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A little transparency, please

Posted By on August 7, 2013 @ 12:30 pm

Amid the circus that was the final week of the 43rd Parliament, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) quietly tabled its report [1] on the Inquiry into Potential Reforms of Australia’s National Security Legislation. This is an important report—the proposed changes include some especially topical issues such as data retention and telecommunications interceptions by intelligence agencies. As the furore in the United States over the ‘Prism’ program shows—and as discussed here [2](and here [3], here [4] and here [5]) on The Strategist—these are issues that go to the heart of the tension between secrecy and transparency in intelligence work.

The report is comprehensive and the PJCIS made some sound recommendations. But it could have been better if the government had provided the Committee with enough information to make informed recommendations.

Announcing the referral of the Inquiry to the PJCIS, then Attorney-General Nicola Roxon said [6]: ‘Unlike the Howard Government, the Gillard Government wants to give the public a say in the development of any new laws’. More than a year later, when the report was tabled, the exact same words [7] apparently came from the new Attorney-General, Mark Dreyfus.

Poor copy and paste choices in those media releases aside, it’s not clear how serious the government was about public consultation. When the referral was announced [6] on 4 May 2012, the government said that it would ask the Committee to report back by 31 July 2012. It was a tall order for the PJCIS to conduct a truly consultative public Inquiry on 18 specific reform proposals containing 44 separate items across three different reform areas in fewer than 12 weeks.

As it happened, the PJCIS took around 12 months to complete the Inquiry, but it was still plagued by other difficulties. Instead of producing an exposure draft of the proposed legislation changes, the large reform agenda was presented as a discussion paper [8]. No doubt a discussion paper appears less final and more consultative than draft legislation, but it didn’t provide sufficient detail to allow for constructive feedback. Further, the Attorney-General’s Department, author of the discussion paper, failed to provide timely information to the Committee when it was requested.

The Committee’s Chairman, Hon Anthony Byrne, was particularly frustrated by how these problems affected the Committee’s deliberations on the proposed data retention regime. As Byrne pointed out [1]:

… one of the most controversial topics canvassed in the discussion paper—data retention—was only accorded just over two lines of text. 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.

Then the Committee discovered that the Attorney-General’s Department had much more detailed information on the topic and had even had discussions with stakeholders, but it had to draw this information out of witnesses representing the department. Further, it took almost six months for the Committee to get a complete formal definition of which data was to be retained under the proposed regime. By then, the public submission period had closed and the public hearings were finished.

As a result of the lack of detail and draft legislation, Byrne said that the Committee’s recommendations are often qualified or could only suggest areas where further work is needed. In particular, the Committee was unable to reach a decision on whether a data retention regime should proceed. The Committee left that decision up to government but recommended an exposure draft be referred to the Committee if the government decided to go ahead with it.

The Committee was able to make more tangible recommendations on the revision and amendments to the Telecommunications (Interception and Access) Act 1979, the Australian Security Intelligence Organisation Act 1979 and the Intelligence Services Act 2001. But the Committee also recommended these revisions and amendments be released as exposure drafts for public consultation and be referred to key stakeholders, including the Committee, for review. So really, after twelve months of hard work by the Committee and its staff—time that could have been spent on its intelligence oversight duties— we’re still at square one with these proposed changes.

It’s imperative that the next government prioritises the exposure drafts recommended by the Committee and provides sufficient detail and support to the Committee’s Inquiry to allow for a constructive public review. The next government should also heed this valuable lesson in how not to achieve legislative reform, and why legislation that affects the operation of our intelligence and law enforcement agencies should emphasise transparency and be above the politics of the day.

Kristy Bryden is an intern at ASPI.



Article printed from The Strategist: https://www.aspistrategist.org.au

URL to article: https://www.aspistrategist.org.au/a-little-transparency-please/

URLs in this post:

[1] report: http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=pjcis/nsl2012/report.htm

[2] here : http://www.aspistrategist.org.au/looking-through-the-prism/

[3] here: http://www.aspistrategist.org.au/government-surveillance-and-australias-multiple-watchdogs/

[4] here: http://www.aspistrategist.org.au/australian-intelligence-organisations-the-limits-of-oversight/

[5] here: http://www.aspistrategist.org.au/even-more-reflections-on-intelligence/

[6] said: http://pandora.nla.gov.au/pan/132822/20130204-0704/www.attorneygeneral.gov.au/Media-releases/Pages/2012/Second%20Quarter/4-May-2012---Public-consultation-for-national-security-legislation-reform.html

[7] exact same words: http://www.google.com.au/#safe=active&output=search&sclient=psy-ab&q=unlike+the+howard+government+the+gillard+government+wants+to+give&rlz=1R2AURU_enAU502&oq=unlike+the+howard+government+the+gillard+government+wants+to+give&gs_l=hp.3...819.17236.0.17442.77.67.1.0.0.3.1027.20852.5j

[8] discussion paper: http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=pjcis/nsl2012/index.htm

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