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

Senator, I do not want to repeat what I said in answer to your previous question or indeed to Senator Xenophon. I think you understand what I am saying to you. But might I make two observations. First of all—and I think you acknowledge this, Senator Ludlam—the primary obligation is in proposed subsection (1). Proposed subsection (6) is inserted into the bill as an anti-avoidance measure so that, particularly during the implementation phase, an ISP or a telecommunications provider cannot vacate, as it were, the retention of metadata that it currently retains and then say, 'I'm sorry; none of this applies to us.' Proposed subsection (6) is an anti-avoidance measure which, as the opening words of it say, is for the avoidance of doubt. But the primary obligation imposed by this legislation is the obligation imposed by proposed subsection (1).

Secondly, you raise the relevant question of compliance by small ISPs in particular. We acknowledge that there may be particular burdens on small ISPs. That is why there is an 18-month implementation period to give effect to, to enable all players in the telecommunications industry, not just the giants like Telstra, the opportunity to adjust their business model and business practices to be compliant. But also if I may refer you, please, to proposed section 187K in division 3: that provides an exemptions regime—and the example you give, Senator, is a particularly relevant one—so that, in circumstances in which a small ISP may find compliance with the proposed 187A(1) obligation unreasonably burdensome, an exemption can be made for it.