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

Senator Leyonhjelm, this is a very laudable contribution, if I may say so, because your objective and the government's objective are the same, although obviously we approach the same objective in a different way. I am sorry to say, though, Senator Leyonhjelm, that in the government's view your proposed amendment would not have the effect that you wish it to have.

Your amendment, for a start, is an inclusive and therefore a non-exclusive definition, so it leaves the nature of content still as an open-ended category. That is the first point to be made about your amendment. Secondly, your amendment says:

content, in relation to a communication, includes the following:

(a) any speech, music or other sound that forms part of a telephone conversation;

(b) the body of an email;

(c) a short text message sent from one telecommunications device to another;

(d) a website address;

(e) any other user-generated content.

In relation to the first four, Senator Leyonhjelm, there is a lot of content that I can readily call to mind that would not be caught by that definition. For example, moving visual images—videos—would not be caught by that definition. But it may have unintended consequences. There is no definition of 'the body of an email'. I have told you that the address line of an email is regarded as content. It could well be argued that the body of an email is the principal message and not the address line, so it may well be that when a court came to interpret these words, were they to be included, it might have the opposite effect to what you intend. In relation to (e), 'any other user-generated content', that merely repeats without further explication the word 'content'.

So, Senator Leyonhjelm, I think that by this definition you actually narrow the protection. It is the government's intention to broaden the protection. Do not for a moment think, Senator Leyonhjelm—I am sure you would not actually think—that we did not consider this very carefully and did not take advice about the right way to go about this. The very firm view at which the government arrived—and I would commend this view to you, Senator—is to leave 'content' as broadly expressed as possible. It is expressed in section 187A(4) of the bill as 'the contents or substance of a communication', and it could not be more broadly expressed than that. But if we try to list what content is then, by omission, it may well be that we include content within the reach of this bill that we actually want to protect from being accessed by authorities. That is why, in proposed section 187A(4) of the bill, we express 'content' not by way of definition but as broadly as possible according to the ordinary English language usage of those words, but in section 187AA(1) of the bill, in the table, we describe the metadata narrowly. If you want to limit access to metadata to very strict confines and protect content as widely as possible, that is the way you would do it: you would have a specific definition of 'metadata' and an open-ended, comprehensive or all-embracing definition of 'content'. That is what we have done.