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

I do. The committee will recall that yesterday we were talking about the amendment to clause 108, ‘Stored communications not to be accessed’. I have moved these government amendments, so I will not do so again, but I will explain to the committee how the wording works.

On the face of it, Senator Stott Despoja’s concern had some weight, and we deferred it. Senator Ludwig and I also looked at it and thought it did not look quite right, but when you look at it in context it does work and the wording is appropriate. Subclause 108(1) states:

A person commits an offence if:

(a)

the person:

(i)

accesses a stored communication; or

(ii)

authorises, suffers or permits another person to access a stored communication; or

(iii)

does any act or thing that will enable the person or another person to access a stored communication; and

(b)

the person does so without the knowledge of the intended recipient of the stored communication.

The first part of that section says a person commits an offence if that person accesses a stored communication. The second part is a requirement that the person did so without the knowledge of the intended recipient. We have expanded that. We are saying that the second element of the offence, if you like, is:

(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.

So we have expanded it to both parties—the person who receives the stored communication and the person who sent it. When you read that altogether, it says:

A person commits an offence if:

(a)

the person:

(i)

accesses a stored communication; or

(ii)

authorises, suffers or permits another person to access a stored communication; or

(iii)

does any act or thing that will enable the person or another person to access a stored communication; and—

and this is the amendment—

(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.

When you look at that, the offence is that you are accessing it with the knowledge of neither. ‘Without the knowledge of either of the following,’ is another way of saying it, but ‘with the knowledge of neither of the following’ makes sense. It is appropriate wording and I think it achieves a much better situation, because it requires both parties to be included—the recipient and the person who sent the stored communication. I commend government amendments (7) and (8) to the committee with that clarification.