Monitor, Police, Control:
Australian Attorney-Generals’ war on the Internet


Conceptual keyboard - Control (blue key)

analysis Australia’s two most recent Attorneys-General distinguished themselves during their tenure by demonstrating a complete lack of understanding of the dynamics of the modern Internet; seeking to monitor, control and contain it at all costs. Now they’ve both announced plans to quit politics. Will our next chief lawmaker do any better?

Over the past week Australia’s two most recent Attorneys-General have revealed their plans to quit politics. For the first to do so, Robert McClelland, who served as Kevin Rudd and Julia Gillard’s Attorney-General from the 2007 Federal Election until December 2011, the decision may not have been a difficult one.

McClelland’s had a long stint, in parliament, after all; first entering the House of Representatives in early 1996 after a career which saw him eventually become a partner with law firm Turner Freeman, he held a variety of posts in the then-Labor shadow ministry (including Shadow Attorney-General) before ascending to the AG’s post in 2007. He was eventually dumped from the role by a vengeful Prime Minister Julia Gillard in late 2011, following Rudd’s failed leadership challenge that year. McClelland had been a key Rudd supporter, and it would appear to matter little whether Labor wins the upcoming Federal Election or whether the Coalition does; McClelland’s role in either case in the wider scheme of government could be expected to be minimal.

For the current sitting Attorney-General, the decision may have been a more complex one. Like McClelland, Roxon’s been in parliament a long time, holding the seat of Gellibrand since 1998. And like McClelland, Roxon has held a variety of senior positions in both Opposition and in Government; including the position of Shadow Attorney-General and then Health Minister under Rudd and Gillard, before taking the AG’s role following McClelland’s dumping from it.

However, unlike McClelland, Roxon currently enjoys Gillard’s favour; and has particularly been seen as one a group of strong female parliamentarians clustered around Gillard that have helped the PM deflect what many have seen as sexist behaviour emanating from some sections of the Coalition. However, with a decade and a half immersed in the constantly boiling cauldron that is Australia’s Federal political arena, Roxon, like McClelland, perhaps feels she hasn’t got another election ahead of her; let alone more time on the bench as a member of a potential future Labor Opposition.

The discussion regarding each parliamentarian’s departure over the past week has been singularly uniform. Most commentators, as I have done here, have related the pair’s moves to Gillard’s announcement of a September election date; no doubt Roxon and McClelland are only the first of many parliamentarians on both sides of politics who will choose not to contest the poll, which is expected to be ferociously fought. And commentators have also raked over both MP’s parliamentary careers, with many of their successes and failings discussed.

However, what has been broadly missing from the coverage, so far, has been analysis of how both McClelland and Roxon completely failed in their role as Attorney-General to successfully deal with what is rapidly becoming one of the most contentious aspects of the portfolio; Internet-related law.

McClelland spent most of the first several years of his role as Rudd’s Attorney-General below the radar when it came to Internet-related legislation, with most of the ire of the Internet community focused at that point on Communications Minister Stephen Conroy, who had emerged as the chief spokesman for Labor’s failed mandatory Internet filter policy.

However, in June 2010, that would change, as McClelland started fielding — or, to put it more precisely, avoiding — calls from journalists regarding ZDNet’s outing of a controversial new policy being promulgated by McClelland’s department which would require Australian Internet service providers to retain precise data on their their users were using the Internet and telephone networks — with data to be kept on all emails sent and all calls made.

McClelland attempted to play down the issue, which had been boiling away inside the depths of the Attorney-General’s Department for years, probably before he even took its reins in 2007. But the issue never went away, and return again and again to bedevil the Attorney-General during his tenure until December 2011. Australians, it turns out, don’t want to have their emails and phone calls tracked by default by law enforcement authorities in a huge, searchable, constantly updated database. Funny, that.

And other issues relating to Internet legislation also arose during McClelland’s tenure as Attorney-General. In mid-2011 McClelland’s department started hosting a series of closed door meetings between representatives of the ISP and content industries regarding the similarly controversial issue of Internet piracy of copyrighted material such as films and television shows.

The meetings were disturbing for a few reasons; no consumer representatives were allowed to attend the talks; Freedom of Information requests regarding them were constantly denied came back severely redacted; and they took place in the context of ISP iiNet’s then-ongoing High Court defence against the Australian Federation Against Copyright Theft; in short, one lawmaking branch of the government was hosting talks about making law in an area that another branch, being the High Court, was about to rule.

It didn’t help that McClelland himself refused to answer any questions about the issue, or that his department, right in the middle of the process, published a consultation paper proposing to “streamline” a proposed process which could see copyright owners get a legal avenue to source customer details from ISPs; a process which could have resulted in tens of thousands of Australians being sued en-masse for Internet piracy.

Other elements of McClelland’s tenure as Attorney-General were also of concern to the Internet community. In May 2010, for example, McClelland announced the Government would accede to the the Council of Europe’s controversial Convention on Cybercrime, which US-based digital rights advocacy group the Electronic Frontiers Foundation described as a door to enforcing “the world’s worst internet laws” when the United States ratified the treaty in mid-2006.

The EFF said at the time that the treaty required the US Government help enforce other countries’ cybercrime laws, “even if the act being prosecuted is not illegal in the United States”. “That means that countries that have laws limiting free speech on the Net could oblige the FBI to uncover the identities of anonymous U.S. critics, or monitor their communications on behalf of foreign governments. American ISPs would be obliged to obey other jurisdiction’s requests to log their users’ behavior without due process, or compensation,” wrote the EFF at the time.

And McClelland’s time as AG even had an impact on government transparency internationally, with statements by the MP and Gillard still being used by payments corporations Mastercard and VISA to blockade donations to whistleblowing organisation Wikileaks.

Under Roxon’s time as Attorney-General, these and other concerning initiatives which appear designed to curb and control Australians’ access to and use of the Internet were further expanded.

The data retention issue first outed in 2010, for example, has been massively expanded into an extremely wide-reaching program to substantially reform the Government’s telecommunications interception and law enforcement powers. If the package — known collectively as the ‘National Security Inquiry’ reforms — goes through, government agencies such as ASIO and the Australian Federal Police will get unprecedented powers to collect data about Australians’ Internet and telephone habits, hack their computers (even if they haven’t committed a crime), decrypt their data and do all this with less warrants required than at any time in Australian history.

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). Other government departments such as the Australian Taxation Office and the Australian Securities and Investments Commission have also expressed interest in the package.

And again, as under McClelland’s stewardship of the Attorney-General’s Department, almost all attempts to provide transparency around the package — whether it be through Parliament or the Freedom of Information processes — have been denied.

Roxon has progressed McClelland’s cybercrime legislation, despite the Greens arguing that it was “yet another” unnecessary expansion of the Government’s surveillance powers in Australia, and although the anti-piracy talks begun under McClelland broadly appear to have been wound down, they continued under Roxon throughout much of 2012; again, with the media and the public kept in the dark.

There are also ongoing allegations that the Federal Government — which, in this case is primarily represented by its Attorney-General — has not done enough to resolve the case of Wikileaks founder Julian Assange, who remains locked in limbo in the diplomatic haven of the Ecuadorian Embassy in London. Roxon has publicly stated that the Federal Government’s hands are tied on the issue, but if you talk to Assange’s lawyers, his relatives and the Greens, you’ll get another view of the situation: That Roxon and the Attorney-General’s Department are not doing much of what they could to deal with the fate of this one high-profile Australian citizen, and have not been communicative with Assange’s legal team during the whole process.

Then there’s the ongoing review of the digital sections of the Copyright Act which Roxon kicked off in April 2012, which could hardly be more controversial, in the context of Internet piracy debate and the legal moves blocking Optus’ online TV recording functionality, among other examples. In this area, too, Roxon followed McClelland, who was also extremely active in reviewing copyright legislation during his time in power.

Lastly, one must also consider the curious case of Roxon’s department blocking Chinese networking giant Huawei from participating in the multi-billion dollar National Broadband Network tendering process, despite the company not being accused of having broken any pertinent laws in Australia, and despite Huawei being a major international supplier in the networking equipment market which counts most of Australia’s major telcos amongst its customers. Huawei has also offered to have its solutions security-audited, as it has in the UK. However, Roxon’s department appears to be persisting with the view that the company’s supposed links to Chinese military interests make it too much of a risk for the NBN.

It is in this context — a multi-faceted, highly secretive war on Australia’s Internet rights — that Australia gets a new Attorney-General, Roxon’s replacement Mark Dreyfus.

Elected in March 2006 and taking the Attorney-General’s role this week, Dreyfus is a Queen’s Counsel and the chairman of the House of Representatives legal and constitutional affairs committee. He’s been a Cabinet Secretary and Parliamentary Secretary for Climate Change and Energy Efficiency, and more recently, from December 2011, Parliamentary Secretary for Industry and Innovation. He’s personally quite wealthy courtesy of his legal career and he’s a graduate of premium private school Scotch College in Melbourne.

As of yet, we don’t know much of Dreyfus’s views of Internet legislation or telecommunications interception laws. However, if you’ve been following this article so far, you may have reached the conclusion, as I have, that it doesn’t really matter.

If you examine all of the examples given in this article, one persistent view of Labor’s history in the Attorney-General’s portfolio over the past five years, under both McClelland and Roxon, becomes clear. Australia’s Attorneys-General and their department, over that period, have been engaged in an ongoing and wide-ranging attempt to control, monitor and police Australians’ usage of the Internet, in ways which most Australians would strongly disapprove of.

And throughout that period, Australia’s Attorneys-General and their department have continually sought to frustrate attempts to provide transparency around their actions.

If you believe prominent network engineer and commentator Mark Newton, which I personally do, much of this activity has been stimulated primarily from within the Attorney-General’s Department itself, with the Attorney-General of the day, whether it had been Roxon, McClelland or Coalition AGs before them, merely being a front for the department’s own plans.

Right now, Australia has a new Attorney-General. But it doesn’t have a new Attorney-General’s Department, it doesn’t have a new Federal Government, and it doesn’t have a new legislative agenda when it comes to the Internet. What those concerned about Internet rights in Australia are dealing with in this portfolio right now is not a person; not an individual; not an opinion. They’re dealing with a process; a system; a trend, which will go on regardless of who is Labor’s Attorney-General or what their background is.

So what can we expect from new Attorney-General Mark Dreyfus over the next half-year until the Federal Election in September (and beyond, if Labor wins the poll), with regard to Internet policy? The same we’ve seen from Attorneys-General over much of the past decade in Australia: Monitor, police, and most importantly: Control.


  1. I’ve said it before, and I’ll say it again, the Attorney-General is basically a sock puppet for the Attorney-Generals Department.

    An Attorney-General does pretty well everything they do based off advice from the AGD, because the system is so large and complicated it takes dedicated CPS’s to keep track of what’s going on in it.

    It doesn’t matter a great deal who is AG, or even which partty they are from, the push in that direction will still be going on, and it will just come down to how long the current AG (whomever they are) can hold it back.

    • I think you will find that this is the case for most government departments. The public servants have learned to maintain their agendas despite suffering a head transplant every three or four years.
      Politicians, by the time they reach the level within their parties that allows them to become a department head, will generally be incapable of holding on to any personal conviction or belief. The core ethos that might once have been good has long been lost to goals of the common good or the righteousness of the state or the need to balance stakeholder (public service) goals.
      Not wanting to be partisan here but dear Tony is the epitome of this whittling away of personal belief which is perhaps why he has so much trouble positioning himself behind any ideal. In his recent election speech he attempted to position the liberal party alongside Australia’s love of freedom. Few can forget the election before last waiting for a liberal party position on net censorship – which finally came at the 11th hour. Or in the current (and prev) political circus, the liberal party support for data sharing despite senate concerns on privacy or full body scanners at airports with no opt-out clause.
      To a public service department head, people such as this are putty in their hands. A mere mouthpiece who can be fed fears about being seen to be weak on crime, terrorism, drugs or cuddle me elmo dolls. Wind them up and watch them dance.

  2. Shouldn’t we give him at least the benefit of the doubt?

    Yes I know that these legislation are all proposed by the Department itself (in a case which eerily reminds one of Yes Minister!) but, nevertheless, the guy is new, he is younger, he is a QC (which is rare these days) and is considered a sound legal mind. I still believe that a minister still has some control over the department he/she presides over.

    I don’t know the guy, he might be the worst AG this country has ever had, he might be in favour of Iran-style firewalls, but until we know any better, I think it’s only decent to give him the benefit of the doubt and

  3. The former Australian Attorney Generals not only resigned but they have retired from politics on the same day as Hillary Clinton retired with no firm plans to run for president.

    There is much speculation about reasons for the departures on a case-by-case basis but I’d hedge my bets that these politicians are fleeing from a point of legal accountability that was made public only hours before the mass retiring behaviors of those who are in a position to advise their leaders on a certain topic: war crimes.

    The webpage sent to Jula Gillard was from the Red Cross, noting Customary IHL Rule 153 in chapter 43.,up,war,crimes

    The web page was sent in the context of the perpetual persecutions of Julan Assange and Bradley Manning, neither of whom are guilty of covering up war crimes. I indicated to the Prime Minister that it puts her in a sticky situation as she is aiding the cover up of war crimes by treating Assange as a criminal for not covering up war crimes.

    So here we have a lot of speculation as to the reasons, why and what for and I’ve just added my 2cents worth, for what it is worth.

  4. The Internet needs its own voice in politics.

    “The masses can occasionally organize around a specific issue —
    SOPA/PIPA, the Arab Spring, and so on — and can block some actions by
    the powerful. But it doesn’t last. The unorganized go back to being
    unorganized, and powerful interests take back the reins.
    Either we fight for a seat at the table, or the future of the Internet
    becomes something that is done to us.” – Bruce Schneier

  5. It is up to the electorate to take this issue seriously and for the media to quiz all aspiring politicians on where they stand. Which leads to another issue of giving more exposure to minor players in the government and opposition rather than constant exposure of the same old faces.

  6. Thanks for the fantastic article.

    Looks like I’ll voting for the pirate party come September. Arrrrrrr!

  7. Seeing as this skullduggery is being driven from the department itself, how does one go about dismissing the boss of the department and the various capos under him? Get rid of these unelected officials who are the driving force for this freedom-destroying, totalitarian activity and the problem should go with them.

  8. Yeah, but as long as people get fibre it’s all good right..?

    Glad to see the ass end (figuratively speaking, wouldn’t want that IRL…) of Roxon though, she was a card carrying crusader who constantly relied on her belief that she was doing the right thing. The dept may be calling the shots but it might help if we have an AG that doesn’t walk in to the office and voluntarily assumes the position the dept dictates to him/her.

    We’ll see what happens but I guess in 6 or so months it won’t matter…

    • Well, their choice of direction comes down to “sign off” or “not sign off” what the AGD is working on. Many of the things they are working on literally take years to get to the point of being presented to the AG.

      Say what you like about Roxon, at least she didn’t sign off stuff like a robot, and even spilled the beans to the public on what the department actually wants…

      • “even spilled the beans to the public on what the department actually wants”

        I’m sorry, but I’m going to call bullshit on this one. The department had Roxon tied up in knots like a tame pet Koala. Frankly, every piece of information we’ve gotten from Roxon or the department recently has been dragged out under pressure; Roxon is the definition of a minister that Sir Humphrey Appleby would be quite contented to serve with. IE, one that doesn’t make trouble for the department.

  9. Unfortunately, the push for control appears to be coming from the Department and the crime-fighting bodies. It’s not just one politician trying to tell us what’s good for us, it’s a whole culture. And until people who have a clue are inside those organisations making decisions, then we will continue to have the concept of “I don’t understand it so I must control it”.

  10. Australia is becoming, if not already, an authoritarian nanny-state even by non-Western standards. Such encroachment on individual privacy and rights would be unconscionable, for instance in Germany where their privacy laws are far stricter than here. I don’t want Australia to go the way of the U.S where the FBI can simply tap into any digital communication coming in or out of the country. Unfortunately, I wouldn’t be surprised if there is some U.S. involvement in this, considering that most laws surrounding the control of technology here is modelled after U.S law anyway.

    It’s a scary prospect which would be a good excuse to defect from this country if/when it becomes reality.

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