Data Retention: The Issue That Will Force Shorten To Show His Hand

Bill Shorten was out and about today, giving another of his usual doorstop interviews.

The Opposition Leader has been having a wonderful time of late. While the Liberal Party seethes with internal tension, Shorten has been busy in Shaun Micallef’s writer’s room, emerging only occasionally to reel off some cracking new zingers.

Today’s rib tickler was an assurance that “while the Liberal Party engage in an unseemly circular firing squad, Labor is doing its day job making sure we have good laws properly scrutinised.”

It’s smiles around in the Labor camp just now. As Tony Abbott’s leadership disintegrates, the Opposition’s small target strategy is looking better and better. Indeed, the Prime Minister has become so that many observers are now suggesting that he is the ALP’s best asset. “Tony Abbott retains a great deal of party support,” Guy Rundle wrote yesterday. “Unfortunately most of it is in the Labor Party.”

Labor insiders argue that the Opposition hasn’t intentionally run a small target strategy. It’s just that being in opposition is hard, and the media tends to cover the government.

But nor has Labor announced many policies of its own. The ALP has opposed many of the Coalition’s budget measures, and continues to fight hard in the Senate against cuts to Medicare and university fee deregulation.

But on one issue above all, the ALP has run silent: national security. Petrified of being attacked by the government as soft on terror, the ALP has been in lockstep behind the government.

As a result, sweeping new powers have been granted to Australia’s security agencies under the Abbott government, all with Labor’s blessing. For many of these new laws, there has been almost no Parliamentary or public scrutiny. 

The National Security Legislation Amendment Bill No. 1 passed the Parliament in October last year, with laughably little discussion or debate. Critical amendments were presented with just a few hours notice. Labor supported no fewer than 56 of them. Amendments by the Greens that would significantly improved the bill were voted down.

Among other things, the bill outlawed almost any kind of reporting or journalism about ASIO. It criminalised whistleblowing about intelligence operations, and made it illegal to report on any so-called “special intelligence operation” – whatever that may be. It gave ASIO the power to monitor just about anything it wants – effectively the entire internet. It gave ASIO blanket protection against prosecution, even when it happens to break the law.

Shortly afterwards, the government also passed the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill. This bill made it illegal for anyone to travel to special no-go zones, defined by the government of the day. In essence, the new law made it illegal to be in the wrong place at the wrong time.

Again, the new legislation had wide implications for journalism, potentially outlawing undercover reporting in war zones. Again, Labor waved it through with little scrutiny. The Opposition at least moved an amendment to try and clarify what a “declared area” meant. But when Attorney-General George Brandis objected, Labor let it slide.

Now a besieged government is signaling it will try and pass a third national security law. This time, it’s the notorious metadata retention bill that caused George Brandis so much trouble last year (the hilarious interview of Brandis by David Speers is well worth another look).

This morning, a desperate Prime Minister Abbott gave a media conference alongside Federal Police Commissioner Andrew Colvin, trumpeting the metadata bill.

This bill would see the government mandate that all internet service providers keep huge troves of metadata about their clients, just in case the police or ASIO want to have a look. Security agencies would be able to access metadata without a warrant, and without oversight from a court or intelligence watchdog.

Speaking of watchdogs, we still don’t have a new National Security Legislation Monitor. The last such monitor, Bret Walker SC, finished his term last year. A new one hasn’t been appointed.

Cynics might wander why ASIO would need the new data law anyway – given the first tranche of counter-terror law allows it to spy on just about anyone at will. Even so, the new metadata law widens the scope to practically East German levels, making it legal for security agencies to spy at will on essentially every Australian citizen.

As if we needed reminding about ASIO’s attitude to snooping, last month we learned that the agency can keep all the data it holds about citizens indefinitely. It has never deleted any of its records – ever.

Does mass surveillance even work? There is precious little evidence that mass surveillance stops terrorism. Australian security agencies already have extensive snooping powers. They could certainly have got a warrant to surveil Man Haron Monis, the perpetrator of the Martin Place attack. He was, after all, on bail. The Charlie Hebdo attacks in Paris were also carried out by suspects well known to French police and security agencies. 

Metadata has become the new front in the war on terror, not because security agencies need it, but because a wounded government perceives national security as the last issue on which it still holds an advantage over Labor.

As Abbott made plain in his National Press Club speech on Monday, the government plans to introduce further terror laws.

“It's not good enough just to boost the police and the security agencies if cracking down on Hizb ut-Tahrir, and others who nurture extremism in our suburbs, means further legislation,” he said. “We will bring it on, and I will demand that the Labor Party call it for Australia.”

Rather than stick up for Australian freedom and the right of innocent citizens not to be spied on by their government, Labor is rolling over on national security laws to make sure it can’t be wedged.

Indeed, Labor’s shadow Attorney-General Mark Dreyfus admitted as much this week.

When the ABC’s Peter Lloyd asked Dreyfus to respond to Abbott’s “with us or against us” provocation, Dreyfus replied that “no Australian could be in any doubt looking at our record in government, and our record in opposition, about Labor's commitment to ensure that our agencies – our police agencies, our security agencies – have all the resources that they need to keep Australians safe.”

Shorten today said much the same thing. “Labor has got a fantastic record of working in the national interest on national security,” he said. “When it comes to fighting the dreadful scourge of terrorism, we’re all in this together.”

Shorten is right. When it comes to giving Australia’s spy agencies more money and more power, Labor has been every bit as accommodating as the Coalition.

We’ll know more about Labor’s position on data retention when the Joint Parliamentary Committee on Intelligence and Security, void of any Independents or Greens, releases its report on Brandis’ legislation later this month.

But Labor supported all of the government's terror legislation last year. Given that record, you'd expect it to pass this law too.