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Schedule 4—Search warrants issued under the Customs Act 1901

Schedule 4 Search warrants issued under the Customs Act 1901

   

Customs Act 1901

1  Subsection 183UA(1)

Insert:

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).

recently used conveyance , in relation to a search of a person, means a conveyance that the person had operated or occupied at any time within 24 hours before the search commenced.

1A  Subsection 183UA(1) (definition of search warrant )

After “section 198”, insert “or 199A”.

2  Subsection 183UA(1)

Insert:

serious offence has the same meaning as in Part IAA of the Crimes Act 1914.

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

3  Section 198 (heading)

Repeal the heading, substitute:

198   When search warrants relating to premises can be issued

4  Section 199 (heading)

Repeal the heading, substitute:

199   The things that are authorised by a search warrant relating to premises

4A  After subsection 199(4)

Insert:

          (4A)  A warrant that is in force in relation to premises authorises the executing officer or a person 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).

          (4B)  Subsection (4A) does 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.

          (4C)  It is immaterial whether a thing mentioned in subsection (4A) is done:

                     (a)  at the warrant premises; or

                     (b)  at any other place.

5  After section 199

Insert:

199A   When search warrants relating to persons can be issued

             (1)  A judicial officer may issue a warrant authorising an ordinary search or a frisk search of a person if the judicial officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that the person has in the person’s possession, or will within the next 72 hours have in the person’s possession, any computer, or data storage device, that is evidential material.

             (2)  If the person applying for the warrant has, at any time previously, applied for a warrant under this section relating to the same person, the person applying for the warrant must state particulars of those applications, and their outcome, in the information.

             (3)  If a judicial officer issues a warrant, the judicial officer is to state in the warrant:

                     (a)  the offence to which the warrant relates; and

                     (b)  the name or description of the person to whom the warrant relates; and

                     (c)  the name of the authorised person who, unless the authorised person inserts the name of another authorised person in the warrant, is to be responsible for executing the warrant; and

                     (d)  the time at which the warrant expires (see subsection (4)); and

                     (e)  whether the warrant may be executed at any time or only during particular hours.

             (4)  The time stated in the warrant under paragraph (3)(d) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.

Example:    If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.

             (5)  The judicial officer is also to state, in a warrant in relation to a person:

                     (a)  that the warrant authorises the seizure of a computer or data storage device found, in the course of the search, on or in the possession of the person or in a recently used conveyance, if the executing officer or a person assisting believes on reasonable grounds that:

                              (i)  the computer or device is evidential material in relation to an offence to which the warrant relates; and

                             (ii)  the seizure of the computer or device is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

                     (b)  the kind of search of a person that the warrant authorises.

             (6)  Paragraph (3)(d) and subsection (4) do not prevent the issue of successive warrants in relation to the same person.

199B   The things that are authorised by a search warrant relating to a person

             (1)  A warrant that is in force in relation to a person (the target person ) authorises the executing officer or person assisting:

                     (a)  to search:

                              (i)  the target person as specified in the warrant; and

                             (ii)  any recently used conveyance;

                            for computers or data storage devices of the kind specified in the warrant; and

                     (b)  to:

                              (i)  seize computers or data storage devices of that kind; or

                             (ii)  record fingerprints from computers or data storage devices; or

                            (iii)  to take samples for forensic purposes from computers or data storage devices;

                            found in the course of the search; and

                     (c)  to seize other things found on or in the possession of the target person or in the conveyance in the course of the search that the executing officer or person assisting believes on reasonable grounds to be:

                              (i)  prohibited goods that are unlawfully carried by the target person; or

                             (ii)  seizable items.

             (2)  A warrant that is in force in relation to a person (the target person ) authorises the executing officer or a person 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).

             (3)  Subsection (2) does 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.

             (4)  It is immaterial whether a thing mentioned in subsection (2) is done:

                     (a)  in the presence of the target person; or

                     (b)  at any other place.

             (5)  If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.

             (6)  If the warrant authorises an ordinary search or a frisk search of the target person, a search of the target person different from that so authorised must not be done under the warrant.

5A  Subsection 200(1)

Omit “executing officer or a person assisting”, substitute “executing officer of a warrant in relation to premises, or a person assisting,”.

5AA  Subsection 200(2)

Omit “thing found at the premises”, substitute “thing found at warrant premises, or a thing found during a search under a warrant that is in force in relation to a person,”.

5B  Paragraph 200(2)(b)

Repeal the paragraph, substitute:

                     (b)  for a thing found at warrant premises—the occupier of the premises consents in writing; or

                     (c)  for a thing found during a search under a warrant that is in force in relation to a person—the person consents in writing.

5C  Paragraph 200(3)(a)

Omit “occupier”, substitute “person referred to in paragraph (2)(b) or (c) (as the case requires)”.

5D  Paragraph 200(3)(b)

Omit “the occupier”, substitute “that person”.

6  Subsection 200(3A)

Omit “72 hours.”, substitute:

                   whichever of the following is applicable:

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

                     (b)  otherwise—72 hours.

7  Subsection 200(3B)

Omit “72 hours”, substitute “the time applicable under subsection (3A)”.

7A  Subsection 200(3C)

Omit “occupier of the premises, and the occupier”, substitute “person referred to in paragraph (2)(b) or (c) (as the case requires), and that person”.

8  After subsection 200(3C)

Insert:

          (3D)  If the thing is a computer or data storage device, a single extension cannot exceed 14 days.

8AA  Subsection 200(4)

Omit “executing officer or a person assisting”, substitute “executing officer of a warrant in relation to premises, or a person assisting,”.

8A  After section 201

Insert:

201AA   Use of electronic equipment at other place

             (1)  If electronic equipment is moved to another place under subsection 200(2), the executing officer or a person assisting may operate the equipment to access data (including data held at another place).

             (2)  If the executing officer or person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, the executing officer or person assisting may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.

             (3)  If the Comptroller-General of Customs is satisfied that the data is not required (or is no longer required) for:

                     (a)  investigating an offence against a law of the Commonwealth, a State or a Territory; or

                     (b)  judicial proceedings or administrative review proceedings; or

                     (c)  investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988 ;

the Comptroller-General of Customs must arrange for:

                     (d)  the removal of the data from any device subject to customs control; and

                     (e)  the destruction of any other reproduction of the data subject to customs control.

             (4)  If the executing officer or a person assisting, after operating the equipment, finds that evidential material is accessible by doing so, the executing officer or person assisting may:

                     (a)  seize the equipment and any disk, tape or other associated device; or

                     (b)  if the material can be put in documentary form—put the material in that form and seize the documents so produced.

             (5)  The executing officer or a person assisting may seize equipment under paragraph (4)(a) only if:

                     (a)  it is not practicable to copy the data as mentioned in subsection (2) or to put the material in documentary form as mentioned in paragraph (4)(b); or

                     (b)  possession of the equipment by the person referred to in paragraph 200(2)(b) or (c) (as the case requires) could constitute an offence.

9  Paragraphs 201A(1)(a), (b) and (c)

Repeal the paragraphs, substitute:

                     (a)  access data held in, or accessible from, a computer or data storage device that:

                              (i)  is on warrant premises; or

                             (ii)  has been seized under this Subdivision; or

                            (iii)  is found in the course of an ordinary search of a person, or a frisk search of a person, authorised by a search warrant;

                     (b)  copy data held in, or accessible from, a computer, or data storage device, described in paragraph (a) to another data storage device;

                     (c)  convert into documentary form or another form intelligible to an executing officer:

                              (i)  data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or

                             (ii)  data held in a data storage device to which the data was copied as described in paragraph (b).

10  Paragraph 201A(2)(a)

After “the computer”, insert “or data storage device”.

11  Subparagraph 201A(2)(b)(ii)

After “the computer”, insert “or device”.

12  Subparagraph 201A(2)(b)(iii)

Omit “; and”, substitute “or device; or”.

13  At the end of paragraph 201A(2)(b)

Add:

                            (iv)  a person engaged under a contract for services by the owner or lessee of the computer or device; or

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

                            (vi)  a person who is or was a system administrator for the system including the computer or device; and

14  Subparagraph 201A(2)(c)(i)

After “the computer or”, insert “device or”.

15  Subparagraph 201A(2)(c)(i)

After “which the computer”, insert “or device”.

16  Subparagraph 201A(2)(c)(i)

After “forms”, insert “or formed”.

17  Subparagraph 201A(2)(c)(ii)

After “the computer”, insert “or device”.

18  Subsection 201A(3)

Repeal the subsection, substitute:

Offences

             (3)  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.

             (4)  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 a serious offence.

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

18A  Paragraph 201B(1)(a)

After “201(1)”, insert “or 201AA(1)”.

18B  Paragraph 201B(1)(d)

After “or (2)”, insert “or 201AA(2) or (4)”.

18C  Paragraph 202(1)(a)

Omit “or 201”, substitute “, 201 or 201AA”.

18D  Paragraph 202A(2)(a)

After “201(2)(b)”, insert “or 201AA(4)(a)”.

19  Subsection 203K(5)

After “198(1),”, insert “199A(1),”.

20  Subsection 203M(4)

After “198,”, insert “199A,”.

21  Application of amendments

(1)       The amendments of sections 199, 200 and 201A of the Customs Act 1901 made by this Schedule apply in relation to a warrant issued after the commencement of this item.

(2)       Section 201AA of the Customs Act 1901 (as amended by this Schedule) applies in relation to a warrant issued after the commencement of this item.