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 27 MESSAGE FROM THE SENATE—SPAM (CONSEQUENTIAL AMENDMENTS) BILL 2003

Message No. 371, 28 November 2003, from the Senate was reported returning the Spam (Consequential Amendments) Bill 2003 with amendments.

Ordered—That the amendments be considered forthwith.

On the motion of Mr Williams (Minister for Communications, Information Technology and the Arts), the amendments were disagreed to.

Mr Williams presented reasons, which were circulated, and are as follows:

Reasons of the House of Representatives for disagreeing to the amendments of the Senate

Senate Amendments 1 & 4

These amendments propose that a search warrant may not be issued, nor a search or seizure of an article be undertaken, when the warrant is sought or the action undertaken solely on the basis of a person's receipt of a commercial electronic message that contravenes the Spam Bill.

The proposed amendments introduce a technical problem, in that the warrants issued under the Bill are issued in respect of premises, not persons or articles and it is not clear that the person referred to in the amendment is necessarily connected with the premises being searched. Even should this problem be overcome, the amendments prescribe a particular approach that may not be appropriate in all circumstances. Amendment 4, for instance, makes it clear that an inspector cannot search or seize an article even if its owner wishes the inspector to do so, if the owner has no connection to a breach of the Spam Act except as a spam recipient.

Accordingly, the House of Representatives does not accept these amendments.

Senate Amendments 2 & 6

These amendments propose that an issued warrant must specify the computer data's owner and the nature of the class of data being sought from a computer in the case of a search warrant relating to a breach of the Spam Bill, or the kind of electronic files that may be searched in the case of a monitoring warrant.

The proposed amendments fail to recognise that the Spam Bill also deals with, for example, mobile phone spam, where access may be required to something other than a computer. Issued warrants may also cover articles other than electronic files, such as paper financial records, or non-computer based correspondence. The proposed amendments appear designed to ensure that searches are confined to things relevant to breaches of the Spam Bill. However, given that the Bill already requires in several places that searches be relevant to suspected breaches of the Spam Bill, the proposed amendment is redundant in intent and unnecessary.

Accordingly, the House of Representatives does not accept these amendments.

Senate Amendment 3

This amendment proposes that in a consent-based search in relation to an actual or suspected breach of the Spam Bill, an article may not be searched or seized without the consent of the article's owner.

The amendment is largely redundant as in many cases the occupier of the premises who has consented to the search will be the owner of the article or has the authority of the article's owner. An inspector may conduct a search and seizure operation based on the consent of the premise's occupier. That consent may be withdrawn at any time. The amendment provides no additional surety in such a circumstance. The amendment introduces a number of problematic issues that could prevent the effective operation of a consent-based search. For example, determining the ownership of data could be problematic, as could identifying the owner of a computer which is leased or on hire purchase. Further,
this amendment would make consent-based searches inconsistent with the warrant-based provisions, as warrants are only issued in terms of premises, not in terms of the owners of articles.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment 5

This amendment proposes that only an occupier who has met all the requirements of proposed subsections 547D(4)(a) and (b) may consent to a consent-based monitoring search.

This provision would prevent consent-based monitoring searches being undertaken at commercial properties unless the person resides there. It is not desirable that the ability of the occupier of any premises to give or withhold informed consent should be constrained. The proposed amendment does not provide additional protections to the occupiers of premises in respect of monitoring searches, and in effect reduces their right to determine who may or may not enter their premises.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment 7

This amendment proposes that when the court considers compensation for damages incurred in the course of a search and seizure operation, that it must have regard to any warning or guidance provided by the owner of equipment, or their employees or agents, on the operation of the equipment.

The Bill as drafted sets out what the Courts must consider when determining a reasonable amount of compensation when equipment is damaged as the result of a search. It must have regard to whether the occupier of the premises or their employees and agents, if available, gave appropriate warning or guidance on the operation of the equipment. This is a non-exclusive list. The proposed amendment does not provide greater clarity, or guidance to the Courts in determining reasonable compensation.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment 8

This amendment proposes to amend the access order provision so that an order to assist in gathering information or gaining access to data may be served on a person suspected of committing a breach of the Spam Act 2003, rather than a person suspected of having been involved in a breach of the Spam Act 2003.

The amendment does not take into consideration that the provision sought to be amended is an investigative rather than a punitive one. In addition, this amendment introduces an element of technical confusion to the Bill, as a failure to comply with a civil provision is usually referred to as a breach, while the term `committed' is used in relation to criminal offence provisions.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendments 9 & 10

These amendments propose to amend the access order provisions to provide that a person is only guilty of an offence under this provision if they have knowingly omitted to do a thing that is within their power or knowledge.

The amendments proposed are not necessary as a person will only be guilty of an offence if they intentionally omit to do something (by virtue of the application of Chapter 2 of the Criminal Code), and that omission results in a breach of the access order.

Accordingly, the House of Representatives does not accept these amendments.

Senate Amendments 11 & 12

These amendments propose to specify that in the course of an investigation relating to breaches of the Spam Bill or to monitor compliance with the Spam Bill, questions asked and documents requested by the inspector must be relevant to the investigation.

The provision in the Bill which the amendments relate to, states that the inspector may only put questions or request documents "to the extent that is reasonably necessary for the purpose of ascertaining whether the Spam Act 2003 has been complied with". The amendments are therefore redundant and unnecessary.

Accordingly, the House of Representatives does not accept these amendments.

On the motion of Mr Williams, the reasons were adopted.