Commonwealth Consolidated Acts

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TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979 - SECT 116

Issuing of stored communications warrants

             (1)  An issuing authority to whom a criminal law-enforcement agency has applied for a stored communications warrant in respect of a person may, in his or her discretion, issue such a warrant if satisfied, on the basis of the information given to him or her under this Part in connection with the application, that:

                     (a)  Division 1 has been complied with in relation to the application; and

                     (b)  in the case of a telephone application--because of urgent circumstances, it was necessary to make the application by telephone; and

                     (c)  there are reasonable grounds for suspecting that a particular carrier holds stored communications:

                              (i)  that the person has made; or

                             (ii)  that another person has made and for which the person is the intended recipient; and

                     (d)  information that would be likely to be obtained by accessing those stored communications under a stored communications warrant would be likely to assist in connection with:

                              (i)  unless subparagraph (ii) applies--the investigation by the agency of a serious contravention in which the person is involved (including as a victim of the serious contravention); or

                             (ii)  for an international assistance application--the investigation, investigative proceeding, or proceeding by the entity to which the application relates, of a serious foreign contravention to which the application relates and in which the person is involved (including as a victim of the serious foreign contravention); and

                   (da)  if the stored communications warrant is applied for in relation to a person who is the victim of the serious contravention--the person is unable to consent, or it is impracticable for the person to consent, to those stored communications being accessed; and

                     (e)  in any case--having regard to the matters referred to in subsection (2) or (2A) (as the case requires), and to no other matters, the issuing authority should issue a warrant authorising access to such stored communications.

             (2)  For an application other than an international assistance application, the matters to which the issuing authority must have regard are:

                     (a)  how much the privacy of any person or persons would be likely to be interfered with by accessing those stored communications under a stored communications warrant; and

                     (b)  the gravity of the conduct constituting the serious contravention; and

                     (c)  how much the information referred to in subparagraph (1)(d)(i) would be likely to assist in connection with the investigation; and

                     (d)  to what extent methods of investigating the serious contravention that do not involve the use of a stored communications warrant in relation to the person have been used by, or are available to, the agency; and

                     (e)  how much the use of such methods would be likely to assist in connection with the investigation by the agency of the serious contravention; and

                      (f)  how much the use of such methods would be likely to prejudice the investigation by the agency of the serious contravention, whether because of delay or for any other reason.

          (2A)  For an international assistance application, the matters to which the issuing authority must have regard are:

                     (a)  how much the privacy of any person or persons would be likely to be interfered with by accessing those stored communications under a stored communications warrant; and

                     (b)  the gravity of the conduct constituting the serious foreign contravention; and

                     (c)  how much the information referred to in subparagraph (1)(d)(ii) would be likely to assist in connection with the investigation, investigative proceeding, or proceeding, to the extent that this is possible to determine from information obtained from the entity to which the application relates.

             (3)  The warrant may be issued in relation to the investigation of more than one serious contravention or serious foreign contravention, but cannot relate to both a serious contravention and a serious foreign contravention.



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