When they held a press conference on Thursday morning to hose down worries about the government’s terror legislation, George Brandis, Malcolm Turnbull, Asio director general of security Duncan Lewis and Australian Federal Police commissioner Andrew Colvin probably hoped to take the heat out of the debate.

Instead they were desperate, confused and contradictory. At worst the hose sprayed kerosene and plastic bags.



The government’s proposed penalties for reporting on secret terror business have been widely condemned. Brandis tried to soothe the assembled journalists, saying that the law didn’t target them. Rather, he said, it targets everybody.

The cameras didn’t show the faces of the front row he was speaking to but it didn’t seem to go down well. He added that in order for a journalist to be jailed under the new laws he would newly require the authorities to ask him first. It is “almost inconceivable” that a journalist would go to jail, he said.

The seemingly biennial failed idea of data retention was the other topic of discussion. Security and law enforcement agencies are hoping to acquire powers to make internet service providers warehouse information about what their customers do - information which the providers don’t keep because it has no commercial value to them.

Today Australians pay for communication by raw volume of internet data, not by fixed toll or metered tariffs based on distance of individual calls, like we used to. This means internet providers have no commercial need to store up vast volumes of records about what we do online. Instead they keep an eye on how much we do online overall and either slow the service down or levy additional charges once we hit a planned limit.

Security and law enforcement would like this “metadata” – a law enforcement and security organisation term that means “data” - because it’s hugely informative and they don’t need a warrant to get it. The remaining hurdle is to get the ISPs to stop chucking it out.

Retention poses enormous concerns for anyone who’d prefer their Internet provider didn’t store everything about them. Of course giving the authorities the right to peruse your data without judicial oversight, or even good reason, makes people uncomfortable. In recognition of that discomfort, Brandis, Turnbull, Colvin and Lewis tried to explain completely different concerns that nobody really has, and don’t make sense.

First we were told that the authorities aren’t seeking new powers – which is true enough, unless you count the power to make companies store and provide massive amounts of data they currently dispose of as useless. Then we were assured that these new powers are critical to national security and crime investigations – with examples given of previous successful investigations that jailed several dangerous people for many years, but didn’t actually use these yet-to-be-granted powers.

Colvin tried to score confidence points by saying the laws could help authorities target those who “illegally” download content. Surely now the terrorists are on notice! More likely it’s a warning to anyone ripping off Peppa Pig or Game of Thrones: not only is data retention likely to expose them, criminalising those who download movies and TV looks to be back on the legislative agenda.

Turnbull looked particularly uncomfortable at that revelation – or perhaps he was suddenly concerned he hadn’t removed his 2012 Alfred Deakin lecture from his website, in which he lambasted data retention. That’s a bit like when you think you might have left the iron on – but you accidentally left your own sensible feelings about your parliamentary colleagues’ agenda on your blog.

The legislation looks set for a tough run if this is the way it will be defended. The usual snuggly spooning of bipartisanship on national security and law enforcement stuff won’t be enough to quell community concerns about jailing journos and leaving Internet users’ bins out for the AFP to rummage through.

Like many of the government’s pet topics, it could still be brought undone by public and expert opinion, and a few bad headlines. Brandis has already been forced to make further clarifications, saying on ABC 774 less than 24 hours after his presser that there is “no relationship” between piracy and data retention.

Between now and when data retention is voted on (likely early next year) we’ll see more terrorsplaining. It will likely be as insubstantial and ineffective as Brandis and Turnbull’s anxious presser. (This is to say nothing for Bill Shorten’s 11th-hour hand-wringing.) Critics of the government’s agenda on national security should remember this: the ideas are far from sold.

