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

I think what you meant to say, Senator Xenophon, is: in what circumstances could it be used? Let me just make the fundamental point that that is what this bill is about. This bill is about criminal investigation of serious crime: terrorism, paedophilia, transnational and organised crime. That is what the bill is about. As I said in a radio interview last week, I do not know any journalists who are terrorists or paedophiles or transnational organised criminals, and I am pleased to say I do not know any lawyers who are either. As you rightly say, there is a crime-fraud exception to the rules of legal professional privilege and, as you rightly say, the Law Council does not appear to be saying that the bill violates those criminals. Because of the reasons I have explained, you have understood this, Senator Xenophon. They do not.

In the event that in the course of a criminal investigation there were access to metadata—let us say, of a lawyer—the fact that the lawyer had been in communication with a client could conceivably be disclosed, because the fact of a communication as opposed to the content of a communication may be revealed by the metadata which is the subject of the retention obligation. The duration of that communication could also be disclosed, but those things are not—for all the reasons I have explained more than once now—within the ambit of the protected confidential relationship between the lawyer and the client.