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Cybercrime Bill 2001
Schedule  2 Law enforcement powers relating to electronically stored data

   

Crimes Act 1914

1  Subsection 3C(1)

Insert:

data includes:

                     (a)  information in any form; or

                     (b)  any program (or part of a program).

2  Subsection 3C(1)

Insert:

data held in a computer includes:

                     (a)  data held in any removable data storage device for the time being held in a computer; or

                     (b)  data held in a data storage device on a computer network of which the computer forms a part.

3  Subsection 3C(1)

Insert:

data storage device means a thing containing, or designed to contain, data for use by a computer.

4  Subsection 3K(1)

Omit “things found at the premises in order to determine whether they are things”, substitute “a thing found at the premises in order to determine whether it is a thing”.

5  Subsection 3K(2)

Repeal the subsection, substitute:

             (2)  A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if:

                     (a)  both of the following apply:

                              (i)  it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;

                             (ii)  there are reasonable grounds to believe that the thing contains or constitutes evidential material; or

                     (b)  the occupier of the premises consents in writing.

6  Subsection 3K(3)

Omit “things are”, substitute “a thing is”.

7  After subsection 3K(3)

Insert:

          (3A)  The thing may be moved to another place for examination or processing for no longer than 72 hours.

          (3B)  An executing officer may apply to an issuing officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 72 hours or that time as previously extended.

          (3C)  The executing officer must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard in relation to the application.

8  Subsection 3L(1)

Repeal the subsection, substitute:

             (1)  The executing officer or a constable assisting may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she believes on reasonable grounds that:

                     (a)  the data might constitute evidential material; and

                     (b)  the equipment can be operated without damaging it.

Note:          An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 3LA.

          (1A)  If the executing officer or constable assisting believes on reasonable grounds that any data accessed by operating the electronic equipment might constitute evidential material, he or she may:

                     (a)  copy the data to a disk, tape or other associated device brought to the premises; or

                     (b)  if the occupier of the premises agrees in writing—copy the data to a disk, tape or other associated device at the premises;

and take the device from the premises.

          (1B)  If:

                     (a)  the executing officer or constable assisting takes the device from the premises; and

                     (b)  the Commissioner is satisfied that the data is not required (or is no longer required) for:

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

                             (ii)  judicial proceedings or administrative review proceedings; or

                            (iii)  investigating or resolving a complaint under the Complaints (Australian Federal Police) Act 1981 or the Privacy Act 1988 ;

the Commissioner must arrange for:

                     (c)  the removal of the data from any device in the control of the Australian Federal Police; and

                     (d)  the destruction of any other reproduction of the data in the control of the Australian Federal Police.

9  Paragraph 3L(2)(b)

Omit “or”.

10  Paragraph 3L(2)(c)

Repeal the paragraph.

11  Paragraph 3L(3)(a)

Repeal the paragraph, substitute:

                     (a)  it is not practicable to copy the data as mentioned in subsection (1A) or to put the material in documentary form as mentioned in paragraph (2)(b); or

12  After section 3L

Insert:

3LA   Person with knowledge of a computer or a computer system to assist access etc.

             (1)  The executing officer may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer to do one or more of the following:

                     (a)  access data held in, or accessible from, a computer that is on warrant premises;

                     (b)  copy the data to a data storage device;

                     (c)  convert the data into documentary form.

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

                     (a)  there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer; and

                     (b)  the specified person is:

                              (i)  reasonably suspected of having committed the offence stated in the relevant warrant; or

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

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

                     (c)  the specified person has relevant knowledge of:

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

                             (ii)  measures applied to protect data held in, or accessible from, the computer.

             (3)  A person commits an offence if the person fails to comply with the order.

Penalty:  6 months imprisonment.

3LB   Accessing data held on other premises—notification to occupier of that premises

             (1)  If:

                     (a)  data that is held on premises other than the warrant premises is accessed under subsection 3L(1); and

                     (b)  it is practicable to notify the occupier of the other premises that the data has been accessed under a warrant;

the executing officer must:

                     (c)  do so as soon as practicable; and

                     (d)  if the executing officer has arranged, or intends to arrange, for continued access to the data under subsection 3L(1A) or (2)—include that information in the notification.

             (2)  A notification under subsection (1) must include sufficient information to allow the occupier of the other premises to contact the executing officer.

13  Paragraph 3N(2)(a)

Omit “paragraph 3L(2)(b) or (c)”, substitute “subsection 3L(1A) or paragraph 3L(2)(b)”.

Customs Act 1901

14  Subsection 4(1)

Insert:

data includes:

                     (a)  information in any form; or

                     (b)  any program (or part of a program).

15  Paragraph 67EU(1)(b)

Omit “or programs associated with its use are damaged or corrupted”.

16  Subsection 67EU(1)

Omit “compensation for the damage or corruption is payable by Customs to the owner of the equipment or the user of the data or programs concerned”, substitute “compensation for the damage is payable by Customs to the owner of the equipment or the user of the data concerned”.

17  Subsection 67EU(3)

Omit “or program”.

18  Subsection 183UA(1)

Insert:

data held in a computer includes:

                     (a)  data held in any removable data storage device for the time being held in a computer; or

                     (b)  data held in a data storage device on a computer network of which the computer forms a part.

19  Subsection 183UA(1)

Insert:

data storage device means a thing containing, or designed to contain, data for use by a computer.

20  Subsection 200(1)

Omit “things found on or in the premises in order to determine whether they are things”, substitute “a thing found on or in the premises in order to determine whether it is a thing”.

21  Subsection 200(2)

Repeal the subsection, substitute:

             (2)  A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if:

                     (a)  both of the following apply:

                              (i)  it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;

                             (ii)  there are reasonable grounds to believe that the thing contains or constitutes evidential material; or

                     (b)  the occupier of the premises consents in writing.

22  Subsection 200(3)

Omit “things are”, substitute “a thing is”.

23  After subsection 200(3)

Insert:

          (3A)  The thing may be moved to another place for examination or processing for no longer than 72 hours.

          (3B)  An executing officer may apply to a judicial officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 72 hours or that time as previously extended.

          (3C)  The executing officer must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard in relation to the application.

24  Subsection 201(1)

Repeal the subsection, substitute:

             (1)  The executing officer or a person assisting may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she believes on reasonable grounds that:

                     (a)  the data might constitute evidential material; and

                     (b)  the equipment can be operated without damaging it.

Note:          An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 201A.

          (1A)  If the executing officer or person assisting believes on reasonable grounds that any data accessed by operating the electronic equipment might constitute evidential material, he or she may:

                     (a)  copy the data to a disk, tape or other associated device brought to the premises; or

                     (b)  if the occupier of the premises agrees in writing—copy the data to a disk, tape or other associated device at the premises;

and take the device from the premises.

          (1B)  If:

                     (a)  the executing officer or person assisting takes the device from the premises; and

                     (b)  the CEO is satisfied that the data is not required (or is no longer required) for:

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

                             (ii)  judicial proceedings or administrative review proceedings; or

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

the CEO must arrange for:

                     (c)  the removal of the data from any device in the control of Customs; and

                     (d)  the destruction of any other reproduction of the data in the control of Customs.

25  Paragraph 201(2)(b)

Omit “so produced; or”, substitute “so produced.”.

26  Paragraph 201(2)(c)

Repeal the paragraph.

27  Subsection 201(3)

Omit “put the material in documentary form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c)”, substitute “copy the material as mentioned in subsection (1A) or to put the material in documentary form as mentioned in paragraph (2)(b)”.

28  After section 201

Insert:

201A   Person with knowledge of a computer or a computer system to assist access etc.

             (1)  An executing officer may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer to do one or more of the following:

                     (a)  access data held in, or accessible from, a computer that is on warrant premises;

                     (b)  copy the data to a data storage device;

                     (c)  convert the data into documentary form.

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

                     (a)  there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer; and

                     (b)  the specified person is:

                              (i)  reasonably suspected of having committed the offence stated in the relevant warrant; or

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

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

                     (c)  the specified person has relevant knowledge of:

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

                             (ii)  measures applied to protect data held in, or accessible from, the computer.

             (3)  A person commits an offence if the person fails to comply with the order.

Penalty:  6 months imprisonment.

201B   Accessing data held on other premises—notification to occupier of that premises

             (1)  If:

                     (a)  data that is held on premises other than the warrant premises is accessed under subsection 201(1); and

                     (b)  it is practicable to notify the occupier of the other premises that the data has been accessed under a warrant;

the executing officer must:

                     (c)  do so as soon as practicable; and

                     (d)  if the executing officer has arranged, or intends to arrange, for continued access to the data under subsection 201(1A) or (2)—include that information in the notification.

             (2)  A notification under subsection (1) must include sufficient information to allow the occupier of the other premises to contact the executing officer.

29  Subsection 202(1)

Repeal the subsection, substitute:

             (1)  If:

                     (a)  damage is caused to equipment as a result of it being operated as mentioned in section 200 or 201; or

                     (b)  the data recorded on or accessible from the equipment is damaged;

and the damage was caused as a result of:

                     (c)  insufficient care being exercised in selecting the person who was to operate the equipment; or

                     (d)  insufficient care being exercised by the person operating the equipment;

compensation for the damage is payable to the owner of the equipment or the user of the data concerned.

30  Paragraph 202A(2)(a)

Omit “paragraph 201(2)(b) or (c)”, substitute “subsection 201(1A) or paragraph 201(2)(b)”.

31  Application of amendments

(129/01)



The amendments made by this Schedule apply to warrants issued after the commencement of this Schedule.

 

 

[ Minister’s second reading speech made in—

House of Representatives on 27 June 2001

Senate on 26 September 2001 ]