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

I can give you that assurance, Senator, because what this bill is concerned with is the enforcement of the criminal law. If you look at the 21 agencies listed at section 110A, you will see that they are all crime or corruption investigative agencies. I do not want to be tedious, but I might read them into the record because not everybody appreciates the limitation on the number of agencies. It will only take me a moment. Under these reforms, the following agencies can access metadata: the Australian Federal Police, the police force of a state, the Australian Commission for Law Enforcement Integrity, the Australian Crime Commission, the Australian Customs and Boarder Protection Service, the Australian Securities and Investments Commission, the Australian Competition and Consumer Commission, the Crime Commission, the Independent Commission Against Corruption, the Police Integrity Commission, the IBAC, the Crime and Corruption Commission of Queensland, the Corruption and Crime Commission, the Independent Commissioner Against Corruption. These are different formulae in the different states, apparently. And then there is a power to declare other bodies but none have been declared, and that is subject to the limitations that we have already discussed. That is all. So we are dealing here with the enforcement of the criminal law.

As you know, Senator Xenophon, breach of copyright is a civil wrong. Against that argument two things have been said. First of all, it has been said that there are criminal provisions in the Copyright Act but not in relation to breach of copyright—for example, internet piracy. We deal with that in other ways. Those are civil wrongs. There is no capacity under section 110A of this bill for anyone other than the agencies whose names I have read out to you to make an access application.

The second argument that is used in relation to this issue is that, if there were a party to civil litigation—it does not matter what kind of civil litigation it might be, but for the purposes of this discussion we are talking about copyright—it might seek to subpoena or, by a process that you will remember, Senator Xenophon, known as third party discovery, to obtain the metadata and get at it in that way to make out its case in a civil action. That is dealt with, though, by the new section 281(2), which provides—I am paraphrasing here, but I will ask you to look at it for yourself—that, if a subpoena or a notice of disclosure is directed to a third party that retains metadata, and that metadata is retained or kept solely for the purpose of compliance with that act, then it may not be used in the civil litigation either. This is a compliance obligation. The primary obligation under this bill is a compliance obligation. The reason we are having this debate is that increasingly telecommunications service providers are not retaining metadata and, with the evolution of technology, the only reason they will be expected to retain metadata is to be compliant with the provisions of this act. If the only reason they are retaining metadata is compliance with the provisions of this act, they cannot be answerable in respect of that metadata to a subpoena or a notice for third party discovery in a civil action either, whether it be a breach of copyright claim or any other form of civil claim.