Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

The committee is considering the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015. The question for the before the chair presently is that Senator Leyonhelm's amendments (10), (11), (14), (15), (17) to (25), on sheet 7661 be agreed to.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I have spoken on these amendments. They relate to protected class warrants. The intention is, as I said previously, to extend the requirement for a warrant to more than simply journalists. There are others whose data deserves the protection of a warrant regime. They have been well debated and I commend them to the chamber.

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

I have already made my contribution last night in response to Senator Leyonhelm's arguments.

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

We indicated our support last night. I am also foreshadowing that we will drop a very similar amendment the Australian Greens drafted when we get to it. I am happy to support Senator Leyonhelm's amendments.

The CHAIRMAN: We are in continuation from last night so I want to give everybody an opportunity to catch up to where we are. Are there any other speakers on these amendments? The question is that the amendments be agreed to.

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

I foreshadowed this amendment last night. In a way, the amendment of Senator Leyonhelm that we just voted on really was our fallback. This is probably the most important amendment that the Australian Greens will move during this debate. It is colloquially known as the get-a-warrant amendment. We strongly believe that in 1979 when this act was passed into law that if we had had the multitude of devices, data types and platforms that we have today, the drafters who were considering the substantial overall of telecommunications interception legislation as they were in 1979 would have looked around the field and said, 'You can tap people's phone, you can read people's email, you can track their movements around the landscape, and you can map of their social networks and find everything about their lives. These things will all be covered by a warrant and what will not be covered by a warrant is simple subscriber data so that agencies can very rapidly establish who owns the handset, who holds a particular prescription for a particular service.

And so we would have ended up with the same two-tiered system that we have today, but those invasive forms of data access—whether they be tapping the phone call or reading your location as you move around the place—would have been within the warranted regime. I have no doubt about that at all. What we have seen, quite frankly, is the failure of the law to keep up with the march of technology. We still have a fairly robust warranted regime. Last night, Senator Rhiannon pointed out some of its failings, and we are certainly aware of those. We have a robust warranted regime and I think the number is about 4,700. We do not know how many ASIO applies for because that is done through a different process, but the entire law enforcement and anticorruption community around the country has about 4,700 warrants a year.

But, as I have said more times than I care to remember, there are 750-odd thousand applications for warrantless access to people's private information. And that is just because these categories of material basically did not exist in 1979. So while intelligence and policing agencies have been very keen to run the argument that the TIA Act needs continual incremental change to keep up with the march of technology, privacy protections have not. And that is one of the reasons why opposition to the data retention regime has been so strong; it effectively forces carriers to entrench and embed a broken access system that henceforth will have access to vast new quantities of material.

This is not a view that the Greens are alone in putting forward. It is shared by people as widely separated across the political spectrum as the Institute of Public Affairs—good friends of Senator Brandis—the Law Council of Australia, the telecommunications sector, digital rights organisations like Electronic Frontiers Australia and also Bret Walker SC, who is the former National Security Legislation Monitor. Now, lest anybody fear that I am verballing him, Mr Walker believes that there should be a data retention regime in Australia. But he also believes that it should be circumscribed and that these long-overdue protections of getting a warrant are added. This is what Mr Walker said on 7 August of last year:

It seems to me a warrant is a traditional way by which we say drastic powers ought to be exercised so as to breach what would be otherwise be ordinary personal privacy only when somebody outside the agency, usually a judge or a magistrate, is satisfied that sufficient cause is shown to justify that reversal of what we expect.

This was in an interview that he did with Lateline last year. He goes on:

And if we don't have a warrant system, we don't have that independent umpire to check in the usual way of warrants, making a very formal record, which can be produced later in a court if there's litigation about it. If we don't have that, I fear that there will be an understandable suspicion, hostility, about the operation of agencies, which I stress, we need to be doing a good job.

There is not a word of that with which I disagree, and I think that most right-thinking people would agree with Mr Walker, who has many years of experience in weighing up the checks and balances. And, as I said, he is a proponent of mandatory data retention. Obviously, we part company on that issue, but it is his view that if the government forces a scheme such as this into existence then for the obvious reasons that I have described today—and for years, actually—we need to bring these huge categories of material into the warranted regime.

The way that the amendment is drafted excludes subscriber data. So, the argument that is made frequently about those 750,000—or, if you believe the Attorney-General's annual report, the 340-odd thousand warrantless requests—is that the government says, 'Look, a lot of that is for subscriber data. We don't know how many of those requests are for basic subscriber data so we do not propose to drag that information into the warranted regime.' But—quite seriously—if two dozen agencies want to be able to know where you are at any time of the day, or where your mobile phone handset is, and if they want to be able to scrape your email records and work out your whole social graph and know who you are talking to at any given time, get a warrant, Senator Brandis—get a warrant!

I commend this amendment to the chamber.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Senator Ludlam, I invite you to seek leave to move your amendments.

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

Thank you, Chair—I have been here long enough to know that!

By leave—I move amendments (22) to (24), (26) and (28) to (35) on sheet 7669 together:

(22) Schedule 1, item 1C, page 23 (line 26), omit "journalist information warrants", substitute "data authorisation warrants".

(23) Schedule 1, item 1C, page 23 (line 28), omit "journalist information warrants", substitute "data authorisation warrants".

(24) Schedule 1, item 5, page 28 (before line 32), before the definition of Defence Minister, insert:

  data authorisation warrant means a warrant issued under Division 4C of Part 4-1.

(26) Schedule 1, item 5, page 29 (lines 9 and 10), omit the definition of journalist information warrant.

(28) Schedule 1, item 6E, page 31 (lines 23 to 30), omit paragraph 176(5)(b), substitute:

(b) unless it is revoked earlier, ends at the time specified in the authorisation, which must be a time that is no later than the end of the period specified under section 180N as the period for which the warrant is to remain in force.

(29) Schedule 1, item 6F, page 32 (lines 7 to 13), omit paragraph 176(6)(b), substitute:

(b) either:

  (i) the warrant is revoked under subsection 180N(1); or

  (ii) the Director-General of Security has informed the Minister under section 180P that the Director-General is satisfied that the grounds on which the warrant was issued have ceased to exist.

(30) Schedule 1, item 6G, page 32 (lines 17 to 24), omit paragraph 180(6)(b), substitute:

(b) unless it is revoked earlier, ends at the time specified in the authorisation, which must be a time that the end of the period specified under subsection 180U(3) as the period for which the warrant is to remain in force.

(31) Schedule 1, item 6H, page 33 (lines 1 to 3), omit paragraph 180(7)(b), substitute:

(b) the warrant is revoked under subsection 180W(1).

(32) Schedule 1, item 6L, page 33 (line 23) to page 43 (line 28), omit the item, substitute:

6L After Division 4B of Part 4 -1

  Insert:

Division 4C—Data authorisation warrant

Subdivision A—The requirement for data authorisation warrant

180G The Organisation

     An eligible person (within the meaning of subsection 175(2) or 176(2), as the case requires) must not make an authorisation under Division 3 that would authorise the disclosure of information or documents relating to a particular person unless a data authorisation warrant is in force in relation to that particular person.

180H Enforcement agencies

(1) An authorised officer of an enforcement agency must not make an authorisation under section 178, 178A or 180 that would authorise the disclosure of information or documents relating to a particular person unless a data authorisation warrant is in force, in relation to that particular person, under which authorised officers of the agency may make authorisations under that section.

(2) An authorised officer of the Australian Federal Police must not make an authorisation under Division 4A that would authorise the disclosure of information or documents relating to a particular person unless a data authorisation warrant is in force, in relation to that particular person, under which authorised officers of the agency may make authorisations under that Division.

Subdivision B—Issuing data authorisation warrants to the Organisation

180J Requesting a data authorisation warrant

(1) The Director-General of Security may request the Minister to issue a data authorisation warrant in relation to a particular person.

(2) The request must specify the facts and other grounds on which the Director-General considers it necessary that the warrant be issued.

180K Further information

(1) The Minister may require the Director-General of Security to give to the Minister, within the period specified in the requirement, further information in connection with a request under this Subdivision.

(2) If the Director-General breaches the requirement, the Minister may:

  (a) refuse to consider the request; or

  (b) refuse to take any action, or any further action, in relation to the request.

180L Issuing a data authorisation warrant

(1) After considering a request under section 180J, the Minister must:

  (a) issue a data authorisation warrant that authorises the making of authorisations under Division 3 in relation to the particular person to which the request relates; or

  (b) refuse to issue a data authorisation warrant.

(2) The Minister must not issue a data authorisation warrant unless the Minister is satisfied that:

  (a) the Organisation's functions would extend to the making of authorisations under Division 3 in relation to the particular person; and

  (b) the public interest in issuing the warrant outweighs the public interest in protecting privacy, having regard to:

     (i) the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and

     (ii) the gravity of the matter in relation to which the warrant is sought; and

     (iii) the extent to which that information or those documents would be likely to assist in the performance of the Organisation's functions; and

     (iv) whether reasonable attempts have been made to obtain the information or documents by other means; and

     (v) any submissions made by a Public Interest Advocate under section 180X; and

     (vi) any other matters the Minister considers relevant.

(3) A data authorisation warrant issued under this section may specify conditions or restrictions relating to making authorisations under the authority of the warrant.

180M Issuing a data authorisation warrant in an emergency

(1) The Director-General of Security may issue a data authorisation warrant in relation to a particular person if:

  (a) a request under section 180J has been made for the issue of a data authorisation warrant in relation to the particular person; and

  (b) the Minister has not, to the knowledge of the Director-General, made a decision under section 180L in relation to the request; and

  (c) within the preceding period of 3 months:

     (i) the Minister has not refused to issue a data authorisation warrant in relation to the particular person; and

     (ii) the Director-General has not issued such a data authorisation warrant; and

  (d) the Director-General is satisfied that, security will be, or is likely to be, seriously prejudiced if the access to which the request relates does not begin before a data authorisation warrant can be issued and made available by the Minister; and

  (e) either:

     (i) the issuing of the warrant is authorised under subsection (3); or

     (ii) the Director-General is satisfied that none of the Ministers specified in subsection (4) is readily available or contactable.

(2) The Director-General must not issue a data authorisation warrant unless the Director-General is satisfied as to the matters set out in paragraphs 180L(2)(a) and (b).

Authorisation to issue a warrant under this section

(3) A Minister specified in subsection (4) may, if he or she is satisfied as to the matter set out in paragraphs 180L(2)(a) and (b), orally give an authorisation under this subsection for the Director-General to issue the warrant under this section.

(4) The Ministers who may orally give an authorisation are:

  (a) the Minister; or

  (b) if the Director-General is satisfied that the Minister is not readily available or contactable—any of the following Ministers:

     (i) the Prime Minister;

     (ii) the Defence Minister;

     (iii) the Foreign Affairs Minister.

(5) The authorisation may specify conditions or restrictions relating to issuing the warrant.

(6) The Director-General must ensure that a written record of an authorisation given under subsection (3) is made as soon as practicable (but no later than 48 hours) after the authorisation is given.

Duration of a warrant under this section

(7) A data authorisation warrant under this section must specify the period (not exceeding 48 hours) for which it is to remain in force. The Minister may revoke the warrant at any time before the end of the specified period.

Copies of warrant and other documents

(8) Immediately after issuing a data authorisation warrant under this section, the Director-General must give the Minister:

  (a) a copy of the warrant; and

  (b) a statement of the grounds on which the warrant was issued; and

  (c) either:

     (i) a copy of the record made under subsection (6); or

     (ii) if the Director-General was satisfied as mentioned in subparagraph (1)(e)(ii)—a summary of the facts of the case justifying issuing the warrant.

(9) Within 3 business days after issuing a data authorisation warrant under this section, the Director-General must give the Inspector-General of Intelligence and Security:

  (a) a copy of the warrant; and

  (b) either:

     (i) a copy of the record made under subsection (6); or

     (ii) if the Director-General was satisfied as mentioned in subparagraph (1)(e)(ii)—a summary of the facts of the case justifying issuing the warrant.

(10) Subsection (9) has effect despite subsection 185D(1).

180N Duration of a data authorisation warrant

     A data authorisation warrant issued under section 180L must specify the period (not exceeding 6 months) for which it is to remain in force. The Minister may revoke the warrant at any time before the end of the specified period.

180P Discontinuance of authorisations before expiry of a data authorisation warrant

     If, before a data authorisation warrant issued under this Subdivision ceases to be in force, the Director-General of Security is satisfied that the grounds on which the warrant was issued have ceased to exist, he or she must:

  (a) forthwith inform the Minister accordingly; and

  (b) takes such steps as are necessary to ensure that the making of authorisations under the authority of the warrant is discontinued.

Subdivision C—Issuing data authorisation warrants to enforcement agencies

180Q Enforcement agency may apply for a data authorisation warrant

(1) An enforcement agency may apply to a Part 4-1 issuing authority for a data authorisation warrant in relation to a particular person.

(2) The application must be made on the agency's behalf by:

  (a) if the agency is referred to in subsection 39(2)—a person referred to in that subsection in relation to that agency; or

  (b) otherwise:

     (i) the chief officer of the agency; or

     (ii) an officer of the agency (by whatever name called) who holds, or is acting in, an office or position in the agency nominated under subsection (3).

(3) The chief officer of the agency may, in writing, nominate for the purposes of subparagraph (2)(b)(ii) an office or position in the agency that is involved in the management of the agency.

(4) A nomination under subsection (3) is not a legislative instrument.

(5) The application may be made in writing or in any other form.

Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.

180R Further information

(1) The Part 4-1 issuing authority may require:

  (a) in any case—the chief officer of the agency; or

  (b) if the application is made, on the agency's behalf, by a person other than the chief officer—that other person;

to give to the Part 4-1 issuing authority, within the period and in the form specified in the requirement, further information in connection with the application.

(2) If the chief officer or other person breaches the requirement, the Part 4-1 issuing authority may:

  (a) refuse to consider the application; or

  (b) refuse to take any action, or any further action, in relation to the application.

180S Oaths and affirmations

(1) Information given to the Part 4-1 issuing authority in connection with the application must be verified on oath or affirmation.

(2) For the purposes of this section, the Part 4-1 issuing authority may:

  (a) administer an oath or affirmation; or

  (b) authorise another person to administer an oath or affirmation.

The oath or affirmation may be administered in person, or by telephone, video call, video link or audio link.

180T Issuing a data authorisation warrant

(1) After considering an application under section 180Q, the Part 4-1 issuing authority must:

  (a) issue a data authorisation warrant that authorises the making of authorisations under one or more of sections 178, 178A and 180, or Division 4A, in relation to the particular person to which the application relates; or

  (b) refuse to issue a data authorisation warrant.

(2) The Part 4-1 issuing authority must not issue a data authorisation warrant unless the Part 4-1 issuing authority is satisfied that:

  (a) the warrant is reasonably necessary for whichever of the following purposes are applicable:

     (i) if the warrant would authorise the making of authorisations under section 178—for the enforcement of a serious contravention;

     (ii) if the warrant would authorise the making of authorisations under section 178A—finding a person who the Australian Federal Police, or a Police Force of a State, has been notified is missing;

     (iii) if the warrant would authorise the making of authorisations under section 180—the investigation of an offence of a kind referred to in subsection 180(4);

     (iv) if the warrant would authorise the making of authorisations under Division 4A—the investigation of a serious foreign contravention; and

  (b) the public interest in issuing the warrant outweighs the public interest in protecting privacy, having regard to:

     (i) the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and

     (ii) the gravity of the matter in relation to which the warrant is sought; and

     (iii) the extent to which that information or those documents would be likely to assist in relation to that matter; and

     (iv) whether reasonable attempts have been made to obtain the information or documents by other means; and

     (v) any submissions made by a Public Interest Advocate under section 180X; and

     (vi) any other matters the Part 4-1 issuing authority considers relevant.

180U Form and content of a data authorisation warrant

(1) A data authorisation warrant issued under this Subdivision must be in accordance with the prescribed form and must be signed by the Part 4-1 issuing authority who issues it.

(2) A data authorisation warrant issued under this Subdivision may specify conditions or restrictions relating to making authorisations under the authority of the warrant.

(3) A data authorisation warrant issued under this Subdivision must specify, as the period for which it is to be in force, a period of up to 90 days.

(4) A Part 4-1 issuing authority must not vary a data authorisation warrant issued under this Subdivision by extending the period for which it is to be in force.

(5) Neither of subsections (3) and (4) prevents the issue of a further warrant under this Act in relation to a person, in relation to which a warrant under this Act has, or warrants under this Act have, previously been issued.

180V Entry into force of a data authorisation warrant

     A data authorisation warrant issued under this Subdivision comes into force when it is issued.

180W Revocation of a data authorisation warrant by chief officer

(1) The chief officer of an enforcement agency:

  (a) may, at any time, by signed writing, revoke a data authorisation warrant issued under this Subdivision to the agency; and

  (b) must do so, if he or she is satisfied that the grounds on which the warrant was issued to the agency have ceased to exist.

(2) The chief officer of an enforcement agency may delegate his or her power under paragraph (1)(a) to a certifying officer of the agency.

Subdivision D—Miscellaneous

180X Public Interest Advocates

(1) The Prime Minister shall declare, in writing, one or more persons to be Public Interest Advocates.

(2) A Public Interest Advocate may make submissions:

  (a) to the Minister about matters relevant to:

     (i) a decision to issue, or refuse to issue, a data authorisation warrant under section 180L; or

     (ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or

  (b) to a Part 4-1 issuing authority about matters relevant to:

     (i) a decision to issue, or refuse to issue, the warrant under section 180T; or

     (ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or

(3) The regulations may prescribe matters relating to the performance of the role of a Public Interest Advocate.

(4) A declaration under subsection (1) is not a legislative instrument.

(33) Schedule 1, item 6V, page 46 (line 11) to page 47 (line 29), omit the item, substitute:

6V At the end of Division 6 of Part 4 -1

  Add:

182A Disclosure/use offences: data authorisation warrants

(1) A person commits an offence if:

  (a) the person discloses or uses information; and

  (b) the information is about any of the following:

     (i) whether a data authorisation warrant (other than such a warrant that relates only to section 178A) has been, or is being, requested or applied for;

     (ii) the making of such a warrant;

     (iii) the existence or non-existence of such a warrant;

     (iv) the revocation of such a warrant.

Penalty:   Imprisonment for 2 years.

(2) A person commits an offence if:

  (a) the person discloses or uses a document; and

  (b) the document consists (wholly or partly) of any of the following:

     (i) a data authorisation warrant (other than such a warrant that relates only to section 178A);

     (ii) the revocation of such a warrant.

Penalty:   Imprisonment for 2 years.

182B Permitted disclosure or use: data authorisation warrants

     Paragraphs 182A(1)(a) and (2)(a) do not apply to a disclosure or use of information or a document if:

  (a) the disclosure or use is for the purposes of the warrant, revocation or notification concerned; or

  (b) the disclosure or use is reasonably necessary:

     (i) to enable the making of submissions under section 180X; or

     (ii) to enable a person to comply with his or her obligations under section 185D or 185E; or

     (iii) to enable the Organisation to perform its functions; or

     (iv) to enforce the criminal law; or

     (v) to enforce a law imposing a pecuniary penalty; or

     (vi) to protect the public revenue; or

  (c) in the case of a disclosure—the disclosure is:

     (i) to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986; or

     (ii) by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act; or

  (d) in the case of a use—the use is by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code).

(34) Schedule 1, item 6X, page 48 (line 1) to page 49 (line 36), omit section 185D, substitute:

185D Notification etc. of authorisations

The Organisation

(1) If:

  (a) a data authorisation warrant is issued under Subdivision B of Division 4C of Part 4-1; and

  (b) the warrant relates to a person who:

     (i) is a journalist; or

     (ii) is an employer of a journalist;

then:

  (b) the Director-General of Security must, as soon as practicable, give a copy of the warrant to the Inspector-General of Intelligence and Security; and

  (c) the Minister must, as soon as practicable, cause the Parliamentary Joint Committee on Intelligence and Security to be notified of the issuing of the warrant.

(2) If an authorisation under Division 3 of Part 4-1 is made under the authority of the warrant, the Director-General of Security must, as soon as practicable after the expiry of the warrant, give a copy of the authorisation to the Inspector-General of Intelligence and Security.

(3) If:

  (a) the Inspector-General gives to the Minister a report under section 22 or 25A of the Inspector-General of Intelligence and Security Act 1986; and

  (b) the report relates (wholly or partly) to one or both of the following:

     (i) a data authorisation warrant issued to the Organisation in relation to a person who is a journalist, or an employer of a journalist;

     (ii) one or more authorisations referred to in subsection (2) of this section;

the Minister must, as soon as practicable, cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security.

(4) The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Inspector-General on:

  (a) a data authorisation warrant; or

  (b) an authorisation or authorisations;

to which a report referred to in paragraph (3)(b) of this section relates.

Enforcement agencies

(5) If:

  (a) a data authorisation warrant is issued to an enforcement agency; and

  (b) the warrant relates to a person who:

     (i) is a journalist; or

     (ii) is an employer of a journalist;

then:

  (a) if the agency was the Australian Federal Police:

     (i) the Commissioner of Police must, as soon as practicable, give copies of the warrant to the Minister and the Ombudsman; and

     (ii) the Minister must, as soon as practicable after receiving a copy, cause the Parliamentary Joint Committee on Intelligence and Security to be notified of the issuing of the warrant; and

(b) otherwise—the chief officer of the agency must, as soon as practicable, give a copy of the warrant to the Ombudsman.

(6) If an authorisation under Division 4 of Part 4-1 is made under the authority of the warrant, the chief officer of the agency must, as soon as practicable after the expiry of the warrant, give a copy of the authorisation to the Ombudsman.

(7) If:

  (a) the Ombudsman gives to the Minister a report under section 186J of this Act; and

  (b) the report relates (wholly or partly) to one or both of the following:

     (i) a data authorisation warrant issued to the Australian Federal Police in relation to a person who is a journalist, or an employer of a journalist;

     (ii) one or more authorisations, referred to in subsection (6) of this section, that were made by one or more authorised officers of the Australian Federal Police;

the Minister must, as soon as practicable, cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security.

(8) The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Ombudsman on:

  (a) a data authorisation warrant; or

  (b) an authorisation or authorisations;

to which a report referred to in paragraph (7)(b) of this section relates.

(35) Schedule 1, item 6Y, page 51 (lines 16 to 21), omit paragraphs 186(1)(i) and (j), substitute:

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

The government opposes this amendment for a reason that, towards the end of his contribution, Senator Ludlam adverted to: the volume of warrantless requests, as reported in the most recent annual report of the Attorney-General's Department, as Senator Ludlam says, was 340,000. It is not suggested—I do not understand it to be suggested—that those requests were irregular or ought not to have been made. What they tell you is the weight and dependence of the police and the other investigative agencies which have access to metadata under the current arrangements, which are not subject of the regimes provided for by this bill.

Surely, Senator Ludlam and Senator Leyonhjelm, you must see as a matter of common sense that, if that is the demand by the authorities for access to metadata—340,000 a year—there is no practical possibility, none, that a warranted regime could work. None. The sheer volume of the need of the authorities to access metadata precludes the procedure for warrants.

Now, Senator Ludlam, you have never had the obligation, as I do, to issue warrants. I have to issue warrants from time to time under the T(IA) Act and under the ASIO Act. Under those acts, the decision maker is required to be satisfied of certain matters, so the authorities seeking the warrant place a volume of material before me which I consider carefully and, on the basis of that consideration, I make my decision about whether or not to issue the warrant. It is a quasi-judicial act, and it takes quite a period of time. The practical impossibility of that process being undertaken carefully where there are, in the last reporting year, 340,000 access requests should be obvious to you.

Contrary to what you say, Senator Ludlam, it is not uniformly the practice in Europe to require a warrant.

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

Twelve countries.

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

Senator Ludlam, I really wish you would stop interjecting. In this debate you have behaved yourself with a reasonable amount of courtesy and decorum, and I would urge you to continue to do so rather than continue to interject. It is the case in some jurisdictions. It is not the case in other European jurisdictions. I am advised that, according to the most recent report of the United Kingdom's Interception of Communications Commissioner, Sir Paul Kennedy, the only European countries that require any level of particularised consideration of whether access to metadata is proportionate are France, Ireland and the United Kingdom, and those systems have an internal executive process of authorisation. Most European countries do not require warrants, though I acknowledge, Senator Ludlam, that some do.

The practical problem is not just a problem of volume. Access to metadata is, in relation to the kinds of investigations with which this bill is concerned—that is, serious investigations into things like terrorism, paedophilia, organised and transnational crime, and, if we include the economic regulators, things like cartel conduct, for example—the initial stage of an investigative process. So there becomes what you might call a chicken-and-egg question here. The authorities use access to metadata to establish certain elementary primary facts in order to determine whether or not there is something that requires investigation.

No prosecution could ever proceed on metadata alone. Perhaps that is a point I should have made more often in the debate yesterday. No prosecution could ever possibly proceed on the basis of what was revealed by metadata alone. In the event that access to metadata reveals, for example, the existence of a network, then, in an appropriate case, the authorities can make an application under the TIA Act for a listening device, for example. That power has been in existence for as long as the TIA Act has been in existence—since 1969. In fact, if my memory serves me correctly, it was first introduced into Commonwealth law during the Attorney-Generalship of Sir Garfield Barwick—more than half a century ago. That is the point at which the law appropriately says, 'If you are going to have a listening device to access someone's telephone conversations or to access what is on their computer—if you place them under surveillance under the Surveillance Devices Act—that is the point at which you need a warrant, because that is an intrusive and invasive form of investigation.' But it has never been the judgement of this parliament that merely to establish, in a preliminary way, whether, for example, a particular connection was made between two telephone services is a level of intrusion that requires a warrant.

Always we must bear this in mind, Senator Ludlam: there is an explicit prohibition in this legislation against accessing content—an explicit prohibition. To make assurance doubly sure, there is also an explicit provision that says a person's web-browsing history may never be the subject of the metadata retention regime.

What this bill does is introduce new protections. There is nothing to stop access to metadata at the moment. There is nothing to control or govern or oversee the exercise of the power to access metadata at the moment. Under this bill there are limitations and oversight mechanisms introduced into the law for the first time. The number of agencies that can avail themselves of this power is reduced by more than three-quarters, from 85 at the moment to 21. This limits, in a way that is not part of the existing law, access to metadata. If the authorities want to go one step further and tap somebody's phone, access their computer or engage in other forms of intrusive investigative activity, they need a warrant—and they should. Nothing in this legislation changes that.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I indicate my support for the Greens amendment. The Attorney's main objection to this seems to be that it is inconvenient and impractical—on the basis of 340,000 warrants. The question of course arises as to whether or not 340,000 warrants is something we should accept as a reasonable state of affairs anyway. I find it exceedingly disturbing that we should have such a large number of existing intrusions by snoops into our private activities. Indeed, you could argue that instead of being the nanny state we are developing into the spying state.

It is fairly obvious also that, with 21 agencies able to access metadata under the legislation proposed, there will be a need for fewer warrants. If, as the Attorney suggests, their access to metadata will be restricted to serious offences—although I point out that he declined to accept my amendment yesterday to ensure that that was the case—there would also be fewer warrants. The issue under the current regime with 340,000 accesses of existing metadata is that that does not include two years of history. It does not include the extent of the data that is currently accessed. It seems to me not at all unreasonable for a warrant system to apply to the fewer agencies going after serious offenders and more intrusive data.

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

Senator Leyonhjelm, can I correct you. It is not 340,000 warrants; it is 340,000 access authorisations. Let me explain to you how this works. Senator Leyonhjelm, you have been in this chamber for almost a year now. Senator Ludlam has been in the chamber for six years. I have never heard from you, Senator Leyonhjelm, and certainly not from Senator Ludlam an argument that the existing provisions of the Telecommunications (Interception and Access) Act are bad. But the authorisation for access to information or documents is contained in a provision of that act. It is in section 178. I understand that section 178 is an original provision of that act. It has been part of the act since 1979.

We discussed last night section 180F, which falls within the same part of the T(IA) Act. It requires, among other things, privacy considerations to be considered before an access application is made. I want to direct you in particular to section 186, which is the statutory basis of the obligation for there to be a public report on the number of access authorisations made in any given year. The most recent annual report which I have is for 2012-13. At page 47 and following of that report it tabulates the number of authorisations that were made in that year. I think that is where your figure of 340,000 probably comes from.

My point to you, Senator Leyonhjelm, is that it is not as if this is uncontrolled. The fact that there is a public reporting obligation for access applications should demonstrate to you that there is already a level of accountability, as there is through the various parliamentary and executive oversight mechanisms that are already in place. So we are not talking about 340,000 warrants; we are talking about 340,000 access applications which are the subject, transparently, of a public report each year.

I entirely share your sentiments about the need to be vigilant, Senator Leyonhjelm, against intrusions by the state. But that noble sentiment of yours has to be put in the context of what the agencies are asking to do. They are not asking for content. They are not asking for a winding back, degradation or attenuation of the existing warrant regime. The existing warrant regime, which does require a warrant if content is to be sought, remains as it is. The only effect of this bill that is relevant to your argument is to reduce from 85 to 21 the number of agencies that can make access applications.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Related to this amendment is a concern, which I think was touched on in questions to the Attorney in the last couple of days. It has been a long committee stage, and I am grateful for the Attorney's patience. I do not want to be otiose or prolix in relation to this, but there is a concern about when warrants can be issued. I appreciate that the RSPCA and the Victorian Taxi Directorate will no longer be able to access metadata, but the concern that has been expressed to me by some constituents this morning relates to alleged copyright violations. Can the Attorney assure us that the access of metadata under this regime will not be used to prosecute citizens who happen to have downloaded the latest episode of Breaking Bad. I do not know if it is still being shown.

The Temporary Chairman says that it is no longer in the series. It shows you that my cultural references are not very good. Let's say whatever the latest television programs are that people want to download.

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

Or Game of Thrones.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Game Of Thrones is apparently a TV program. Can the Attorney assure us that access to metadata under this regime will not in any circumstances be used for the prosecution of citizens or, indeed, of others that may be downloading content that relates to breach of copyright? I am sorry about my lack of cultural reference. Thank you, chair, for telling me that Breaking Bad is no longer in the series.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to 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.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I am grateful to the Attorney for his answer, and I am well familiar with third party discovery, Anton Piller orders and pre-action discovery. Sadly, I still keep a practising certificate going so I can do my pro bono work, which always seems to cost me money. But I just go to this issue: the Australian government's Australian Institute of Criminology website has a publication—it is a few years old now, from back in November 2004—by Tony Krone where reference is made to the fact that, as the Attorney points out, the Copyright Act provides civil and criminal sanctions to protect copyright. My question is in respect of, for instance, section 132(1), as it then was, of the Copyright Act, where it was an offence to make, sell, trade or import an article that infringes copyright or to distribute an infringing item for the purpose of trade. Under section 132(2) of the Copyright Act, there were clearly criminal sanctions. Can the Attorney assure us that, in the course of a prosecution under those sections, citizens who may have downloaded the latest episode of Game of Thrones would not be drawn into a criminal investigation in respect of copyright? That is the nub of my question. In other words, where metadata can be used in copyright matters, can citizens' metadata be accessed?

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

That is not going to happen in relation to citizens, because in the example you have posited you are talking about citizens engaging in a download. That is something which the government yesterday introduced other legislation to deal with by way of the remedy of an injunction—a civil claim. So the example that you have posited is dealt with by the civil law. In particular, I invite you to inspect—no doubt we will be debating it in this chamber when we come back for the budget sittings—the government's copyright and online piracy reforms, which are modelled on the British copyright act and the copyright laws of other European jurisdictions. That is the way in which those matters will be dealt with. Breach of copyright, as I say, is primarily a civil wrong, and a civil action is not what this legislation is concerned with. There is this explicit prohibition, in the section to which I have directed your attention, on accessing metadata retained solely for the purpose of compliance with this act by way of a subpoena or a notice for third party discovery.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I apologise if my questions have not been direct enough. I really want to conclude this line of questioning. Does the Attorney concede that there will be circumstances when, as part of, say, an investigation of a breach of copyright as a criminal offence under the Copyright Act—or perhaps in the seeking of an injunction under the proposed copyright regime that has yet to be debated in this parliament—in order to prove the case against those who are profiting from that breach of copyright, there will need to be access to the metadata of people who will not be charged with a criminal offence?

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

The only agencies that can access metadata are the proposed section 110A agencies. Those agencies include the state police departments and the Federal Police—that is true. But the way the examples you are positing are dealt with will be through civil actions. In particular, the very reason the government is introducing, based on English and other models, a new injunction power to protect intellectual rights is to make sure that these proceedings to protect copyrights are taken in the civil courts.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Maybe I am not absorbing this; maybe I do not get it—and I want to deal with this as expeditiously as possible. There are criminal offences under the Copyright Act. Is that correct?

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

There are criminal offence provisions in the Copyright Act, but the purpose of those criminal offence provisions is not to deal with the examples you have given. You talked about, for example, somebody downloading copyrighted material—file sharing is the practice most commonly instanced. That is not the kind of commercial grade breach of copyright which the offence provisions of the Copyright Act are directed to. If that conduct were ever to be the subject of judicial proceedings, they could only ever be civil proceedings—to which this legislation does not apply. No civil litigant, other than through a notice for third party inspection or subpoena issued by the court, could have access to metadata in support of a proceeding like that. Because the obligation being observed by the service providers is an obligation which will now be solely an obligation in obedience to this act, the sole purpose test would, one would expect, be met in every case. So metadata could not be accessed in civil litigation in those circumstances either.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Hopefully this is my final question on this matter. Can the Attorney not envisage circumstances where, as part of a criminal prosecution under the Copyright Act—particularly in relation to section 132, subsection 1, and section 132, subsection 2, where we are talking about that commercial grade where people are making money out of that breach of copyright and so it is clearly a criminal offence under the act—metadata may be sought from those who downloaded the material from the unauthorised provider, the copyright breaker, in order to build the case against the person being charged under section 132 of the act. If there is a concession to that effect—if the minister says that is the case—then I do not need to ask anything further on this.

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

I do not have a copy of the Copyright Act with me in the chamber at the moment, but I am familiar with its provisions. There is no doubt that there are criminal offence provisions in the Copyright Act. Those criminal offence provisions are directed to what one might call large scale or commercial scale theft of intellectual property. They are not concerned with unlawful downloading, for example. They are not concerned with what ordinary citizens may perhaps be doing. That is dealt with through the civil law and it will be dealt with in particular by the industry code that is being developed under the auspices of my department and Mr Turnbull's department—and, in relation to offshore pirate sites, by the new injunction power that I just mentioned to you, which is the subject of a bill that was introduced into the House of Representatives yesterday.

This bill is about serious crime. It is about terrorism, organised and transnational crime and paedophilia. That is its entire purpose. That is the mischief that the authorities seek to deal with through this bill.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I apologies that I keep on asking these questions. I am grateful for the Attorney's patience. Leaving aside the unauthorised downloading of copyrighted content, when there are big operators who are stealing the intellectual property of a movie studio or a television studio, where they are undertaking a commercial enterprise that is clearly causing serious economic loss to the owners of the copyright—in those cases, given the seriousness of the offence, can metadata be accessed to aid in a prosecution?

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

I now have a copy of the section I think you are referring to, Senator Xenophon—section 132AI of the Copyright Act. Is that the section you are referring to? I just want to make sure we are not at cross-purposes.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I do not think we are at cross-purposes. There are a number of similar sections about breaches.

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

Is section 132AI the section you are asking about?

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Yes.

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

Criminal proceedings of that kind are not the purpose of this act.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Are there any other parts of the Copyright Act—other than section 132AI—that would be criminal proceedings for the purposes of this act?

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

No. I do not know how many times I have to say this. It is not the purpose of this act to police or enforce the Copyright Act. It is the purpose of this act to deal with the kinds of conduct—the kinds of pathologies if you like: terrorism, paedophilia and organised and transnational crime. That is why the government is bringing forward this legislation. The agencies set out in proposed section 110A are the law enforcement agencies. The law enforcement agencies deal with the entire corpus of the enforcement of the criminal law, that is true. But just as I said to Senator Leyonhjelm last night: we are not interested in using this complex system to enforce parking tickets, nor are we interested in using it to police intellectual property law, because there are other statutes—other mechanisms—to deal with it.

Lisa Singh (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary to the Shadow Attorney General) Share this | Link to this | Hansard source

Labor does not support the introduction of a general requirement for a warrant to access retained telecommunications data. Labor accepts the findings of the committee on this point. The committee noted that such a requirement would be unworkable and that historical telecommunications data is distinct from those categories of data which the TIA stipulates can only be accessed under a warrant.

Labor considers that the protection of privacy and civil liberties that the Greens intend to achieve by this measure are furthered by the safeguards and oversights introduced by amendments to this bill in the other place.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendments moved by Senator Ludlam be agreed to.

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

Mr Chairman, I am going to withdraw amendments (1) to (13) on sheet 7670. We dealt with substantially similar issues in further amendments moved by Senator Leyonhjelm.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I move amendment (12) on sheet 7661:

(12) Schedule 1, item 5, page 28 (before line 32), before the definition of Defence Minister, insert:

  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.

This amendment is intended to provide a definition of 'content' in the legislation. The lack of a definition of content has caused a great deal of industry disquiet.

I have used two sources in developing this definition. One was comments by Malcolm Turnbull, when he was asked to draw a distinction between metadata and content. However, I have also paid attention to the lengthy enumeration of the kinds of information to be retained and now brought into the bill as a consequence of recommendations of the PJCIS. My hope is that, added together, this will ensure that the law enforcement agencies are always able to distinguish between the two—retained data and content.

As we have heard from the Attorney-General, content is not to be retained, and yet content is not defined. I want to fix that. I want to ensure that the agencies do not deliberately or inadvertently intrude on content simply because there is an absence of definition. Perhaps the definition of 'content' that I have put into my amendment could be improved, but once again my aim here is to improve what is a bad law, not perfect it.

So the purpose of the amendment: there is a definition of what data may be retained. There is a clause which says that, for the avoidance of doubt, content is not to be retained, but 'content' is not defined. The purpose of my amendment is to define 'content', to ensure that it is not retained.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to 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.

Scott Ludlam (WA, Australian Greens) Share this | Link to 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.

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

Senator Ludlam, I am not sure if you are an aficionado of Alice in Wonderland, but you have just fallen down the rabbit hole. Your statement, 'Metadata is content,' reveals a fundamental gap in your appreciation of a reality here.

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

Mr Acting Deputy President, on a point of order, the debate has been pretty courteous and reasonable so far. I did not say, 'Metadata is content.' Please do not mislead the chamber. I said, 'Metadata in aggregate is content.' At least quote me accurately.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

That is a debating point, Senator Ludlam. Resume your seat.

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

Senator Ludlam, perhaps you want to resile from what you said, but at the beginning of your contribution you did not include those qualifying words. You said, 'Metadata is content.' If you want to resile from that now and add a qualification to what you said, we all occasionally misspeak in this chamber, but you actually did say, 'Metadata is content,' and of course it is not.

Although we have all regularly used the word 'metadata' in this debate, of course you rightly say, Senator Ludlam, that 'metadata' is not a term of art. I am sure you will understand that the word 'metadata', which is a jargon phrase of no clear and specific meaning and no technical standing—and I see you nodding in agreement, so we are of a common mind about this—does not appear anywhere in this bill, for that very reason. So, rather than use a jargon phrase of no certain meaning and no technical standing, what the government has set out in the table subjacent to subsection 187A(1)(a) is a description of six categories of information which, in a loose way, we have been referring to in the course of this debate and which has been referred to in the course of public discussion as metadata. But, for the very reason you acknowledge, we have very carefully avoided using this cant, jargonistic phrase of no certain meaning and no technical standing. That is why the legislation has been structured the way it is. I really think, Senator Ludlam—because I know you know a lot about this area; I respect the fact that this is an area of specialist knowledge you have, more so than most in this chamber—you really should reconsider whether you go along with Senator Leyonhjelm's approach here. By defining content to limited categories what Senator Leyonhjelm has done, with respect—inadvertently, I am sure—is to confine the exclusion. Senator Leyonhjelm, who thinks this is a bad bill, would nevertheless want to improve it by making the exclusion of content as comprehensive and all-embracing as possible; but by defining certain categories of content to the exclusion of other potential categories, you are achieving the opposite effect, Senator Leyonhjelm.

As a matter of logic we should leave content as broadly expressed as possible. As I counselled in a slightly different context last night: these are not legal terms of art. Content is not a legal or a technical term. The substance of a communication is not a legal or a technical term. We should avoid an infinite regression into the thesaurus. We should simply use plain English and express that plain English as widely as it can be expressed.

Lisa Singh (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary to the Shadow Attorney General) Share this | Link to this | Hansard source

Labor considers this amendment unnecessary. The committee examined this issue and concluded it unnecessary to insert a definition of content. If I could just quote from the committee's report:

The Committee accepts the evidence provided by industry representatives that content can be reliably separated from data for the purpose of data retention. The Committee notes that, currently, service providers are required by law to separate content from data when complying with historic and prospective data authorisations made under Chapter 4 of the TIA Act.

Senator Leyonhjelm's concerns about the precision of the dataset are adequately addressed by the existing exclusion of content under the TIA Act and by the increased precision of the dataset achieved by amendments to the bill in the other place.

The CHAIRMAN: The question is that the amendment moved by Senator Leyonhjelm be agreed to.

Question negatived.

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

by leave—I move Australian Greens amendments (25) and (27) on sheet 7669 together:

(25) Schedule 1, item 5, page 29 (after line 8), after the definition of infrastructure, insert:

  journalist means a person who is engaged and active in the publication of news and who may be given information by a source in the expectation that the information may be disseminated in the form of:

  (a) news, current affairs or a documentary; or

  (b) commentary, observations or opinion on, or analysis of, news, current affairs or a documentary.

(27) Schedule 1, item 5, page 29 (lines 26 to 29) omit paragraphs (a) and (b) of the definition of source, substitute:

(a) to another journalist; and

(b) in the normal course of the other person's work as a journalist.

What we have attempted to do here is important and it was canvassed to some degree in the other place during the debate there last week. The government, for reasons I hope Senator Brandis will explain to us shortly, has a definition of journalist as regards who is actually protected by the clauses the government and the opposition agreed to, to provide for a warrant and the public interest advocate. The definition of journalist therefore becomes fairly central as to who can avail themselves of these protections. Some senators will recall that when we were debating shield laws provisions that made amendments to the Evidence Act, going back now a couple of years, the chamber agreed—do not let me get this wrong, but I seem to recall Senator Brandis was on the same side of this vote as we were; in fact, I think it was unanimous—that the definition of journalist should be framed fairly broadly so that in the event that people needed to avail themselves of the protection of shield laws, we would effectively leave it to the courts to decide whether it was in the public interest that somebody should be protected and allow their source to be protected. The reason for that should seem reasonably obvious: if you are doing investigative journalism or you are reporting in the public interest and you need to protect a source, or if people doing this work want to publicly disclose wrongdoing or corruption—if you have been given information that relates to government corruption or malfeasance or any of the other things the press gallery does every day to keep our democracy strong, if you will; that is probably overstating it a bit, but it is tremendously important—they can get that material into the public domain without being prosecuted. Whistleblowers have their lives ruined. I know Senator Xenophon has had a lot to do with Mr Allan Kessing. This society is tremendously hard on whistleblowers and the protections that do exist have in the past proven quite inadequate at protecting people. But shield laws are one way of keeping a source out of harm's way so that people can anonymously report to journalists stuff that needs to get into the public domain. We framed 'journalists' very broadly, and I will read the definition that is in the Evidence Act at the moment:

… journalist means a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium.

Linked to that:

news medium means any medium for the dissemination to the public or a section of the public of news and observations on news.

Those two definitions are deliberately broad, and my recollection is that they were unanimously agreed to by the Senate so that the courts can decide—not on some arbitrary distinction of whether the person got paid to write the piece. Whether they are working for the Sydney Morning Herald and whether they are sensible grown-up journalist should not matter. The decision is whether the disclosure is in the public interest. The source should be able to available themselves of the protection and the journalists should not be dragged through the courts and potentially jailed. We agreed to leave that broadly.

The government, in drafting this new category of quasi-warrant to protect journalists, is proposing to narrow the definition. I do not understand why you would do that. I think the standard that we apply for shield laws should apply in this instance. That is why we brought these amendments forward today. Arbitrarily constraining such protections as have managed to be hammered out, we think, are inadequate, but are better than what prevailed before.

I do not see any reason at all why that should depend on whether or not you draw a pay cheque. If it is important work—if it is public interest reporting—and if sources' lives or livelihoods are at risk, then that protection should be offered.

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

Before responding to your contribution, Senator Ludlam, if I may say so, you do me less than justice. Not only was I part of the body of opinion in the Senate that supported the shield laws; I actually introduced the legislation.

Senator Xenophon interjecting—

Thank you, Senator Xenophon. It was introduced initially as a private senator's bill by me. It was initially opposed by the Labor Party and the Greens. It was, in subsequent months or years, then adopted by the Labor Party, but the legislation was originally introduced by me. So I have nothing but commitment to the idea of the rights of journalists to protect their sources. That is why, although initially it was not part of the bill because journalists and their sources were never the target of this bill, I am quite comfortable with the amendments that were introduced in the House of Representatives by Mr Turnbull and which now comprise division 4C of the bill.

If I may say so, Senator Ludlam, I think you make a very good point. If only for the sake of consistency, I think it is undesirable that there should be different definitions of 'journalism' in different Commonwealth acts. You have instanced the provisions in the Evidence Act that protect journalists, which extend confidentiality to journalists' sources, and which I supported. On reflection, I think the way that it is expressed is a little wide but unfortunately the problem that you identify would not be solved were we to adopt your amendment because there are other definitions elsewhere in the Commonwealth law which apply this definition of 'journalist'. In particular, division 119 of the Criminal Code, subsection 119.23(f), uses this definition of 'journalism'.

You know as well as I do, Senator, that the definition of 'journalist' has been the subject of much public discussion, especially driven by the expansion, beyond the imagination of people even 30 years ago, of the media through which journalism may be published and conducted. But the definition that is preferred here—a person who is working in a professional capacity as a journalist—is not necessarily a contradiction of your amendment. There is no doubt that it is more generic. It is not a question of whether a person draws a pay cheque, by the way. A person can be working in a professional capacity as a barrister even though he does not render a fee for a particular case. The definition calls attention to the notion that there is such a profession as journalism, whose members consciously identify as such and who observe certain professional standards so that they are recognisable members of a body of people who undertake the same profession. That is the concept sought to be captured here.

It may well be that, given that there are inconsistent definitions of 'journalism' or 'journalist' already in the Commonwealth statues—and, indeed, between the Commonwealth and the states—some regularisation and standardisation should be adopted. But, for the time being, given that this definition is more generic, and is consistent with one of the two definitions currently extant in the Commonwealth statutes, the government prefers to deal with the issue in this way.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Senator Brandis is right that Senator Ludlam makes a good point here. Labor understands that the appropriate definition of 'journalist' at law is an ongoing controversy. We are satisfied that the definition in this bill is appropriate and that judicial interpretation will resolve at least some of the difficulties. I note, though, that it is consistent—as I think Senator Brandis just indicated—with the definition of 'journalist' now incorporated in the Commonwealth Criminal Code.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I also indicate that this amendment moved by Senator Ludlam is identical to the amendment which was moved by me. I can assure the Attorney-General that, had the shield laws been introduced when I was a senator, there is absolutely no chance that I would have voted against them—absolutely no chance at all. I am grateful that the Attorney-General acknowledges that it is an issue that there are different definitions of 'journalism'. The one that has been chosen here is the one taken from the Evidence Act, not the Criminal Code. We prefer it.

I certainly would encourage the Attorney-General to move towards a consistent definition of journalism in Commonwealth legislation at the earliest opportunity—and today is a good one.

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

I accept that invitation. It is obviously not desirable that there be inconsistent, or at least different, definitions of the same concept in the statutes. I will, informed by the observations that have been made by senators in this debate, pursue the matter.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I indicate that I will support the amendment—a broader definition of 'journalist'—but I do want to acknowledge the Attorney's role in terms of journalist shield laws. In fact, I put it in my own amendments to the bill, along with the member for Denison, Andrew Wilkie, around the same time. I think in terms of the raw politics of it, the fact that the coalition in opposition was prepared to support it, prompted the government of the day to bring that forward, and I think Senator Ludwig did play a very constructive role with respect to that. I am grateful to the Attorney for the role he has played in journalist shield laws, from opposition. You do not have to be in government to come up with good ideas, Attorney. I think that puts it in an historical context. Journalists are in a better position as a result of those shield laws, but my concern is that with the metadata laws they may be in a worse position.

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

Thank you, Senator Xenophon and Senator Ludlam. Perhaps one of the reasons I am a little abashed in criticising your definition is I fear that some of those words might have originally been my own!

The TEMPORARY CHAIRMAN: The question is that the amendments moved by Senator Ludlam be agreed to.

Question negatived.

The TEMPORARY CHAIRMAN: Senator Leyonhjelm will now not be moving his amendments.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2) on sheet 7672 together:

(1) Schedule 1, item 6L, page 34 (lines 8 to 10), omit paragraph 180G(1)(b), substitute:

(b) a purpose, effect or likely effect of making the authorisation would be to identify another person whom the eligible person knows or reasonably believes may be a source;

(2) Schedule 1, item 6L, page 34 (lines 26 to 28), omit paragraph 180H(1)(b), substitute:

(b) a purpose, effect or likely effect of making the authorisation would be to identify another person whom the authorised officer knows or reasonably believes may be a source;

These amendments amend the criteria under which an eligible person or enforcement agencies may not make an authorisation for disclosure of information relating to a journalist or their employer unless a journalist information warrant is in force. The amendments alter the provisions to include where the purpose or likely effect of making the authorisation would be to identify another person who is known to be a source, or is reasonably believed to be a source, so that an authorisation cannot be made under these circumstances.

If we can put this in context, what is proposed in the bill in terms of the excluded categories—that is, those categories for which a journalist's information warrant must be sought—is that you need to show if a purpose of making the authorisation would be to identify another person whom the eligible person knows or reasonably believes to be a source. I know this is not competition law, but it does remind me about the debate of the effects test that the Harper review is looking at. In other words, to show purpose, and to simply confine it to purpose, seems to me to be unduly narrow. That is why I have moved an amendment that would allow a broader approach that would allow inclusion of the words 'effect' or 'likely effect'. The argument by those seeking authorisation is: 'This is not our purpose,' but if the effect or likely effect of making the authorisation would be to identify a source, then I think that should be included. I think it is consistent with what the government has put up in this bill. It is intended to have a regime in place to protect journalists' sources. But having it confined simply to purpose, particularly in the context of the public interest advocate regime, where there is not an opportunity for the media organisation to be consulted, I think it is important that we have it as broad and consistent as possible with the purpose of what the government's amendment says. The aim of these amendments is to broaden the circumstances under which information cannot be disclosed without a warrant, to ensure that sources are not inadvertently identified. My concern is that the word 'purpose' is simply too narrow; that it ought to include 'effect' or 'likely effect', because of the debates we have seen in other pieces of legislation about the narrowness of the word 'purpose' in the context of what the government's amendment is trying to remedy.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to 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.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Does not the Attorney concede that the words 'effect or likely effect' would, whilst making the provision broader in terms of the categories for which a journalist information warrant is required, still be consistent with the aim of the government's amendment—that is, to protect a journalist's source? Or rather—and I will stand corrected—in order for a journalist information warrant to be granted, there is a process prescribed in the bill. The circumstances in which that occurs are now confined in part to showing that there is a purpose for making the authorisation: to identify another person or eligible person. You could have the person seeking the warrant simply say, 'The purpose is not to seek to identify the source, but it could well be an incidental effect to that.' Given the government's negotiation with the opposition and listening to concerns of major media organisations including News Ltd and Seven West in this country, does not the Attorney concede that there may be circumstances when the bill in its current form as proposed by the government would not require an authorisation, because the authority or agency seeking the metadata says, 'This is not the purpose for the authorisation, but it may well be a collateral effect that a source will be disclosed and therefore we do not have to go through this process of the public interest advocate'?

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

I wish you would not ask me to concede things, because, if I say I concede things to you, it will look as if you have argued me into a corner. I would rather say I acknowledge the point you make. I do acknowledge the point you make, but that is not the reason this provision has been included. The reason this provision has been included is to prevent abuse of the system. Purposeful conduct is the mischief to which we are directing our attention here. I might point out to you that there is not a sole purpose here. Unlike elsewhere in the legislation, there is not a sole purpose test here. So long as it is a purpose, that will be enough to invoke the protection. If we were going to go further to seek to comprehensively protect journalists or their sources from incidental unintended effects then what you say would be absolutely correct, but that is not what we are seeking to do. It is not what we have been asked to do. What we are seeking to do—what we have been asked to do—is to include, in effect, an anti-abuse provision to prevent the deliberate misuse of this provision to interfere with the confidentiality of the relationship between journalists and their sources. This provision, as I am sure you would acknowledge, does so.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I might take this opportunity to comment not only on these two amendments but the subsequent two sets we will be dealing with in a moment but that are in some senses related. Senator Xenophon's amendments seek to introduce a different warrant regime for journalists purportedly modelled on the provisions in America, as we discussed earlier in the committee stage. I note that in the other place Labor supported amendments which implemented such a warrant regime being introduced for journalists; however, I should note that those amendments were successful and that the bill before us already incorporates a warrant regime for the protection of journalists and their sources which was not previously in place.

Senator Xenophon would evidently prefer a different model from that agreed between the government and the opposition. It seems that the main focus of the amendments is what Senator Xenophon refers to as 'contestability'. Senator Xenophon says that his model is based on the law in the United States, though it is not clear precisely what law he is referring to. Of course, as we understand, the Americans do have a very different system from us.

We should be clear: there is no precedent in Australia for warrants to be subject to a contested hearing. Warrants are not issued in an interparties hearing. They are not the subject of a full contested hearing. The reasons for this are obvious. Notifying the subject of a phone tap or a search warrant defeats the purpose of seeking such a warrant. Best practice is, however, for an independent body to appear before the issuing authority and to test the argument of the agencies and argue against the issue of the warrant. In Queensland and Victoria bodies called public interest monitors perform this function. This bill implements best practice through the creation of a public interest advocate modelled on the public interest monitors in Queensland and Victoria. It is the first and only time such special protection has been provided to a warrant scheme at the Commonwealth level.

Though it is inappropriate for warrants to be contested in the way that Senator Xenophon desires, the public interest advocate model ensures that the warrant-issuing process is rigorous and that the issuing—

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I rise on a point of order. We have not got to that particular amendment yet. I acknowledge—I concede—that Senator Collins has spoken to the particular amendment that is before us, but I wonder whether it is more appropriate for it to be dealt with—

Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source

I am not going to take too strict an approach on this. People do tend to go a little bit back and forth on these things. Senator Collins has indicated that she is expressing a view in terms of the upcoming amendments, so I am not averse to some discussion of those future amendments.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I apologise to Senator Xenophon if he was distracted by Senator Brandis at the outset when I indicated I would be reflecting.

An honourable senator interjecting—

Well then, I do not need to apologise. I indicated at the outset that I would be covering the three sets. If you objected to that, Senator Xenophon, you might have responded at the outset. I am of course quite keen to facilitate progress in relation to the consideration of the amendments in this committee stage, so I was seeking to address the three sets at once. If Senator Xenophon can bear with another paragraph then that will conclude my contribution on his amendments.

I was saying that although it is inappropriate for warrants to be contested in the way that Senator Xenophon desires, the public interest advocate model ensures that the warrant issuing process is rigorous and the issuing authority hears strong arguments against the issuing of a warrant. Labor believes that this is the appropriate model overall, thus related to the first two amendments and the subsequent ones. We share Senator Xenophon's goal, however, of protecting journalists and we believe that the model already incorporated in this bill achieves that goal.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I will just indicate that I support Senator Xenophon's amendments. I also with his forbearance indicate that I will support his other amendments as well, so I will not need to rise and indicate that verbally.

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

The Australian Greens will be supporting these amendments. They are consistent with what we have been arguing the whole time. The final model that the government and the Labor Party came to has been quite heavily criticised, but nonetheless Senator Collins is quite right: this framework does not actually exist at the moment and, twofold, there is no public interest monitor equivalent at a Commonwealth level. That is something that we have argued for.

In the course of the Telecommunications (Interception and Access) Act inquiry that we conducted over the last 15 months or so, we heard quite compelling evidence from the public interest monitors that exist in the two states where they do exist that actually it does not slow down the process. What it does is that it provides a measure of contestability in the warranting process. What they found was that the agencies did take a little while to get used to having somebody interposed in the process, who they were not used to being there and who would say, 'Does that need to be this broad? Could this be narrower? Could it be for a briefer period of time? Do you need all of these devices?' Eventually, once the agencies got used to having that process of contestability interposed into the process, it streamlined things and it was in the view of the public interest monitor that we took evidence from that it had actually immeasurably improved the process.

But a have seen the crack in the government's armour with the two acknowledgments that have been made. Firstly, that metadata is not so completely harmless or innocuous that journalists and their sources do not deserve a measure of protection; secondly, that we would introduce therefore a process that is not really the same as ordinary warrants. It is kind of quasi-warranting process. Also, we would introduce a public interest advocate who performs not an identical role, but a similar role, for this narrow category of professionals, as the government has defined them. We have got problems about the way that it is constructed; but I think it does open the door to some of the arguments that we have been running for a couple of years now, as the system requires further safeguards.

What Senator Xenophon has done is make the obvious point here that you can put a better lock on the front door and try to protect the journalists a little bit better than they are at the moment, but the back door is wide open. If somebody, for example, publishes a scoop on the horrors that are unfolding on Manus Island and the government wants to know or police agencies or the federal police are instructed to find out who that journalist is talking to, they will need to go through these new procedures that have been put into place. It is my expectation that, of course, the warrant will be issued. It might take a little bit longer and it might have a few more checks and balances in the way, but no doubt the warrant will be issued.

Nonetheless, that is a piece of process that does not exist at the moment. Of course, the agency is just as likely to go through and scrape the phone records of people working on the island and find out which phone numbers come up. If those numbers match those of a journalist, then you do not really need to go any further. It completely renders obsolete the shield laws that everybody on all sides of the debate just argue passionately in favour of. You do not need to take a journalist to court to find out who they have been talking to; you just find out who they have been talking to. That is part of the problem. All sides of politics—although the government somewhat reluctantly—have recognised that this is an issue, even as the government does continue to try to track down the source of stories that are appearing that it does not like the content of.

What Senator Xenophon's amendment attempts to do—it is difficult to enforce, I suspect, but nonetheless I think the intent is noble—is to ensure that if somebody is reasonably suspected of being a source then they would also be protected. I think that is a noble intention. It goes some way towards improving the kind of protections that most people believe should be in place, but it does not deal with the fundamental issue of the fact that the Australian government is instructing the federal police a reasonable number of times a year to go and find out who is putting unpopular stories into the press. That is disgusting behaviour. We should not be throwing additional procedural hurdles in the way; we should make that very, very difficult to do, if not completely unlawful.

We are happy to commend these amendments to the chamber and hope that they pass.

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

I cannot let Senator Ludlam get away with that disgraceful remark. The Australian government does not instruct the Australian Federal Police to go after people. That is an attack on the integrity of the Australian Federal Police. The Australian Federal Police are independent of government. There is no possibility that I, as the minister with ultimate responsibility for the Australian Federal Police; or the Minister for Justice, who has immediate responsibility for the Australia Federal Police; or any other minister could ever instruct the Australian Federal Police to carry out any investigation. It is not possible.

Individuals can make complaints to the Australian Federal Police. When I was in opposition, I made a number of complaints to the Australian Federal Police. The Australian Federal Police treat everyone equally. They treat government, opposition, members of parliament and private citizens—everyone—equally. The suggestion that members of a government could or would instruct the Australian Federal Police and the suggestion that the Australian Federal Police could or would accept such instruction is deplorable.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I will not be dividing on this amendment. I appreciate that the government and the opposition have given me their position. If we acknowledge that sources need to be protected, then this amendment would seek to broaden that protection. Sometimes, there could be circumstances where a purpose is not to reveal a source, but it could have the effect of revealing a source; therefore the public interest advocacy regime anticipated in this legislative framework ought to be strengthened according to that. I will not take it any further. I know now to ask the Attorney only to acknowledge something rather than concede. An acknowledgement from the Attorney is probably almost a concession.

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

No, it's not!

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I have upset the Attorney! I will take an acknowledgement from the Attorney. It is better than nothing.

Question negatived.

by leave—I move amendments (3) and (7) on sheet 7672 together:

(3) Schedule 1, item 6L, page 35 (after line 28), at the end of section 180K, add:

Note: If further information is required, a Public Interest Advocate must be notified, see section 180X.

(7) Schedule 1, item 6L, page 40 (after line 23), at the end of section 180R, add:

Note: If further information is required, a Public Interest Advocate must be notified, see section 180X.

Amendment (3) inserts a new note at the end of proposed section 180K to specify that a Public Interest Advocate must be notified if further information is required under that section. This is in accordance with proposed section 180X and consequential to my proposed amendments to the section. In essence, proposed section 180K says

(1) The Minister may require the Director-General of Security to give 20 to the Minister, within the period specified in the requirement, 21 further information in connection with a request under this 22 Subdivision. 23

(2) If the Director-General breaches the requirement, the Minister 24 may: 25

  (a) refuse to consider the request; or 26

  (b) refuse to take any action, or any further action, in relation to 27 the request.

It seems to me that the government's bill is unclear as to whether the further information that is required by the minister is information that will necessarily be given to the Public Interest Advocate. I am not sure whether it was an oversight or a deliberate policy position, or whether the Attorney would acknowledge or even concede that there ought to be a revisiting of this at some time down the track. The Public Interest Advocate does not have the same access to journalists as exists in, say, the US protocols, which we will talk about shortly. The argument is that if further information is requested then the Public Interest Advocate ought to be aware of that in the context of arguing the public interest case in the issue of a journalist information warrant.

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

Senator Xenophon, I do not concede and I do not acknowledge, I actually embrace what you say. Your point is right but it is also a little unnecessary, because of course what these amendments seek to achieve is the process that is envisaged anyway. If you look at the stipulations in proposed sections 180K and 180R you will see that they already require the minister to have regard to submissions made by the Public Interest Advocate in relation to the public interest, so it is necessarily implicit in the bill that the Public Interest Advocate will be given the opportunity to make those submissions. That is what we had envisaged. Perhaps if we had consulted you earlier on, Senator Xenophon, we might have expressed this a little more elegantly. Can I direct you to proposed section 180X(3), which provides that the regulations may prescribe matters relating to the performance of the role of the Public Interest Advocate. Those regulations will be promulgated. I can tell you—and I am not just saying this, by the way, because of what you have said; it is something that we already had in mind to do—those regulations will include a specific stipulation to put beyond doubt the issue that you have raised.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I embrace the Attorney's comments. I will not seek to divide on this. I will not withdraw the amendment, but I think from the fact that this was going to happen anyway—I am not a mind reader, Attorney—we are on the same page, or at least on the same drafting page. I am grateful for that, because I think it will make it more robust if the Public Interest Advocate is aware of any additional information in order to argue its case.

Question negatived.

by leave—I move amendments (4) to (6), (8) and (9) on sheet 7672 together.

(4) Schedule 1, item 6L, page 36 (lines 5 to 28), omit subsection 180L(2), substitute:

(2) The Minister must not issue a journalist information warrant unless:

  (a) the Minister has given the Public Interest Advocate reasonable notice of the request for the warrant in accordance with section 180X; and

  (b) the Minister has:

     (i) given the person to whom the warrant request relates reasonable notice, in writing, of the request for the warrant; and

     (ii) invited the person to make a submission on the request; and

  (c) the Minister is satisfied that:

     (i) the Organisation's functions would extend to the making of authorisations under Division 3 in relation to the particular person; and

     (ii) the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant, having regard to the matters in subsection (2B).

  (2A) In making his or her decision to issue or refuse a journalist information warrant, the Minister must give greatest weight to the matter mentioned in paragraph (2B)(a).

  (2B) For the purposes of subparagraph (2)(c)(ii), the matters are the following:

  (a) the public interest in the communication of facts and opinion to the public by a free media, and, accordingly in the ability of the media to access sources of facts on the basis that confidentiality of the identity of the source will be protected;

  (b) the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant;

  (c) the gravity of the matter in relation to which the warrant is sought;

  (d) the extent to which that information or those documents would be likely to assist in the performance of the Organisation's functions;

  (e) whether reasonable attempts have been made to obtain the information or documents by other means;

  (f) any submissions made by a Public Interest Advocate under section 180X;

  (g) any submissions made by the person to whom the warrant request relates;

  (h) any other matters the Minister considers relevant.

(5) Schedule 1, item 6L, page 37 (line 26), omit "paragraphs 180L(2)(a) and (b)", substitute "subparagraphs 180L(2)(c)(i) and (ii)".

(6) Schedule 1, item 6L, page 37 (line 29), omit "paragraphs 180L(2)(a) and (b)", substitute "subparagraphs 180L(2)(c)(i) and (ii)".

(8) Schedule 1, item 6L, page 41 (line 9) to page 42 (line 10), omit subsection 180T(2), substitute:

(2) The Part 4-1 issuing authority must not issue a journalist information warrant unless:

  (a) the Part 4-1 issuing authority has given the Public Interest Advocate reasonable notice of the application for the warrant in accordance with section 180X; and

  (b) the Part 4-1 issuing authority has:

     (i) given the person to whom the warrant application relates reasonable notice, in writing, of the application for the warrant; and

     (ii) invited the person to make a submission on the application; and

  (c) the Part 4-1 issuing authority is satisfied that:

     (i) the warrant is reasonably necessary for whichever of the purposes set out in subsection (4) is applicable; and

     (ii) the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant, having regard to the matters set out in subsection (5).

(3) In making a decision to issue or refuse to issue a journalist information warrant, the Part 4-1 issuing authority must give greatest weight to the matter mentioned in paragraph (5)(a).

(4) For the purposes of subparagraph (2)(c)(i), the purposes are the following:

  (a) if the warrant would authorise the making of authorisations under section 178—for the enforcement of the criminal law;

  (b) if the warrant would authorise the making of authorisations under section 178A—finding a person who the Australian Federal Police, or a Police Force of a State, has been notified is missing;

  (c) if the warrant would authorise the making of authorisations under section 179—the enforcement of a law imposing a pecuniary penalty or for the protection of the public revenue;

  (d) if the warrant would authorise the making of authorisations under section 180—the investigation of an offence of a kind referred to in subsection 180(4).

(5) For the purposes of subparagraph (2)(c)(ii), the matters are the following:

  (a) the public interest in the communication of facts and opinion to the public by a free media, and, accordingly in the ability of the media to access sources of facts on the basis that confidentiality of the identity of the source will be protected;

  (b) the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant;

  (c) the gravity of the matter in relation to which the warrant is sought;

  (d) the extent to which that information or those documents would be likely to assist in relation to that matter;

  (e) whether reasonable attempts have been made to obtain the information or documents by other means;

  (f) any submissions made by a Public Interest Advocate under section 180X;

  (g) any submissions made by the person to whom the warrant application relates;

  (h) any other matters the Part 4-1 issuing authority considers relevant.

(9) Schedule 1, item 6L, page 43 (lines 12 to 28), omit section 180X, substitute:

180X Public Interest Advocates

(1) The Prime Minister shall declare, in writing, one or more persons to be Public Interest Advocates.

Notice to be given to Public Interest Advocates

(2) If a notice is given to a Public Interest Advocate under section 180L in relation to a request for a journalist information warrant, or under 180T in relation to an application for a journalist information warrant, the notice must:

  (a) be in writing; and

  (b) include:

     (i) the information and material that was provided with the request or application, as the case may be; and

     (ii) the additional information or material (if any) that is prescribed by the regulations.

Further notice if additional information provided

(3) If:

  (a) the Minister requires the Director-General of Security to give further information under section 180K in connection with a request; and

  (b) the Director-General gives the further information or refuses to give the further information;

then the Minister must notify the Public Interest Advocate, in writing, of the further information or the refusal as soon as practicable.

(4) If:

  (a) the Part 4-1 issuing authority requires the chief officer of an enforcement agency, or a person other than the chief of the agency, to give further information under section 180R in connection with an application; and

  (b) the chief officer, or the other person, gives the further information or refuses to give the further information;

then the Part 4-1 issuing authority must notify the Public Interest Advocate, in writing, of the further information or the refusal as soon as practicable.

Submissions

(5) A Public Interest Advocate may make submissions:

  (a) to the Minister about matters relevant to:

     (i) a decision to issue, or refuse to issue, a journalist information warrant under section 180L; or

     (ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or

  (b) to a Part 4-1 issuing authority about matters relevant to:

     (i) a decision to issue, or refuse to issue, the warrant under section 180T; or

     (ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant.

(6) In making a submission under subsection (5), a Public Interest Advocate must have particular regard to protecting the public interest and the need to act as a contradictor to the person requesting, or applying for, the journalist information warrant.

Regulations

(7) The regulations may prescribe matters relating to the performance of the role of a Public Interest Advocate.

Declaration not legislative instrument

(8) A declaration under subsection (1) is not a legislative instrument.

Amendment (4) amends proposed section 180L(2) to alter the circumstances in which the minister must not issue a journalist information warrant. The changes to the proposed subsection provide that the minister must not issue a warrant where reasonable notice of the request has not been given to the Public Interest Advocate. Further, reasonable notice must also be given in writing to the person to whom the warrant relates. The minister must also invite the person to make a submission on the request. The minister must also be satisfied that the organisation's functions would extend to the making of authorisations regarding that particular person and that the public interest in ensuring the warrant outweighs the public interest in protecting the confidentiality of the identity of the source.

These amendments also provide that the minister must give the greatest weighting to the public interest provisions set out in proposed subsection (2)(b). These amendments will ensure that paramount consideration is given to public interest matters by the minister when considering whether to issue a journalist information warrant. The aim of these provisions is to ensure that the greatest consideration is given to the impact of issuing such warrants on the public interest and to provide basic requirements that must be met in terms of notice to the Public Interest Advocate and in allowing a journalist a right of reply in considering the public interest.

Senator Collins in her contribution made mention of the US system. It is true, as the Attorney has said, that there isn't a system of warrants as such and that the material—metadata—is retained by the NSA. As a result of a very unfortunate raid on Associated Press in Washington DC a couple of years ago, US Attorney General Eric Holder put in a number of protocols which have been evolving, but essentially the general rule is that journalists—media organisations—are consulted before that metadata is accessed so they can argue the access. I think one of the minister's advisers is shaking his head—maybe it is at me; maybe I have that wrong; I will be happy to stand corrected. That is my understanding of the protocols and guidelines I have seen, and I am sure we will get to this at some other time. I am conscious of the time. Could I get the Chairman's guidance—are we going to 11.50?

The CHAIRMAN: Till 10 past 12.

I should know this by now, shouldn't I? Thank you.

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

Don't take that as an invitation to go longer!

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

No, I will not be prolix or even otiose; I just want to get on with it! In the United States, it can be said that media organisations are, as a general rule, consulted in relation to the access to metadata. That is my understanding of the protocols that have existed. Items (5) and (6) are consequential to the passage of item (4). Item (7) inserts a note after proposed section 180R to specify that the public interest advocate must be notified—that has been dealt with.

Item (8) amends the bill so that the same requirements of the minister as set out in item (4) of my amendments also apply to the issuing authority. This ensures consistency and that the public interest is a paramount consideration in the decision made by any authority in issuing a journalist information warrant. Item (9) amends proposed section 180X, which relates to the public interest advocates. These amendments set out the requirement for a notice to be provided to the advocates in relation to journalist information warrants. The amendments provide that the notice must be provided in writing and include the information or material that was provided with a request or application and any other information as prescribed by regulation.

Further, the amendments include provisions to ensure that the advocate will be provided with any further information requested of the relevant authorities by the minister or issuing authority, or notified if the request to provide information is refused. The amendments also provide that the advocate may make submissions to the minister or the issuing authority about matters relevant to the issuing of the warrant. The advocate may also specify conditions or limitations to be placed on a warrant if necessary. The amendments also specify that the advocate must have particular regard to protecting the public interest and the need to act as a contradictor or devil's advocate to the person requesting the warrant. Further, the amendments provide that the regulations may prescribe matters relating to the role of the public interest advocate and that the declaration made by the minister or by the Prime Minister to declare a person as an advocate is not a disallowable instrument.

The aim of these amendments is to flesh out the role of the public interest advocate to ensure that it has specific roles and duties to maintain the public interest and act as a true advocate. The amendments I propose will provide greater protection for journalists through greater scrutiny of the journalist information warrant process. Without an active, appropriately focused advocate who has the ability to ask journalists or media organisations about aspects of the application, I think the public interest advocate will be quite circumscribed in what they can do. Also, I referred in my speech to the second reading debate to the sorts of concerns that Associate Professor Clinton Fernandes has raised about the public interest advocate, which I will not unnecessarily restate now.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to 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.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Can the Attorney concede a couple of things? No; can he acknowledge or can he just respond that there is no requirement in this legislative regime on the Public Interest Advocate for the Public Interest Advocate to in any way necessarily be a devil's advocate, to be a contradicter, in terms of the application being sought?

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

I do not acknowledge that at all. Section 180X, which sets out the role of the Public Interest Advocate, describes the role of the Public Interest Advocate in subsection (2), which gives the Public Interest Advocate the role to make submissions to a minister about matters relevant to a decision to issue, or refuse to issue, a journalist information warrant under section 180L, or a decision about the conditions or restrictions, if any, that are to be specified in such a warrant. If you go then to section 180L, it states those matters which the minister must have regard to in subsection (2) include the public interest consideration set out with some particularity over six sub subparagraphs in subsection (2)(b). Those are the very matters, including that elaborately articulated series of public interest considerations which the minister must consider, which the Public Interest Advocate must also consider.

It is not necessarily the case that the Public Interest Advocate will be a contradicter of the minister; but, in an appropriate case, having regard to the public interest considerations, he may be. It is his role to be the Public Interest Advocate. That is the name of the statutory office, and the function of the statutory office is to, as it were, second-guess the minister's judgement in relation to those six particular aspects of the public interest set out in subsection 180L(2)(b).

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I do not have a set of CIA cufflinks, unlike Mr Bassi. I do not want a set; it's okay. I say this to your advisers; to your team: I have a great regard for them. You have a pretty exceptional team, although some of them did take me to task quoting Taylor Swift rather than Britney Spears. I think we are both missing out on cultural references, Attorney, in respect of that!

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

You need to get out more.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Senator Collins, that is right. I do not have a life, not in this place.

Senator Leyonhjelm interjecting—

I am not being prolix, Senator Leyonhjelm. I do want to put this on notice, because I have made the assertions I have made in good faith in terms of the Department of Justice in the United States and their media policies. I am happy to table or provide a copy of this material to the Attorney's office. It says:

The first and most significant policy change would be to reverse and expand the presumption concerning notice to, and negotiations with, affected members of the news media whenever Department attorneys seek access to their records related to newsgathering activities.

In other words, metadata. It goes on to say:

The presumption will ensure notice in all but the most exceptional cases.

I can go on, but that is the basis of the material that I read over a number of months now that there is, as a general policy, an ability to negotiate, an ability for there to be discussions, with media organisations in respect of this. That is the practice following the disastrous Associated Press raid in Washington DC a couple of years ago. That is the distinction. Obviously, there are exceptions that, if it is a matter of urgent national security in the context of people's safety being at risk, those rules are thrown out the window. But, as a general proposition, I am very happy to provide not a set of cuff links but the material that I have downloaded from the US Department of Justice that does talk about protocols and about how, as a general rule, there are negotiations before the access to metadata. So it is not a criticism of your very fine advisers but the basis upon which I made those statements in relation to that.

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

Briefly, the Australian Greens will be supporting the amendments that Senator Xenophon has brought forward for the simple reason that anything which improves the operation of the Public Interest Advocate is, we think, a profoundly good idea. Senator Brandis took enormous umbrage a short time ago at my admittedly loose language when I pointed out that the government relatively frequently 'instruct'—which was the word I used—the Federal Police to investigate the source of various leaks. They do not instruct; you are quite right, Senator Brandis. But you regularly refer matters to the Federal Police and then they get to choose. One example that is pretty close to my heart, and Senator Hanson-Young addressed it in her second reading contribution, is that at least eight times which we are aware of the Department of Immigration and Border Protection referred matters that appeared in TheGuardian and TheWest Australian newspapers about sexual abuse, child sexual abuse, violence, self-harm, attempted suicides, rape and catastrophic mistreatment of human beings in our care. Instead of investigating the issues that have been raised in the public interest by these publications, the Department of Immigration and Border Protection—at least eight times that we are aware of—has asked the Federal Police to try and find out who is talking. That is the kind of repellent behaviour that provides part of the reason why we are supporting Senator Xenophon's amendment.

It is my understanding that the way the public interest monitors in Queensland and Victoria work is that they are contradictors. They are not there to decide whether or not a particular warrant is in the public interest; they are actually there to push back and argue for the narrowing of warrants—for example, to circumscribe the number of people, the number of devices or whatever it is. They are there to improve the quality, and evidence that we took in our telecommunications interception inquiry, as I mentioned before, indicated that processes improved in Victoria and Queensland as a result. My question to Senator Brandis is: would it be your expectation, on your reading of the way that the government has drafted these amendments, that the Public Interest Advocate, in performing the role that you have established, would be arguing against referrals by the Department of Immigration and Border Protection, or could we expect that those investigations by the Federal Police would continue?

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

I do not know enough about the acts that establish the public interest monitors in Queensland or in Victoria to tell you whether they are specifically mandated by their acts to be a contradictor. Obviously, I am not going to talk about particular cases that may be the subject of an investigation or speculate about how this provision might bear on those cases, the facts of which I am not really familiar with.

It is enough to say, I think, that the role of the public interest monitor is to ensure that the public interest considerations that are set out quite exhaustively in the act are properly articulated to the relevant decision maker. It may conceivably be that the public interest monitor independently arrives at the view that the issuance of a warrant is in the public interest, applying those criteria in proposed subsection 180L(2)(b), but that is entirely a matter for him. If I may use an analogy with the way courts operate, I would envisage that the public interest monitor would be like an amicus curiae: they would bring an independent mind to bear on the application of these statutory tests to the particular case and, if they were of the view that the public interest was not served by the issuance of a warrant, then they would contest the judgement of the minister. If they were of the view that the public interest was not served by the refusal of a warrant, they could contest that judgement too, I dare say. He or she is to be an independent mind to independently assess and, where appropriate, contradict the minister in the assessment of the application of the public interest criteria to a particular request for a warrant.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I appreciate the Attorney's response, but unless they are required to be a contradictor—I am not sure whether the Attorney is proposing to do so in respect of the regulations yet to be promulgated once this bill passes—that changes the very nature of their role, in my view. It makes a very substantial difference in the way that they would deal with particular matters. In the context of these amendments—and in the context of having, in my view and in the views of Senators Leyonhjelm, Ludlam, and the Australian Greens, a more robust mechanism in place—does the Attorney concede that metadata retention can be used for sections 70 and 79 of the Crimes Act, which are the so called leak provisions?

We are talking about the case of Mr Kessing, who maintains to this day his innocence. That was a case where he wrote a report about airport security that was subsequently leaked to The Australian. It was a report that prompted the Howard government, to their credit, to implement a $240 million upgrade to airport security, after a subsequent report by Sir John Wheeler. Does the Attorney acknowledge that, in the context of metadata surveillance, section 70 and 79 of the Crimes Act would be acts to which metadata access would relate?

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

I do not have those provisions in front of me, but I have told you on many occasions now—by reference to the identified agencies and the proposed scope of the act—who can access metadata and for what purposes it can be accessed.

In relation to what you have to say about the public interest monitor, can I just make this point: I do not think that the public interest monitor should necessarily be a contradictor. As Mr Bassi reminds me, there is an intrinsic tension between saying that the public interest monitor should be a contradictor and that the public interest monitor should be independent. If there is a statutory requirement that the public interest monitor has to be a contradictor, then what it means is that the public interest monitor cannot operate independently; he cannot bring an independent mind to bear on his own appraisal of whether the criteria in proposed subsection 180L(2)(b) are satisfied or not. If you say he has a statutory obligation to be a contradictor, you are saying he cannot be an independent officer. I think that that is a very bad principle.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

If I might just add to this discussion: not to be contrary, but, Senator Brandis, I do not think that amicus curiae is the best analogy to use in this situation. From a Labor position, we think it is very clear that these provisions have been designed to protect journalists and to advocate the public interest.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

May I suggest to the Attorney that sections 70 and 79 of the Crimes Act relate, in broad terms, to whistleblowers, to the leak of information. And, as Philip Dorling, the investigative journalist, said, technically you could be done for saying how many paperclips Centrelink has, in respect of that itself being an unauthorised disclosure of information. Whistleblowers will be affected by this in terms of the context of sections 70 and 79, because the AFP is the relevant authority; it is one of the authorities prescribed by this bill.

The consequences of metadata surveillance are that it will be so much easier for sources to be tracked down. It will have an effect on investigative journalism in this country in the sense that sources and journalists will have to avoid pretty much any electronic communication in order to communicate with each other. The consequence of that will be, I think, to make the job of investigative journalists in this country that much more difficult in the context of other legislative frameworks to do with whistleblower protections, to do with sections 70 and 79 of the Crimes Act.

That is why, if there is going to be a public interest advocate—and I commend the government and the opposition for at least having the public interest advocate up there as a matter to be considered in this bill—I agree with the comments of Professor Clinton Fernandes from the Australian Centre for Cyber Security at the University of New South Wales. He said that there is a real problem that the public interest advocate could well be flying blind and have one hand tied behind their back in the absence of knowing, being aware of, what arguments the journalist may have to say, 'We want to protect the source for these reasons, because there are a whole range of factors that need to be considered in the context of the story that we are investigating.'

I will have a discussion with your advisors and with you, Attorney, if you are minded to, about the US approach. I am only relying on information from the US Department of Justice. But there does seem to be an approach where media organisations are consulted much more comprehensively than is being suggested in this particular bill.

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

The considerations that Senator Xenophon refers to are the very reason we have a public interest monitor, and the public interest is explained in the act.

Progress reported.