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

Senator Ludlam, I really wish you would stop interjecting. In this debate you have behaved yourself with a reasonable amount of courtesy and decorum, and I would urge you to continue to do so rather than continue to interject. It is the case in some jurisdictions. It is not the case in other European jurisdictions. I am advised that, according to the most recent report of the United Kingdom's Interception of Communications Commissioner, Sir Paul Kennedy, the only European countries that require any level of particularised consideration of whether access to metadata is proportionate are France, Ireland and the United Kingdom, and those systems have an internal executive process of authorisation. Most European countries do not require warrants, though I acknowledge, Senator Ludlam, that some do.

The practical problem is not just a problem of volume. Access to metadata is, in relation to the kinds of investigations with which this bill is concerned—that is, serious investigations into things like terrorism, paedophilia, organised and transnational crime, and, if we include the economic regulators, things like cartel conduct, for example—the initial stage of an investigative process. So there becomes what you might call a chicken-and-egg question here. The authorities use access to metadata to establish certain elementary primary facts in order to determine whether or not there is something that requires investigation.

No prosecution could ever proceed on metadata alone. Perhaps that is a point I should have made more often in the debate yesterday. No prosecution could ever possibly proceed on the basis of what was revealed by metadata alone. In the event that access to metadata reveals, for example, the existence of a network, then, in an appropriate case, the authorities can make an application under the TIA Act for a listening device, for example. That power has been in existence for as long as the TIA Act has been in existence—since 1969. In fact, if my memory serves me correctly, it was first introduced into Commonwealth law during the Attorney-Generalship of Sir Garfield Barwick—more than half a century ago. That is the point at which the law appropriately says, 'If you are going to have a listening device to access someone's telephone conversations or to access what is on their computer—if you place them under surveillance under the Surveillance Devices Act—that is the point at which you need a warrant, because that is an intrusive and invasive form of investigation.' But it has never been the judgement of this parliament that merely to establish, in a preliminary way, whether, for example, a particular connection was made between two telephone services is a level of intrusion that requires a warrant.

Always we must bear this in mind, Senator Ludlam: there is an explicit prohibition in this legislation against accessing content—an explicit prohibition. To make assurance doubly sure, there is also an explicit provision that says a person's web-browsing history may never be the subject of the metadata retention regime.

What this bill does is introduce new protections. There is nothing to stop access to metadata at the moment. There is nothing to control or govern or oversee the exercise of the power to access metadata at the moment. Under this bill there are limitations and oversight mechanisms introduced into the law for the first time. The number of agencies that can avail themselves of this power is reduced by more than three-quarters, from 85 at the moment to 21. This limits, in a way that is not part of the existing law, access to metadata. If the authorities want to go one step further and tap somebody's phone, access their computer or engage in other forms of intrusive investigative activity, they need a warrant—and they should. Nothing in this legislation changes that.