news The Federal Attorney-General’s Department has rejected a request by the Pirate Party of Australia to release draft legislation associated with the Government’s controversial data retention and surveillance proposal, with the department stating that public interest factors did not outweigh the need to keep the material private as it was still being deliberated on.

The Federal Attorney-General’s Department is currently promulgating a package of reforms which would see a number of wide-ranging changes made to make it easier for law enforcement and intelligence agencies to monitor what Australians are doing on the Internet. For example, one new power is a data retention protocol which would require ISPs to retain data on their customers’ Internet and telephone activities for up to two years, and changes which would empower agencies to source data on users’ activities on social networking sites.

The Pirate Party, which is an activist and political organisation which lobbies to maintain and extend Australians’ digital rights and freedoms, issued a media release this morning noting that it had filed a Freedom of Information request with the department, seeking draft national security legislation which had been prepared in 2010 with respect to the current proposal. The draft legislation had been mentioned by the Sydney Morning Herald in an article in August.

However, the Attorney-General’s Department wrote back to the organisation this weke, noting that the request had been denied. Logan Tudor, a legal officer with the department, wrote that he had decided that the draft legislation was exempted from being released because it contained material which was being deliberated on inside the department. “… the release of this material would, in my view, be contrary to the public interest,” Tudor wrote.

In the Pirate Party’s statement, its treasurer Rodney Serkowski described the response by the Attorney-General’s Department as “disgraceful and troubling”.

“They have completed draft legislation, prior to any transparent or consultative process, and are now denying access to that legislation, for reasons that are highly dubious and obviously politically motivated,” wrote Serkowski. “The Department is completely trashing any semblance or notion of transparency or participative democratic process of policy development.”

The Parliament’s Joint Committee on Intelligence and Security commenced an inquiry into the proposed reforms several months ago, following a request by Federal Attorney-General Nicola Roxon to do so. However, the inquiry has not been provided with the text of any associated legislation, and is only discussing the issues on the basis of a discussion paper provided by the department on the proposal.

“Where the legislative proposals almost certainly mean the complete erosion of fundamental freedoms like privacy, it is in the public interest that we are able to access the text of such proposals so as to properly inform public debate,” wrote Serkowski. “We want transparent government and private citizens, not the opposite.” The party noted that it would appeal the department’s decision to the Office of the Australian Information Commissioner, seeking to have the draft legislation and associated preparatory texts released.

On a related issue, the Pirate Party noted that a supplemental it made regarding the National Security Inquiry to the parliamentary committee in response to an open letter made by Attorney General Nicola Roxon and a submission made by ASIO had not yet been accepted by the parliamentary committee. “Despite being received by the Committee Secretary over a week ago, it is yet to be accepted by the Parliamentary Joint Committee on Intelligence and Security,” the organisation wrote. “The Pirate Party notes that ASIO were able to make a submission after the deadline.”

“The so-called clarifications of the data retention regime by both ASIO and Nicola Roxon did nothing to allay our fears of having everything we do online tracked,” said Simon Frew, Pirate Party Australia’s Deputy President. “We felt it necessary to respond explaining how meta-data amounts to tracking every website every person visits, not by content, but by providing the IP address or web domain.”

“The fact that our supplemental submission has yet to be accepted heightens concerns that the Committee will rubber stamp legislation that we are being denied access to. The whole Inquiry is starting to look like a charade of a consultation with the result being pre-ordained long before the terms of reference were even announced.”

Background

The denial of the Pirate Party’s FoI request comes as opposition to the data retention and surveillance proposal continues to grow. This week, Shadow Communications Minister Malcolm Turnbull broke his silence regarding the package, declaring that he has “grave misgivings” about a project which he feels “seems to be heading in precisely the wrong direction”.

“Without wanting to pre-empt the conclusions of the Parliamentary Committee, I must record my very grave misgivings about the proposal,” Turnbull told the audience. “It seems to be heading in precisely the wrong direction. Surely as we reflect on the consequences of the digital shift from a default of forgetting to one of perpetual memory we should be seeking to restore as far as possible the individual’s right not simply to their privacy but to having the right to delete that which they have created in the same way as can be done in the analogue world.”

In general, the Government’s data retention and surveillance package has attracted a significant degree of criticism from the wider community over the past few months since it was first mooted. Digital rights lobby group Electronic Frontiers Australia has described the new powers as being akin to those applied in restrictive countries such as China and Iran, while the Greens have described the package as “a systematic erosion of privacy”.

In separate submissions to the Parliamentary Joint Committee on Intelligence and Security inquiry into the reforms, a number of major telecommunications companies including iiNet and Macquarie Telecom, as well as telco and ISP representative industry groups, have expressed sharp concern over aspects of the reform package, stating that “insufficient evidence” had been presented to justify them. And Victoria’s Acting Privacy Commissioner has labelled some of the included reforms as “being characteristic of a police state”.

The Institute of Public Affairs, a conservative and free market-focused think tank, wrote in its submission to the parliamentary inquiry on the matter that many of the proposals of the Government were “unnecessary and excessive. “The proposal … is onerous and represents a significant incursion on the civil liberties of all Australians,” wrote the IPA in its submission, arguing that the data retention policy should be “rejected outright”. And one Liberal backbencher, Steve Ciobo, has described the new proposal as being akin to “Gestapo” tactics.

In addition, several weeks ago The Australian newspaper reported that about a dozen Coalition MPs had bitterly complained about the data retention proposals in a passionate party room meeting, with Opposition Leader Tony Abbott being urged to directly pressure the Government on the issue.

Roxon and agencies such as the Australian Federal Police have attempted to justify the need for a data retention scheme by stating that the increasing use of the Internet by criminals has made traditional telecommunications interception powers less useful.

“The need to consider a data retention scheme has come about because of changes in technology that have affected the behaviour of criminal and national security suspects,” said Roxon recently. “Targets of interest now utilise the wide range of telecommunications services available to them to communicate, coordinate, manage and carry out their activities. The ability to lawfully access telecommunications data held by the telecommunications industry enables investigators to identify and build a picture of a suspect, provides vital leads of inquiry and creates evidence for alibis and prosecutions.”

opinion/analysis

It’s hard not to conclude that the whole data retention and surveillance issue, the so-called ‘National Security Inquiry’, is rapidly descending into a farce.

The Federal Parliament is examining the issue but does not have any access to the draft legislation which details how the proposal will actually be implemented. The Federal Attorney-General’s Department wrote the legislation several years before it even asked the Parliament to examine the issue, and now won’t release that draft legislation. And meanwhile, the Federal Attorney-General continues to insist she is maintaining an objective stance on the issue, despite having pushed it publicly. In the meantime, at least one commentator has alleged – and I agree – that the whole proposal has nothing much to do with the current politicians running the Federal Government, but is in fact being backed by the Attorney-General’s Department itself, which is using Roxon herself as a front for its data retention plans.

At the same time, almost every organisation or individual which has commented on the proposal has stridently opposed it, and the only organisations actually pushing for it are law enforcement bodies such as the Australian Federal Police and Australian Security and Intelligence Organisation, both of which have not provided evidence for how the current data retention system is failing. To make matters worse, the Government only boosted its data retention powers several months ago with the enactment of new cybercrime legislation. Meanwhile, the proposal remains unpopular with the general population, who are overwhelmingly opposed to it. Is there anything else which could demonstrate that this whole situation is a farce?