Senator GREIG (10:13 PM) —As it happens, we Democrats have produced an identical amendment, so clearly we have the very same and strong views on this particular aspect of the legislation. As far as we are concerned, this amendment, as we too have drafted it, goes to the heart of implementing what for us would be recommendations 3 and 4 of our minority report to the Senate committee. I have spoken to those recommendations in relation to the previous amendment. I said with those amendments that we believed the recommendations were important to improve the bill as it currently stands. What would have been Democrat amendment (2) but which will now lapse would have inserted a requirement in the Telecommunications Act 1997 search and seizure provisions that, in relation to suspected breaches of the Spam Act without a warrant, searches could only be carried out with the consent of the owner of the data or the item of equipment. We believe that the Spam (Consequential Amendments) Bill needs to be amended so that only the owner or authorised agent of the owner can authorise use of a specific piece of equipment if there is no search warrant. An employee or flatmate cannot authorise the use of equipment that the person does not own—and, in many cases, would not be able to, as they would not know what security measures were in place to protect the system or the network, for example.

As we also noted in our minority report, Mr Besgrove of the National Office for the Information Economy in answer to a question on notice acknowledged that in the absence of an owner's consent there was a very real possibility that evidence gathered in an investigation would be rendered inadmissible in a court of law. Mr Besgrove went on to state that it would consequently be highly likely that, in the absence of consent from the owner of the account or computer, the ACA would as a matter of practice seek a warrant to enter and search premises. Given that likelihood and the fact that such a scenario would both alert a suspect and provide time to remove or destroy evidence, it certainly makes sense to us that an ordinary course of action would be to secure a warrant from the outset to ensure access and admissibility of evidence and to maximise the element of surprise. We therefore believe that this process should be codified in the legislation from the outset. Like this Labor amendment, Democrat amendment (2), which will now lapse, would have inserted a new subsection (5) at the end of section 542 of the Telecommunications Act 1997.