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TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979 - SECT 108

Stored communications not to be accessed

             (1)  A person commits an offence if:

                     (a)  the person:

                              (i)  accesses a stored communication; or

                             (ii)  authorises, suffers or permits another person to access a stored communication; or

                            (iii)  does any act or thing that will enable the person or another person to access a stored communication; and

                     (b)  the person does so with the knowledge of neither of the following:

                              (i)  the intended recipient of the stored communication;

                             (ii)  the person who sent the stored communication.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

Note:          This section does not prohibit accessing of communications, that are no longer passing over a telecommunications system, from the intended recipient or from a telecommunications device in the possession of the intended recipient.

          (1A)  Without limiting paragraph (1)(b), a person is taken for the purposes of that paragraph to have knowledge of an act referred to in paragraph (1)(a) if written notice of an intention to do the act is given to the person.

Note:          For giving notice, see section 28A of the Acts Interpretation Act 1901 .

             (2)  Subsection (1) does not apply to or in relation to:

                     (a)  accessing a stored communication under a stored communications warrant; or

                     (b)  accessing a stored communication under an interception warrant; or

                     (c)  accessing a stored communication under a computer access warrant issued under section 25A of the Australian Security Intelligence Organisation Act 1979 ; or

                    (ca)  accessing a stored communication under an authorisation given under a warrant in accordance with section 27E of the Australian Security Intelligence Organisation Act 1979 ; or

                   (cb)  accessing a stored communication under a general computer access warrant; or

                     (d)  an act or thing done by an employee of a carrier in the course of his or her duties for or in connection with:

                              (i)  the installation of any line, or the installation of any equipment, used or intended for use in connection with a telecommunications service; or

                             (ii)  the operation or maintenance of a telecommunications system; or

                            (iii)  the identifying or tracing of any person who has contravened, or is suspected of having contravened or being likely to contravene, a provision of Part 10.6 of the Criminal Code ;

                            if it is reasonably necessary for the employee to do that act or thing in order to perform those duties effectively; or

                     (e)  accessing a stored communication by another person lawfully engaged in duties relating to the installation, connection or maintenance of equipment or a line, if it is reasonably necessary for the person to access the communication in order to perform those duties effectively; or

                      (f)  accessing a stored communication by a person lawfully engaged in duties relating to the installation, connection or maintenance of equipment used, or to be used, for accessing stored communications under:

                            (ia)  preservation notices; or

                              (i)  stored communications warrants; or

                             (ii)  interception warrants; or

                            (iii)  computer access warrants issued under section 25A of the Australian Security Intelligence Organisation Act 1979 ; or

                            (iv)  authorisations given under warrants in accordance with section 27E of the Australian Security Intelligence Organisation Act 1979 ; or

                     (g)  accessing a stored communication if the access results from, or is incidental to, action taken by an ASIO employee, in the lawful performance of his or her duties, for the purpose of:

                              (i)  discovering whether a listening device is being used at, or in relation to, a particular place; or

                             (ii)  determining the location of a listening device; or

                    (ga)  accessing a stored communication if the access results from, or is incidental to, action taken by an ASIO affiliate, in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation, for the purpose of:

                              (i)  discovering whether a listening device is being used at, or in relation to, a particular place; or

                             (ii)  determining the location of a listening device; or

                     (h)  accessing a stored communication by an officer or staff member of the Australian Communications and Media Authority engaged in duties relating to enforcement of the Spam Act 2003 .

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

             (3)  For the purposes of paragraph (2)(b), access to a stored communication is taken to be under an interception warrant if, and only if, the warrant would have authorised interception of the communication if it were still passing over a telecommunications system.

             (4)  In determining, for the purposes of paragraphs (2)(d) and (e), whether an act or thing done by a person was reasonably necessary in order for the person to perform his or her duties effectively, a court is to have regard to such matters (if any) as are specified in, or ascertained in accordance with, the regulations.

Note:          The civil remedy provisions in Part 3-7 may apply to a contravention of this section.

   



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