Natasha Stott Despoja (SA, Australian Democrats) Share this | Hansard source

I thank the minister for that clarification. That was precisely my point. You just said the sender ‘and’ the intended recipient. I draw the committee’s attention to the supplementary explanatory memorandum that was circulated on behalf of the government to accompany their additional government amendments. It reads:

Amendment 7 amends item 9 at Part 1 of Schedule 1 to amend the general prohibition against access to stored communication in clause 108 of the Bill. The effect of the amendments is to enable law enforcement agencies to access stored communications with the knowledge of the sender or intended recipient.

The reason I first drew the attention of the committee to the issue last night was that my reading of the amendment was that you would need both the sender and the intended recipient to know if you were to use the following terminology:

(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.

The government’s explanatory memorandum wants ‘or’. My reading—and I thought so last night when colleagues looked at it too—was that the amendment, by use of the word ‘neither’, would mean ‘and’. That sounds like an added protection to me, so I probably should not have drawn it to the attention of the committee as it would probably have resulted in legislation that meant you had to have the knowledge of both, but I wonder whether the minister can see the point that I am making—that the explanatory memorandum is hoping for ‘or’ but my interpretation of how ‘neither’ works is that you get both. Minister, in your last comment you said the knowledge of the sender ‘and’ the intended recipient, and that means both.