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

The government is not persuaded by that argument. In general, Senator Xenophon, you do make a good point about the importance in legislation that tries to avoid an adverse effect of dealing with both purpose or effect so that volitional conduct—that is, conduct engaged in for a purpose—or unintended conduct that is not intended to have that purpose but might nevertheless have that effect, should both be caught. Then, in certain circumstances, there are powerful logical arguments for doing that, although I myself have never been persuaded that section 46 of the Competition and Consumer Act is one of them. But when we confine what is prohibited to conduct engaged in for a purpose only, as opposed to engaging for a purpose or likely to have an effect, what we focus on really is the motive of the person whose conduct is under scrutiny. What we have heard throughout this debate is that there is a risk that this scheme could circumvent a journalist's capacity to protect their sources by allowing applications for their metadata to identify the source. That is, in essence, what we have been told is the mischief here. The government, after consideration, responded to that by including division 4C into the bill. The mischief that was identified to us was not incidental or second-order effects. The definition that was identified to us was 'conscious, deliberate, purposeful, advertent abuse of the system', and that is what this provision deals with. Your provision would take it a great deal further, but what we are dealing with here is the very mischief that was identified that needed to be corrected by the insertion of division 4C.