George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

Because, Senator, there is no possibility that the principles governing lawyer-client privilege could be violated by a bill that may not access or cause the disclosure of content. That which is protected is the lawyer-client relationship and what passes between a lawyer and the client in the course of that professional relationship. What the client tells his lawyer and the advice that the lawyer gives his client is content.

This bill, ex hypothesi, does not deal with content. It is defined specifically to ensure that it does not deal with content. So the mischief to which you refer could never arise. And, as I said to Senator Leyonhjelm, it is conceivable that a journalist's source could be disclosed by metadata. It is, at least theoretically, conceivable. Let me give you an example. Let us say a journalist's metadata was accessed and it appeared that the day before the journalist published a particular scoop, the journalist was ringing a particular telephone number and that was the telephone number of a person who was leaking confidential information to the journalist. That person could be identified and, by a process of inference, it might be concluded that the telephone communication between the journalist and the particular telephone number identified the source of the leak and therefore identified the source. This is the difference you have to understand, Senator Wright. Where we protect journalists' sources, we protect their identity. Where we protect lawyer-client confidentiality, we protect what passes between the lawyer and the client—not the identity of the lawyer or the client but what the client says to the lawyer and what advice the lawyer gives to the client. That is the difference.