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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020-2021-2022
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Crimes Legislation Amendment
(Ransomware Action Plan) Bill 2022
No. , 2022
(Home Affairs)
A Bill for an Act to amend legislation relating to the
criminal law, law enforcement and proceeds of
crime, and for related purposes
No. , 2022
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments of the Criminal Code
3
Criminal Code Act 1995
3
Schedule 2--Cryptocurrency exchanges
13
Proceeds of Crime Act 2002
13
Schedule 3--Seizing digital assets
16
Crimes Act 1914
16
Proceeds of Crime Act 2002
20
No. , 2022
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
1
A Bill for an Act to amend legislation relating to the
1
criminal law, law enforcement and proceeds of
2
crime, and for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the
Crimes Legislation Amendment (Ransomware
6
Action Plan) Act 2022
.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
No. , 2022
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Amendments of the Criminal Code
Schedule 1
No. , 2022
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
3
Schedule 1--Amendments of the Criminal
1
Code
2
3
Criminal Code Act 1995
4
1 Section 476.3 of the Criminal Code
5
Repeal the section, substitute:
6
476.3 Geographical jurisdiction
7
(1) A person does not commit an offence against this Part unless:
8
(a) the conduct constituting the alleged offence occurs:
9
(i) wholly or partly in Australia; or
10
(ii) wholly or partly on board an Australian aircraft or an
11
Australian ship; or
12
(b) the conduct constituting the alleged offence occurs wholly
13
outside Australia and a result of the conduct occurs:
14
(i) wholly or partly in Australia; or
15
(ii) wholly or partly on board an Australian aircraft or an
16
Australian ship; or
17
(c) the conduct constituting the alleged offence occurs wholly
18
outside Australia and:
19
(i) at the time of the alleged offence, the person is an
20
Australian citizen; or
21
(ii) at the time of the alleged offence, the person is a body
22
corporate incorporated by or under a law of the
23
Commonwealth or of a State or Territory; or
24
(d) the conduct constituting the alleged offence occurs wholly
25
outside Australia and the condition in subsection (2) is
26
satisfied; or
27
(e) all of the following conditions are satisfied:
28
(i) the alleged offence is an ancillary offence;
29
(ii) the conduct constituting the alleged offence occurs
30
wholly outside Australia;
31
(iii) the conduct constituting the primary offence to which
32
the ancillary offence relates, or a result of that conduct,
33
Schedule 1
Amendments of the Criminal Code
4
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
No. , 2022
occurs, or is intended by the person to occur, wholly or
1
partly in Australia or wholly or partly on board an
2
Australian aircraft or an Australian ship.
3
Note:
The expression
offence
is given an extended meaning by
4
subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
5
(2) For the purposes of paragraph (1)(d), the condition in this
6
subsection is satisfied if:
7
(a) the conduct constituting the alleged offence relates to:
8
(i) unauthorised access to data held in a computer; or
9
(ii) unauthorised modification of data held in a computer; or
10
(iii) unauthorised impairment of electronic communication
11
of data to or from a computer; or
12
(iv) unauthorised impairment of the reliability, security or
13
operation of any data held on a computer disk, credit
14
card or other device used to store data by electronic
15
means; and
16
(b) at the time of the unauthorised access, modification or
17
impairment mentioned in paragraph (a), that data is under the
18
control of, or owned by, a person who is:
19
(i) a resident of Australia and is physically present in
20
Australia; or
21
(ii) a body corporate incorporated by or under a law of the
22
Commonwealth or of a State or Territory;
23
regardless of whether the computer or device mentioned in
24
paragraph (a) is in the person's possession; and
25
(c) at the time of the unauthorised access, modification or
26
impairment mentioned in paragraph (a), that data is
27
reasonably capable of being accessed within Australia.
28
(3) For the purposes of paragraphs (2)(b) and (c), disregard any effect
29
on the control or accessibility of data caused by the unauthorised
30
access, modification or impairment mentioned in paragraph (2)(a).
31
Defence--primary offence
32
(4) A person does not commit an offence against this Part if:
33
(a) the alleged offence is a primary offence; and
34
Amendments of the Criminal Code
Schedule 1
No. , 2022
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
5
(b) the conduct constituting the alleged offence occurs wholly in
1
a foreign country, but not on board an Australian aircraft or
2
an Australian ship; and
3
(c) the person is neither:
4
(i) an Australian citizen; nor
5
(ii) a body corporate incorporated by or under a law of the
6
Commonwealth or of a State or Territory; and
7
(d) paragraph (1)(d) does not apply; and
8
(e) there is not in force in:
9
(i) the foreign country where the conduct constituting the
10
alleged offence occurs; or
11
(ii) the part of the foreign country where the conduct
12
constituting the alleged offence occurs;
13
a law of that foreign country, or a law of that part of that
14
foreign country, that creates an offence that corresponds to
15
the first-mentioned offence.
16
Note:
A defendant bears an evidential burden in relation to the matters in
17
subsection (2). See subsection 13.3(3).
18
(5) For the purposes of the application of subsection 13.3(3) to an
19
offence, subsection (4) of this section is taken to be an exception
20
provided by the law creating the offence.
21
Defence--ancillary offence
22
(6) A person does not commit an offence against this Part if:
23
(a) the alleged offence is an ancillary offence; and
24
(b) the conduct constituting the alleged offence occurs wholly in
25
a foreign country, but not on board an Australian aircraft or
26
an Australian ship; and
27
(c) the conduct constituting the primary offence to which the
28
ancillary offence relates, or a result of that conduct, occurs,
29
or is intended by the person to occur, wholly in a foreign
30
country, but not on board an Australian aircraft or an
31
Australian ship; and
32
(d) the person is neither:
33
(i) an Australian citizen; nor
34
(ii) a body corporate incorporated by or under a law of the
35
Commonwealth or of a State or Territory; and
36
Schedule 1
Amendments of the Criminal Code
6
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
No. , 2022
(e) paragraph (1)(d) does not apply (and would not apply if the
1
conduct or result described in paragraph (c) of this subsection
2
occurred as intended); and
3
(f) there is not in force in:
4
(i) the foreign country where the conduct constituting the
5
primary offence to which the ancillary offence relates,
6
or a result of that conduct, occurs, or is intended by the
7
person to occur; or
8
(ii) the part of the foreign country where the conduct
9
constituting the primary offence to which the ancillary
10
offence relates, or a result of that conduct, occurs, or is
11
intended by the person to occur;
12
a law of that foreign country, or a law of that part of that
13
foreign country, that creates an offence that corresponds to
14
the primary offence.
15
Note:
A defendant bears an evidential burden in relation to the matters in
16
subsection (6). See subsection 13.3(3).
17
(7) For the purposes of the application of subsection 13.3(3) to an
18
offence, subsection (6) of this section is taken to be an exception
19
provided by the law creating the offence.
20
Extended application of sections 16.1, 16.2, 16.3 and 16.4
21
(8) Section 16.1, except paragraph 16.1(1)(a), applies in relation to an
22
offence against this Part (in addition to the application of that
23
section apart from this subsection).
24
Note:
Section 16.1 requires the Attorney-General's consent for prosecution
25
of an offence if the alleged conduct occurred wholly in a foreign
26
country in certain circumstances.
27
(9) Sections 16.2, 16.3 and 16.4 apply for the purposes of this section
28
in the same way as they apply for the purposes of Part 2.7.
29
Note:
Section 16.2 treats the sending of things and electronic
30
communications into and out of Australia as conduct occurring partly
31
in Australia. Section 16.3 affects the meaning of
Australia
.
32
Section 16.4 affects the meaning of
result of conduct
.
33
2 At the end of Division 477 of the Criminal Code
34
Add:
35
Amendments of the Criminal Code
Schedule 1
No. , 2022
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
7
477.4 Extorting victim of unauthorised access etc.
1
(1) A person (the
first person
) commits an offence if:
2
(a) any of the following (whether or not caused by the first
3
person) is occurring or has occurred:
4
(i) any unauthorised access to data held in a computer;
5
(ii) any unauthorised modification of data held in a
6
computer;
7
(iii) any unauthorised impairment of electronic
8
communication of data to or from a computer;
9
(iv) any unauthorised impairment of the reliability, security
10
or operation of any data held on a computer disk, credit
11
card or other device used to store data by electronic
12
means; and
13
(b) that unauthorised access, modification or impairment
14
involves a computer in the possession of, or data under the
15
control of or owned by, another person (the
victim
); and
16
(c) the first person makes a threat to the victim in relation to that
17
computer or data; and
18
(d) the threat is made using a carriage service; and
19
(e) the first person makes the threat with the intention of
20
compelling the victim to do or omit to do an act.
21
Penalty: Imprisonment for 10 years.
22
(2) For the purposes of paragraph (1)(b), disregard any effect on the
23
control of data caused by the unauthorised access, modification or
24
impairment mentioned in paragraph (1)(a).
25
(3) Absolute liability applies to paragraph (1)(d).
26
(4) In a prosecution for an offence against this section, it is not
27
necessary to prove that the victim was actually compelled to do or
28
omit to do the act mentioned in paragraph (1)(e).
29
Meaning of data under the control of a person
30
(5) A reference in this section to data under the control of a person
31
includes a reference to data under the control of the person that is
32
held in a computer in the possession of another person.
33
Schedule 1
Amendments of the Criminal Code
8
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
No. , 2022
3 Subsection 478.1(1) of the Criminal Code (penalty)
1
Repeal the penalty, substitute:
2
Penalty: Imprisonment for 5 years.
3
4 Section 478.2 of the Criminal Code (penalty)
4
Repeal the penalty, substitute:
5
Penalty: Imprisonment for 5 years.
6
5 Subparagraph 478.3(1)(b)(i) of the Criminal Code
7
After "Division 477", insert "or section 478.1 or 478.2".
8
6 Subsection 478.3(1) of the Criminal Code (penalty)
9
Repeal the penalty, substitute:
10
Penalty: Imprisonment for 5 years.
11
7 Subsection 478.3(2) of the Criminal Code
12
Omit "against Division 477", substitute "mentioned in
13
subparagraph (1)(b)(i)".
14
8 Paragraph 478.4(1)(a) of the Criminal Code
15
After "obtains data", insert ", or solicits the production, supply or
16
obtaining of data".
17
9 Subparagraph 478.4(1)(b)(i) of the Criminal Code
18
After "Division 477", insert "or section 478.1 or 478.2".
19
10 Subsection 478.4(1) of the Criminal Code (penalty)
20
Repeal the penalty, substitute:
21
Penalty: Imprisonment for 5 years.
22
11 At the end of Division 478 of the Criminal Code
23
Add:
24
Amendments of the Criminal Code
Schedule 1
No. , 2022
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
9
478.5 Dealing with data obtained by unauthorised access or
1
modification
2
(1) A person commits an offence if:
3
(a) the person dishonestly:
4
(i) obtains data held in a computer; or
5
(ii) causes any access to data held in a computer; or
6
(iii) causes any modification of data held in a computer; or
7
(iv) causes any release of data held in a computer to one or
8
more other persons; and
9
(b) the person does so using a carriage service; and
10
(c) that data has been obtained (whether or not by the person)
11
by:
12
(i) any unauthorised access to data held in a computer; or
13
(ii) any unauthorised modification of data held in a
14
computer.
15
Penalty: Imprisonment for 5 years.
16
(2) Absolute liability applies to paragraph (1)(b).
17
(3) For the purposes of subsection (1),
dishonest
means:
18
(a) dishonest according to the standards of ordinary people; and
19
(b) known by the defendant to be dishonest according to the
20
standards of ordinary people.
21
(4) In a prosecution for an offence against this section, the
22
determination of dishonesty is a matter for the trier of fact.
23
12 At the end of Part 10.7 of the Criminal Code
24
Add:
25
Division 479--Aggravated computer offences
26
479.1 Aggravated offence--critical infrastructure assets
27
(1) A person commits an offence if:
28
(a) the person commits an offence against section 477.2, 477.3,
29
478.1 or 478.2 (the
underlying offence
); and
30
Schedule 1
Amendments of the Criminal Code
10
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
No. , 2022
(b) the person intends to cause an impact (whether direct or
1
indirect) on:
2
(i) the availability, integrity or reliability of a critical
3
infrastructure asset; or
4
(ii) the confidentiality of information about or stored in, or
5
the confidentiality of, a critical infrastructure asset.
6
Penalty: Imprisonment for 25 years.
7
(2) There is no fault element for the physical element in
8
paragraph (1)(a) other than the fault elements (however described)
9
for the underlying offence.
10
(3) To avoid doubt:
11
(a) a person does not commit an underlying offence for the
12
purposes of paragraph (1)(a) if the person has a defence to
13
the underlying offence; and
14
(b) a person may be convicted of an offence against
15
subsection (1) even if the person has not been convicted of
16
the underlying offence.
17
(4) In a prosecution for an offence against this section, it is not
18
necessary to prove that the person actually caused the impact
19
mentioned in paragraph (1)(b).
20
Alternative verdicts
21
(5) If, on a trial of a person for an offence against subsection (1), the
22
trier of fact:
23
(a) is not satisfied that the person is guilty of that offence; and
24
(b) is satisfied beyond reasonable doubt that the person is guilty
25
of the underlying offence;
26
it may find the person not guilty of the offence against
27
subsection (1) but guilty of the underlying offence.
28
(6) Subsection (5) only applies if the person has been accorded
29
procedural fairness in relation to the finding of guilt for the
30
underlying offence.
31
Amendments of the Criminal Code
Schedule 1
No. , 2022
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
11
Meaning of critical infrastructure asset
1
(7) In this section, a reference to a critical infrastructure asset is a
2
reference to a critical infrastructure asset within the meaning of the
3
Security of Critical Infrastructure Act 2018
.
4
479.2 Aggravated offence--producing, supplying or obtaining data
5
under arrangement for payment
6
(1) A person commits an offence if:
7
(a) the person commits an offence against subsection 478.4(1)
8
(the
underlying offence
); and
9
(b) any of the following circumstances exist in relation to the
10
commission of the underlying offence:
11
(i) the person produces or supplies data as mentioned in
12
paragraph 478.4(1)(a) under an arrangement for the
13
person to receive a payment;
14
(ii) the person obtains data as mentioned in
15
paragraph 478.4(1)(a) under an arrangement for the
16
person to make a payment;
17
(iii) the person solicits the production or supply of data as
18
mentioned in paragraph 478.4(1)(a) under an
19
arrangement for the person to receive a payment;
20
(iv) the person solicits the obtaining of data as mentioned in
21
paragraph 478.4(1)(a) under an arrangement for the
22
person to make a payment.
23
Penalty: Imprisonment for 10 years.
24
(2) There is no fault element for the physical element in
25
paragraph (1)(a) other than the fault elements (however described)
26
for the underlying offence.
27
(3) To avoid doubt:
28
(a) a person does not commit an underlying offence for the
29
purposes of paragraph (1)(a) if the person has a defence to
30
the underlying offence; and
31
(b) a person may be convicted of an offence against
32
subsection (1) even if the person has not been convicted of
33
the underlying offence.
34
Schedule 1
Amendments of the Criminal Code
12
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
No. , 2022
Alternative verdicts
1
(4) If, on a trial of a person for an offence against subsection (1), the
2
trier of fact:
3
(a) is not satisfied that the person is guilty of that offence; and
4
(b) is satisfied beyond reasonable doubt that the person is guilty
5
of the underlying offence;
6
it may find the person not guilty of the offence against
7
subsection (1) but guilty of the underlying offence.
8
(5) Subsection (4) only applies if the person has been accorded
9
procedural fairness in relation to the finding of guilt for the
10
underlying offence.
11
Meaning of payment
12
(6) In this section:
13
(a) a reference to making a payment includes a reference to
14
giving property; and
15
(b) a reference to receiving a payment includes a reference to
16
being given property.
17
Cryptocurrency exchanges
Schedule 2
No. , 2022
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
13
Schedule 2--Cryptocurrency exchanges
1
2
Proceeds of Crime Act 2002
3
1 Paragraph 7(aa)
4
After "withdrawals from", insert "or transactions involving".
5
2 Subsection 15B(1)
6
After "withdrawal from", insert "or transaction involving".
7
3 Section 15K (heading)
8
Omit "
withdrawal
", substitute "
withdrawals or transactions
".
9
4 Section 15K
10
After "withdrawal from", insert "or transaction involving".
11
5 Paragraph 15L(a)
12
After "withdrawal from", insert "or transaction involving".
13
6 Paragraph 15L(c)
14
After "withdrawal", insert "or transaction".
15
7 Section 15Q (heading)
16
Omit "
withdrawal
", substitute "
withdrawals or transactions
".
17
8 Subsection 15Q(1)
18
After "withdrawal from", insert "or transaction involving".
19
9 Section 338 (definition of account)
20
Omit "or allows withdrawals", substitute ", or allows withdrawals or
21
transactions,".
22
10 Section 338 (after paragraph (e) of the definition of
23
account)
24
Insert:
25
; and (ea) an account relating to
*
digital currency, including:
26
Schedule 2
Cryptocurrency exchanges
14
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
No. , 2022
(i) an account representing an amount of digital currency;
1
and
2
(ii) an account provided as part of a
*
digital currency
3
exchange.
4
11 Section 338 (at the end of the definition of account)
5
Add:
6
; or (h) in the case of an account relating to digital currency--the
7
balance of the account is expressed as an amount of digital
8
currency, Australian currency or any other currency.
9
12 Section 338
10
Insert:
11
digital currency
has the meaning given by the
Anti-Money
12
Laundering and Counter-Terrorism Financing Act 2006
.
13
digital currency exchange
means a registrable digital currency
14
exchange service (within the meaning of the
Anti-Money
15
Laundering and Counter-Terrorism Financing Act 2006
).
16
13 Section 338 (at the end of the definition of financial
17
institution)
18
Add:
19
; or (i) a corporation to which paragraph 51(xx) of the Constitution
20
applies that provides a
*
digital currency exchange.
21
14 At the end of Schedule 2
22
Add:
23
Part 3--Crimes Legislation Amendment
24
(Ransomware Action Plan) Act 2022
25
26
9 Amendments made by Schedule 2 to the Crimes Legislation
27
Amendment (Ransomware Action Plan) Act 2022
28
The amendments made by Schedule 2 to the
Crimes Legislation
29
Amendment (Ransomware Action Plan) Act 2022
apply in relation
30
Cryptocurrency exchanges
Schedule 2
No. , 2022
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
15
to a notice given under clause 12 of Schedule 1 to this Act on or
1
after the commencement of this clause:
2
(a) whether currency, property or a thing to which the notice
3
relates was acquired before, on or after that commencement;
4
and
5
(b) whether conduct or a crime to which the notice relates
6
happened before, on or after that commencement.
7
15 Application of amendments
8
(1)
The amendments made by this Schedule, to the extent that they relate to
9
an order under Part 2-1A or 3-4 of the
Proceeds of Crime Act 2002
,
10
apply in relation to an application made under that Part on or after the
11
commencement of this item:
12
(a) whether currency, property or a thing to which the
13
application relates was acquired before, on or after that
14
commencement; and
15
(b) whether conduct or a crime to which the application relates
16
happened before, on or after that commencement.
17
(2)
The amendments made by this Schedule apply in relation to a notice
18
given under section 213 of the
Proceeds of Crime Act 2002
on or after
19
the commencement of this item:
20
(a) whether currency, property or a thing to which the notice
21
relates was acquired before, on or after that commencement;
22
and
23
(b) whether conduct or a crime to which the notice relates
24
happened before, on or after that commencement.
25
Schedule 3
Seizing digital assets
16
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
No. , 2022
Schedule 3--Seizing digital assets
1
2
Crimes Act 1914
3
1 Subsection 3C(1)
4
Insert:
5
digital asset
means:
6
(a) a digital representation of value or rights (including rights to
7
property), the ownership of which is evidenced
8
cryptographically and that is held and transferred
9
electronically by:
10
(i) a type of distributed ledger technology; or
11
(ii) another distributed cryptographically verifiable data
12
structure; or
13
(b) a right or thing prescribed by the regulations;
14
but does not include any right or thing that, under the regulations,
15
is taken not to be a digital asset for the purposes of this Part.
16
seize
, for a digital asset, has a meaning affected by
17
subsection 3FA(3).
18
2 After paragraph 3E(6)(a)
19
Insert:
20
(aa) that the warrant authorises the seizure of a digital asset if
21
paragraphs 3FA(1)(a) to (c) are satisfied; and
22
3 At the end of subsection 3E(6)
23
Add:
24
For the purposes of paragraph (aa), the warrant is to reproduce the
25
content of paragraphs 3FA(1)(a) to (c).
26
4 After paragraph 3E(7)(a)
27
Insert:
28
(aa) that the warrant authorises the seizure of a digital asset if
29
paragraphs 3FA(2)(a) to (c) are satisfied; and
30
Seizing digital assets
Schedule 3
No. , 2022
Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
17
5 At the end of subsection 3E(7)
1
Add:
2
For the purposes of paragraph (aa), the warrant is to reproduce the
3
content of paragraphs 3FA(2)(a) to (c).
4
6 Section 3F (heading)
5
Repeal the heading, substitute:
6
3F The things authorised by a search warrant--general
7
7 After section 3F
8
Insert:
9
3FA The things authorised by a search warrant--additional things
10
for digital assets
11
Warrants in force in relation to premises
12
(1) A warrant that is in force in relation to premises authorises the
13
executing officer or a constable assisting to seize a digital asset if:
14
(a) in the course of exercising powers under this Part, the
15
executing officer or constable assisting finds one or more
16
things that suggest the existence of the digital asset; and
17
(b) the executing officer or a constable assisting reasonably
18
suspects the digital asset to be:
19
(i) evidential material in relation to an offence to which the
20
warrant relates; or
21
(ii) evidential material in relation to another offence that is
22
an indictable offence; or
23
(iii) evidential material (within the meaning of the
Proceeds
24
of Crime Act 2002
) or tainted property (within the
25
meaning of that Act); and
26
(c) the executing officer or the constable assisting reasonably
27
suspects that seizing the digital asset is necessary to prevent
28
the digital asset's concealment, loss or destruction or its use
29
in committing an offence.
30
Note:
For the purposes of paragraph (a), the digital asset need not be found
31
at the premises. Data accessed using powers under this Part may
32
suggest the existence of the digital asset or be the digital asset itself.
33
Schedule 3
Seizing digital assets
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Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
No. , 2022
For example, a thing suggesting the existence of the digital asset could
1
be found by accessing data using electronic equipment moved from
2
the premises (see section 3LAA).
3
Warrants in force in relation to persons
4
(2) A warrant that is in force in relation to a person authorises the
5
executing officer or a constable assisting to seize a digital asset if:
6
(a) in the course of exercising powers under this Part, the
7
executing officer or constable assisting finds one or more
8
things that suggest the existence of the digital asset; and
9
(b) the executing officer or a constable assisting reasonably
10
suspects the digital asset to be:
11
(i) evidential material in relation to an offence to which the
12
warrant relates; or
13
(ii) evidential material in relation to another offence that is
14
an indictable offence; or
15
(iii) evidential material (within the meaning of the
Proceeds
16
of Crime Act 2002
) or tainted property (within the
17
meaning of that Act); and
18
(c) the executing officer or the constable assisting reasonably
19
suspects that seizing the digital asset is necessary to prevent
20
the digital asset's concealment, loss or destruction or its use
21
in committing an offence.
22
Note:
For the purposes of paragraph (a), the digital asset need not be found
23
in the person's possession. Data accessed using powers under this Part
24
may suggest the existence of the digital asset or be the digital asset
25
itself. For example, a thing suggesting the existence of the digital asset
26
could be found by accessing data using electronic equipment moved
27
from the person's possession (see section 3LAA).
28
Additional ways of seizing digital assets
29
(3)
Seizing
a digital asset under a warrant includes any of the
30
following:
31
(a) transferring the digital asset from an existing digital wallet
32
(or some other thing) to a digital wallet (or other thing)
33
controlled by the Australian Federal Police or a police force
34
or police service of a State or Territory;
35
(b) transferring the digital asset:
36
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(i) from a digital wallet (or some other thing) recreated or
1
recovered by the Australian Federal Police or a police
2
force or police service of a State or Territory using
3
things found in the course of the search authorised by
4
the warrant; and
5
(ii) to a digital wallet (or other thing) controlled by the
6
Australian Federal Police or a police force or police
7
service of a State or Territory;
8
(c) transferring the digital asset in circumstances prescribed by
9
regulations made for the purposes of this paragraph.
10
Note:
The ordinary meaning of seizing a digital asset is extended by the
11
additional ways mentioned in this subsection.
12
Time limit for seizing digital assets
13
(4) The power to seize a digital asset under the warrant may only be
14
exercised, to the extent that the exercise of the power relates to a
15
thing referred to in paragraph (1)(a) or (2)(a) for the warrant,
16
during the period starting when the warrant is issued and ending at:
17
(a) if the thing is moved to another place under
18
subsection 3K(2)--the time applicable under
19
subsection 3K(3A) or that time as previously extended as
20
described in subsection 3K(3B); or
21
(b) if the thing is seized under this Division--any time that the
22
thing must be returned as described in Subdivision B of
23
Division 4C of this Part; or
24
(c) if the thing is data that is copied under subsection 3L(1A) or
25
3LAA(2)--the time the Commissioner is satisfied the data is
26
not required (or is no longer required) as described in
27
paragraph 3L(1B)(b) or subsection 3LAA(3); or
28
(d) otherwise--the end of the period of 30 days starting on the
29
day the warrant is issued.
30
Note 1:
This means the power to seize the digital asset may be exercised at
31
different times if there is more than one thing referred to in
32
paragraph (1)(a) or (2)(a) that suggests the existence of the digital
33
asset.
34
Note 2:
For example, if 2 or more things referred to in paragraph (1)(a) or
35
(2)(a) suggest the existence of the digital asset, seizure of the digital
36
asset may occur during the longest period that applies to the digital
37
asset as a result of the application of this subsection in relation to each
38
of those things.
39
Schedule 3
Seizing digital assets
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Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
No. , 2022
Things done in relation to warrants may be done remotely etc.
1
(5) For a warrant related to premises, it is immaterial whether the
2
digital asset is seized as described in this section:
3
(a) at the premises; or
4
(b) at any other place.
5
(6) For a warrant related to a person, it is immaterial whether the
6
digital asset is seized as described in this section:
7
(a) in the presence of the person; or
8
(b) at any other place.
9
Proceeds of Crime Act 2002
10
8 After paragraph 227(1)(h)
11
Insert:
12
(haa) that the warrant authorises the
*
seizure of a
*
digital asset if
13
paragraphs 228A(1)(a) to (c) are satisfied; and
14
9 At the end of subsection 227(1)
15
Add:
16
For the purposes of paragraph (haa), the warrant is to reproduce the
17
content of paragraphs 228A(1)(a) to (c).
18
10 Section 228 (heading)
19
Repeal the heading, substitute:
20
228 The things authorised by a search warrant--general
21
11 After section 228
22
Insert:
23
228A The things authorised by a search warrant--additional things
24
for digital assets
25
Authority to seize digital assets
26
(1) A
*
search warrant authorises the
*
executing officer or a
*
person
27
assisting to
*
seize a
*
digital asset if:
28
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(a) in the course of exercising powers under this Part, the
1
executing officer or person assisting finds one or more things
2
that suggest the existence of the digital asset; and
3
(b) the executing officer or a person assisting reasonably
4
suspects the digital asset to be:
5
(i) tainted property to which the warrant relates; or
6
(ii) evidential material in relation to property to which the
7
warrant relates; or
8
(iii) evidential material (within the meaning of the
Crimes
9
Act 1914
) relating to an
*
indictable offence; and
10
(c) the executing officer or the person assisting reasonably
11
suspects that seizing the digital asset is necessary to prevent
12
the digital asset's concealment, loss or destruction or its use
13
in committing an offence.
14
Note:
For the purposes of paragraph (a), the digital asset need not be found
15
at the premises. Data accessed using powers under this Part may
16
suggest the existence of the digital asset or be the digital asset itself.
17
For example, a thing suggesting the existence of the digital asset could
18
be found by accessing data not held at the premises (see section 245).
19
Additional ways of seizing digital assets
20
(2)
Seizing
a
*
digital asset under a
*
search warrant includes any of the
21
following:
22
(a) transferring the digital asset from an existing digital wallet
23
(or some other thing) to a digital wallet (or other thing)
24
controlled by an
*
enforcement agency;
25
(b) transferring the digital asset:
26
(i) from a digital wallet (or some other thing) recreated or
27
recovered by an enforcement agency using things found
28
in the course of the search authorised by the warrant;
29
and
30
(ii) to a digital wallet (or other thing) controlled by an
31
enforcement agency;
32
(c) transferring the digital asset in circumstances prescribed by
33
regulations made for the purposes of this paragraph.
34
Note:
The ordinary meaning of seizing a digital asset is extended by the
35
additional ways mentioned in this subsection.
36
Schedule 3
Seizing digital assets
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Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022
No. , 2022
Time limit for seizing digital assets
1
(3) The power to
*
seize a
*
digital asset under the
*
search warrant may
2
only be exercised, to the extent that the exercise of the power
3
relates to a thing referred to in paragraph (1)(a) for the warrant,
4
during the period starting when the warrant is issued and ending at:
5
(a) if the thing is moved to another place under
6
subsection 244(2)--the time applicable under that subsection
7
or that time as previously extended as described in
8
subsection 244(3); or
9
(b) if the thing is seized under this Part--any time that the thing
10
must be returned as described in Subdivision B or C of
11
Division 3 of this Part; or
12
(c) otherwise--the end of the period of 30 days starting on the
13
day the warrant is issued.
14
Note 1:
This means the power to seize the digital asset may be exercised at
15
different times if there is more than one thing referred to in
16
paragraph (1)(a) that suggests the existence of the digital asset.
17
Note 2:
For example, if 2 or more things referred to in paragraph (1)(a)
18
suggest the existence of the digital asset, seizure of the digital asset
19
may occur during the longest period that applies to the digital asset as
20
a result of the application of this subsection in relation to each of those
21
things.
22
Things done in relation to warrants may be done remotely etc.
23
(4) It is immaterial whether the
*
digital asset is
*
seized as described in
24
this section:
25
(a) at the premises that is the subject of the
*
search warrant; or
26
(b) at any other place.
27
12 Section 338
28
Insert:
29
digital asset
means:
30
(a) a digital representation of value or rights (including rights to
31
property), the ownership of which is evidenced
32
cryptographically and that is held and transferred
33
electronically by:
34
(i) a type of distributed ledger technology; or
35
Seizing digital assets
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(ii) another distributed cryptographically verifiable data
1
structure; or
2
(b) a right or thing prescribed by the regulations;
3
but does not include any right or thing that, under the regulations,
4
is taken not to be a digital asset for the purposes of this Act.
5
seize
, for a
*
digital asset, has a meaning affected by
6
subsection 228A(2).
7
13 Application of amendments
8
(1)
The amendments of the
Crimes Act 1914
made by this Schedule apply
9
in relation to an application for a search warrant under Division 2 of
10
Part IAA of that Act on or after the commencement of this item:
11
(a) whether property or a thing to which the application relates
12
was acquired before, on or after that commencement; and
13
(b) whether conduct or a crime to which the application relates
14
occurred before, on or after that commencement.
15
(2)
The amendments of the
Proceeds of Crime Act 2002
made by this
16
Schedule apply in relation to an application for a search warrant under
17
Part 3-5 of that Act on or after the commencement of this item:
18
(a) whether property or a thing to which the application relates
19
was acquired before, on or after that commencement; and
20
(b) whether conduct or a crime to which the application relates
21
occurred before, on or after that commencement.
22