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Monday, 29 November 2004
Page: 88


Senator ELLISON (Minister for Justice and Customs) (6:05 PM) —I want to revisit the question of a person accessing the evidence gained. To qualify what I said earlier, where there is a civil action for an order to produce and someone ignores the order and is in contempt of the court, you would then have a criminal offence of contempt—the person concerned is ignoring the civil order of the court. Regardless of what the proceeding is, once a court has made an order it should be agreed to. In that instance, you could use these provisions to access the stored communication. I took Senator Brown's question to mean: can someone use these provisions to aid them in their civil case? The answer is no, not in the normal course of events—only where there has been an order to produce by the courts. You cannot restrict this only to criminal proceedings; it is where lawful authority exists. The logical consequence of that would be a criminal issue, to the extent that contempt is criminal. If you resisted the order of the court, you would then be involved in a criminal proceeding. To clarify my earlier remarks, it permits access in all circumstances where lawful authority exists.


Senator Brown —Through the Family Court?


Senator ELLISON —I think I will take that on notice, because I do not want to inadvertently mislead the chamber in this regard. I will ask Senator Brown to clarify his question. Is he asking whether you can use police to obtain a warrant to access stored communication for a Family Court proceeding? Is the question: where the husband and wife have an application and they want evidence obtained from the other party, under this bill can they get the police to attend to obtain that information? That is one interpretation of the question. The other is: can they have that person attend where the court has ordered it, for whatever reason? I will take that on notice and get back to the committee.