27KKA   Sunsetting

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

27KK   Application for network activity warrant

             (1)  The chief officer of the Australian Federal Police or the Australian Crime Commission may apply for the issue of a network activity warrant if the chief officer suspects on reasonable grounds that:

                     (a)  a group of individuals is a criminal network of individuals; and

                     (b)  access to data held in a computer (the target computer ) that is, from time to time, used, or likely to be used, by any of the individuals in the group will substantially assist in the collection of intelligence that:

                              (i)  relates to the group or to any of the individuals in the group; and

                             (ii)  is relevant to the prevention, detection or frustration of one or more kinds of relevant offences.

             (2)  For the purposes of subsection (1), it is immaterial whether:

                     (a)  the identities of the individuals in the group can be ascertained; or

                     (b)  the target computer can be identified; or

                     (c)  the location of the target computer can be identified; or

                     (d)  there are likely to be changes, from time to time, in the composition of the group.

Procedure for making applications

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

             (4)  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 the grounds on which the warrant is sought.

Unsworn applications

             (5)  If the chief officer of the Australian Federal Police or the Australian Crime Commission believes that:

                     (a)  immediate access to data held in the target computer referred to in subsection (1) will substantially assist as described in paragraph (1)(b); and

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

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

             (6)  If subsection (5) 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

             (7)  The target computer referred to in subsection (1):

                     (a)  must be a computer that is, from time to time, used or likely to be used by an individual (whose identity may or may not be known); and

                     (b)  may be one or more of the following:

                              (i)  a particular computer;

                             (ii)  a computer that is, from time to time, on particular premises.

27KL   Remote application

             (1)  If the chief officer of the Australian Federal Police or the Australian Crime Commission believes that it is impracticable for an application for a network activity warrant to be made in person, the application may be made under section 27KK 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.

27KM   Determining the application

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

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

                    (aa)  that the issue of the warrant is justified and proportionate, having regard to the kinds of offences in relation to which information will be obtained under the warrant; and

                     (b)  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

                     (c)  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 network activity 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 kinds of offences in relation to which information will be obtained under the warrant; and

                     (b)  the extent to which access to data under the warrant will assist in the collection of intelligence that:

                              (i)  relates to the group referred to in paragraph 27KK(1)(a) or to any of the individuals in the group; and

                             (ii)  is relevant to the prevention, detection or frustration of one or more kinds of relevant offences; and

                     (c)  the likely intelligence value of any information sought to be obtained; and

                     (d)  whether the things authorised by the warrant are proportionate to the likely intelligence value of any information sought to be obtained; and

                     (e)  the existence of any alternative, or less intrusive, means of obtaining the information sought to be obtained; and

                      (f)  the extent to which the execution of the warrant is likely to result in access to data of persons who are lawfully using a computer, and any privacy implications (to the extent known to the eligible Judge or nominated AAT member) resulting from that access; and

                    (fa)  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 27KP) 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 27KK(1)(b) 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

                     (g)  any previous warrant sought or issued under this Division in relation to the group referred to in paragraph 27KK(1)(a).

          (2A)  For the purposes of having regard to the nature and gravity of the conduct constituting the kinds of offences in relation to which information will be obtained under the warrant, the eligible Judge or 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.

          (2B)  Subsection (2A) does not limit the matters that may be considered by the eligible Judge or nominated AAT member.

          (2C)  To avoid doubt, this Act does not prevent a network activity warrant from being issued in a case where the conduct constituting the kinds of offences in relation to which information will be obtained under the warrant is not covered by subsection (2A).

             (3)  If a network activity warrant is issued in response to an application made by the chief officer of the Australian Federal Police or the Australian Crime Commission, the chief officer must:

                     (a)  notify the issue of the warrant to the Inspector-General of Intelligence and Security; and

                     (b)  do so within 7 days after the issue of the warrant.

             (4)  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.

27KN   What must a network activity warrant contain?

             (1)  A network activity warrant must:

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

                     (b)  specify:

                              (i)  the name of the applicant; and

                             (ii)  the kinds of relevant offences in respect of which the warrant is issued; and

                            (iii)  the criminal network of individuals to which the warrant relates; and

                            (iv)  the date the warrant is issued; and

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

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

                           (vii)  any conditions subject to which things may be done under the warrant; and

                     (c)  if the warrant authorises the use of a surveillance device—specify:

                              (i)  the surveillance device authorised to be used; and

                             (ii)  the purpose or purposes for which the surveillance device may be used under the warrant.

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

Note:          The access to data held in the target computer pursuant to a warrant may be discontinued earlier—see section 27KS.

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

             (4)  For the purposes of subparagraph (1)(b)(iii), a criminal network of individuals may be specified by identifying one or more matters or things that are sufficient to identify the criminal network of individuals.

             (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.

27KP   What a network activity warrant authorises

             (1)  A network activity 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 purpose of 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;

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

                     (e)  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)  using any other computer or a communication in transit to access 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)  using a surveillance device for the purposes of doing any thing specified in the warrant in accordance with this subsection;

                      (j)  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 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 network activity 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 access to the data will substantially assist as described in paragraph 27KK(1)(b). To avoid doubt, it is immaterial whether the composition of the group mentioned in that paragraph changes during the period when the warrant is in force.

Certain acts not authorised

             (6)  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.

Warrant must provide for certain matters

             (7)  A network activity 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.

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

                     (a)  a network activity 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)  using a surveillance device, if the use is for the purposes of doing any thing mentioned in this subsection;

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

at the following time:

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

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

             (9)  Subsection (8) 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 (8); or

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

           (10)  If a computer or another thing is removed from a place in accordance with paragraph (8)(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 (8)(c).

27KQ   Extension and variation of network activity warrant

             (1)  If a network activity warrant was issued in response to an application by the chief officer of the Australian Federal Police or the Australian Crime Commission, the chief officer 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 27KK and 27KL 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 27KM(1) still exist, having regard to the matters in subsection 27KM(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.

             (7)  If a network activity warrant is extended or varied in response to an application made by the chief officer of the Australian Federal Police or the Australian Crime Commission, the chief officer must:

                     (a)  notify the extension or variation to the Inspector-General of Intelligence and Security; and

                     (b)  do so within 7 days after the extension or variation.

27KR   Revocation of network activity warrant

             (1)  A network activity 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 27KS(2) apply in relation to a network activity warrant:

                     (a)  if the warrant was issued in response to an application made by the chief officer of the Australian Federal Police—the chief officer of the Australian Federal Police must, by instrument in writing, revoke the warrant; or

                     (b)  if the warrant was issued in response to an application made by the chief officer of the Australian Crime Commission—the chief officer of the Australian Crime Commission 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, the chief officer of the Australian Federal Police or the chief officer of the Australian Crime Commission, 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:

                     (a)  if the warrant was issued in response to an application made by the chief officer of the Australian Federal Police—the chief officer of the Australian Federal Police; or

                     (b)  if the warrant was issued in response to an application made by the chief officer of the Australian Crime Commission—the chief officer of the Australian Crime Commission.

             (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.

             (6)  If:

                     (a)  a network activity warrant was issued in response to an application made by the chief officer of the Australian Federal Police or the Australian Crime Commission; and

                     (b)  an eligible Judge or nominated AAT member revokes the warrant;

the chief officer must:

                     (c)  notify the revocation to the Inspector-General of Intelligence and Security; and

                     (d)  do so within 7 days after the revocation.

             (7)  If a network activity warrant is revoked by the chief officer of the Australian Federal Police or the Australian Crime Commission, the chief officer must:

                     (a)  notify the revocation to the Inspector-General of Intelligence and Security; and

                     (b)  do so within 7 days after the revocation.

27KS   Discontinuance of access under warrant

Scope

             (1)  This section applies if a network activity warrant is issued.

Discontinuance of access

             (2)  If:

                     (a)  the warrant was sought by the chief officer of the Australian Federal Police or the Australian Crime Commission; and

                     (b)  the chief officer is satisfied that access to data under the warrant is no longer required for the purpose referred to in paragraph 27KK(1)(b);

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

             (3)  If:

                     (a)  the warrant was sought by the chief officer of the Australian Federal Police or the Australian Crime Commission; and

                     (b)  the chief officer is notified that the warrant has been revoked by an eligible Judge or a nominated AAT member under section 27KR;

the chief officer must take the steps necessary to ensure that access to data authorised by the warrant is discontinued as soon as practicable.

             (4)  If the law enforcement officer who is primarily responsible for executing the warrant believes that access to data under the warrant is no longer necessary for the purpose referred to in paragraph 27KK(1)(b), 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.

27KT   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.

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

Omit “or 43D”, substitute “, 43D or 43E”.

11  At the end of Part 5

Add:

43E   Extraterritorial operation of network activity warrants

             (1)  If, before the issue of a network activity warrant, it becomes apparent to the applicant that there will be a need for access to 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 unless the eligible Judge or nominated AAT member is satisfied that the access has been agreed to by an appropriate consenting official of the foreign country.

             (2)  If:

                     (a)  a network activity 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 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 if, and only if, the access has been agreed to by an appropriate consenting official of the foreign country.

             (3)  Subsections (1) and (2) do not apply to a network activity warrant authorising access to 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.

             (4)  Despite subsections (1) and (2), 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 offence in respect of which it becomes apparent that access to data held in a computer on the vessel will be required is an offence 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 while the vessel is in such waters.

             (5)  Despite subsections (1) and (2), 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 offence in respect of which it becomes apparent that access to data held in a computer on the vessel will be required is an offence 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 while the vessel is in those waters.

             (6)  As soon as practicable after the commencement of access to data held in a computer under the authority of a network activity warrant in circumstances where consent to that access 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 has been agreed to by an appropriate consenting official of the foreign country.

             (7)  An instrument providing evidence of the kind referred to in subsection (6) is not a legislative instrument.

             (8)  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) and (2) 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.

             (9)  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 data held in a computer under the authority of a network activity 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.

12  Subsection 44(1) (paragraph (a) of the definition of protected information )

After “warrant”, insert “(other than a network activity warrant)”.

13  Subsection 44(1) (subparagraph (b)(i) of the definition of protected information )

After “warrant”, insert “(other than a network activity warrant)”.

14  Subsection 44(1) (paragraph (c) of the definition of protected information )

After “warrant”, insert “(other than a network activity warrant)”.

15  Subsection 44(1) (subparagraph (d)(i) of the definition of protected information )

After “warrant”, insert “(other than a network activity warrant)”.

16  Subsection 44(1) (subparagraph (d)(iii) of the definition of protected information )

After “obtained”, insert “(otherwise than purportedly under a network activity warrant)”.

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

After “warrant” (last occurring), insert “(other than a network activity warrant)”.

18  After section 44

Insert:

44A   What is protected network activity warrant information?

                   For the purposes of this Act, protected network activity warrant information means:

                     (a)  any information (other than network activity warrant intercept information) obtained from access to data under a network activity warrant; or

                     (b)  any information obtained from the use of a surveillance device under a network activity warrant; or

                     (c)  information relating to an application for, the issue of, the existence of, or the expiration of, a network activity warrant; or

                     (d)  any information that is likely to enable the identification of:

                              (i)  a criminal network of individuals specified in a network activity warrant; or

                             (ii)  an individual in a criminal network of individuals specified in a network activity warrant; or

                            (iii)  a computer specified in a network activity warrant; or

                            (iv)  premises specified in a network activity warrant; or

                     (e)  any other information obtained by a law enforcement officer:

                              (i)  without the authority of a network activity warrant; or

                             (ii)  in a case where the information was obtained, purportedly under a network activity warrant, through access to 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 43E;

                            in contravention of the requirement for a network activity warrant.

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

19  After section 45A

Insert:

45B   Prohibition on use, recording, communication or publication of protected network activity warrant information or its admission in evidence

             (1)  A person commits an offence if:

                     (a)  the person uses, records, communicates or publishes any information; and

                     (b)  the information is protected network activity warrant information; and

                     (c)  the use, recording, communication or publication of the information is not permitted by this section.

Penalty:  Imprisonment for 2 years.

             (2)  A person commits an offence if:

                     (a)  the person uses, records, communicates or publishes any information; and

                     (b)  the information is protected network activity warrant information; and

                     (c)  the use, recording, communication or publication of the information is not permitted by this section; and

                     (d)  the use, recording, communication or publication of the information:

                              (i)  endangers the health or safety of any person; or

                             (ii)  prejudices the effective conduct of an investigation into a relevant offence.

Penalty:  Imprisonment for 10 years.

             (3)  Subject to subsections (4), (5), (7) and (10), protected network activity warrant information may not be admitted in evidence in any proceedings.

             (4)  Subsections (1), (2) and (3) do not apply to:

                     (a)  the use, recording, communication or publication of protected network activity warrant information in connection with the administration or execution of this Act; or

                     (b)  the use, recording, communication or publication of any information that has been disclosed in proceedings in open court lawfully; or

                     (c)  the use or communication of protected network activity warrant information by a person who believes on reasonable grounds that the use or communication is necessary to help prevent or reduce the risk of serious violence to a person or substantial damage to property; or

                     (d)  the communication to the Director-General (within the meaning of the Australian Security Intelligence Organisation Act 1979 ) of protected network activity warrant information that relates or appears to relate to any matter within the functions of that organisation; or

                     (e)  the communication to the agency head (within the meaning of the Intelligence Services Act 2001 ) of an agency (within the meaning of that Act) of protected network activity warrant information that relates or appears to relate to any matter within the functions of that agency; or

                      (f)  the use, recording or communication of:

                              (i)  protected network activity warrant information referred to in paragraph (d)—by the Director-General (within the meaning of the Australian Security Intelligence Organisation Act 1979 ), an ASIO employee (within the meaning of that Act) or an ASIO affiliate (within the meaning of that Act); or

                             (ii)  protected network activity warrant information referred to in paragraph (e)—by the agency head (within the meaning of the Intelligence Services Act 2001 ), or a staff member (within the meaning of that Act), of an agency (within the meaning of that Act);

                            in the performance of the official functions of the Director-General, ASIO employee, ASIO affiliate, agency head or staff member, as the case may be.

             (5)  Protected network activity warrant information (other than information that was obtained from the use of a surveillance device under a network activity warrant) may be used, recorded, communicated or published, or may be admitted in evidence, if it is necessary to do so for any of the following purposes:

                     (a)  the purposes of the Australian Federal Police collecting, correlating, analysing or disseminating criminal intelligence in the performance of the functions conferred by section 8 of the Australian Federal Police Act 1979 ;

                     (b)  the purposes of the Australian Crime Commission collecting, correlating, analysing or disseminating criminal intelligence in the performance of the functions conferred by section 7A of the Australian Crime Commission Act 2002 ;

                     (c)  the purposes of the Australian Federal Police or the Australian Crime Commission making reports in relation to criminal intelligence;

                     (d)  the making of an application for a warrant;

                     (e)  the making of an application for the variation of a warrant;

                      (f)  the making of an application for the extension of a warrant;

                     (g)  the keeping of records and the making of reports by the Australian Federal Police or the Australian Crime Commission under Division 2;

                     (h)  the purposes of an IGIS official exercising powers, or performing functions or duties, as an IGIS official;

                      (i)  the purposes of an investigation of an offence against subsection (1) or (2);

                      (j)  a proceeding relating to an offence against subsection (1) or (2).

             (6)  The definition of warrant in subsection 6(1) does not apply to paragraphs (5)(d), (e) and (f) of this section.

Note:          This means that warrant has its ordinary meaning.

             (7)  Protected network activity warrant information that was obtained from the use of a surveillance device under a network activity warrant may be used, recorded, communicated or published, or may be admitted in evidence, if it is necessary to do so for any of the following purposes:

                     (a)  the purposes of doing a thing authorised by a network activity warrant;

                     (b)  the purposes of an IGIS official exercising powers, or performing functions or duties, as an IGIS official;

                     (c)  the purposes of an investigation of an offence against subsection (1) or (2);

                     (d)  a proceeding relating to an offence against subsection (1) or (2).

             (8)  Protected network activity warrant 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.

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

           (10)  Protected network activity warrant information may be admitted in evidence in:

                     (a)  a criminal proceeding for an offence against subsection (1) or (2); or

                     (b)  a proceeding that is not a criminal proceeding.

           (11)  If:

                     (a)  protected network activity warrant information was obtained from access to data, or the use of a surveillance device, under a network activity warrant; and

                     (b)  the warrant was granted in response to an application made by the chief officer of a particular law enforcement agency; and

                     (c)  the information:

                              (i)  is communicated to another law enforcement agency (by communicating it to the chief officer or another officer of that agency) for a particular purpose; or

                             (ii)  is communicated to any agency that is not a law enforcement agency (other than the Office of the Inspector-General of Intelligence and Security, the Australian Security Intelligence Organisation and the agencies within the meaning of the Intelligence Services Act 2001 ) (by communicating it to the officer in charge of that agency or to another officer of that agency) for a particular purpose;

the information that has been so communicated:

                     (d)  may be communicated from one officer to another within that agency for that purpose only; and

                     (e)  must not be communicated to any person who is not an officer of that agency.

20  After section 46

Insert:

46AA   Dealing with records obtained by accessing data under a network activity warrant

             (1)  The chief officer of the Australian Federal Police or the Australian Crime Commission:

                     (a)  must ensure that every record or report comprising:

                              (i)  protected network activity warrant information; or

                             (ii)  network activity warrant intercept information;

                            is kept in a secure place that is not accessible to people who are not entitled to deal with the record or report; and

                     (b)  must cause to be destroyed any record or report referred to in paragraph (a):

                              (i)  as soon as practicable after the making of the record or report if the chief officer is satisfied that no civil or criminal proceeding to which the material contained in the record or report relates has been, or is likely to be, commenced and that the material contained in the record or report is not likely to be required in connection with an activity referred to in subsection 45B(4) or a purpose referred to in subsection 45B(5) or (7); and

                             (ii)  within the period of 5 years after the making of the record or report, and within each period of 5 years thereafter, unless, before the end of that period, the chief officer is satisfied in relation to the material contained in the record or report of a matter referred to in subparagraph (i) and certifies to that effect.

             (2)  If an agency is not a law enforcement agency but, as described in subsection 45B(5) or (7), receives records or reports obtained by accessing data, or using a surveillance device, under a network activity warrant, the officer in charge of the agency:

                     (a)  must ensure that every record or report that is so received is kept in a secure place that is not accessible to people who are not entitled to deal with the record or report; and

                     (b)  must cause to be destroyed any record or report referred to in paragraph (a):

                              (i)  as soon as practicable after the receipt of the record or report by the agency if the officer in charge is satisfied that no civil or criminal proceeding to which the material contained in the record or report relates has been, or is likely to be, commenced and that the material contained in the record or report is not likely to be required in connection with an activity referred to in subsection 45B(4) or a purpose referred to in subsection 45B(5) or (7); and

                             (ii)  within the period of 5 years after the making of the record or report, and within each period of 5 years thereafter, unless, before the end of that period, the officer in charge is satisfied in relation to the material contained in the record or report of a matter referred to in subparagraph (i) and certifies to that effect.

             (3)  Subsection (2) does not apply to the Office of the Inspector-General of Intelligence and Security.

21  Subsection 47A(7) (after paragraph (c) of the definition of computer access technologies or methods )

Insert:

                    (ca)  a network activity warrant; or

22  After subsection 49(2D)

Insert:

          (2E)  In the case of a network activity warrant for access to data held in a computer, the report must:

                     (a)  state whether the warrant was executed; and

                     (b)  if so:

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

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

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

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

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

                            (vi)  give details of any use of a surveillance device under the warrant; and

                           (vii)  give details of the extent to which the execution of the warrant has contributed to the prevention, detection or frustration of one or more kinds of relevant offences; and

                          (viii)  give details of the extent to which the execution of the warrant has assisted the agency in carrying out its functions; and

                            (ix)  give details of the communication of information obtained by accessing data under the warrant to persons other than officers of the agency; and

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

                            (xi)  give details of the information that was obtained from access to data under the warrant; and

                           (xii)  give details of how the information that was obtained under the warrant was used; and

                          (xiii)  give details of whether the information that was obtained under the warrant was destroyed or retained under section 46AA; and

                          (xiv)  give details of any premises accessed, telecommunications intercepted or computers removed from premises under the warrant; and

                           (xv)  give details of any activities undertaken under subsection 27KP(8) in relation to the warrant; and

                          (xvi)  give details of any assistance orders made under subsection 64A(6A) in relation to the warrant; and

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

                              (i)  the number of extensions or variations; and

                             (ii)  the reasons for them.

23  After section 49C

Insert:

49D   Notification to Inspector-General of Intelligence and Security of things done under a network activity warrant

                   If:

                     (a)  a network activity warrant was issued in response to an application made by the chief officer of the Australian Federal Police or the Australian Crime Commission; and

                     (b)  a thing mentioned in subsection 27KP(8) was done under the warrant after the 28-day period mentioned in paragraph 27KP(8)(k);

the chief officer must:

                     (c)  notify the Inspector-General of Intelligence and Security of the fact that the thing was done under the warrant after the 28-day period mentioned in paragraph 27KP(8)(k); and

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

24  After paragraph 50(1)(eb)

Insert:

                    (ec)  if the agency is the Australian Federal Police or the Australian Crime Commission—the kinds of offences in relation to which information was obtained under network activity warrants issued during that year in response to applications made by the chief officer of the agency; and

25  Paragraph 51(b)

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

26  After paragraph 52(1)(h)

Insert:

                   (ha)  if the agency is the Australian Federal Police or the Australian Crime Commission—details of things done under subsection 27KP(8) in relation to a network activity warrant;

27  Paragraph 52(1)(j)

After “46(1)(b)”, insert “or 46AA(1)(b)”.

28  After subsection 55(1)

Insert:

          (1A)  Subsection (1) does not apply to compliance with:

                     (a)  Division 6 of Part 2 (network activity warrants); or

                     (b)  the remaining provisions of this Act so far as they relate to network activity warrants.

29  At the end of subsection 62(1)

Add:

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

                              (i)  the communication by a person to another person; 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 data under a network activity warrant.

30  After subparagraph 64A(1)(a)(i)

Insert:

                            (ia)  a network activity warrant; or

31  After subsection 64A(6)

Insert:

Network activity warrant

          (6A)  In the case of a computer that is the subject of a network activity warrant, the eligible Judge or nominated AAT member may grant the assistance order if the eligible Judge or nominated AAT member is satisfied that:

                     (a) there are reasonable grounds for suspecting that access to data held in the computer will substantially assist in the collection of intelligence that:

                              (i)  relates to the group referred to in paragraph 27KK(1)(a) or to any of the individuals in the group; and

                             (ii)  is relevant to the prevention, detection or frustration of one or more kinds of relevant offences; and

                     (b)  the specified person is:

                              (i)  reasonably suspected of having committed any of the relevant offences in respect of which the warrant was issued; or

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

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

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

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

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

                     (c)  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.

31A  After subsection 64A(7)

Insert:

          (7A)  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 64B 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.

          (7B)  Subsection (7A) does not limit the matters to which the eligible Judge or nominated AAT member may have regard.

Duration of assistance order

          (7C)  If an assistance order is granted in relation to a computer that is the subject of a computer access warrant or a network activity warrant, the order ceases to be in force when the warrant ceases to be in force.

          (7D)  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(1A), 29(1A) or 30(1A), the order ceases to be in force when the emergency authorisation ceases to be in force.

Protection from civil liability

          (7E)  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.

32  Paragraph 65(1A)(a)

After “data disruption warrant”, insert “, network activity warrant”.