Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Schedule 3—Search warrants issued under the Crimes Act 1914

Schedule 3 Search warrants issued under the Crimes Act 1914

   

Crimes Act 1914

1  Subsection 3C(1)

Insert:

account-based data has the meaning given by section 3CAA.

carrier means:

                     (a)  a carrier within the meaning of the Telecommunications Act 1997 ; or

                     (b)  a carriage service provider within the meaning of that Act.

communication in transit means a communication (within the meaning of the Telecommunications Act 1997 ) passing over a telecommunications network (within the meaning of that Act).

electronic service has the same meaning as in the Enhancing Online Safety Act 2015 .

telecommunications facility means a facility within the meaning of the Telecommunications Act 1997 .

2  After section 3C

Insert:

3CAA   Account-based data

             (1)  For the purposes of this Part, if:

                     (a)  an electronic service has accounts for end-users; and

                     (b)  either:

                              (i)  a person holds an account with the electronic service; or

                             (ii)  a person is, or is likely to be, a user of an account with the electronic service; and

                     (c)  the person can (with the use of appropriate equipment) access particular data provided by the service;

the data is account-based data in relation to the person.

             (2)  For the purposes of this Part, if:

                     (a)  an electronic service has accounts for end-users; and

                     (b)  either:

                              (i)  a deceased person held, before the person’s death, an account with the electronic service; or

                             (ii)  a deceased person, before the person’s death, was, or was likely to be, a user of an account with the electronic service; and

                     (c)  the deceased person could, before the person’s death (with the use of appropriate equipment), access particular data provided by the service;

the data is account-based data in relation to the deceased person.

             (3)  For the purposes of this section, account has the same meaning as in the Enhancing Online Safety Act 2015 .

3  After subsection 3F(2)

Insert:

          (2A)  A warrant that is in force authorises the executing officer or a constable assisting:

                     (a)  to use:

                              (i)  a computer, or data storage device, found in the course of a search authorised under the warrant; or

                             (ii)  a telecommunications facility operated or provided by the Commonwealth or a carrier; or

                            (iii)  any other electronic equipment; or

                            (iv)  a data storage device;

                            for the purpose of obtaining access to data (the relevant data ) that is held in the computer or device mentioned in subparagraph (i) at any time when the warrant is in force, in order to determine whether the relevant data is evidential material of a kind specified in the warrant; and

                     (b)  if necessary to achieve the purpose mentioned in paragraph (a)—to add, copy, delete or alter other data in the computer or device mentioned in subparagraph (a)(i); and

                     (c)  if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so:

                              (i)  to use any other computer or a communication in transit to access the relevant data; and

                             (ii)  if necessary to achieve that purpose—to add, copy, delete or alter other data in the computer or the communication in transit; and

                     (d)  to copy any data to which access has been obtained, and that:

                              (i)  appears to be relevant for the purposes of determining whether the relevant data is evidential material of a kind specified in the warrant; or

                             (ii)  is evidential material of a kind specified in the warrant; and

                     (e)  to do any other thing reasonably incidental to any of the above.

Note:          As a result of the warrant, a person who, by means of a telecommunications facility, obtains access to data stored in a computer etc. will not commit an offence under Part 10.7 of the Criminal Code or equivalent State or Territory laws (provided that the person acts within the authority of the warrant).

          (2B)  A warrant that is in force authorises the executing officer or a constable assisting:

                     (a)  to use:

                              (i)  a computer found in the course of a search authorised under the warrant; or

                             (ii)  a telecommunications facility operated or provided by the Commonwealth or a carrier; or

                            (iii)  any other electronic equipment;

                            for the purpose of obtaining access to data (the relevant account-based data ) that is account-based data in relation to:

                            (iv)  a person who is the owner or lessee of the computer mentioned in subparagraph (i); or

                             (v)  a person who uses or has used the computer mentioned in subparagraph (i); or

                            (vi)  a deceased person who, before the person’s death, was the owner or lessee of the computer mentioned in subparagraph (i); or

                           (vii)  a deceased person who, before the person’s death, used the computer mentioned in subparagraph (i);

                            in order to determine whether the relevant account-based data is evidential material of a kind specified in the warrant; and

                     (b)  if necessary to achieve the purpose mentioned in paragraph (a)—to add, copy, delete or alter other data in the computer mentioned in subparagraph (a)(i); and

                     (c)  if, having regard to other methods (if any) of obtaining access to the relevant account-based data which are likely to be as effective, it is reasonable in all the circumstances to do so:

                              (i)  to use any other computer or a communication in transit to access the relevant account-based data; and

                             (ii)  if necessary to achieve that purpose—to add, copy, delete or alter other data in the computer or the communication in transit; and

                     (d)  to copy any data to which access has been obtained, and that:

                              (i)  appears to be relevant for the purposes of determining whether the relevant account-based data is evidential material of a kind specified in the warrant; or

                             (ii)  is evidential material of a kind specified in the warrant; and

                     (e)  to do any other thing reasonably incidental to any of the above.

          (2C)  Subsections (2A) and (2B) do not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:

                     (a)  materially interfere with, interrupt or obstruct:

                              (i)  a communication in transit; or

                             (ii)  the lawful use by other persons of a computer;

                            unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified in the warrant; or

                     (b)  cause any other material loss or damage to other persons lawfully using a computer.

          (2D)  In the case of a warrant that is in force in relation to premises, it is immaterial whether a thing mentioned in subsection (2A) or (2B) is done:

                     (a)  at the premises; or

                     (b)  at any other place.

          (2E)  In the case of a warrant that is in force in relation to a person, it is immaterial whether a thing mentioned in subsection (2A) or (2B) is done:

                     (a)  in the presence of the person; or

                     (b)  at any other place.

4  Subsection 3K(3A)

Omit “14 days.”, substitute:

                   whichever of the following is applicable:

                     (a)  if the thing is a computer or data storage device—30 days;

                     (b)  otherwise—14 days.

5  Subsection 3K(3B)

Omit “14 days”, substitute “the time applicable under subsection (3A)”.

6  Subsection 3K(3D)

Omit “7 days.”, substitute:

                   whichever of the following is applicable:

                     (a)  if the thing is a computer or data storage device—14 days;

                     (b)  otherwise—7 days.

6A  At the end of section 3K

Add:

Extended powers of examination and processing

             (5)  For the purposes of this section, if a computer or data storage device (the relevant computer or device ) was found in the course of a search authorised under a warrant, the examination or processing of the relevant computer or device may include:

                     (a)  using:

                              (i)  the relevant computer or device; or

                             (ii)  a telecommunications facility operated or provided by the Commonwealth or a carrier; or

                            (iii)  any other electronic equipment; or

                            (iv)  a data storage device;

                            for the purpose of obtaining access to data (the relevant data ) that is held in the relevant computer or device in order to determine whether the relevant computer or device is a thing that may be seized under the warrant; and

                     (b)  if necessary to achieve the purpose mentioned in paragraph (a)—to add, copy, delete or alter other data in the relevant computer or device; and

                     (c)  if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so:

                              (i)  to use any other computer or a communication in transit to access the relevant data; and

                             (ii)  if necessary to achieve that purpose—to add, copy, delete or alter other data in the computer or the communication in transit; and

                     (d)  to copy any data to which access has been obtained, and that appears to be relevant for the purposes of determining whether the relevant computer or device is a thing that may be seized under the warrant; and

                     (e)  to do any other thing reasonably incidental to any of the above.

             (6)  For the purposes of this section, if a computer (the relevant computer ) was found in the course of a search authorised under a warrant, the examination or processing of the relevant computer may include:

                     (a)  using:

                              (i)  the relevant computer; or

                             (ii)  a telecommunications facility operated or provided by the Commonwealth or a carrier; or

                            (iii)  any other electronic equipment;

                            for the purpose of obtaining access to data (the relevant account-based data ) that is account-based data in relation to:

                            (iv)  a person who is the owner or lessee of the relevant computer; or

                             (v)  a person who uses or has used the relevant computer; or

                            (vi)  a deceased person who, before the person’s death, was the owner or lessee of the relevant computer; or

                           (vii)  a deceased person who, before the person’s death, used the relevant computer;

                            in order to determine whether the relevant computer is a thing that may be seized under the warrant; and

                     (b)  if necessary to achieve the purpose mentioned in paragraph (a)—to add, copy, delete or alter other data in the relevant computer; and

                     (c)  if, having regard to other methods (if any) of obtaining access to the relevant account-based data which are likely to be as effective, it is reasonable in all the circumstances to do so:

                              (i)  to use any other computer or a communication in transit to access the relevant account-based data; and

                             (ii)  if necessary to achieve that purpose—to add, copy, delete or alter other data in the computer or the communication in transit; and

                     (d)  to copy any data to which access has been obtained, and that appears to be relevant for the purposes of determining whether the relevant computer is a thing that may be seized under the warrant; and

                     (e)  to do any other thing reasonably incidental to any of the above.

             (7)  Subsections (5) and (6) do not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:

                     (a)  materially interfere with, interrupt or obstruct:

                              (i)  a communication in transit; or

                             (ii)  the lawful use by other persons of a computer;

                            unless the addition, deletion or alteration, or the doing of the thing, is necessary to determine:

                            (iii)  in the case of subsection (5)—whether the relevant computer or device is a thing that may be seized under the warrant referred to in that subsection; or

                            (iv)  in the case of subsection (6)—whether the relevant computer is a thing that may be seized under the warrant referred to in that subsection; or

                     (b)  cause any other material loss or damage to other persons lawfully using a computer.

             (8)  In the case of a warrant that was in force in relation to premises, it is immaterial whether a thing mentioned in subsection (5) or (6) is done:

                     (a)  at the premises; or

                     (b)  at any other place.

             (9)  In the case of a warrant that was in force in relation to a person, it is immaterial whether a thing mentioned in subsection (5) or (6) is done:

                     (a)  in the presence of the person; or

                     (b)  at any other place.

7  Subsection 3LAA(1)

Omit “to access data (including data held at another place).”, substitute:

to:

                     (a)  access data (including data held at another place); or

                     (b)  access account-based data.

8  After subparagraph 3LA(1)(a)(i)

Insert:

                            (ia)  is found in the course of an ordinary search of a person, or a frisk search of a person, authorised by a warrant under section 3E; or

9  Subsection 3LA(5)

Repeal the subsection, substitute:

Offences

             (5)  A person commits an offence if:

                     (a)  the person is subject to an order under this section; and

                     (b)  the person is capable of complying with a requirement in the order; and

                     (c)  the person omits to do an act; and

                     (d)  the omission contravenes the requirement.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

             (6)  A person commits an offence if:

                     (a)  the person is subject to an order under this section; and

                     (b)  the person is capable of complying with a requirement in the order; and

                     (c)  the person omits to do an act; and

                     (d)  the omission contravenes the requirement; and

                     (e)  the offence to which the relevant warrant relates is:

                              (i)  a serious offence; or

                             (ii)  a serious terrorism offence.

Penalty for contravention of this subsection:        Imprisonment for 10 years or 600 penalty units, or both.

10  After paragraph 3N(2)(a)

Insert:

                    (aa)  the thing embodies data that was accessed under the warrant at a place other than the premises; or

10A  At the end of Division 2 of Part IAA

Add:

3SA   Relationship of this Division to parliamentary privileges and immunities

                   To avoid doubt, this Division does not affect the law relating to the powers, privileges and immunities of any of the following:

                     (a)  each House of the Parliament;

                     (b)  the members of each House of the Parliament;

                     (c)  the committees of each House of the Parliament and joint committees of both Houses of the Parliament.

11  After subsection 3ZQV(3)

Insert:

          (3A)  If the electronic equipment was seized under a warrant, subsection (2) does not apply to data that was generated after the expiry of the warrant.

12  Application of amendments

The amendments of sections 3F, 3K, 3LAA, 3LA, 3N and 3ZQV of the Crimes Act 1914 made by this Schedule apply in relation to a warrant issued after the commencement of this item.