Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

I think Mr Tom Sherman covered this aspect in a report several years ago. The government considered it then and decided not to proceed with it. As I understand it, the agencies concerned have indicated that there is an administrative burden in this which far outweighs any benefit that might be provided by possible enhanced accountability, and it is the government’s view that the amendment proposed would do little to enhance accountability in practical terms. For that reason, the government does not support opposition amendment (4).

Question negatived.

by leave—I move government amendments (7) and (8) together:

(7)    Schedule 1, item 9, page 9 (lines 12 and 13), omit paragraph 108(1)(b), substitute:

             (b)    the person does so with the knowledge of neither of the following:

                   (i)    the intended recipient of the stored communication;

                  (ii)    the person who sent the stored communication.

(8)    Schedule 1, item 9, page 9 (after line 18), after subsection 108(1), insert:

     (1A)    Without limiting paragraph (1)(b), a person is taken for the purposes of that paragraph to have knowledge of an act referred to in paragraph (1)(a) if written notice of an intention to do the act is given to the person.

Note:   For giving notice, see section 28A of the Acts Interpretation Act 1901.

These amendments, like a previous one, are not part of the Senate committee recommendations. They demonstrate that the government is prepared to consider in an ongoing fashion the whole question of how this regime works. I believe that this is really proof in the pudding of the government’s attitude to having an open mind about adopting enhancements where they are needed. These amendments alter the prohibition on access to stored communication to provide that a communication may be accessed with the knowledge of either party to the communication and that written notice is sufficient to attain the knowledge of those parties.

The effect of the amendments is to clarify that a stored communications warrant only applies where access to the communication is sought without the knowledge of a party to the communication and with the intervention or assistance of an employee of the telecommunications carrier. These amendments further ensure that the knowledge requirement in the stored communications regime does not unduly restrict the endeavours of those agencies to access stored communications in an overt manner. I add that it makes sense that, if you have the knowledge of a party to the communication, it certainly can make a difference in relation to the terms of access. I think that these amendments are sensible. As I said, they are not the result of the Senate committee recommendations, but that is no prohibition to the government making an amendment to its own legislation where it sees a benefit.