Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I did not particularly want to buy into it, but I do understand what the minister is saying. It is perhaps sloppy drafting at the end of the day. Quite frankly, a bit more time would probably have seen it clarified a bit better in the drafting of the word ‘neither’. What we are trying to protect are 3L search warrants, effectively, and other notices to produce where notice is served on the intended target—the computer or the stored communication or the emails. In that instance they will not get caught by this provision, because they will have the knowledge of the person who might be the recipient of the email. They will then have that person’s computer or SMS and they will be able to use an ordinary search warrant for that.

The point of differentiation between covert and overt is that it is overt. The person who has the computer, as I understand it, would have the emails, and the 3L search warrant would then be effective and not defective under the provision as it stood. I think that demonstrates the difficulty sometimes with this area. It is a very complex area. It does need clarifications, and people will now have to come to look at these debates to see what was intended. In my view that is not good enough. If the amendment moved by the government was not put forward the 3L search warrant would not have been able to be used in those circumstances, as I understand it. If I have that wrong then perhaps I need to be corrected too. My understanding is that the use of the covert for operation of the stored communication regime where a warrant would be required is for where neither the intended recipient nor the sender would have knowledge of the ISP when the warrant was required. That probably adds very little to the conversation that we have just had. Labor will support the amendment if it has the effect that the minister has indicated.