Commentary on provisions of Act Section 12: Notice of application for order: journalistic data
This section stipulates that an application for an order must be made on notice if there are reasonable grounds for believing the electronic data sought consists of or includes journalistic data, subject to the exceptions in subsection (6). Where this provision applies, this section sets out that notice of the application must be served on the person against whom the overseas production order is sought (e.g. a communications service provider) and, if different, the person by whom or on whose behalf the journalistic data is stored (i.e. the journalist). This will enable those put on notice (including journalists) to be party to any such application heard by a court. Subsection 4 of this section sets out that a judge may direct that notice of an application is not required to be served on a journalist in cases where notice would prejudice the investigation of an indictable offence or a terrorist investigation, or where practically it would not be possible to identify or contact the relevant person.