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

I have heard the term before, but I caution against diverting this debate into an argument about the meaning of technical language, much of which is jargonistic. The very reason the bill has been drafted in the way it has, with a broad definition of content and with a broad intendment of content and very specific descriptions of metadata, is to say the obligation only attaches to that which falls within one of the six categories in the table. And it does not attach to content. If, for example, something contained both content and metadata and the two were unable to be separated, the obligation in the bill does not apply to it. That is the very point of not defining content by category but defining metadata by category; so that the words in clause 187A(4) are generic.

Let me read them to you:

This section does not require a service provider to keep or to cause to be kept information that is the contents or substance of a communication.

Then there is a note:

This paragraph puts beyond doubt that service providers are not required to keep information about telecommunications content, or (b) information that (i) states an address to which that communication was sent on the internet from a telecommunications device using an internet access service provided by the service provider and (ii) was obtained by the service provider only as a result of providing the service.

There is another note:

This paragraph puts beyond doubt that service providers are not required to keep information about subscribers' web browsing history.

Then it goes on through three more specific provisions that are designed to put beyond doubt the extensiveness of the concept of content.

That is the exclusion. All content is excluded. Metadata, if it answers the description of one of the six categories in the table, is included. But because the overall provision is to exclude content, if there were a situation in which metadata answering a description of the table were so co-mingled with content that the two could not be separated, the governing provision is—you are a lawyer, Senator; you know this—that a general overarching prohibition will govern in a situation like this. The general governing provision against the disclosure of content or not mandating the retention of content would be the operative provision.