Scott Ludlam (WA, Australian Greens) Share this | Hansard source

The Australian Greens will be supporting this amendment, notwithstanding Senator Leyonhjelm's acknowledgement that people may quibble with the definition. But we are here to improve bad law, not perfect it. I also—this does not happen all that often, but I am going to do it anyway—acknowledge the distinction that Senator Brandis draws and the difficulty of drawing distinctions between the two. The government believes it has done the best that it can.

The only contribution that I want to make to the debate, in supporting this amendment, is that the distinction between content and metadata is becoming wholly arbitrary. As many smarter people than me, with a better background in this technology than me, have pointed out, metadata in aggregate is content. There is a false distinction that has driven the entire debate: we will protect the phone call or the content of the email behind buttresses of judicial oversight, procedure and reporting, but we will offer no protection whatsoever for the 340,000 warrantless metadata accesses. This implies—actually, it does not imply it, because spokespeople from both the major parties have said this in black and white—that metadata is somehow of a lesser quality and is less invasive. That is simply not true, because that term—which is not a term of art—encompasses such a wide variety of material. Metadata includes simple material like who owns that particular handset or who holds that particular subscription. That is metadata, and we have already agreed that we are not proposing to constrain agencies to require a warrant to get that, because it is reasonably routine. But this same word 'metadata'—with that innocent definition of who owned a particular subscription at a particular time—also covers data that can be used to track your precise location. That is invasive. That is content. It is intrusive. The state should not be able to peer into that material without the same protections that apply to listening to a phone call or reading an email. It is not that hard.

I recognise that legal definitions will always lag behind technology, and that is partly why we are in the mess that we are in, but I fundamentally reject the artificial distinction between content and non-content. Metadata in aggregate is content, and we do nothing to protect that in Australian law. Before you jump up, Senator Brandis, to tell us that that is the prevailing system, that this bill does nothing to make it worse et cetera, I agree with you. The prevailing system is broken, and today you propose to make it worse.