a political act. Only very rarely do fines or jail time come into the matter, and there is no doubt that nothing of the sort remotely is being considered here. There will very likely be no consequences at all from this event.

However, I would also point out that there is a pattern of behaviour here. If you examine the performances which senior AGD bureaucrats have delivered over the past few years in front of Senate Estimates and Parliamentary Committee hearings, on issues such as data retention, you will commonly find that they are very reluctant to provide details about the department’s operations on many fronts, even under direct and specific questioning, and that it is common for the department to hold secretive meetings with various parties without any public disclosure, and for details of those meetings to be censored when they are requested under Freedom of Information.

Journalists such as myself have been through this dance with AGD many times on issues such as data retention, Internet piracy, Internet censorship, copyright reform and so on. It is common, because of this reason, for the department to be described as “rogue” within certain media circles, in the sense that it is popularly perceived to be out of the control of the politicians who are supposed to be steering it.

This impression was reinforced in September 2012, when prominent network engineer and commentator Mark Newton accused the Attorney-General’s Department of using the Attorney-General of the day — whether Labor or Coalition — as a front for its long-running data retention and surveillance plans, which he said dated back to the Howard Government.

“The document is a wish-list of proposals that have been floating around police forces and Attorney-General’s Department bureaucrats for years,” Newton wrote in a submission (PDF) responding to a discussion paper on the reforms published by the Joint Parliamentary Committee on Intelligence and Security, which is currently holding an inquiry into the issue. “Indeed, the Data Retention proposal discussed herein dates back to the Howard Government.”

Newton wrote that every now and then, departmental bureaucrats would float these kind of data retention and surveillance reforms “up like trial balloons”. Usually, he added. “their proposers judge that the winds aren’t blowing in the right direction, and they pop down again until the next opportunity to try them on. It’s almost as if the proposals’ owners float them every time we swear-in a new Attorney General, just to see if he or she is credulous enough to give them a permissive hearing.”

“To the credit of our previous Attorneys General, the more contentious proposals detailed in the Discussion Paper have been unable to advance,” Newton wrote. “But that doesn’t mean that they’ve gone away. The Department has a longer memory than any of its Ministers, and can rely on the amnesiac effect of the “brain transplant” they receive whenever there’s a change of government or a front bench reshuffle.”

Whatever the truth of this matter, one thing should be self-evident: It is no longer enough to rely on the testimony of bureaucrats from the Attorney-General’s Department in parliamentary proceedings. Those answers must, in future, be fact-checked independently. After all, last week’s revelation clearly showed that we can’t believe everything we are told.