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

I turn to Mr Blunn’s report, where he said:

As such, real-time access is akin to eavesdropping which was the comparison used by the then Attorney-General (Sir Garfield Barwick) when the Telephonic Communications Bill 1960 was introduced providing protection against unauthorised interception ...

Interception was then defined as ‘listening to or recording any communication in its passage over the telephone system’.

He went on to say:

Accordingly, I recommend that the distinction between intercepting real time communications and accessing ‘stored’ communications be maintained.

He did point out:

Increasingly much of the data ‘passing over’ the telecommunication system are not voice communications.  However it seems to me impractical and undesirable to suggest different regimes for real time access (i.e. interception) depending on whether the communication is voice or in some other form.

What he was getting at there was that intercepting someone in the process of making a communication—that is, they are on the phone or they are transmitting it—has to be treated differently to obtaining a communication that has been received, because a telecommunications interception is an ongoing warrant which is issued for 90 days, as I recall it. Intercepting that line—listening to the communications on that line—is an ongoing thing.

Stored communication is something different. That warrant allows you to intercept only that which has passed over the telecommunications system. It has been received. It is there as an item which has been received. It does not require a period of time with which to monitor it because it is not ongoing. The warrant simply lets you go in and intercept that aspect which has been received. It is at that point in time. It is fixed. It has been received, and it is in the past tense. The other warrant is very different. It is ongoing and you can listen to what is being done in real time. I think that Mr Blunn describes that well in his report, and that is why there is the difference between the two.