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

Senator Xenophon, I completely disagree with you. In the government's view, these amendments are entirely unnecessary and some of the bases upon which you put them forward are wrong in fact.

Let us go back to first principles here. This legislation maintains a status quo, which is a warrantless system. Subject to certain oversight obligations, including a public reporting obligation, which we discussed earlier on, nevertheless, access to metadata as opposed to content is warrantless; access to content requires a warrant. Against that general rule, the government has—without conceding the necessity to do so but I can understand the arguments nevertheless—agreed with the opposition to include a special set of provisions for journalists, in proposed division 4C. Within that special set of exceptions to journalists to protect the relationship between them and their sources, we have, uniquely, required warrants.

Furthermore, in creating the design of the warrant system so far as it applies to journalists, we have included extensive public interest criteria, which are set out in proposed section 180L—public interest criteria that do not exist in that form in other Commonwealth legislation which creates warrant regimes. On top of that—in superaddition to that—we have, by section 180X, created this new office of public interest monitor to act, as you rightly say, as a kind of devil's advocate or an advocate for the public interest, to contest whether or not a warrant should issue.

That is unique. No warrant regime under Commonwealth law includes the creation of a specific public interest advocate whose peculiar role is to make the issuance of a particular kind of warrant contestable. So we have piled Pelion upon Ossa here in order to create as many safeguards as can possibly be made.

But let us remember that what this bill is about is the facilitation of criminal investigations. Although journalists and, indeed, the sources of journalists are not the target or the focus or the purpose of this bill—because, as I said before, I have never met a journalist who was a terrorist or a paedophile or an organised criminal—nevertheless, in the very unlikely situation where the police did want to investigate a journalist or a source in relation to the matters which are the object of this bill, you can immediately see how advance notice to the person who was the subject of their concern would prejudice the investigation.

Senator Xenophon, you say that such a system as you propound exists in the United States. You are wrong. Let me give you the advice that I have in relation to the American system. In the American system, the most recently issued Department of Justice guidelines require that the Attorney-General approve any subpoena ordering a carrier to disclose metadata for the purpose of identifying a journalist source. Those guidelines do not require agencies to notify journalists before such a subpoena is issued. I am informed that they do not. Is that right, Mr Bassi? My adviser Mr Justin Bassi here, who is the person you spied shaking his head before, is extremely well informed about these matters, about the American system. Indeed, I notice he is even wearing his CIA cufflinks today in honour of the occasion—just to feed the paranoia of Senator Ludlam over there. That is not the way the American system works. Your amendments address a problem that does not exist. This legislation could hardly have been based on a more carefully constructed set of safeguards.