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Schedule 1—Data disruption

Schedule 1 Data disruption

   

Surveillance Devices Act 2004

1  Title

After “ access to ”, insert “ , and disruption of, ”.

2  After paragraph 3(aaa)

Insert:

                  (aab)  to establish procedures for certain law enforcement officers of the Australian Federal Police or the Australian Crime Commission to obtain warrants and emergency authorisations that:

                              (i)  authorise the disruption of data held in computers; and

                             (ii)  are likely to substantially assist in frustrating the commission of relevant offences; and

3  Paragraph 3(ba)

After “accessing”, insert “or disrupting”.

4  Paragraph 3(ba)

After “operations”, insert “or computer data disruption operations”.

5  Paragraph 3(c)

Omit “and computer data access operations”, substitute “, computer data access operations and computer data disruption operations”.

6  At the end of subsection 4(1)

Add:

               ; or (c)  prohibits or regulates disruption of data held in computers.

7  After subsection 4(4A)

Insert:

          (4B)  For the avoidance of doubt, it is intended that a warrant may be issued, or an emergency authorisation given, under this Act:

                     (a)  for access to, and disruption of, data held in a computer; and

                     (b)  in relation to one or more relevant offences.

8  Subsection 6(1)

Insert:

data disruption intercept information has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .

data disruption warrant means a warrant issued under section 27KC or subsection 35B(2) or (3).

digital currency has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 .

disrupting data held in a computer means adding, copying, deleting or altering data held in the computer.

Note:          This expression is used in the provisions of this Act that relate to:

(a)    data disruption warrants; or

(b)    emergency authorisations for disruption of data held in a computer.

emergency authorisation for access to data held in a computer means an emergency authorisation given in response to an application under subsection 28(1A), 29(1A) or 30(1A).

emergency authorisation for disruption of data held in a computer means an emergency authorisation given in response to an application under subsection 28(1C).

IGIS official means:

                     (a)  the Inspector-General of Intelligence and Security; or

                     (b)  any other person covered by subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986 .

Ombudsman official means:

                     (a)  the Ombudsman; or

                     (b)  a Deputy Commonwealth Ombudsman; or

                     (c)  a person who is a member of the staff referred to in subsection 31(1) of the Ombudsman Act 1976 .

9  Subsection 6(1) (definition of remote application )

Omit “or 27B”, substitute “, 27B or 27KB”.

10  Subsection 6(1) (definition of unsworn application )

Omit “or 27A(13) and (14)”, substitute “, 27A(13) and (14) or 27KA(4) and (5)”.

11  Subsection 6(1) (at the end of the definition of warrant )

Add:

               ; or (d)  a data disruption warrant.

12  At the end of subsection 10(1)

Add:

                   ; (d)  a data disruption warrant.

13  At the end of Part 2

Add:

Division 5 Data disruption warrants

27KAA   Sunsetting

                   This Division ceases to have effect 5 years after it commences.

27KA   Application for data disruption warrant

             (1)  A law enforcement officer of the Australian Federal Police or the Australian Crime Commission (or another person on the law enforcement officer’s behalf) may apply for the issue of a data disruption warrant if the law enforcement officer suspects on reasonable grounds that:

                     (a)  one or more relevant offences of a particular kind have been, are being, are about to be, or are likely to be, committed; and

                     (b)  those offences involve, or are likely to involve, data held in a computer (the target computer ); and

                     (c)  disruption of data held in the target computer is likely to substantially assist in frustrating the commission of one or more relevant offences that:

                              (i)  involve, or are likely to involve, data held in the target computer; and

                             (ii)  are of the same kind as the relevant offences referred to in paragraph (a).

Procedure for making applications

             (2)  An application under subsection (1) may be made to an eligible Judge or to a nominated AAT member.

             (3)  An application:

                     (a)  must specify:

                              (i)  the name of the applicant; and

                             (ii)  the nature and duration of the warrant sought; and

                     (b)  subject to this section, must be supported by an affidavit setting out:

                              (i)  the grounds on which the warrant is sought; and

                             (ii)  the things proposed to be authorised by the warrant in accordance with section 27KE; and

                            (iii)  an assessment of how disruption of data held in the target computer is likely to substantially assist as described in paragraph (1)(c), to the extent that such an assessment is possible; and

                            (iv)  an assessment of the likelihood that disruption of data held in the target computer will substantially assist as described in paragraph (1)(c), to the extent that such an assessment is possible.

Unsworn applications

             (4)  If a law enforcement officer believes that:

                     (a)  immediate disruption of data held in the target computer referred to in subsection (1) is likely to substantially assist as described in paragraph (1)(c); and

                     (b)  it is impracticable for an affidavit to be prepared or sworn before an application for a warrant is made;

an application for a warrant under subsection (1) may be made before an affidavit is prepared or sworn.

             (5)  If subsection (4) applies, the applicant must:

                     (a)  provide as much information as the eligible Judge or nominated AAT member considers is reasonably practicable in the circumstances; and

                     (b)  not later than 72 hours after the making of the application, send a duly sworn affidavit to the eligible Judge or nominated AAT member, whether or not a warrant has been issued.

Target computer

             (6)  The target computer referred to in subsection (1) may be any one or more of the following:

                     (a)  a particular computer;

                     (b)  a computer on particular premises;

                     (c)  a computer associated with, used by or likely to be used by, a person (whose identity may or may not be known).

27KB   Remote application

             (1)  If a law enforcement officer believes that it is impracticable for an application for a data disruption warrant to be made in person, the application may be made under section 27KA by telephone, fax, email or any other means of communication.

             (2)  If transmission by fax is available and an affidavit has been prepared, the person applying must transmit a copy of the affidavit, whether sworn or unsworn, to the eligible Judge or to the nominated AAT member who is to determine the application.

27KBA   Endorsement of application—Australian Federal Police

             (1)  A law enforcement officer of the Australian Federal Police (or another person on the law enforcement officer’s behalf) must not make an application for the issue of a data disruption warrant unless the making of the application has been endorsed, either orally or in writing, by an endorsing officer of the Australian Federal Police.

             (2)  An endorsing officer of the Australian Federal Police must not endorse the making of an application for the issue of a data disruption warrant unless the endorsing officer is satisfied that the making of the application is appropriate in all the circumstances.

             (3)  For the purposes of this section, an endorsing officer of the Australian Federal Police means:

                     (a) a law enforcement officer of the Australian Federal Police who is declared, in writing, by the chief officer of the Australian Federal Police to be an endorsing officer of the Australian Federal Police; or

                     (b) a person who is in a class of law enforcement officers of the Australian Federal Police that is declared, in writing, by the chief officer of the Australian Federal Police to be a class of endorsing officers of the Australian Federal Police.

             (4)  The chief officer of the Australian Federal Police must not make a declaration under paragraph (3)(a) in relation to a law enforcement officer of the Australian Federal Police unless:

                     (a)  the law enforcement officer is a superintendent, or a person holding a higher rank, in the Australian Federal Police; and

                     (b)  the chief officer is satisfied that the law enforcement officer has the relevant skills, knowledge and experience to endorse the making of applications for the issue of data disruption warrants; and

                     (c)  the chief officer is satisfied that the law enforcement officer has completed all current internal training requirements relating to endorsing the making of applications for the issue of data disruption warrants.

             (5)  The chief officer of the Australian Federal Police must not make a declaration under paragraph (3)(b) in relation to a class of law enforcement officers of the Australian Federal Police unless:

                     (a)  each person in that class is a superintendent, or a person holding a higher rank, in the Australian Federal Police; and

                     (b)  the chief officer is satisfied that each person in that class has the relevant skills, knowledge and experience to endorse the making of applications for the issue of data disruption warrants; and

                     (c)  the chief officer is satisfied that each person in that class has completed all current internal training requirements relating to endorsing the making of applications for the issue of data disruption warrants.

             (6)  A declaration under this section is not a legislative instrument.

27KBB   Endorsement of application—Australian Crime Commission

             (1)  A law enforcement officer of the Australian Crime Commission (or another person on the law enforcement officer’s behalf) must not make an application for the issue of a data disruption warrant unless the making of the application has been endorsed, either orally or in writing, by an endorsing officer of the Australian Crime Commission.

             (2)  An endorsing officer of the Australian Crime Commission must not endorse the making of an application for the issue of a data disruption warrant unless the endorsing officer is satisfied that the making of the application is appropriate in all the circumstances.

             (3)  For the purposes of this section, an endorsing officer of the Australian Crime Commission means:

                     (a) a law enforcement officer of the Australian Crime Commission who is declared, in writing, by the chief officer of the Australian Crime Commission to be an endorsing officer of the Australian Crime Commission; or

                     (b) a person who is in a class of law enforcement officers of the Australian Crime Commission that is declared, in writing, by the chief officer of the Australian Crime Commission to be a class of endorsing officers of the Australian Crime Commission.

             (4)  The chief officer of the Australian Crime Commission must not make a declaration under paragraph (3)(a) in relation to a law enforcement officer of the Australian Crime Commission unless:

                     (a)  the law enforcement officer is an executive level member of the staff of the Australian Crime Commission; and

                     (b)  the chief officer is satisfied that the law enforcement officer has the relevant skills, knowledge and experience to endorse the making of applications for the issue of data disruption warrants; and

                     (c)  the chief officer is satisfied that the law enforcement officer has completed all current internal training requirements relating to endorsing the making of applications for the issue of data disruption warrants.

             (5)  The chief officer of the Australian Crime Commission must not make a declaration under paragraph (3)(b) in relation to a class of law enforcement officers of the Australian Crime Commission unless:

                     (a)  each person in that class is an executive level member of the staff of the Australian Crime Commission; and

                     (b)  the chief officer is satisfied that each person in that class has the relevant skills, knowledge and experience to endorse the making of applications for the issue of data disruption warrants; and

                     (c)  the chief officer is satisfied that each person in that class has completed all current internal training requirements relating to endorsing the making of applications for the issue of data disruption warrants.

             (6)  A declaration under this section is not a legislative instrument.

27KC   Determining the application

             (1)  An eligible Judge or a nominated AAT member may issue a data disruption warrant if satisfied:

                     (a)  that there are reasonable grounds for the suspicion founding the application for the warrant; and

                     (b)  the disruption of data authorised by the warrant is reasonably necessary and proportionate, having regard to the offences referred to in paragraph 27KA(1)(c); and

                     (c)  in the case of an unsworn application—that it would have been impracticable for an affidavit to have been sworn or prepared before the application was made; and

                     (d)  in the case of a remote application—that it would have been impracticable for the application to have been made in person.

             (2)  In determining whether a data disruption warrant should be issued, the eligible Judge or nominated AAT member must have regard to:

                     (a)  the nature and gravity of the conduct constituting the offences referred to in paragraph 27KA(1)(c); and

                     (b)  the likelihood that the disruption of data authorised by the warrant will frustrate the commission of the offences referred to in paragraph 27KA(1)(c); and

                     (c)  the existence of any alternative means of frustrating the commission of the offences referred to in paragraph 27KA(1)(c); and

                    (ca)  the nature of the things proposed to be authorised by the warrant in accordance with section 27KE; and

                   (cb)  the extent to which the execution of the warrant is likely to result in access to, or disruption of, data of persons lawfully using a computer, and any privacy implications (to the extent known) resulting from that access or disruption; and

                    (cc)  any steps that are proposed to be taken to avoid or minimise the extent to which the execution of the warrant is likely to impact on persons lawfully using a computer; and

                   (cd)  the extent to which the execution of the warrant is likely to cause a person to suffer a temporary loss of:

                              (i)  money; or

                             (ii)  digital currency; or

                            (iii)  property (other than data);

                            so far as that matter is known to the eligible Judge or nominated AAT member; and

                    (ce)  if:

                              (i)  the eligible Judge or nominated AAT member believes on reasonable grounds that the data covered by the warrant (within the meaning of section 27KE) is data of a person who is working in a professional capacity as a journalist or of an employer of such a person; and

                             (ii)  each of the offences referred to in paragraph 27KA(1)(c) is an offence against a secrecy provision;

                             whether the public interest in issuing the warrant outweighs:

                            (iii)  the public interest in protecting the confidentiality of the identity of the journalist’s source; and

                            (iv)  the public interest in facilitating the exchange of information between journalists and members of the public so as to facilitate reporting of matters in the public interest; and

                     (d)  any previous warrant sought or issued under this Division in relation to the alleged relevant offences referred to in paragraph 27KA(1)(c).

             (3)  For the purposes of having regard to the nature and gravity of the conduct constituting the offences referred to in paragraph 27KA(1)(c), the eligible Judge or a nominated AAT member must give weight to the following matters:

                     (a)  whether that conduct amounts to:

                              (i)  an activity against the security of the Commonwealth; or

                             (ii)  an offence against Chapter 5 of the Criminal Code ;

                     (b)  whether that conduct amounts to:

                              (i)  an activity against the proper administration of Government; or

                             (ii)  an offence against Chapter 7 of the Criminal Code ;

                     (c)  whether that conduct:

                              (i)  causes, or has the potential to cause, serious violence, or serious harm, to a person; or

                             (ii)  amounts to an offence against Chapter 8 of the Criminal Code ;

                     (d)  whether that conduct:

                              (i)  causes, or has the potential to cause, a danger to the community; or

                             (ii)  amounts to an offence against Chapter 9 of the Criminal Code ;

                     (e)  whether that conduct:

                              (i)  causes, or has the potential to cause, substantial damage to, or loss of, data, property or critical infrastructure; or

                             (ii)  amounts to an offence against Chapter 10 of the Criminal Code ;

                      (f)  whether that conduct involves, or is related to, the commission of:

                              (i)  transnational crime; or

                             (ii)  serious crime; or

                            (iii)  organised crime;

                            that is not covered by any of the preceding paragraphs.

             (4)  Subsection (3) does not limit the matters that may be considered by the eligible Judge or nominated AAT member.

             (5)  To avoid doubt, this Act does not prevent a data disruption warrant from being issued in a case where the conduct constituting the offences referred to in paragraph 27KA(1)(c) is not covered by subsection (3).

             (6)  For the purposes of this section, secrecy provision means a provision of a law of the Commonwealth or of a State that prohibits:

                     (a)  the communication, divulging or publication of information; or

                     (b)  the production of, or the publication of the contents of, a document.

27KD   What must a data disruption warrant contain?

             (1)  A data disruption warrant must:

                     (a)  state that the eligible Judge or nominated AAT member issuing the warrant is satisfied of the matters referred to in subsection 27KC(1) and has had regard to the matters referred to in subsection 27KC(2); and

                     (b)  specify:

                              (i)  the name of the applicant; and

                             (ii)  the alleged relevant offences referred to in paragraph 27KA(1)(c); and

                            (iii)  the date the warrant is issued; and

                            (iv)  if the target computer is or includes a particular computer—the computer; and

                             (v)  if the target computer is or includes a computer on particular premises—the premises; and

                            (vi)  if the target computer is or includes a computer associated with, used by or likely to be used by, a known person—the person (whether by name or otherwise); and

                           (vii)  the period during which the warrant is in force (see subsection (2)); and

                          (viii)  the name of the law enforcement officer primarily responsible for executing the warrant; and

                            (ix)  any conditions subject to which things may be done under the warrant.

             (2)  A warrant may only be issued for a period of no more than 90 days.

Note:          The access to, or disruption of, data held in the target computer pursuant to a warrant may be discontinued earlier—see section 27KH.

             (3)  In the case of a warrant authorising access to, or disruption of, data held in the target computer on premises that are vehicles, the warrant need only specify the class of vehicle in relation to which the access to, and disruption of, data held in the target computer is authorised.

             (4)  A warrant must be signed by the person issuing it and include the person’s name.

             (5)  As soon as practicable after completing and signing a warrant issued on a remote application, the person issuing it must:

                     (a)  inform the applicant of:

                              (i)  the terms of the warrant; and

                             (ii)  the date on which, and the time at which, the warrant was issued; and

                     (b)  give the warrant to the applicant while retaining a copy of the warrant for the person’s own record.

27KE   What a data disruption warrant authorises

             (1)  A data disruption warrant must authorise the doing of specified things (subject to any restrictions or conditions specified in the warrant) in relation to the relevant target computer.

             (2)  The things that may be specified are any of the following that the eligible Judge or nominated AAT member considers appropriate in the circumstances:

                     (a)  entering specified premises for the purposes of doing the things mentioned in this subsection;

                     (b)  entering any premises for the purposes of gaining entry to, or exiting, the specified premises;

                     (c)  using:

                              (i)  the target computer; 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 following purposes:

                             (v)  obtaining access to data (the relevant data ) that is held in the target computer at any time while the warrant is in force, in order to determine whether the relevant data is covered by the warrant;

                            (vi)  disrupting the relevant data at any time while the warrant is in force, if doing so is likely to assist in frustrating the commission of one or more relevant offences covered by the warrant;

                     (d)  if necessary to achieve the purpose mentioned in subparagraph (c)(v) or (vi)—adding, copying, deleting or altering other data in the target computer;

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

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

                             (ii)  if necessary to achieve that purpose—adding, copying, deleting or altering other data in the computer or the communication in transit;

                      (f)  removing a computer or other thing from premises for the purposes of doing any thing specified in the warrant in accordance with this subsection, and returning the computer or other thing to the premises;

                     (g)  copying 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 covered by the warrant; or

                             (ii)  is covered by the warrant;

                     (h)  intercepting a communication passing over a telecommunications system, if the interception is for the purposes of doing any thing specified in the warrant in accordance with this subsection;

                      (i)  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)  If:

                     (a)  a data disruption warrant authorises the removal of a computer or other thing from premises as mentioned in paragraph (2)(f); and

                     (b)  a computer or thing is removed from the premises in accordance with the warrant;

the computer or thing must be returned to the premises as soon as is reasonably practicable to do so once the computer or thing is no longer required for the purposes of doing any thing authorised by the warrant.

             (4)  For the purposes of paragraph (2)(g), if:

                     (a)  access has been obtained to data; and

                     (b)  the data is subject to a form of electronic protection;

the data is taken to be relevant for the purposes of determining whether the relevant data is covered by the warrant.

When data is covered by a warrant

             (5)  For the purposes of this section, data is covered by a warrant if disruption of the data is likely to substantially assist as described in paragraph 27KA(1)(c).

When a relevant offence is covered by a warrant

             (6)  For the purposes of this section, a relevant offence is covered by a warrant if the relevant offence is referred to in paragraph 27KA(1)(c).

Certain acts not authorised

             (7)  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, unless the loss or damage is reasonably necessary, and proportionate, to do one or more of the things specified in the warrant.

Warrant must provide for certain matters

             (8)  A data disruption warrant must:

                     (a)  authorise the use of any force against persons and things that is necessary and reasonable to do the things specified in the warrant; and

                     (b)  if the warrant authorises entering premises—state whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night.

Concealment of access etc.

             (9)  If any thing has been done in relation to a computer under:

                     (a)  a data disruption warrant; or

                     (b)  this subsection;

then, in addition to the things specified in the warrant, the warrant authorises the doing of any of the following:

                     (c)  any thing reasonably necessary to conceal the fact that any thing has been done under the warrant or under this subsection;

                     (d)  entering any premises where the computer is reasonably believed to be, for the purposes of doing the things mentioned in paragraph (c);

                     (e)  entering any other premises for the purposes of gaining entry to or exiting the premises referred to in paragraph (d);

                      (f)  removing the computer or another thing from any place where it is situated for the purposes of doing the things mentioned in paragraph (c), and returning the computer or other thing to that place;

                     (g)  if, having regard to other methods (if any) of doing the things mentioned in paragraph (c) which are likely to be as effective, it is reasonable in all the circumstances to do so:

                              (i)  using any other computer or a communication in transit to do those things; and

                             (ii)  if necessary to achieve that purpose—adding, copying, deleting or altering other data in the computer or the communication in transit;

                     (h)  intercepting a communication passing over a telecommunications system, if the interception is for the purposes of doing any thing mentioned in this subsection;

                      (i)  any other thing reasonably incidental to any of the above;

at the following time:

                      (j)  at any time while the warrant is in force or within 28 days after it ceases to be in force;

                     (k)  if none of the things mentioned in paragraph (c) are done within the 28-day period mentioned in paragraph (j)—at the earliest time after that 28-day period at which it is reasonably practicable to do the things mentioned in paragraph (c).

           (10)  Subsection (9) does not authorise the doing of a 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 doing of the thing is necessary to do one or more of the things specified in subsection (9); or

                     (b)  cause any other material loss or damage to other persons lawfully using a computer, unless the loss or damage is reasonably necessary, and proportionate, to do one or more of the things specified in the warrant or authorised by subsection (9).

           (11)  If a computer or another thing is removed from a place in accordance with paragraph (9)(f), the computer or thing must be returned to the place as soon as is reasonably practicable to do so once the computer or thing is no longer required for the purposes of doing any thing mentioned in paragraph (9)(c).

Statutory conditions

           (12)  A data disruption warrant is subject to the following conditions:

                     (a)  the warrant must not be executed in a manner that results in loss or damage to data unless the damage is reasonably necessary, and proportionate, to do one or more of the things specified in the warrant or authorised by subsection (9);

                     (b)  the warrant must not be executed in a manner that causes a person to suffer a permanent loss of:

                              (i)  money; or

                             (ii)  digital currency; or

                            (iii)  property (other than data).

           (13)  Subsection (12) does not, by implication, limit the conditions to which a data disruption warrant may be subject.

           (14)  The conditions set out in subsection (12) must be specified in a data disruption warrant.

27KF   Extension and variation of data disruption warrant

             (1)  A law enforcement officer to whom a data disruption warrant has been issued (or another person on the law enforcement officer’s behalf) may apply, at any time before the expiry of the warrant:

                     (a)  for an extension of the warrant for a period of no more than 90 days after the day the warrant would otherwise expire; or

                     (b)  for a variation of any of the other terms of the warrant.

             (2)  The application is to be made to an eligible Judge or to a nominated AAT member and must be accompanied by the original warrant.

             (3)  Sections 27KA and 27KB apply, with any necessary changes, to an application under this section as if it were an application for the warrant.

             (4)  The eligible Judge or nominated AAT member may grant an application if satisfied that the matters referred to in subsection 27KC(1) still exist, having regard to the matters in subsection 27KC(2).

             (5)  If the eligible Judge or nominated AAT member grants the application, the eligible Judge or nominated AAT member must endorse the new expiry date or the other varied term on the original warrant.

             (6)  An application may be made under this section more than once.

27KG   Revocation of data disruption warrant

             (1)  A data disruption warrant may, by instrument in writing, be revoked by an eligible Judge or nominated AAT member on the initiative of the eligible Judge or nominated AAT member at any time before the expiration of the period of validity specified in the warrant.

             (2)  If the circumstances set out in subsection 27KH(2) apply in relation to a data disruption warrant, the chief officer of the law enforcement agency to which the law enforcement officer to whom the warrant was issued belongs or is seconded must, by instrument in writing, revoke the warrant.

             (3)  The instrument revoking a warrant must be signed by the eligible Judge, the nominated AAT member or the chief officer of the law enforcement agency, as the case requires.

             (4)  If an eligible Judge or nominated AAT member revokes a warrant, the eligible Judge or nominated AAT member must give a copy of the instrument of revocation to the chief officer of the law enforcement agency to which the law enforcement officer to whom the warrant was issued belongs or is seconded.

             (5)  If:

                     (a)  an eligible Judge or nominated AAT member revokes a warrant; and

                     (b)  at the time of the revocation, a law enforcement officer is executing the warrant;

the law enforcement officer is not subject to any civil or criminal liability for any act done in the proper execution of that warrant before the officer is made aware of the revocation.

27KH   Discontinuance of access and disruption under warrant

Scope

             (1)  This section applies if a data disruption warrant is issued.

Discontinuance of access and disruption

             (2)  If:

                     (a)  the data disruption warrant has been sought by or on behalf of a law enforcement officer; and

                     (b)  the chief officer of the law enforcement agency to which the law enforcement officer belongs or is seconded is satisfied that access to, and disruption of, data under the warrant is no longer required for the purposes referred to in paragraph 27KA(1)(c);

the chief officer must, in addition to revoking the warrant under section 27KG, take the steps necessary to ensure that access to, and disruption of, data authorised by the warrant is discontinued.

             (3)  If the chief officer of a law enforcement agency is notified that a warrant has been revoked by an eligible Judge or a nominated AAT member under section 27KG, the chief officer must take the steps necessary to ensure that access to, and disruption of, data authorised by the warrant is discontinued as soon as practicable.

             (4)  If the law enforcement officer to whom the warrant is issued, or who is primarily responsible for executing the warrant, believes that access to, and disruption of, data under the warrant is no longer necessary for the purposes referred to in paragraph 27KA(1)(c), the law enforcement officer must immediately inform the chief officer of the law enforcement agency to which the law enforcement officer belongs or is seconded.

27KJ   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.

13A  Before section 28

Insert:

27KU   Sunsetting—emergency authorisation for disruption of data held in a computer

             (1)  Subsections 28(1C) and (1D) cease to have effect 5 years after they commence.

             (2)  An emergency authorisation for disruption of data held in a computer has no effect after the end of the 5-year period beginning at the commencement of this section.

14  Subsection 28(1B)

After “target computer”, insert “mentioned in subsection (1A)”.

15  After subsection 28(1B)

Insert:

          (1C)  A law enforcement officer of the Australian Federal Police or the Australian Crime Commission may apply to an appropriate authorising officer for an emergency authorisation for disruption of data held in a computer (the target computer ) if, in the course of an investigation of a relevant offence, the law enforcement officer reasonably suspects that:

                     (a)  an imminent risk of serious violence to a person or substantial damage to property exists; and

                     (b)  disruption of data held in the target computer is immediately necessary for the purpose of dealing with that risk; and

                   (ba)  there are no alternative methods that:

                              (i)  could have been used by law enforcement officers to help reduce or avoid that risk; and

                             (ii)  are likely to be as effective as disruption of data held in the target computer; and

                     (c)  the circumstances are so serious and the matter is of such urgency that disruption of data held in the target computer is warranted; and

                     (d)  it is not practicable in the circumstances to apply for a data disruption warrant.

          (1D)  The target computer mentioned in subsection (1C) may be any one or more of the following:

                     (a)  a particular computer;

                     (b)  a computer on particular premises;

                     (c)  a computer associated with, used by or likely to be used by, a person (whose identity may or may not be known).

16  Subsections 28(3) and (4)

Omit “or (1A)”, substitute “, (1A) or (1C)”.

17  At the end of section 28

Add:

          (4A)  In deciding whether to give an emergency authorisation for disruption of data held in a computer, the appropriate authorising officer must have regard to:

                     (a)  the extent to which the execution of the emergency authorisation is likely to result in access to, or disruption of, data of persons lawfully using a computer; and

                     (b)  whether the likely impact of the execution of the emergency authorisation on persons lawfully using a computer is proportionate, having regard to the risk of serious violence or substantial damage referred to in paragraph (1C)(a).

          (4B)  Subsection (4A) does not limit the matters to which the appropriate authorising officer may have regard.

Statutory conditions—disruption of data held in a computer

             (5)  An emergency authorisation for disruption of data held in a computer is subject to the following conditions:

                     (a)  the authorisation must not be executed in a manner that results in damage to data unless the damage is reasonably necessary and proportionate, having regard to the risk of serious violence or substantial damage referred to in paragraph (1C)(a);

                     (b)  the authorisation must not be executed in a manner that causes a person to suffer a permanent loss of:

                              (i)  money; or

                             (ii)  digital currency; or

                            (iii)  property (other than data).

18  After subsection 32(2A)

Insert:

          (2B)  An emergency authorisation for disruption of data held in a computer may authorise anything that a data disruption warrant may authorise.

19  After subsection 32(3A)

Insert:

          (3B)  A law enforcement officer may, under an emergency authorisation, disrupt data held in a computer only if the officer is acting in the performance of the officer’s duty.

20  Subsection 32(4)

After “(2A)”, insert “or (2B)”.

21  After subsection 33(2A)

Insert:

          (2B)  In the case of an application for an emergency authorisation for disruption of data held in a computer, the application:

                     (a)  must specify:

                              (i)  the name of the applicant for the approval; and

                             (ii)  if a warrant is sought—the nature and duration of the warrant; and

                     (b)  must be supported by an affidavit setting out the grounds on which the approval (and warrant, if any) is sought; and

                     (c)  must be accompanied by a copy of the written record made under section 31 in relation to the emergency authorisation.

22  After subsection 34(1A)

Insert:

          (1B)  Before deciding an application for approval of the giving of an emergency authorisation given in response to an application under subsection 28(1C), the eligible Judge or nominated AAT member considering the application must, in particular, and being mindful of the intrusive nature of accessing and disrupting data held in the target computer mentioned in that subsection, consider the following:

                     (a)  the nature of the risk of serious violence to a person or substantial damage to property;

                     (b)  the extent to which issuing a data disruption warrant would have helped reduce or avoid the risk;

                     (c)  the extent to which law enforcement officers could have used alternative methods to help reduce or avoid the risk;

                     (d)  how much the use of alternative methods could have helped reduce or avoid the risk;

                     (e)  how much the use of alternative methods would have prejudiced the safety of the person or property because of delay or for another reason;

                      (f)  whether or not it was practicable in the circumstances to apply for a data disruption warrant.

23  After section 35A

Insert:

35B   Judge or nominated AAT member may approve giving of an emergency authorisation for disruption of data held in a computer

             (1)  After considering an application for approval of the giving of an emergency authorisation in response to an application under subsection 28(1C), the eligible Judge or nominated AAT member may give the approval if satisfied that there were reasonable grounds to suspect that:

                     (a)  there was a risk of serious violence to a person or substantial damage to property; and

                     (b)  disruption of data held in the target computer mentioned in that subsection may have helped reduce the risk; and

                     (c)  it was not practicable in the circumstances to apply for a data disruption warrant.

             (2)  If, under subsection (1), the eligible Judge or nominated AAT member approves the giving of an emergency authorisation, the eligible Judge or nominated AAT member may:

                     (a)  unless paragraph (b) applies—issue a data disruption warrant relating to the continued access to, and disruption of, data held in the relevant target computer as if the application for the approval were an application for a data disruption warrant under Division 5 of Part 2; or

                     (b)  if the eligible Judge or nominated AAT member is satisfied that, since the application for the emergency authorisation, the activity that required access to, and disruption of, data held in the relevant target computer has ceased—order that access to, and disruption of, data held in that computer cease.

             (3)  If, under subsection (1), the eligible Judge or nominated AAT member does not approve the giving of an emergency authorisation, the eligible Judge or nominated AAT member may:

                     (a)  order that access to, and disruption of, data held in the relevant target computer cease; or

                     (b)  if the eligible Judge or nominated AAT member is of the view that, although the situation did not warrant the emergency authorisation at the time that authorisation was given, the use of a data disruption warrant under Division 5 of Part 2 is currently justified—issue a data disruption warrant relating to the subsequent access to, and disruption of, such data as if the application for the approval were an application for a data disruption warrant under Division 5 of Part 2.

             (4)  In any case, the eligible Judge or nominated AAT member may order that any information obtained from or relating to the exercise of powers under the emergency authorisation, or any record of that information, be dealt with in a manner specified in the order, so long as the manner does not involve the destruction of that information.

24  Section 36

Omit “or 35A”, substitute “, 35A or 35B”.

25  At the end of Part 3

Add:

36A   Relationship of this Part to parliamentary privileges and immunities

                   To avoid doubt, this Part 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.

26  Section 41 (paragraph (b) of the definition of appropriate consenting official )

Omit “or 43B”, substitute “, 43B, 43C or 43D”.

27  At the end of Part 5

Add:

43C   Extraterritorial operation of data disruption warrants

             (1)  If, before the issue of a data disruption warrant, it becomes apparent to the applicant for the warrant that there will be a need for access to, and disruption of, data held in a computer:

                     (a)  in a foreign country; or

                     (b)  on a vessel or aircraft that is registered under the law of a foreign country and that is in or above waters beyond the outer limits of the territorial sea of Australia;

the eligible Judge or nominated AAT member considering the application for the warrant must not permit the warrant to authorise that access and disruption unless the eligible Judge or nominated AAT member is satisfied that the access and disruption has been agreed to by an appropriate consenting official of the foreign country.

             (2)  If:

                     (a)  an application is made under section 33 by an appropriate authorising officer for approval of the giving of an emergency authorisation; and

                     (b)  the emergency authorisation was given in response to an application under subsection 28(1C); and

                     (c)  before the completion of consideration of that section 33 application, it becomes apparent to the applicant that there will be a need for access to, and disruption of, data held in a computer:

                              (i)  in a foreign country; or

                             (ii)  on a vessel or aircraft that is registered under the law of a foreign country and that is in or above waters beyond the outer limits of the territorial sea of Australia;

the eligible Judge or nominated AAT member to whom the section 33 application was made must not permit any data disruption warrant issued on consideration of that section 33 application to authorise that access and disruption unless the eligible Judge or nominated AAT member is satisfied that the access and disruption has been agreed to by an appropriate consenting official of the foreign country.

             (3)  If:

                     (a)  a data disruption warrant has been issued; and

                     (b)  after the issue of the warrant, it becomes apparent to the law enforcement officer primarily responsible for executing the warrant that there will be a need for access to, and disruption of, data held in a computer that is:

                              (i)  in a foreign country; or

                             (ii)  on a vessel or aircraft that is registered under the law of a foreign country and that is in or above waters beyond the outer limits of the territorial sea of Australia;

the warrant is taken to permit that access and disruption if, and only if, the access and or disruption has been agreed to by an appropriate consenting official of the foreign country.

             (4)  Subsections (1), (2) and (3) do not apply to a data disruption warrant authorising access to, and disruption of, data if:

                     (a)  the person, or each of the persons, responsible for executing the warrant will be physically present in Australia; and

                     (b)  the location where the data is held is unknown or cannot reasonably be determined.

             (5)  Despite subsections (1), (2) and (3), if:

                     (a)  a vessel that is registered under the law of a foreign country is in waters beyond the outer limits of the territorial sea of Australia but not beyond the outer limits of the contiguous zone of Australia; and

                     (b)  the relevant offences in respect of which it becomes apparent that access to, and disruption of, data held in a computer on the vessel will be required are offences relating to the customs, fiscal, immigration or sanitary laws of Australia;

there is no requirement for the agreement of an appropriate consenting official of the foreign country concerned in relation to that access or disruption while the vessel is in such waters.

             (6)  Despite subsections (1), (2) and (3), if:

                     (a)  a vessel that is registered under the law of a foreign country is in waters beyond the outer limits of the territorial sea of Australia but not beyond the outer limits of the Australian fishing zone; and

                     (b)  the relevant offences in respect of which it becomes apparent that access to, and disruption of, data held in a computer on the vessel will be required are offences against section 100, 100A, 100B, 101, 101A or 101AA of the Fisheries Management Act 1991 or section 46A, 46B, 46C, 46D, 49A or 51A of the Torres Strait Fisheries Act 1984 ;

there is no requirement for the agreement of an appropriate consenting official of the foreign country concerned in relation to that access or disruption while the vessel is in those waters.

             (7)  As soon as practicable after the commencement of access to, and disruption of, data held in a computer under the authority of a data disruption warrant in circumstances where consent to that access or disruption is required:

                     (a)  in a foreign country; or

                     (b)  on a vessel or aircraft that is registered under the law of a foreign country;

the chief officer of the law enforcement agency to which the law enforcement officer who applied for the warrant belongs or is seconded must give the Minister evidence in writing that the access and disruption has been agreed to by an appropriate consenting official of the foreign country.

             (8)  An instrument providing evidence of the kind referred to in subsection (7) is not a legislative instrument.

             (9)  If a vessel or aircraft that is registered under the laws of a foreign country is in or above the territorial sea of another foreign country, subsections (1), (2) and (3) have effect as if the reference to an appropriate consenting official of the foreign country were a reference to an appropriate consenting official of each foreign country concerned.

           (10)  For the avoidance of doubt, there is no requirement for the agreement of an appropriate consenting official of the foreign country to the access to, and disruption of, data held in a computer under the authority of a data disruption warrant on a vessel or aircraft of a foreign country that is in Australia or in or above waters within the outer limits of the territorial sea of Australia.

43D   Evidence obtained from extraterritorial computer access not to be tendered in evidence unless court is satisfied that the evidence was properly obtained

                   Evidence obtained from access to, or disruption of, data held in a computer undertaken in a foreign country in accordance with subsection 43C(1), (2) or (3) in relation to a relevant offence cannot be tendered in evidence to a court in any proceedings relating to the relevant offence unless the court is satisfied that the access or disruption was agreed to by an appropriate consenting official of the foreign country.

28  Subsection 44(1) (after paragraph (aa) of the definition of protected information )

Insert:

                   (ab)  any information (other than data disruption intercept information) obtained from access to, or disruption of, data under:

                              (i)  a data disruption warrant; or

                             (ii)  an emergency authorisation for disruption of data held in a computer; or

29  Subsection 44(1) (subparagraph (d)(iv) of the definition of protected information )

After “obtained”, insert “, purportedly under a computer access warrant or an emergency authorisation for access to data held in a computer,”.

30  Subsection 44(1) (at the end of subparagraph (d)(iv) of the definition of protected information )

Add “or”.

31  Subsection 44(1) (after subparagraph (d)(iv) of the definition of protected information )

Insert:

                             (v)  in a case where the information was obtained, purportedly under a data disruption warrant or an emergency authorisation for disruption of data held in a computer, through access to, or disruption of, data held in a computer in a foreign country, or on a vessel or aircraft that is registered under the law of a foreign country and that is in or above waters beyond the outer limit of Australia’s territorial sea—without the agreement of the appropriate consenting official of that foreign country, and of any other foreign country, whose agreement is required under section 43C;

32  Subsection 44(1) (paragraph (d) of the definition of protected information )

Omit “such”.

33  Subsection 44(1) (note to the definition of protected information )

Omit “Note”, substitute “Note 1”.

34  Subsection 44(1) (at the end of the definition of protected information )

Add:

Note 2:       For protection of data disruption intercept information, see Part 2-6 of the Telecommunications (Interception and Access) Act 1979 .

35  After subsection 45(6)

Insert:

          (6A)  Protected information may be communicated by an Ombudsman official to an IGIS official for the purposes of the IGIS official exercising powers, or performing functions or duties, as an IGIS official.

36  Paragraph 46(1)(a)

Omit “or general computer access intercept information”, substitute “, general computer access intercept information or data disruption intercept information”.

37  At the end of paragraph 46(2)(ab)

Add “or”.

38  After paragraph 46(2)(ab)

Insert:

                    (ac)  disrupting data held in a computer;

39  After section 47A

Insert:

47B   Protection of data disruption technologies and methods

             (1)  In a proceeding, a person may object to the disclosure of information on the ground that the information, if disclosed, could reasonably be expected to reveal details of data disruption technologies or methods.

             (2)  If the person conducting or presiding over the proceeding is satisfied that the ground of objection is made out, the person may order that the person who has the information not be required to disclose it in the proceeding.

             (3)  In determining whether or not to make an order under subsection (2), the person conducting or presiding over the proceeding must take into account whether disclosure of the information:

                     (a)  is necessary for the fair trial of the defendant; or

                     (b)  is in the public interest.

             (4)  Subsection (2) does not affect a provision of another law under which a law enforcement officer cannot be compelled to disclose information or make statements in relation to the information.

             (5)  If the person conducting or presiding over a proceeding is satisfied that publication of any information disclosed in the proceeding could reasonably be expected to reveal details of data disruption technologies or methods, the person must make any orders prohibiting or restricting publication of the information that the person considers necessary to ensure that those details are not revealed.

             (6)  Subsection (5) does not apply to the extent that the person conducting or presiding over the proceeding considers that the interests of justice require otherwise.

             (7)  In this section:

data disruption technologies or methods means technologies or methods relating to the use of:

                     (a)  a computer; or

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

                     (c)  any other electronic equipment; or

                     (d)  a data storage device;

for either or both of the following purposes:

                     (e)  disrupting data held in the computer;

                      (f)  obtaining access to data held in the computer;

where the technologies or methods have been, or are being, deployed in giving effect to:

                     (g)  a data disruption warrant; or

                     (h)  an emergency authorisation for disruption of data held in a computer.

proceeding includes a proceeding before a court, tribunal or Royal Commission.

40  After subsection 49(2C)

Insert:

          (2D)  In the case of:

                     (a)  a data disruption warrant for disruption of data held in a computer; or

                     (b)  an emergency authorisation for disruption of data held in a computer;

the report must:

                     (c)  state whether the warrant or authorisation was executed; and

                     (d)  if so:

                              (i)  state the name of the person primarily responsible for the execution of the warrant or authorisation; and

                             (ii)  state the name of each person involved in accessing or disrupting data under the warrant or authorisation; and

                            (iii)  state the period during which the data was accessed or disrupted; and

                            (iv)  state the name, if known, of any person whose data was accessed or disrupted; and

                             (v)  give details of any premises at which the computer was located; and

                            (vi)  give details of the benefit of the use of the warrant or authorisation in frustrating criminal activity; and

                           (vii)  give details of the access to, and disruption of, data under the warrant or authorisation; and

                          (viii)  give details of the compliance with the conditions (if any) to which the warrant or authorisation was subject; and

                     (e)  if the warrant or authorisation was extended or varied, state:

                              (i)  the number of extensions or variations; and

                             (ii)  the reasons for them.

41  After section 49B

Insert:

49C   Notification to Ombudsman of things done under a data disruption warrant

             (1)  If:

                     (a)  a data disruption warrant was issued in response to an application made by a law enforcement officer of a law enforcement agency; and

                     (b)  a thing mentioned in subsection 27KE(2) was done under the warrant;

the chief officer of the law enforcement agency must:

                     (c)  notify the Ombudsman:

                              (i)  that the warrant was issued; and

                             (ii)  of the fact that the thing was done under the warrant; and

                     (d)  do so within 7 days after the thing was done.

             (2)  If:

                     (a)  a data disruption warrant was issued in response to an application made by a law enforcement officer of a law enforcement agency; and

                     (b)  the person executing the warrant becomes aware that a thing mentioned in subsection 27KE(2) that was done under the warrant has caused material loss or damage to one or more persons lawfully using a computer;

the chief officer of the law enforcement agency must:

                     (c)  notify the Ombudsman:

                              (i)  that the thing has caused material loss or damage to one or more persons lawfully using a computer; and

                             (ii)  of the particulars of that loss or damage; and

                     (d)  do so within 7 days after the person executing the warrant became so aware.

42  After paragraph 50(1)(ea)

Insert:

                   (eb)  if the agency is the Australian Federal Police or the Australian Crime Commission—the kinds of offences targeted by data disruption warrants issued during that year in response to applications made by or on behalf of law enforcement officers of the agency; and

43  Paragraph 51(b)

Omit “or 27G(4)”, substitute “, 27G(4) or 27KG(4)”.

44  At the end of subsection 62(1)

Add:

               ; or (d)  anything done by the law enforcement officer in connection with:

                              (i)  the communication by a person to another person of; or

                             (ii)  the making use of; or

                            (iii)  the making of a record of; or

                            (iv)  the custody of a record of;

                            information obtained from access to, or disruption of, data under:

                             (v)  a data disruption warrant; or

                            (vi)  an emergency authorisation for disruption of data held in a computer.

45  Subsection 62(3)

Omit “or 35A”, substitute “, 35A or 35B”.

46  Paragraph 64(2)(a)

After “access to”, insert “, or disrupting,”.

46A  At the end of section 64

Add:

             (3)  If:

                     (a)  a person suffers loss or injury as a result of the use of:

                              (i)  a computer; 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, or disrupting, data that is held in the computer; and

                     (b)  the use of the computer, facility, equipment or device, as the case may be, was authorised by an emergency authorisation for disruption of data held in a computer; and

                     (c)  the giving of the emergency authorisation was not approved under section 35B;

the Commonwealth is liable to pay to the person who has suffered the loss or injury:

                     (d)  such compensation as is agreed on between the Commonwealth and that person; or

                     (e)  in default of such an agreement—such compensation as is determined by action against the Commonwealth in a court of a State or Territory that has jurisdiction in relation to the matter.

47  After section 64A

Insert:

64B   Person with knowledge of a computer or a computer system to assist disruption of data etc.

             (1)  A law enforcement officer of the Australian Federal Police or the Australian Crime Commission (or another person on the officer’s behalf) may apply to an eligible Judge or to a nominated AAT member for an order (the assistance order ) requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the law enforcement officer to do one or more of the following:

                     (a)  disrupt data held in a computer that is the subject of:

                              (i)  a data disruption warrant; or

                             (ii)  an emergency authorisation given in response to an application under subsection 28(1C);

                     (b)  access data that is held in the computer described in paragraph (a);

                     (c)  copy data held in the computer described in paragraph (a) to a data storage device;

                     (d)  convert into documentary form or another form intelligible to a law enforcement officer:

                              (i)  data held in the computer described in paragraph (a); or

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

Grant of assistance order

             (2)  The eligible Judge or nominated AAT member may grant the assistance order if the eligible Judge or nominated AAT member is satisfied that:

                     (a)  in a case where the computer is the subject of a data disruption warrant—disruption of data held in the computer is:

                              (i)  likely to substantially assist in frustrating the commission of the offences that are covered by the warrant (within the meaning of section 27KE); and

                             (ii)  justifiable and proportionate, having regard to those offences; and

                    (aa)  in a case where the computer is the subject of a data disruption warrant—the assistance order is reasonable and necessary to enable the warrant to be executed; and

                   (ab)  in a case where the computer is the subject of a data disruption warrant—the assistance order is justifiable and proportionate, having regard to:

                              (i)  the nature and gravity of the conduct constituting the offences referred to in paragraph 27KA(1)(c); and

                             (ii)  the likely impact of compliance with the assistance order on the specified person, so far as that matter is known to the eligible Judge or nominated AAT member; and

                            (iii)  the likely impact of compliance with the assistance order on other persons (including persons who may lawfully be using the computer), so far as that matter is known to the eligible Judge or nominated AAT member; and

                     (b)  in a case where the computer is the subject of an emergency authorisation given in response to an application under subsection 28(1C):

                              (i)  there is an imminent risk of serious violence to a person or substantial damage to property; and

                             (ii)  disruption of data held in the computer is immediately necessary for the purpose of dealing with the risk; and

                   (ba)  in a case where the computer is the subject of an emergency authorisation given in response to an application under subsection 28(1C)—the assistance order is reasonable and necessary to enable the emergency authorisation to be executed; and

                   (bb)  in a case where the computer is the subject of an emergency authorisation given in response to an application under subsection 28(1C)—the assistance order is justifiable and proportionate, having regard to:

                              (i)  the risk of serious violence or substantial damage referred to in paragraph 28(1C)(a) ; and

                             (ii)  the likely impact of compliance with the assistance order on the specified person, so far as that matter is known to the eligible Judge or nominated AAT member; and

                            (iii)  the likely impact of compliance with the assistance order on other persons (including persons who may lawfully be using the computer), so far as that matter is known to the eligible Judge or nominated AAT member; and

                     (c)  in a case where:

                              (i)  the computer is the subject of a data disruption warrant; and

                             (ii)  the assistance order requires the specified person to provide information or assistance to allow the law enforcement officer to do a thing referred to in paragraph (1)(b), (c) or (d) in relation to data;

                            doing the thing is for the purpose of determining whether the data is covered by the warrant (within the meaning of section 27KE); and

                     (d)  in a case where:

                              (i)  the computer is the subject of an emergency authorisation given in response to an application under subsection 28(1C); and

                             (ii)  the assistance order requires the specified person to provide information or assistance to allow the law enforcement officer to do a thing referred to in paragraph (1)(b), (c) or (d) in relation to data;

                            doing the thing is for the purpose of determining whether disruption of the data is immediately necessary for the purpose of dealing with an imminent risk of serious violence to a person or substantial damage to property; and

                     (e)  the specified person is:

                              (i)  in a case where the computer is the subject of a data disruption warrant—reasonably suspected of having committed any of the relevant offences referred to in paragraph 27KA(1)(c); or

                             (ii)  in a case where the computer is the subject of emergency authorisation—reasonably suspected of having committed the relevant offence referred to in subsection 28(1C); or

                            (iii)  the owner or lessee of the computer; or

                            (iv)  an employee of the owner or lessee of the computer; or

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

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

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

                      (f)  the specified person has relevant knowledge of:

                              (i)  the computer or a computer network of which the computer forms or formed a part; or

                             (ii)  measures applied to protect data held in the computer.

          (2A)  In determining whether the assistance order should be granted, the eligible Judge or nominated AAT member must have regard to whether the specified person is, or has been, subject to:

                     (a)  another order under this section; or

                     (b)  an order under section 64A of this Act; or

                     (c)  an order under section 3LA or 3ZZVG of the Crimes Act 1914 ;

so far as that matter is known to the eligible Judge or nominated AAT member.

          (2B)  Subsection (2A) does not limit the matters to which the eligible Judge or nominated AAT member may have regard.

Duration of assistance order

          (2C)  If an assistance order is granted in relation to a computer that is the subject of a data disruption warrant, the order ceases to be in force when the warrant ceases to be in force.

          (2D)  If an assistance order is granted in relation to a computer that is the subject of an emergency authorisation given in response to an application under subsection 28(1C), the order ceases to be in force when the emergency authorisation ceases to be in force.

Protection from civil liability

          (2E)  A person is not subject to any civil liability in respect of an act done by the person:

                     (a)  in compliance with an assistance order; or

                     (b)  in good faith in purported compliance with an assistance order.

Offence

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

48  Paragraph 65(1A)(a)

After “computer access warrant”, insert “, data disruption warrant”.

49  After subsection 65(1A)

Insert:

          (1B)  If:

                     (a)  data is disrupted purportedly under:

                              (i)  a data disruption warrant; or

                             (ii)  an emergency authorisation for disruption of data held in a computer; and

                     (b)  there is a defect or irregularity in relation to the warrant or emergency authorisation; and

                     (c)  but for that defect or irregularity, the warrant or emergency authorisation would be a sufficient authority for disrupting the data;

disruption of the data is taken to be as valid as if the warrant or emergency authorisation did not have that defect or irregularity.

50  Subsection 65(2)

Omit “or (1A)”, substitute “, (1A) or (1B)”.

51  After section 65B

Insert:

65C   Evidence obtained from access to, or disruption of, data under a data disruption warrant etc.

                   This Act does not prevent evidence obtained from access to, or disruption of, data under:

                     (a)  a data disruption warrant; or

                     (b)  an emergency authorisation for disruption of data held in a computer;

from being admissible as evidence in a proceeding relating to a relevant offence.

Telecommunications (Interception and Access) Act 1979

52  Subsection 5(1)

Insert:

data disruption intercept information means information obtained under a data disruption warrant by intercepting a communication passing over a telecommunications system.

data disruption warrant has the same meaning as in the Surveillance Devices Act 2004 .

53  Subsection 5(1) (at the end of the definition of restricted record )

Add “or a record of data disruption intercept information”.

54  Subsection 5(1) (paragraph (b) of the definition of warrant )

After “general computer access warrant”, insert “, a data disruption warrant”.

55  Paragraph 7(2)(bb)

After “27E(7)”, insert “or 27KE(9)”.

56  After section 63AC

Insert:

63AD   Dealing in data disruption intercept information etc.

             (1)  A person may, for the purposes of doing a thing authorised by a data disruption warrant:

                     (a)  communicate data disruption intercept information to another person; or

                     (b)  make use of data disruption intercept information; or

                     (c)  make a record of data disruption intercept information; or

                     (d)  give data disruption intercept information in evidence in a proceeding.

             (2)  A person may:

                     (a)  communicate data disruption intercept information to another person; or

                     (b)  make use of data disruption intercept information; or

                     (c)  make a record of data disruption intercept information;

if the information relates, or appears to relate, to the involvement, or likely involvement, of a person in one or more of the following activities:

                     (d)  activities that present a significant risk to a person’s safety;

                     (e)  acting for, or on behalf of, a foreign power (within the meaning of the Australian Security Intelligence Organisation Act 1979 );

                      (f)  activities that are, or are likely to be, a threat to security;

                     (g)  activities that pose a risk, or are likely to pose a risk, to the operational security (within the meaning of the Intelligence Services Act 2001 ) of ASIS (within the meaning of that Act);

                     (h)  activities that pose a risk, or are likely to pose a risk, to the operational security (within the ordinary meaning of that expression) of the Organisation or of AGO or ASD (within the meanings of the Intelligence Services Act 2001 );

                      (i)  activities related to the proliferation of weapons of mass destruction or the movement of goods listed from time to time in the Defence and Strategic Goods List (within the meaning of regulation 13E of the Customs (Prohibited Exports) Regulations 1958 );

                      (j)  activities related to a contravention, or an alleged contravention, by a person of a UN sanction enforcement law (within the meaning of the Charter of the United Nations Act 1945 ).

             (3)  A person may, in connection with:

                     (a)  the performance by an Ombudsman official of the Ombudsman official’s functions or duties; or

                     (b)  the exercise by an Ombudsman official of the Ombudsman official’s powers;

communicate to the Ombudsman official, or make use of, or make a record of, data disruption intercept information.

             (4)  An Ombudsman official may, in connection with:

                     (a)  the performance by the Ombudsman official of the Ombudsman official’s functions or duties; or

                     (b)  the exercise by the Ombudsman official of the Ombudsman official’s powers;

communicate to another person, or make use of, or make a record of, data disruption intercept information.

             (5)  A person may, in connection with:

                     (a)  the performance by an IGIS official of the IGIS official’s functions or duties; or

                     (b)  the exercise by an IGIS official of the IGIS official’s powers;

communicate to the IGIS official, or make use of, or make a record of, data disruption intercept information.

             (6)  An IGIS official may, in connection with:

                     (a)  the performance by the IGIS official of the IGIS official’s functions or duties; or

                     (b)  the exercise by the IGIS official of the IGIS official’s powers;

communicate to another person, or make use of, or make a record of, data disruption intercept information.

             (7)  If:

                     (a)  information was obtained by intercepting a communication passing over a telecommunications system; and

                     (b)  the interception was purportedly for the purposes of doing a thing specified in a data disruption warrant; and

                     (c)  the interception was not authorised by the data disruption warrant;

then:

                     (d)  a person may, in connection with:

                              (i)  the performance by an Ombudsman official of the Ombudsman official’s functions or duties; or

                             (ii)  the exercise by an Ombudsman official of the Ombudsman official’s powers;

                            communicate to the Ombudsman official, or make use of, or make a record of, that information; and

                     (e)  an Ombudsman official may, in connection with:

                              (i)  the performance by the Ombudsman official of the Ombudsman official’s functions or duties; or

                             (ii)  the exercise by the Ombudsman official of the Ombudsman official’s powers;

                            communicate to another person, or make use of, or make a record of, that information; and

                      (f)  a person may, in connection with:

                              (i)  the performance by an IGIS official of the IGIS official’s functions or duties; or

                             (ii)  the exercise by an IGIS official of the IGIS official’s powers;

                            communicate to the IGIS official, or make use of, or make a record of, that information; and

                     (g)  an IGIS official may, in connection with:

                              (i)  the performance by the IGIS official of the IGIS official’s functions or duties; or

                             (ii)  the exercise by the IGIS official of the IGIS official’s powers;

                            communicate to another person, or make use of, or make a record of, that information.

             (8)  Despite subsection 13.3(3) of the Criminal Code , in a prosecution for an offence against section 63 of this Act, an Ombudsman official or an IGIS official does not bear an evidential burden in relation to the matters in subsection (4), (6) or (7) of this section.

57  Paragraph 67(1)(a)

Omit “or general computer access intercept information”, substitute “, general computer access intercept information or data disruption intercept information”.

58  Section 68

After “general computer access intercept information”, insert “or data disruption intercept information”.

59  Subsection 74(1)

After “general computer access intercept information”, insert “, data disruption intercept information”.

60  Subsection 75(1)

After “general computer access warrant”, insert “, a data disruption warrant”.

61  Paragraphs 77(1)(a) and (b)

After “63AC,”, insert “63AD,”.

62  After paragraph 108(2)(cb)

Insert:

                    (cc)  accessing a stored communication under a data disruption warrant; or