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Schedule 3—Account takeover warrants

Schedule 3 Account takeover warrants

   

Crimes Act 1914

1  Subsection 3(1) (definition of law enforcement officer )

Before “means”, insert “(except in Part IAAC)”.

2  Subsection 3LA(6) (penalty)

Omit “for contravention of this subsection”.

3  At the end of section 3LA

Add:

Additional use of information etc.

             (7)  If information or assistance is provided under this section in connection with an investigation into one or more alleged offences, this Act does not, by implication, prevent the information or assistance from being used in connection with the execution of an account takeover warrant (within the meaning of Part IAAC) that relates to that investigation.

4  After Part IAAB

Insert:

Part IAAC Account takeover warrants

Division 1 Introduction

3ZZUJ   Simplified outline of this Part

•      An account takeover warrant may be issued by a magistrate.

•      An account takeover warrant authorises the Australian Federal Police or the ACC to take control of one or more online accounts.

•      The applicant for an account takeover warrant must suspect on reasonable grounds that:

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

      (b)     an investigation into those offences is being, will be, or is likely to be, conducted; and

       (c)     taking control of the online accounts is necessary, in the course of that investigation, for the purpose of enabling evidence to be obtained of the commission of those offences.

•      An emergency authorisation for taking control of an online account may be given by an appropriate authorising officer.

•      An emergency authorisation is subject to approval by a magistrate.

•      A magistrate may make an order requiring a person to provide any information or assistance that is reasonable and necessary to allow a law enforcement officer to take control of an online account that is the subject of an account takeover warrant or emergency authorisation.

•      A person must not use or disclose information that:

       (a)     was obtained under an account takeover warrant or emergency authorisation; or

      (b)     relates to an application for, the issue of, the existence of, or the expiration of, an account takeover warrant or emergency authorisation; or

       (c)     relates to an application for approval of the giving of an emergency authorisation.

•      The Australian Federal Police and the ACC must comply with reporting and record keeping requirements relating to account takeover warrants and emergency authorisations.

•      The Ombudsman must inspect the records of the Australian Federal Police and the ACC to determine the extent of compliance with this Part by:

       (a)     the Australian Federal Police and the ACC; and

      (b)     law enforcement officers.

Note:          This Part confers non-judicial functions and powers on magistrates. Section 4AAA deals with the conferral of non-judicial functions and powers on magistrates.

3ZZUK   Definitions

In this Part:

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

account-based data has the same meaning as in Part IAA.

account credentials means information that a user of an online account requires in order to access or operate the account, and includes (for example) each of the following:

                     (a)  a username;

                     (b)  a password;

                     (c)  a PIN;

                     (d)  a security question or answer;

                     (e)  a biometric form of identification.

account takeover warrant means a warrant issued under section 3ZZUP or subsection 3ZZVC(2) or (3).

appropriate authorising officer has the meaning given by section 3ZZUM.

carrier means:

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

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

chief officer means the following:

                     (a)  in relation to the Australian Federal Police—the Commissioner of the Australian Federal Police;

                     (b)  in relation to the ACC—the Chief Executive Officer of the ACC.

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

computer means all or part of:

                     (a)  one or more computers; or

                     (b)  one or more computer systems; or

                     (c)  one or more computer networks; or

                     (d)  any combination of the above.

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

emergency authorisation means an emergency authorisation given under section 3ZZUX.

executing officer , in relation to an account takeover warrant, means:

                     (a)  the law enforcement officer named in the warrant by the issuing magistrate as being responsible for executing the warrant; or

                     (b)  if that law enforcement officer does not intend to execute the warrant—another law enforcement officer whose name has been written in the warrant by the law enforcement officer so named; or

                     (c)  another law enforcement officer whose name has been written in the warrant by the law enforcement officer last named in the warrant.

formal application has the meaning given by paragraph 3ZZUN(2)(a).

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 .

law enforcement agency means:

                     (a)  the Australian Federal Police; or

                     (b)  the ACC.

law enforcement officer means the following:

                     (a)  in relation to the Australian Federal Police:

                              (i)  the Commissioner of the Australian Federal Police; or

                             (ii)  a Deputy Commissioner of the Australian Federal Police; or

                            (iii)  an AFP employee (within the meaning of the Australian Federal Police Act 1979 ); or

                            (iv)  a special member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979 ); or

                             (v)  a person seconded to the Australian Federal Police;

                     (b)  in relation to the ACC:

                              (i)  the Chief Executive Officer of the ACC; or

                             (ii)  a member of the staff of the ACC.

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 .

online account means an account that an electronic service has for an end-user.

protected information means:

                     (a)  any information obtained under an account takeover warrant or an emergency authorisation; or

                     (b)  information relating to:

                              (i)  an application for, the issue of, the existence of, or the expiration of, an account takeover warrant or emergency authorisation; or

                             (ii)  an application for approval of the giving of an emergency authorisation.

relevant offence means:

                     (a)  a serious Commonwealth offence; or

                     (b)  a serious State offence that has a federal aspect.

serious Commonwealth offence has the same meaning as in Part IAB.

serious State offence that has a federal aspect has the same meaning as in Part IAB.

takes control has the meaning given by section 3ZZUL.

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

urgent application has the meaning given by paragraph 3ZZUN(2)(b).

3ZZUL   When a person takes control of an online account

             (1)  For the purposes of this Part, a person takes control of an online account if the person takes one or more steps that result in the person having exclusive access to the account.

             (2)  The following are examples of such steps:

                     (a)  using existing account credentials to alter one or more account credentials;

                     (b)  removing a requirement for two-factor authentication;

                     (c)  altering the kind or kinds of account credentials that are required to access or operate the account.

3ZZUM   Appropriate authorising officer

Australian Federal Police

             (1)  For the purposes of this Part, an appropriate authorising officer of the Australian Federal Police is:

                     (a)  the chief officer of the Australian Federal Police; or

                     (b)  a Deputy Commissioner of the Australian Federal Police; or

                     (c)  a senior executive AFP employee who is authorised under subsection (2).

             (2)  The chief officer of the Australian Federal Police may authorise, in writing, a person who is a senior executive AFP employee to be an appropriate authorising officer of the Australian Federal Police for the purposes of this Part.

ACC

             (3)  For the purposes of this Part, an appropriate authorising officer of the ACC is:

                     (a)  the chief officer of the ACC; or

                     (b)  an executive level member of the staff of the ACC who is authorised under subsection (4).

             (4)  The chief officer of the ACC may authorise, in writing, a person who is an executive level member of the staff of the ACC to be an appropriate authorising officer of the ACC for the purposes of this Part.

Division 2 Account takeover warrants

3ZZUMA   Sunsetting

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

3ZZUN   Application for account takeover warrant

             (1)  A law enforcement officer may apply to a magistrate for the issue of an account takeover warrant if the law enforcement officer suspects on reasonable grounds that:

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

                     (b)  an investigation into those offences is being, will be, or is likely to be, conducted; and

                     (c)  taking control of one or more online accounts (the target accounts ) is necessary, in the course of that investigation, for the purpose of enabling evidence to be obtained of the commission of those offences.

             (2)  An application for an account takeover warrant may be made:

                     (a)  in person (such an application is a formal application ); or

                     (b)  if the applicant believes that it is impracticable for the application to be made in person—by telephone, email, fax or any other means of communication (such an application is an urgent application ).

          (2A)  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

          (2B)  If a law enforcement officer believes that:

                     (a)  taking control of the target accounts is immediately necessary, in the course of the investigation mentioned in paragraph (1)(c), for the purpose of enabling evidence to be obtained of the commission of the offences mentioned in that paragraph; and

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

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

          (2C)  If subsection (2B) applies, the applicant must:

                     (a)  provide as much information as the magistrate 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 magistrate, whether or not a warrant has been issued.

          (2D)  If:

                     (a)  subsection (2B) applies; and

                     (b)  transmission by fax is available; and

                     (c)  an affidavit has been prepared;

the person applying must transmit a copy of the affidavit, whether sworn or unsworn, to the magistrate who is to determine the application.

             (3)  An application (whether formal or urgent) must provide sufficient information to enable the magistrate to decide whether or not to issue the warrant.

             (4)  A magistrate may require an applicant to provide such additional information as is necessary for the proper consideration of the application.

             (5)  As soon as practicable after making an urgent application that was not made in writing, the applicant must:

                     (a)  make a written record of the application; and

                     (b)  give a copy of the record to the magistrate to whom the application was made.

3ZZUP   Determining the application

             (1)  A magistrate may issue an account takeover warrant if satisfied that there are reasonable grounds for the suspicion founding the application for the warrant.

             (2)  In determining whether an account takeover warrant should be issued, the magistrate must have regard to:

                     (a)  the nature and gravity of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought; and

                     (b)  the existence of any alternative means of obtaining the evidence sought to be obtained; and

                     (c)  the extent to which the privacy of any person is likely to be affected; and

                     (d)  the likely evidentiary value of any evidence sought to be obtained; and

                   (da)  the extent to which the execution of the warrant is likely to impact on persons lawfully using a computer, so far as that matter is known to the magistrate; and

                   (db)  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 magistrate; and

                   (dc)  if:

                              (i)  the magistrate believes on reasonable grounds that each target account is held by a person who is working in a professional capacity as a journalist or of an employer of such a person; and

                             (ii)  the alleged relevant offence, or each of the alleged relevant offences, in respect of which the warrant is sought 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

                     (e)  any previous warrant sought or issued under this Division in connection with the same online account; and

                      (f)  any previous warrant sought or issued under this Division in connection with the same alleged relevant offence or the same alleged relevant offences.

             (3)  For the purposes of having regard to the nature and gravity of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought, the magistrate must give weight to the following matters:

                     (a)  whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought amounts to:

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

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

                     (b)  whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought amounts to:

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

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

                     (c)  whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought:

                              (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 the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought:

                              (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 the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought:

                              (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 the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought 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 magistrate.

             (5)  To avoid doubt, this Act does not prevent an account takeover warrant from being issued in a case where the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought 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.

3ZZUQ   What must an account takeover warrant contain?

             (1)  An account takeover warrant must:

                     (a)  state that the magistrate issuing the warrant is satisfied of the matters referred to in subsection 3ZZUP(1) and has had regard to the matters referred to in subsection 3ZZUP(2); and

                     (b)  specify:

                              (i)  the name of the applicant; and

                             (ii)  the name of the law enforcement officer who, unless the officer inserts the name of another law enforcement officer in the warrant, is to be responsible for executing the warrant; and

                            (iii)  the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is issued; and

                            (iv)  the date the warrant is issued; and

                             (v)  the period during which the warrant is in force (see subsection (3)); and

                            (vi)  each target account; and

                           (vii)  for each target account where the holder of the target account is known to the applicant—the holder; and

                          (viii)  for each target account where one or more users of the target account (other than the holder of the target account) are known to the applicant—those users; and

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

                     (c)  set out an outline of the investigation to which the warrant relates.

             (2)  For the purposes of subparagraph (1)(b)(vi), a target account may be specified by identifying one or more matters or things that are sufficient to identify the target account.

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

Note:          The execution of a warrant may be discontinued earlier—see section 3ZZUU.

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

3ZZUR   What an account takeover warrant authorises

             (1)  An account takeover warrant must authorise the doing of specified things (subject to any restrictions or conditions specified in the warrant) in relation to each target account.

             (2)  The things that may be specified are any of the following that the magistrate considers appropriate in the circumstances:

                     (a)  taking control of the target account at any time while the warrant is in force, if doing so is necessary, in the course of the investigation to which the warrant relates, for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is issued;

                     (b)  using:

                              (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 taking control of the target account as mentioned in paragraph (a);

                     (c)  if necessary for the purpose of taking control of the target account as mentioned in paragraph (a):

                              (i)  accessing account-based data to which the target account relates; or

                             (ii)  adding, copying, deleting or altering account credentials to which the target account relates; or

                            (iii)  adding, copying, deleting or altering data in a computer;

                     (d)  if, having regard to other methods (if any) of taking control of the target account which are likely to be as effective, it is reasonable in all the circumstances to do so:

                              (i)  using a communication in transit for the purpose of taking control of the target account as mentioned in paragraph (a); and

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

                     (e)  copying any account-based data to which the target account relates, and that:

                              (i)  appears to be relevant for the purposes of determining whether the account-based data is covered by the warrant; or

                             (ii)  is covered by the warrant;

                      (f)  copying any account credentials to which the target account relates;

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

             (3)  For the purposes of paragraph (2)(e), if:

                     (a)  access has been obtained to account-based data; and

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

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

When account-based data is covered by a warrant

             (4)  For the purposes of this section, account-based data is covered by a warrant if access to the data is necessary, in the course of the investigation to which the warrant relates, for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is issued.

Certain acts not authorised

             (5)  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.

Concealment of access etc.

             (6)  If any thing has been done under:

                     (a)  an account takeover 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)  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 a 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;

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

at the following time:

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

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

             (7)  Subsection (6) 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 (6); or

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

Statutory conditions

             (8)  An account takeover 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 justified and proportionate, having regard to the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is issued;

                     (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).

             (9)  Subsection (8) does not, by implication, limit the conditions to which an account takeover warrant may be subject.

           (10)  The conditions set out in subsection (8) must be specified in an account takeover warrant.

3ZZUS   Variation of account takeover warrant

             (1)  A law enforcement officer to whom an account takeover warrant has been issued may, by writing, 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 a magistrate and must be accompanied by the original warrant.

             (3)  The magistrate may, by writing, grant an application if satisfied that the matters referred to in subsection 3ZZUP(1) still exist, having regard to the matters in subsection 3ZZUP(2).

             (4)  If the magistrate grants the application, the magistrate must endorse the new expiry date or the other varied term on the original warrant.

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

3ZZUT   Revocation of account takeover warrant

             (1)  If an account takeover warrant is in force, a magistrate may, by instrument in writing, revoke the warrant.

             (2)  If the circumstances set out in subsection 3ZZUU(2) apply in relation to an account takeover warrant:

                     (a)  if the warrant was issued in response to an application made by a law enforcement 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 a law enforcement 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 magistrate or the chief officer, as the case requires.

             (4)  If a magistrate revokes an account takeover warrant, the magistrate must give a copy of the instrument of revocation to:

                     (a)  if the warrant was issued in response to an application made by a law enforcement 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 a law enforcement officer of the ACC—the chief officer of the ACC.

             (5)  If:

                     (a)  a magistrate revokes an account takeover 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.

3ZZUU   Discontinuance of execution of account takeover warrant

Scope

             (1)  This section applies if an account takeover warrant is issued.

Discontinuance of execution of account takeover warrant

             (2)  If:

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

                     (b)  the chief officer is satisfied that taking control of the target account is no longer required for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or any of the alleged relevant offences, in respect of which the warrant is issued;

the chief officer must, in addition to revoking the warrant under section 3ZZUT, take the steps necessary to ensure that the execution of the warrant is discontinued.

             (3)  If:

                     (a)  the warrant was sought by a law enforcement 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 a magistrate under section 3ZZUT;

the chief officer must take the steps necessary to ensure that the execution of the warrant is discontinued as soon as practicable.

             (4)  If the executing officer believes that taking control of the target account is no longer required for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or any of the alleged relevant offences, in respect of which the warrant is issued, the executing officer must immediately inform the chief officer of the law enforcement agency to which the executing officer belongs or is seconded.

3ZZUV   Restoration of online account

                   If:

                     (a)  an account takeover warrant ceases to be in force; and

                     (b)  it is lawful for the holder of a target account to operate the account; and

                     (c)  as a result of the execution of the warrant, the holder of the account cannot operate the account;

the executing officer must take all reasonable steps to ensure the holder of the account is able to operate the account.

3ZZUW   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.

Division 3 Emergency authorisations

3ZZUWA   Sunsetting

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

3ZZUX   Emergency authorisation—serious risks to person or property

             (1)  A law enforcement officer may apply to an appropriate authorising officer for an emergency authorisation for taking control of an online account if, in the course of an investigation of one or more relevant offences, 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)  taking control of the account is immediately necessary for the purpose of dealing with that risk; and

                     (c)  the circumstances are so serious and the matter is of such urgency that taking control of the account is warranted; and

                     (d)  it is not practicable in the circumstances to apply for an account takeover warrant.

             (2)  The application may be made orally, in writing or by telephone, fax, email or any other means of communication.

             (3)  The appropriate authorising officer may give the emergency authorisation if satisfied that there are reasonable grounds for the suspicion founding the application.

Statutory conditions

             (4)  An emergency authorisation 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 justified and proportionate, having regard to the risk of serious violence or substantial damage referred to in paragraph (1)(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).

3ZZUY   Record of emergency authorisations to be made

                   As soon as practicable after an appropriate authorising officer gives an emergency authorisation, the officer must make a written record of the giving of that authorisation, including in the record:

                     (a)  the name of the applicant for the authorisation; and

                     (b)  the date and time the authorisation was given; and

                     (c)  the nature of the authorisation given.

3ZZUZ   Attributes of emergency authorisations

             (1)  An emergency authorisation may authorise anything that an account takeover warrant may authorise.

             (2)  A law enforcement officer may take control of an online account under an emergency authorisation only if the officer is acting in the performance of the officer’s duty.

3ZZVA   Application for approval of emergency authorisation

             (1)  Within 48 hours after giving an emergency authorisation to a law enforcement officer, the appropriate authorising officer who gave the authorisation (or another person on that appropriate authorising officer’s behalf) must apply to a magistrate for approval of the giving of the emergency authorisation.

             (2)  The application must:

                     (a)  provide sufficient information to enable the magistrate to decide whether or not to approve the giving of the emergency authorisation; and

                     (b)  be accompanied by a copy of the written record made under section 3ZZUY in relation to the emergency authorisation.

3ZZVB   Consideration of application

                   Before deciding an application for approval of the giving of an emergency authorisation that relates to an online account, the magistrate considering the application must, in particular, and being mindful of the intrusive nature of taking control of the online account, 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 an account takeover warrant would have helped reduce or avoid the risk;

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

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

                     (e)  how much the use of alternative methods of investigation 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 an account takeover warrant.

3ZZVC   Magistrate may approve giving of an emergency authorisation

             (1)  After considering an application for approval of the giving of an emergency authorisation that relates to an online account, the magistrate 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)  taking control of the online account may have helped reduce the risk; and

                     (c)  it was not practicable in the circumstances to apply for an account takeover warrant.

             (2)  If the magistrate approves the giving of an emergency authorisation, the magistrate may:

                     (a)  unless paragraph (b) applies—issue an account takeover warrant relating to taking control of the online account as if the application for the approval were an application for an account takeover warrant under Division 2; or

                     (b)  if the magistrate is satisfied that, since the application for the emergency authorisation, the activity that required taking control of an online account has ceased—order the cessation of taking control of the online account.

             (3)  If the magistrate does not approve the giving of an emergency authorisation, the magistrate may:

                     (a)  order the cessation of taking control of the online account; or

                     (b)  if the magistrate is of the view that, although the situation did not warrant the emergency authorisation at the time when the authorisation was given, the use of an account takeover warrant under Division 2 is currently justified—issue an account takeover warrant relating to the taking control of the online account as if the application for the approval were an application for an account takeover warrant under Division 2.

             (4)  In any case, the magistrate 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.

3ZZVD   Admissibility of evidence

                   If the giving of an emergency authorisation is approved under section 3ZZVC, any evidence obtained because of the exercise of powers under that authorisation is not inadmissible in any proceeding only because the evidence was obtained before the approval.

3ZZVE   Restoration of online account

                   If:

                     (a)  a magistrate orders the cessation of taking control of the online account to which an emergency authorisation relates; and

                     (b)  as a result of the execution of the authorisation, the holder of the account cannot operate the account;

the law enforcement officer who applied for the authorisation must take all reasonable steps to ensure the holder of the account is able to operate the account.

3ZZVF   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.

Division 4 Assistance orders

3ZZVG   Person with knowledge of an online account to provide assistance

             (1)  If an account takeover warrant or emergency authorisation is in force, a law enforcement officer may apply to a magistrate 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 take control of an online account that is the subject of the warrant or authorisation.

Grant of assistance order

             (2)  The magistrate may grant the assistance order if the magistrate is satisfied that:

                     (a)  there are reasonable grounds for suspecting that taking control of the account is necessary, in the course of the investigation to which the account takeover warrant relates, for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or any of the alleged relevant offences, in respect of which the warrant is issued; and

                     (b)  the specified person is:

                              (i)  reasonably suspected of having committed the alleged relevant offence, or any of the alleged relevant offences, in respect of which the warrant is issued; or

                             (ii)  the holder of the account; or

                            (iii)  an employee of the holder of the account; or

                            (iv)  a person engaged under a contract for services by the holder of the account; or

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

                            (vi)  a person who is or was a system administrator for the electronic service to which the account relates; and

                     (c)  the specified person has relevant knowledge of:

                              (i)  the account; or

                             (ii)  the electronic service to which the account relates; or

                            (iii)  measures applied to protect account-based data to which the account relates.

          (2A)  In determining whether the assistance order should be granted, the magistrate 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 3LA of this Act; or

                     (c)  an order under section 64A or 64B of the Surveillance Devices Act 2004 ;

so far as that matter is known to the magistrate.

          (2B)  Subsection (2B) does not limit the matters to which the magistrate may have regard.

Duration of assistance order

          (2C)  If an assistance order is granted in relation to a computer that is the subject of an account takeover 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, 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:  Imprisonment for 10 years or 600 penalty units, or both.

Additional use of information etc.

             (4)  If information or assistance is provided under this section in connection with an investigation into one or more alleged relevant offences, this Act does not, by implication, prevent the information or assistance from being used in connection with the execution of a section 3E warrant that relates to that investigation.

Division 5 Restrictions on use and disclosure of information

3ZZVH   Unauthorised use or disclosure of protected information

             (1)  A person commits an offence if:

                     (a)  the person uses or discloses information; and

                     (b)  the information is protected information.

Penalty:  Imprisonment for 2 years.

             (2)  A person commits an offence if:

                     (a)  the person uses or discloses any information; and

                     (b)  the information is protected information; and

                     (c)  the use or disclosure of the information endangers the health or safety of any person or prejudices the effective conduct of an investigation into a relevant offence.

Penalty:  Imprisonment for 10 years.

Exceptions

             (3)  Subsections (1) and (2) do not apply if the use or disclosure was:

                     (a)  in connection with the administration or execution of this Part; or

                     (b)  in connection with the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979 ; or

                     (c)  in connection with the functions of the ACC under section 7A of the Australian Crime Commission Act 2002 ; or

                     (d)  in connection with preventing, investigating or prosecuting an offence; or

                     (e)  by a person who believes on reasonable grounds that the use or disclosure is necessary to help prevent or reduce the risk of serious violence to a person or substantial damage to property; or

                      (f)  for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or

                     (g)  for the purposes of obtaining legal advice in relation to this Part; or

                     (h)  in accordance with any requirement imposed by law; or

                      (i)  in connection with the performance of functions or duties, or the exercise of powers, under this Part; or

                      (j)  in connection with the performance of functions or duties, or the exercise of powers, by:

                              (i)  a law enforcement officer; or

                             (ii)  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

                            (iii)  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); or

                     (k)  for the purposes of the admission of evidence in a proceeding that is not a criminal proceeding.

Note:          A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code .

             (4)  Subsections (1) and (2) do not apply if the disclosure was made by a person to an Ombudsman official (whether in connection with a complaint made to the Ombudsman or in any other circumstances).

Note:          A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code .

             (5)  Subsections (1) and (2) do not apply if the disclosure was made by a person to an IGIS official for the purposes of the IGIS official exercising powers, or performing functions or duties, as an IGIS official.

Note:          A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code .

3ZZVJ   Dealing with records obtained under, or relating to, account takeover warrants etc.

                   The chief officer of the Australian Federal Police or the ACC:

                     (a)  must ensure that every record or report comprising protected 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 or purpose referred to in subsection 3ZZVH(2), (3) or (4); 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.

3ZZVK   Protection of account takeover 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 account takeover 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 account takeover 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:

account takeover technologies or methods means:

                     (a)  technologies or methods relating to 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 taking control of an online account; or

                     (b)  technologies or methods relating to adding, copying, deleting or altering account-based data, if doing so is necessary to achieve the purpose mentioned in paragraph (a); or

                     (c)  technologies or methods relating to adding, copying, deleting or altering account credentials to which an online account relates, if doing so is necessary to achieve the purpose mentioned in paragraph (a);

where the technologies or methods have been, or are being, deployed in giving effect to an account takeover warrant or emergency authorisation.

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

Division 6 Reporting and record keeping

3ZZVL   Chief officers’ annual reports to the Minister and the Ombudsman

             (1)  As soon as practicable after 30 June in each year, the chief officer of the Australian Federal Police or the ACC must submit a report to the Minister and the Ombudsman that sets out:

                     (a)  the number of applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months, and the dates on which those applications were made; and

                     (b)  the number of account takeover warrants issued during the previous 12 months in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, and the dates on which those warrants were issued; and

                     (c)  if one or more applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months were refused:

                              (i)  the number of those refusals; and

                             (ii)  the dates on which those refusals occurred; and

                     (d)  if one or more applications for variations of account takeover warrants were made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months:

                              (i)  the number of those applications; and

                             (ii)  the dates on which those applications were made; and

                     (e)  if one or more variations of account takeover warrants were made during the previous 12 months in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires:

                              (i)  the number of those variations; and

                             (ii)  the dates on which those variations were made; and

                      (f)  if one or more applications for variations of account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months were refused:

                              (i)  the number of those refusals; and

                             (ii)  the dates on which those refusals occurred; and

                     (g)  if one or more account takeover warrants issued in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, were revoked during the previous 12 months:

                              (i)  the number of those revocations; and

                             (ii)  the dates on which those revocations occurred; and

                     (h)  for each account takeover warrant that:

                              (i)  was issued in response to an application made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and

                             (ii)  ceased to be in force during the previous 12 months;

                            the following information:

                            (iii)  the date the warrant ceased to be in force;

                            (iv)  whether the warrant expired or was revoked;

                             (v)  whether or not the warrant was executed;

                            (vi)  if the warrant was executed—the information listed in subsection (2);

                           (vii)  if the warrant was not executed—the reason why the warrant was not executed; and

                      (i)  the number of applications for emergency authorisations made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months, and the dates on which those applications were made; and

                      (j)  the number of emergency authorisations given during the previous 12 months in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, and the dates on which those authorisations were given; and

                     (k)  if one or more applications for emergency authorisations made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months were refused:

                              (i)  the number of those refusals; and

                             (ii)  the dates on which those refusals occurred; and

                      (l)  if one or more applications for approval of the giving of emergency authorisations were made by or on behalf of appropriate authorising officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months:

                              (i)  the number of those applications; and

                             (ii)  the dates on which those applications were made; and

                    (m)  if the giving of one or more emergency authorisations were approved during the previous 12 months in response to applications made by or on behalf of appropriate authorising officers of the Australian Federal Police or the ACC, as the case requires:

                              (i)  the number of those approvals; and

                             (ii)  the dates on which those approvals were given; and

                     (n)  if one or more applications for approval of the giving of emergency authorisations made by or on behalf of appropriate authorising officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months were refused:

                              (i)  the number of those refusals; and

                             (ii)  the dates on which those refusals occurred.

             (2)  The following information is listed for the purposes of subparagraph (1)(h)(vi):

                     (a)  the name of the executing officer;

                     (b)  the names of any other law enforcement officers involved in executing the warrant;

                     (c)  the period during which the warrant was executed;

                     (d)  the target account;

                     (e)  if the holder of the target account is known to the executing officer—the holder;

                      (f)  if one or more users of the target account (other than the holder of the target account) are known to the executing officer—those users;

                     (g)  details of the benefit of the execution of the warrant to the investigation of a relevant offence;

                     (h)  details of how information obtained under the warrant was used;

                      (i)  details of the communication of information obtained under the warrant to persons other than:

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

                             (ii)  if the warrant was issued in response to an application made by a law enforcement officer of the ACC—law enforcement officers of the ACC;

                      (j)  details of the compliance with the conditions (if any) to which the warrant was subject.

             (3)  For the purposes of paragraph (2)(d), the target account may be specified by identifying one or more matters and things that are sufficient to identify the account.

3ZZVM   Chief officers’ annual reports to the Minister

             (1)  As soon as practicable, and in any event within 3 months, after the end of each financial year, the chief officer of the Australian Federal Police or the ACC must submit a report to the Minister that sets out:

                     (a)  the number of applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year; and

                     (b)  the number of account takeover warrants issued during the financial year in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and

                     (c)  if one or more applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year were refused—the number of those refusals; and

                     (d)  the number of urgent applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year; and

                     (e)  the number of account takeover warrants issued during the financial year in response to urgent applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and

                      (f)  if one or more urgent applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year were refused—the number of those refusals; and

                     (g)  if one or more variations of account takeover warrants were granted during the financial year in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires—the number of those variations; and

                     (h)  if one or more applications for variations of account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year were refused—the number of those refusals; and

                      (i)  the number of applications for emergency authorisations made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year; and

                      (j)  the number of emergency authorisations given during the financial year in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and

                     (k)  if one or more applications for emergency authorisations made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year were refused—the number of those refusals; and

                      (l)  if one or more applications for approval of the giving of emergency authorisations were made by or on behalf of appropriate authorising officers of the Australian Federal Police or the ACC, as the case requires, during the financial year—the number of those applications; and

                    (m)  if the giving of one or more emergency authorisations were approved during the financial year in response to applications made by or on behalf of appropriate authorising officers of the Australian Federal Police or the ACC, as the case requires—the number of those approvals; and

                     (n)  if one or more applications for approval of the giving of emergency authorisations made by or on behalf of appropriate authorising officers of the Australian Federal Police or the ACC, as the case requires, during the financial year were refused—the number of those refusals; and

                     (o)  the types of relevant offences in respect of which account takeover warrants or emergency authorisations were sought by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year; and

                     (p)  the number of arrests that were made during the financial year on the basis (wholly or partly) of information obtained under account takeover warrants issued, or emergency authorisations given, in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and

                     (q)  the number of prosecutions for relevant offences that were commenced during the financial year in which information obtained under account takeover warrants or emergency authorisations was given in evidence, and the number of those prosecutions in which a person was found guilty.

             (2)  The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives it.

             (3)  A copy of a report given to the Minister under this section must be given to the Ombudsman at the same time as it is given to the Minister.

3ZZVN   Keeping documents connected with account takeover warrants

                   The chief officer of the Australian Federal Police or the ACC must cause the following to be kept:

                     (a)  a copy of each application for an account takeover warrant that was made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires;

                     (b)  a copy of each account takeover warrant that was issued in response to an application made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires;

                     (c)  each written application for an emergency authorisation made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires;

                     (d)  a copy of each emergency authorisation that was given in response to an application made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires;

                     (e)  a copy of each application made by or on behalf of an appropriate authorising officer for approval of the giving of an emergency authorisation to a law enforcement officer of the Australian Federal Police or the ACC, as the case requires;

                      (f)  a copy of each section 3ZZVG assistance order that was made in response to an application made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires;

                     (g)  a copy of each application for a section 3ZZVG assistance order that was made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires;

                     (h)  if an application for a variation of an account takeover warrant was made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires—a copy of the application;

                      (i)  if an account takeover warrant that was varied in response to an application made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires—a copy of the variation;

                      (j)  if an account takeover warrant issued in response to an application made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires, was revoked—a copy of the revocation;

                     (k)  each written record made under subsection 3ZZUN(5);

                      (l)  a copy of each report given to the Minister and the Ombudsman under section 3ZZVL.

3ZZVP   Register of applications for account takeover warrants and emergency authorisations

             (1)  The chief officer of the Australian Federal Police or the ACC must cause to be kept a register of:

                     (a)  applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and

                     (b)  applications for emergency authorisations made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires.

             (2)  The register is to specify, for each account takeover warrant sought by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires:

                     (a)  the date the warrant was issued or refused; and

                     (b)  the date of the application for the warrant; and

                     (c)  whether the application for the warrant was a formal application or an urgent application; and

                     (d)  the name of the magistrate who issued or refused to issue the warrant; and

                     (e)  the name of the applicant for the warrant; and

                      (f)  if the warrant was issued:

                              (i)  the name of the executing officer; and

                             (ii)  the alleged relevant offence, or alleged relevant offences, in respect of which the warrant was issued; and

                            (iii)  the period during which the warrant is in force; and

                            (iv)  details of any variations or extensions of the warrant; and

                             (v)  whether the warrant has expired or been revoked.

             (3)  The register is to specify, for each emergency authorisation sought by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires:

                     (a)  the date the authorisation was given or refused; and

                     (b)  the name of the appropriate authorising officer who gave or refused to give the authorisation; and

                     (c)  if the authorisation was given:

                              (i)  the name of the law enforcement officer to whom the authorisation was given; and

                             (ii)  the alleged relevant offence, or alleged relevant offences, in respect of which the authorisation was given; and

                            (iii)  the date on which the application for approval of the giving of the authorisation was made; and

                            (iv)  whether that application for approval of the giving of the authorisation was successful or not.

             (4)  A register kept under this section is not a legislative instrument.

Division 7 Inspections

3ZZVQ   Appointment of inspecting officers

                   The Ombudsman may, by writing, appoint members of the Ombudsman’s staff to be inspecting officers for the purposes of this Part.

3ZZVR   Inspection of records by the Ombudsman

             (1)  The Ombudsman must, from time to time and at least once every 12 months, inspect the records of the Australian Federal Police and the ACC to determine the extent of compliance with this Part by:

                     (a)  the Australian Federal Police or the ACC, as the case requires; and

                     (b)  law enforcement officers of the Australian Federal Police or the ACC, as the case requires.

             (2)  For the purpose of an inspection under this section, the Ombudsman:

                     (a)  may, after notifying the chief officer of the Australian Federal Police or the ACC, enter at any reasonable time premises occupied by the Australian Federal Police or the ACC, as the case requires; and

                     (b)  is entitled to have full and free access at all reasonable times to all records of the Australian Federal Police or the ACC that are relevant to the inspection; and

                     (c)  may require a member of staff of the Australian Federal Police or the ACC to give the Ombudsman any information that the Ombudsman considers necessary, so long as:

                              (i)  the information is in the member’s possession, or the member has access to the information; and

                             (ii)  the information is relevant to the inspection; and

                     (d)  may, despite any other law, make copies of, and take extracts from, records of the Australian Federal Police or the ACC.

             (3)  The chief officer of the Australian Federal Police or the ACC must ensure that members of staff of the Australian Federal Police or the ACC, as the case requires, give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.

3ZZVS   Power to obtain relevant information

             (1)  If the Ombudsman has reasonable grounds to believe that a law enforcement officer of the Australian Federal Police or the ACC is able to give information relevant to an inspection under this Division of the records of the Australian Federal Police or the ACC, subsections (2) and (3) have effect.

             (2)  The Ombudsman may, by writing given to the law enforcement officer, require the officer to give the information to the Ombudsman:

                     (a)  by writing signed by the officer; and

                     (b)  at a specified place and within a specified period.

             (3)  The Ombudsman may, by writing given to the law enforcement officer, require the officer to attend:

                     (a)  before a specified inspecting officer; and

                     (b)  at a specified place; and

                     (c)  within a specified period or at a specified time on a specified day;

to answer questions relevant to the inspection.

             (4)  If the Ombudsman:

                     (a)  has reasonable grounds to believe that a law enforcement officer of the Australian Federal Police or the ACC is able to give information relevant to an inspection under this Division of the records of the Australian Federal Police or the ACC; and

                     (b)  does not know the officer’s identity;

the Ombudsman may, by writing given to the chief officer of the Australian Federal Police or the ACC, as the case requires, require the chief officer, or a person nominated by the chief officer, to attend:

                     (c)  before a specified inspecting officer; and

                     (d)  at a specified place; and

                     (e)  within a specified period or at a specified time on a specified day;

to answer questions relevant to the inspection.

             (5)  The place, and the period or the time and day, specified in a requirement under this section, must be reasonable having regard to the circumstances in which the requirement is made.

3ZZVT   Offence

                   A person commits an offence if:

                     (a)  the person is required under section 3ZZVS to attend before an inspecting officer, to give information or to answer questions; and

                     (b)  the person refuses or fails to do so.

Penalty:  Imprisonment for 6 months.

3ZZVU   Ombudsman to be given information and access despite other laws

             (1)  Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be:

                     (a)  would contravene a law; or

                     (b)  would be contrary to the public interest; or

                     (c)  might tend to incriminate the person; or

                     (d)  would disclose one of the following:

                              (i)  a legal advice given to a Minister, a Department or a prescribed authority;

                             (ii)  a communication between an officer of a Department or of a prescribed authority and another person or body, being a communication protected against disclosure by legal professional privilege.

             (2)  However, if the person is an individual:

                     (a)  the information, the answer, or the fact that the person has given access to the document, as the case may be; and

                     (b)  any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;

is not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against section 3ZZVH of this Act or Part 7.4 or 7.7 of the Criminal Code .

             (3)  If, at general law, an individual would otherwise be able to claim the privilege against self-exposure to a penalty (other than a penalty for an offence) in relation to giving information, answering a question, or giving access to a document, as and when required under this Division, the individual is not excused from giving the information, answering the question, or giving access to the document, as the case may be, on that ground.

Note:          A body corporate is not entitled to claim the privilege against self-exposure to a penalty.

             (4)  Nothing in section 3ZZVH or in any other law prevents a law enforcement officer of the Australian Federal Police or the ACC from:

                     (a)  giving information to an inspecting officer (whether orally or in writing and whether or not in answer to a question); or

                     (b)  giving access to a record of the Australian Federal Police or the ACC, as the case requires, to an inspecting officer;

for the purposes of an inspection under this Division of the records of the Australian Federal Police or the ACC, as the case requires.

             (5)  Nothing in section 3ZZVH or in any other law prevents a law enforcement officer from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (4).

             (6)  The fact that a person is not excused under subsection (1) or (3) from giving information, answering a question or giving access to a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, answer or document.

             (7)  In this section:

prescribed authority has the same meaning as in the Ombudsman Act 1976 .

3ZZVV   Delegation by Ombudsman

             (1)  The Ombudsman may, by writing, delegate to an APS employee responsible to the Ombudsman all or any of the Ombudsman’s functions or powers under this Division, other than section 3ZZVX.

             (2)  A delegate must, on request by a person affected by the exercise of any power delegated to the delegate, produce the instrument of delegation, or a copy of the instrument, for inspection by the person.

3ZZVW   Ombudsman not to be sued

                   The Ombudsman, an inspecting officer, or a person acting under an inspecting officer’s direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Division.

3ZZVX   Report on inspection

             (1)  The Ombudsman must make a written report to the Minister at 12 monthly intervals on the results of each inspection under section 3ZZVR.

             (2)  The report must not include information which, if made public, could reasonably be expected to:

                     (a)  prejudice an investigation or prosecution; or

                     (b)  compromise any law enforcement agency’s operational activities or methodologies.

             (3)  The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

Division 8 Miscellaneous

3ZZVY   Minor defects in connection with account takeover warrant

             (1)  If:

                     (a)  information is purportedly obtained under an account takeover warrant; and

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

                     (c)  but for that defect or irregularity, the warrant would be a sufficient authority for obtaining the information;

then:

                     (d)  obtaining the information is taken to be as valid; and

                     (e)  the information obtained may be dealt with, or given in evidence in any proceeding;

as if the warrant did not have that defect or irregularity.

             (2)  A reference in subsection (1) to a defect or irregularity in relation to the warrant is a reference to a defect or irregularity (other than a substantial defect or irregularity):

                     (a)  in, or in connection with the issue of, a document purporting to be that warrant; or

                     (b)  in connection with the execution of that warrant or the purported execution of a document purporting to be that warrant.

3ZZVZ   Evidentiary certificates

             (1)  A law enforcement officer may issue a written certificate signed by the officer setting out any facts the officer considers relevant with respect to:

                     (a)  anything done by the law enforcement officer, or by a person assisting or providing technical expertise to the law enforcement officer, in connection with the execution of an account takeover warrant; or

                     (b)  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 under an account takeover warrant.

             (2)  A certificate issued under subsection (1) is admissible in evidence in any proceedings as prima facie evidence of the matters stated in the certificate.

3ZZWA   Compensation for property loss or serious damage

             (1)  If a person suffers:

                     (a)  loss of or serious damage to property; or

                     (b)  personal injury;

in the course of, or as a direct result of, the execution of an account takeover warrant, the Commonwealth is liable to pay to the person compensation as agreed between the Commonwealth and the person or, in default of agreement, as determined by action against the Commonwealth in:

                     (c)  the Federal Court of Australia; or

                     (d)  the Supreme Court of a State or Territory.

             (2)  Subsection (1) does not apply if the person suffered the loss, damage or injury in the course of, or as a direct result of, engaging in any criminal activity.

National Emergency Declaration Act 2020

5  Paragraph 15(8)(a)

After “IAAA,”, insert “IAAC,”.