Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

I move:

(4)    Schedule 1, item 2, page 5 (lines 20 to 25), omit section 5F, substitute:

5F When a communication is passing over a telecommunications system

        (1)    For the purposes of this Act, a communication:

             (a)    is taken to start passing over a telecommunications system when it is sent or transmitted by the person sending the communication; and

             (b)    is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication.

        (2)    However, if a communication is sent from an address on a computer network operated by or on behalf of the Australian Federal Police, it is taken not to start passing over a telecommunications system, for the purposes of this Act, until it is no longer under the control of any of the following:

             (a)    any AFP employee responsible for operating, protecting and maintaining the network;

             (b)    any AFP employee responsible for enforcement of the professional standards of the Australian Federal Police.

        (3)    Subsection (2) ceases to have effect at the end of the period of 2 years starting at the commencement of this section.

This amendment relates to the meaning of when a communication is passing over a telecommunications system and provides greater clarity. The government believes this amendment is necessary and, in part, responds to recommendation 16 of the Senate committee report.

Communications that are passing over the telecommunications system remain subject to the prohibition against interception. Communications that are not passing over the telecommunications system—that is, stored communications—are subject to the new prohibition against access to stored communications. The amendments and the bill generally ensure a comprehensive level of privacy protection for the users of the Australian telecommunications system. What we are saying here—and there has been much discussion of this in relation to real time intercepts and others, and I have referred to the Blunn report earlier—is that, once the communication has been transmitted, it remains still and becomes a stored communication. Of course, that is a very different situation to where you have a communication that is in the process of being passed over the telecommunications system or in the process of transmission. I think enough debate has been had in relation to the difference between a stored communication and a communication that is in transit. I will not take it any further other than to say that this is an important clarification and that it responds to the Senate committee report.