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Monday, 29 November 2004
Page: 87

Senator ELLISON (Minister for Justice and Customs) (5:58 PM) —In relation to the privacy of a business, lawful authority is still required for the accessing of that stored communication. The bill has provisions in relation to that, which I will refer to in a moment. On the question of reach, documentation can be just as personal as the information in any computer. Going through a person's personal documents can involve just as much `reach'—to use Senator Brown's words—as any access to a computer. We equate the stored communication on a computer with a document—be it a written diary or one which is contained in a computer. In the execution of a search warrant where documents are taken they are recorded. Under this bill, the accessing of stored communications requires the same recording as for search warrants where you search premises and take away documents. There has to be a record of what you have accessed.

In relation to lawful access, item 3 of the explanatory memorandum provides:

The amendments allow for a stored communication to be intercepted by a person having lawful access to the communication or the equipment on which it is stored. A person may have lawful access to a communication, for example, with the consent of the intended recipient. A person may have lawful access to storage equipment, for example, under a search warrant or in the person's capacity as a network owner or administrator.

A telecommunications interception warrant will continue to be required in order to carry out `live' or `real-time' interceptions of communications that are in transit over a telecommunications system when intercepted.

The access will have to be lawful. A person can gain lawful access to a communication with the consent of the intended recipient—that would make it lawful. A person can gain access to storage equipment through a search warrant, and that can be addressed to a person who is a network owner or administrator. That is how the normal search warrant process works—it is addressed to a certain person who is in control of or the owner of the object. That provides you with the lawful access, or you can do it with the owner's consent.