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

The government opposes these amendments. At an earlier stage in the committee debate, all of the issues raised by these amendments were addressed, and I do not want to detain the Senate by rehearsing at length arguments that we canvassed for more than an hour last night. But let me briefly summarise why the government does not support these amendments.

The bill in the form in which it ultimately came to the Senate contained in division 4C a very thorough system of protections for journalists and their sources. Senator Leyonhjelm's amendments would go further, but it is the view of the government that the legislation in its current form fully protects those interests. It does so in several ways. Firstly, unlike access to the metadata of any other citizen, access to the metadata of a journalist has to be by warrant. Secondly, there is a special procedure specified or mandated for accessing the metadata of a journalist that does not apply to any other citizen. First of all, authorisation to seek a warrant to access the metadata has to be made by the minister. That does not apply to any other citizen. Then an application has to be made to a court.

When a decision is made by ministerial authorisation for the issuance of a warrant for access to a journalist's metadata, a long series of tests that apply to no other citizen apply in the case of a journalist. The test, for example, which the minister must have regard to before authorising an application for a warrant against a journalist, which is set out in proposed section 180L(2), deals extensively with the public interest. So you say you are proposing a public interest test, Senator Leyonhjelm, but a public interest test—a very thorough public interest test—is already in the legislation. Lastly, by proposed section 180X, there is uniquely created the role of a public interest advocate.

In no other area of the law, where information is accessible upon the issuance of a warrant, is there provision for a public interest advocate to enter the argument and maintain why a warrant ought to be issued. This is unique; it is unique to this legislation and it is unique to journalists. Those four respects—the requirement for a warrant in the first place, the requirement of a double application to the minister and the courts, the public interest test and the unique office of public interest advocate—are protections that exist nowhere else in the laws governing access to metadata that apply to journalists, which the government has introduced.

Senator Leyonhjelm, you ask rhetorically whether the public interest advocate is going to be appointed by the government, as if that is a shocking thing. Who else is it going to be appointed by? The executive government appoints statutory officers. For those reasons, we do not agree with the additional provisions that you would have us adopt in relation to journalists. The thing that your amendment does, and it lacks any rational basis, is the introduction of the so-called protected class warrant to extend beyond journalists to lawyers and doctors and their respective clients and patients. I explained this last night, Senator Leyonhjelm; let me have another go. Although the government did not initially think it was necessary to have these provisions about journalists, I understand the point that access to metadata could reveal a journalist's source. It could, because metadata includes, for example, telephone numbers so that if a particular journalist telephoned a particular source—although the content of that conversation could not be accessed because of the prohibition against accessing conduct in section 187A—nevertheless it would be enough to reveal or expose the journalist's source, if the fact of the communication between the journalist and the source were able to be established.

In relation to the lawyer-client privilege, the thing that is protected is what passes between the lawyer and client. What information the client gives lawyer for the purposes of seeking advice and what advice the lawyer gives the client are not secrets. Which lawyer acts for which client is not governed by legal professional privilege. That is usually a matter of public record; certainly in a court case it is. The interest that is protected by the lawyer-client privilege is content, not identity; and, as I have explained to you ad nauseam, Senator Leyonhjelm, this bill contains an explicit prohibition on access to content, so there is absolutely no prejudice to the principles of lawyer-client privilege or legal professional privilege, as it used to be known, by this legislation because that which those principles seek to protect are already protected by the prohibition on access to content. By the way, lawyer-client privilege operates primarily as an exclusionary rule of the law of evidence. So, even if in some manner that I cannot conceive of, this were able to be obtained, it could never be admitted into evidence in proceedings because it is an exclusionary rule.

The third category of information you seek to include is doctors and their patients. That has never been regarded by the law as being on the same footing with the relationship between lawyers and their clients as a class of information which the law will protect. It is revealing that you are not able to refer to any statute which enshrines that principle in your draft amendment. I thought perhaps there may be such statutory provision in some Australian state or Territory—I am not aware of any, but it is certainly not the general law. Senator Leyonhjelm, the reasons we would protect journalists' sources—that is, to conceal their identity—are already served by the government's amendments in part 4C. The reason we do not support extending the amendment to the relationship between lawyers and clients is because the interest that protects, content, is already categorically prohibited from being accessed under the bill.