“Pattern of secrecy”:
Govt ‘buries’ data retention evidence



news The Federal Attorney-General’s Department has refused to release any documents relating to the development of controversial data retention legislation, in a move that follows a pattern of behaviour from the department that has led some onlookers to allege “a pattern of secrecy” at the organisation.

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’.

Following a parliamentary committee hearing process in which a large number of Australian individuals and organisations were highly critical of the data retention plan, last month Attorney-General Mark Dreyfus announced plans to “shelve” the package for now, pending further work.

However, debate still exists as to what extent legislation which would enact data retention measures has already been developed. Earlier this month the department was 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. Following the revelation, Greens Senator and Communications Spokesperson Scott Ludlam filed a Freedom of Information notice with the department, seeking:

“… 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 the Office of Parliamentary Counsel.”

In a statement released on Friday afternoon last week, Ludlam revealed the department had decided to block the release of any of the information he had sought.

In a letter sent by the department to Ludlam (PDF), the department noted it had found some 17 documents meeting the Senator’s Freedom of Information request. Dating back to 2011 and extending to March this year, the documents primarily consist of emails between the department and the Office of Parliamentary Counsel (which assists with drafting legislation) about the construction of data retention legislation.

For example, on 16 June 2011, the department sent “drafting instructions” to the OPC. Throughout 2011, 2012 and 2013, the two organisations held a number of meetings on the issue and regularly exchanged email.

However, in the letter, AGD first assistant secretary Geoff McDonald noted that he had blocked access to all of the material, on the grounds that they were covered by legal professional privilege, or contained so-called “deliberative material” — the exchange of advice and opinion in a deliberative process as part of carrying out the functions of the department.

Both stipulations can be waived if there is a strong public interest in the material being released. However, McDonald noted that he believed that “real harm” would result from the release of the documents. “The harm includes substantial prejudice to the ability of the department to conduct its business,” McDonald wrote.

The blocking move is only the latest in an extended series of moves by the department over the past several years to block the release of information under FoI laws that many Australians consider strongly in the public interest.

For example, in March and April 2012, the department blocked the release of information about secret meetings it was holding at the time between the telecommunications industry and the content industry about Internet piracy; it has also blocked the release of information with respect to the potential involvement of Chinese networking vendor Huawei in the National Broadband Network build and other issues associated with the data retention program. In last week’s statement, Ludlam said the rejection was “the latest incident in a pattern of secrecy”.

“This is the worst of a series of obfuscations, denials and outright falsehoods the Government has issued on data retention,” the Greens Senator said. “On July 5 the Government admitted it had given false answers to a Senate Estimates hearing when asked if any legislation had been drafted for a data retention scheme, and now this. Today and on July 5, the Government timed its move for late on a Friday afternoon – which seems calibrated to minimise exposure.”

“The Government has also misrepresented the extent to which it consulted with the telecommunications industry on the data retention proposal. The Government argues that every document covered by the FOI request is subject to legal privilege. Enough is a enough – the Australian people have a right to know the extent to which their Government has pursued a scheme for universal round-the-clock monitoring of our communications.”

The parliamentary committee examining the data retention reforms also criticised the department’s lack of transparency on the issue, in its report on the wider surveillance reforms of which the data retention plan was one component. At the time, The committee’s chair, Labor MP Anthony Byrne, wrote that the committee had been faced with three key difficulties in its work.

“Firstly, the terms of reference were very wide-ranging as they contained 18 specific reform proposals containing 44 separate items across three different reform areas,” Byrne wrote. “Secondly, 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.”
“Thirdly, that one of the most controversial topics canvassed in the discussion paper —data retention—was only accorded just over two lines of text.”

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.”

It’s the Attorney-General’s Department, and specifically the Telecommunications and Surveillance Law Branch of the department. I don’t know why anyone would expect the bureaucrats in that section to release any information to anyone at any time about anything — they certainly have shown extreme reluctance to do so in the past. The irony that this same branch came up with a proposal to monitor and log all Australian telecommunications should be apparent to everyone. There are bureaucrats in the department which are actively working to stop sunshine being shone into the areas in which they work. And that is very disturbing indeed.


  1. What I don’t get is why these guys are so hell bent on making everyone (else’s) data available, yet so hell bent on making sure no one can see how its being done. Who’s agenda are they serving? Certainly not any particular political party which is usually the case, and not anyone’s private interests.

    I find it just a little bit disturbing that we have a whole department trying to make 1984 happen, yet don’t want anyone to know who wrote the book.

    • If it’s not in the interest of any political party then why is Dreyfus allowing it to happen and why is Brandis saying nothing? The ALP could put a stop to this right now. The Coalition could make it clear they would put a stop to it if they win government. That neither is happening speaks volumes.

      I don’t know how Dreyfus can live with himself given all he’s said about freedom and privacy in the past.

      • … tin foil hat now in place …

        It’s because the information gathered enables the status quo of muppet government (both sides) to continue and avoid any real evaluation on whether it is working in the best interests of our community.

  2. McDonald noted that he believed that “real harm” would result from the release of the documents. “The harm includes substantial prejudice to the ability of the department to conduct its business,”

    Yes, precisely. As it should – if a department is found to be acting beyond its remit, if there is found to be corruption or incompetence on the part of employees, then of course the public will demand immediate changes, of course it won’t be business as usual. That’s the point.

    What I have never understood about the FOI process is that the department itself has responsibility for releasing requested documents without oversight, when they necessarily have vested interests in the release of those details. How could any reasonable person expect a system like that to be in any way workable? I suppose if you’re the government drafting such legislation and you don’t really want people to have access to processes and details you would prefer to keep quiet, but you wish to seem like you are being transparent, you would design the law just like this. Please explain why we’re allowing it, though?

  3. I sent an email 6 weeks ago querying the status of the FOI Review report that was due for release almost 3 months ago. See the email and response below.

    One suspects there will be no report before the election, and then a new review will likely be required.


    From: Greg Bean
    Sent: Saturday, 8 June 2013 7:48 PM
    Subject: Latest

    Can you please provide a description of the review process enumerating the total number of submission; both published and unpublished (confidential), and detailing the names of the submitters, how the submissions where reviewed, conclusions or valuable inputs garnered from each submission, how these valuable inputs have been included in the review and resulting report, and a copy of the final report as indicated by your target date for a report, “The report should be provided by 30 April 2013.”.


    All the best,

    Greg Bean

    >>>>>> Reply <<<<<<
    Dear Mr Bean

    Thank you for your email. Dr Hawke’s report has not been publicly-released.

    A total of 81 submissions (including confidential submissions) were received. As part of undertaking his review, Dr Hawke considered all submissions received. All submissions except confidential submissions are on the FOI Review website at: http://www.ag.gov.au/Consultations/Pages/ReviewofFOIlaws.aspx.

    Yours sincerely

    FOI Review Secretariat

  4. I think when you consider the clearly inept performances of the AGD in front of the parliamentary committee and Senate Estimates they are shown to be out of their depth on this issue and FOI would only lead to more embarrassment.

    These lawyers do not understand the internet, networking or probably computers at all


  5. “The harm includes substantial prejudice to the ability of the department to conduct its business,”

    Are these people serious? Do they expect this line to quieten the requests for more information?
    A statement like this is a massive red flag showing that the department is behaving in opposition to the Australian public’s interests.

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