165Civil remedies—unlawful access or communication

#### 165 Civil remedies—unlawful access or communication When section applies (1) This section applies to an accessing of a stored communication if the access was in contravention of subsection 108(1). Aggrieved person (2) For the purposes of this section, a person is an aggrieved person if, and only if: (a) the person was a party to the communication; or (b) the communication was made on the person’s behalf. Access—civil court remedy (3) If a person (the defendant): (a) so accessed the communication; or (b) did an act or thing referred to in subparagraph 108(1)(a)(ii) or (iii) in relation to the access; the Federal Court of Australia or a court of a State or Territory may, on the application of an aggrieved person, grant the aggrieved person remedial relief in respect of the access by making such orders against the defendant as the court considers appropriate. > Note: Subparagraphs 108(1)(a)(ii) and (iii) deal with the authorisation or enabling of access etc. Communication—civil court remedy (4) If: (a) information was obtained by accessing the communication; and (b) a person (the defendant) communicated the information to another person in contravention of section 133; the Federal Court of Australia or a court of a State or Territory may, on the application of an aggrieved person, grant the aggrieved person remedial relief in respect of the communication of the information by making such orders against the defendant as the court considers appropriate. Access—criminal court remedy (5) If a court convicts a person (the defendant) of an offence against subsection 108(1) constituted by: (a) the access; or (b) the doing of an act or thing referred to in subparagraph 108(1)(a)(ii) or (iii) in relation to the access; the court may, on the application of an aggrieved person, grant the aggrieved person remedial relief in respect of the access by making such orders against the defendant as the court considers appropriate. > Note: Subparagraphs 108(1)(a)(ii) and (iii) deal with the authorisation or enabling of access etc. Communication—criminal court remedy (6) If: (a) information was obtained by accessing the communication; and (b) the information was communicated to a person in contravention of section 133; and (c) a court convicts a person (in this subsection called the defendant) of an offence against section 133 constituted by the communication of the information; the court may, on the application of an aggrieved person, grant the aggrieved person remedial relief in respect of the communication of the information by making such orders against the defendant as the court considers appropriate. Orders (7) Without limiting the orders that may be made under this section against a person (the defendant) in respect of a particular access to or a particular communication of information, a court may make an order of one or more of the following kinds: (a) an order declaring the access or communication, as the case requires, to have been unlawful; (b) an order that the defendant pay to the aggrieved person such damages as the court considers appropriate; (c) an order in the nature of an injunction (including a mandatory injunction); (d) an order that the defendant pay to the aggrieved person an amount not exceeding the amount that, in the opinion of the court, represents the total gross income derived by the defendant as a result of the access or communication, as the case requires. Terms etc. of orders (8) Without limiting the orders that may be made by a court under this section, an order may: (a) include such provisions as the court considers necessary for the purposes of the order; and (b) be made either unconditionally or subject to such terms and conditions as the court determines. Injunctive relief—variation etc. (9) A court may revoke or vary an order in the nature of an injunction made by the court under this section. Punitive damages (10) A reference in paragraph (7)(b) to damages includes a reference to damages in the nature of punitive damages. Minor irregularities in warrants etc. (11) Despite subsection (1) of this section, this section does not apply to an accessing that contravenes subsection 108(1) only because of a defect or irregularity (other than a substantial defect or irregularity): (a) in, or in connection with the issue of, a document purporting to be a warrant; or (b) in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant.