SURVEILLANCE LEGISLATION AMENDMENT (IDENTIFY AND DISRUPT) BILL 2020

2019-2020

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Surveillance Legislation Amendment

(Identify and Disrupt) Bill 2020

No. , 2020

(Home Affairs)

A Bill for an Act to amend the

Surveillance Devices

Act 2004

, and for other purposes

No. , 2020

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 2

Schedule 1--Data disruption

Surveillance Devices Act 2004

Telecommunications (Interception and Access) Act 1979

Schedule 2--Network activity warrants

Part 1--Main amendments

Surveillance Devices Act 2004

Part 2--Consequential amendments

Australian Crime Commission Act 2002

Australian Federal Police Act 1979

Australian Human Rights Commission Act 1986

Australian Information Commissioner Act 2010

Inspector-General of Intelligence and Security Act 1986

Law Enforcement Integrity Commissioner Act 2006

Ombudsman Act 1976

Privacy Act 1988

Public Interest Disclosure Act 2013

Telecommunications (Interception and Access) Act 1979

Schedule 3--Account takeover warrants

Crimes Act 1914

Schedule 4--Controlled operations

135

Crimes Act 1914

135

Schedule 5--Minor amendments

136

Surveillance Devices Act 2004

136

Telecommunications (Interception and Access) Act 1979

136

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Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

A Bill for an Act to amend the

Surveillance Devices

Act 2004

, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act is the

Surveillance Legislation Amendment (Identify and

Disrupt) Act 2020

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

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Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

The day after this Act receives the Royal

Assent.

3. Schedule 2

Immediately after the commencement of the

provisions covered by table item 2.

4. Schedules 3, 4

and 5

The day after this Act receives the Royal

Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Data disruption

Schedule 1

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Schedule 1--Data disruption

Surveillance Devices Act 2004

1 Title

After "

access to

", insert "

, and disruption of,

2 After paragraph 3(aaa)

Insert:

(aab) to establish procedures for certain law enforcement officers

of the Australian Federal Police or the Australian Crime

Commission to obtain warrants and emergency authorisations

that:

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

(ii) are likely to substantially assist in frustrating the

commission of relevant offences; and

3 Paragraph 3(ba)

After "accessing", insert "or disrupting".

4 Paragraph 3(ba)

After "operations", insert "or computer data disruption operations".

5 Paragraph 3(c)

Omit "and computer data access operations", substitute ", computer

data access operations and computer data disruption operations".

6 At the end of subsection 4(1)

Add:

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

7 After subsection 4(4A)

Insert:

(4B) For the avoidance of doubt, it is intended that a warrant may be

issued, or an emergency authorisation given, under this Act:

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

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

8 Subsection 6(1)

Insert:

data disruption intercept information

has the same meaning as in

the

Telecommunications (Interception and Access) Act 1979

data disruption warrant

means a warrant issued under

section 27KC or subsection 35B(2) or (3).

digital currency

has the same meaning as in the

A New Tax System

(Goods and Services Tax) Act 1999

disrupting data

held in a computer means adding, copying,

deleting or altering data held in the computer.

Note:

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

(a) data disruption warrants; or

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

computer.

emergency authorisation for access to data held in a computer

means an emergency authorisation given in response to an

application under subsection 28(1A), 29(1A) or 30(1A).

emergency authorisation for disruption of data held in a

computer

means an emergency authorisation given in response to

an application under subsection 28(1C).

IGIS official

means:

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

(b) any other person covered by subsection 32(1) of the

Inspector-General of Intelligence and Security Act 1986

Ombudsman official

means:

(a) the Ombudsman; or

(b) a Deputy Commonwealth Ombudsman; or

subsection 31(1) of the

Ombudsman Act 1976

9 Subsection 6(1) (definition of

remote application

)

Omit "or 27B", substitute ", 27B or 27KB".

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10 Subsection 6(1) (definition of

unsworn application

)

Omit "or 27A(13) and (14)", substitute ", 27A(13) and (14) or 27KA(4)

and (5)".

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

warrant

)

Add:

; or (d) a data disruption warrant.

12 At the end of subsection 10(1)

Add:

; (d) a data disruption warrant.

13 At the end of Part 2

Add:

Division 5--Data disruption warrants

27KA Application for data disruption warrant

(1) A law enforcement officer of the Australian Federal Police or the

Australian Crime Commission (or another person on the law

enforcement officer's behalf) may apply for the issue of a data

disruption warrant if the law enforcement officer suspects on

reasonable grounds that:

(a) one or more relevant offences of a particular kind have been,

are being, are about to be, or are likely to be, committed; and

(b) those offences involve, or are likely to involve, data held in a

computer (the

target computer

); and

substantially assist in frustrating the commission of one or

more relevant offences that:

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

computer; and

(ii) are of the same kind as the relevant offences referred to

in paragraph (a).

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Procedure for making applications

(2) An application under subsection (1) may be made to an eligible

Judge or to a nominated AAT member.

(3) An application:

(a) must specify:

(i) the name of the applicant; and

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

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

setting out the grounds on which the warrant is sought.

Unsworn applications

(4) If a law enforcement officer believes that:

(a) immediate disruption of data held in the target computer

referred to in subsection (1) is likely to substantially assist as

described in paragraph (1)(c); and

(b) it is impracticable for an affidavit to be prepared or sworn

before an application for a warrant is made;

an application for a warrant under subsection (1) may be made

before an affidavit is prepared or sworn.

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

(a) provide as much information as the eligible Judge or

nominated AAT member considers is reasonably practicable

in the circumstances; and

(b) not later than 72 hours after the making of the application,

send a duly sworn affidavit to the eligible Judge or

nominated AAT member, whether or not a warrant has been

issued.

Target computer

(6) The target computer referred to in subsection (1) may be any one

or more of the following:

(a) a particular computer;

(b) a computer on particular premises;

person (whose identity may or may not be known).

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27KB Remote application

(1) If a law enforcement officer believes that it is impracticable for an

application for a data disruption warrant to be made in person, the

application may be made under section 27KA by telephone, fax,

email or any other means of communication.

(2) If transmission by fax is available and an affidavit has been

prepared, the person applying must transmit a copy of the affidavit,

whether sworn or unsworn, to the eligible Judge or to the

nominated AAT member who is to determine the application.

27KC Determining the application

(1) An eligible Judge or a nominated AAT member may issue a data

disruption warrant if satisfied:

(a) that there are reasonable grounds for the suspicion founding

the application for the warrant; and

(b) the disruption of data authorised by the warrant is justifiable

and proportionate, having regard to the offences referred to in

paragraph 27KA(1)(c); and

been impracticable for an affidavit to have been sworn or

prepared before the application was made; and

(d) in the case of a remote application--that it would have been

impracticable for the application to have been made in

person.

(2) In determining whether a data disruption warrant should be issued,

the eligible Judge or nominated AAT member must have regard to:

(a) the nature and gravity of the conduct constituting the

offences referred to in paragraph 27KA(1)(c); and

(b) the likelihood that the disruption of data authorised by the

warrant will frustrate the commission of the offences referred

to in paragraph 27KA(1)(c); and

commission of the offences referred to in

paragraph 27KA(1)(c); and

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(d) any previous warrant sought or issued under this Division in

relation to the alleged relevant offences referred to in

paragraph 27KA(1)(c).

27KD What must a data disruption warrant contain?

(1) A data disruption warrant must:

(a) state that the eligible Judge or nominated AAT member

issuing the warrant is satisfied of the matters referred to in

subsection 27KC(1) and has had regard to the matters

referred to in subsection 27KC(2); and

(b) specify:

(i) the name of the applicant; and

(ii) the alleged relevant offences referred to in

paragraph 27KA(1)(c); and

(iii) the date the warrant is issued; and

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

computer--the computer; and

(v) if the target computer is or includes a computer on

particular premises--the premises; and

(vi) if the target computer is or includes a computer

associated with, used by or likely to be used by, a

known person--the person (whether by name or

otherwise); and

(vii) the period during which the warrant is in force (see

subsection (2)); and

(viii) the name of the law enforcement officer primarily

responsible for executing the warrant; and

(ix) any conditions subject to which things may be done

under the warrant.

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

days.

Note:

The access to, or disruption of, data held in the target computer

pursuant to a warrant may be discontinued earlier--see section 27KH.

(3) In the case of a warrant authorising access to, or disruption of, data

held in the target computer on premises that are vehicles, the

warrant need only specify the class of vehicle in relation to which

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the access to, and disruption of, data held in the target computer is

authorised.

(4) A warrant must be signed by the person issuing it and include the

person's name.

(5) As soon as practicable after completing and signing a warrant

issued on a remote application, the person issuing it must:

(a) inform the applicant of:

(i) the terms of the warrant; and

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

was issued; and

(b) give the warrant to the applicant while retaining a copy of the

warrant for the person's own record.

27KE What a data disruption warrant authorises

(1) A data disruption warrant must authorise the doing of specified

things (subject to any restrictions or conditions specified in the

warrant) in relation to the relevant target computer.

(2) The things that may be specified are any of the following that the

eligible Judge or nominated AAT member considers appropriate in

the circumstances:

(a) entering specified premises for the purposes of doing the

things mentioned in this subsection;

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

exiting, the specified premises;

(i) the target computer; or

(ii) a telecommunications facility operated or provided by

the Commonwealth or a carrier; or

(iii) any other electronic equipment; or

(iv) a data storage device;

for the following purposes:

(v) obtaining access to data (the

relevant data

) that is held

in the target computer at any time while the warrant is

in force, in order to determine whether the relevant data

is covered by the warrant;

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(vi) disrupting the relevant data at any time while the

warrant is in force, if doing so is likely to assist in

frustrating the commission of one or more relevant

offences covered by the warrant;

(d) if necessary to achieve the purpose mentioned in

subparagraph (c)(v) or (vi)--adding, copying, deleting or

altering other data in the target computer;

(e) if, having regard to other methods (if any) of obtaining

access to, or disrupting, the relevant data which are likely to

be as effective, it is reasonable in all the circumstances to do

so:

(i) using any other computer or a communication in transit

to access or disrupt the relevant data; and

(ii) if necessary to achieve that purpose--adding, copying,

deleting or altering other data in the computer or the

communication in transit;

(f) removing a computer or other thing from premises for the

purposes of doing any thing specified in the warrant in

accordance with this subsection, and returning the computer

or other thing to the premises;

(g) copying any data to which access has been obtained, and

that:

(i) appears to be relevant for the purposes of determining

whether the relevant data is covered by the warrant; or

(ii) is covered by the warrant;

(h) intercepting a communication passing over a

telecommunications system, if the interception is for the

purposes of doing any thing specified in the warrant in

accordance with this subsection;

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

Note:

As a result of the warrant, a person who, by means of a

telecommunications facility, obtains access to data stored in a

computer etc. will not commit an offence under Part 10.7 of the

Criminal Code

or equivalent State or Territory laws (provided that the

person acts within the authority of the warrant).

(3) If:

(a) a data disruption warrant authorises the removal of a

computer or other thing from premises as mentioned in

paragraph (2)(f); and

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(b) a computer or thing is removed from the premises in

accordance with the warrant;

the computer or thing must be returned to the premises within a

reasonable period.

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

(a) access has been obtained to data; and

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

the data is taken to be relevant for the purposes of determining

whether the relevant data is covered by the warrant.

When data is covered by a warrant

(5) For the purposes of this section, data is

covered by

a warrant if

disruption of the data is likely to substantially assist as described in

paragraph 27KA(1)(c).

When a relevant offence is covered by a warrant

(6) For the purposes of this section, a relevant offence is

covered by

warrant if the relevant offence is referred to in

paragraph 27KA(1)(c).

Certain acts not authorised

(7) Subsection (2) does not authorise the addition, deletion or

alteration of data, or the doing of any thing, that is likely to:

(a) materially interfere with, interrupt or obstruct:

(i) a communication in transit; or

(ii) the lawful use by other persons of a computer;

unless the addition, deletion or alteration, or the doing of the

thing, is necessary to do one or more of the things specified

in the warrant; or

(b) cause any other material loss or damage to other persons

lawfully using a computer, unless the loss or damage is

justified and proportionate, having regard to the offences

covered by the warrant.

Warrant must provide for certain matters

(8) A data disruption warrant must:

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(a) authorise the use of any force against persons and things that

is necessary and reasonable to do the things specified in the

warrant; and

(b) if the warrant authorises entering premises--state whether

entry is authorised to be made at any time of the day or night

or during stated hours of the day or night.

Concealment of access etc.

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

(a) a data disruption warrant; or

(b) this subsection;

then, in addition to the things specified in the warrant, the warrant

authorises the doing of any of the following:

thing has been done under the warrant or under this

subsection;

(d) entering any premises where the computer is reasonably

believed to be, for the purposes of doing the things

mentioned in paragraph (c);

(e) entering any other premises for the purposes of gaining entry

to or exiting the premises referred to in paragraph (d);

(f) removing the computer or another thing from any place

where it is situated for the purposes of doing the things

mentioned in paragraph (c), and returning the computer or

other thing to that place;

(g) if, having regard to other methods (if any) of doing the things

mentioned in paragraph (c) which are likely to be as

effective, it is reasonable in all the circumstances to do so:

(i) using any other computer or a communication in transit

to do those things; and

(ii) if necessary to achieve that purpose--adding, copying,

deleting or altering other data in the computer or the

communication in transit;

(h) intercepting a communication passing over a

telecommunications system, if the interception is for the

purposes of doing any thing mentioned in this subsection;

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

at the following time:

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(j) at any time while the warrant is in force or within 28 days

after it ceases to be in force;

(k) if none of the things mentioned in paragraph (c) are done

within the 28-day period mentioned in paragraph (j)--at the

earliest time after that 28-day period at which it is reasonably

practicable to do the things mentioned in paragraph (c).

(10) Subsection (9) does not authorise the doing of a thing that is likely

to:

(a) materially interfere with, interrupt or obstruct:

(i) a communication in transit; or

(ii) the lawful use by other persons of a computer;

unless the doing of the thing is necessary to do one or more

of the things specified in subsection (9); or

(b) cause any other material loss or damage to other persons

lawfully using a computer, unless the loss or damage is

justified and proportionate, having regard to the offences

covered by the warrant.

(11) If a computer or another thing is removed from a place in

accordance with paragraph (9)(f), the computer or thing must be

returned to the place within a reasonable period.

Statutory conditions

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

(a) the warrant must not be executed in a manner that results in

loss or damage to data unless the damage is justified and

proportionate, having regard to the offences covered by the

warrant;

(b) the warrant must not be executed in a manner that causes a

person to suffer a permanent loss of:

(i) money; or

(ii) digital currency; or

(iii) property (other than data).

(13) Subsection (12) does not, by implication, limit the conditions to

which a data disruption warrant may be subject.

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(14) The conditions set out in subsection (12) must be specified in a

data disruption warrant.

27KF Extension and variation of data disruption warrant

(1) A law enforcement officer to whom a data disruption warrant has

been issued (or another person on the law enforcement officer's

behalf) may apply, at any time before the expiry of the warrant:

(a) for an extension of the warrant for a period of no more than

90 days after the day the warrant would otherwise expire; or

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

(2) The application is to be made to an eligible Judge or to a

nominated AAT member and must be accompanied by the original

warrant.

(3) Sections 27KA and 27KB apply, with any necessary changes, to an

application under this section as if it were an application for the

warrant.

(4) The eligible Judge or nominated AAT member may grant an

application if satisfied that the matters referred to in

subsection 27KC(1) still exist, having regard to the matters in

subsection 27KC(2).

(5) If the eligible Judge or nominated AAT member grants the

application, the eligible Judge or nominated AAT member must

endorse the new expiry date or the other varied term on the original

warrant.

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

27KG Revocation of data disruption warrant

(1) A data disruption warrant may, by instrument in writing, be

revoked by an eligible Judge or nominated AAT member on the

initiative of the eligible Judge or nominated AAT member at any

time before the expiration of the period of validity specified in the

warrant.

(2) If the circumstances set out in subsection 27KH(2) apply in

relation to a data disruption warrant, the chief officer of the law

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enforcement agency to which the law enforcement officer to whom

the warrant was issued belongs or is seconded must, by instrument

in writing, revoke the warrant.

(3) The instrument revoking a warrant must be signed by the eligible

Judge, the nominated AAT member or the chief officer of the law

enforcement agency, as the case requires.

(4) If an eligible Judge or nominated AAT member revokes a warrant,

the eligible Judge or nominated AAT member must give a copy of

the instrument of revocation to the chief officer of the law

enforcement agency to which the law enforcement officer to whom

the warrant was issued belongs or is seconded.

(5) If:

(a) an eligible Judge or nominated AAT member revokes a

warrant; and

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

executing the warrant;

the law enforcement officer is not subject to any civil or criminal

liability for any act done in the proper execution of that warrant

before the officer is made aware of the revocation.

27KH Discontinuance of access and disruption under warrant

Scope

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

Discontinuance of access and disruption

(2) If:

(a) the data disruption warrant has been sought by or on behalf

of a law enforcement officer; and

(b) the chief officer of the law enforcement agency to which the

law enforcement officer belongs or is seconded is satisfied

that access to, and disruption of, data under the warrant is no

longer required for the purposes referred to in

paragraph 27KA(1)(c);

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the chief officer must, in addition to revoking the warrant under

section 27KG, take the steps necessary to ensure that access to, and

disruption of, data authorised by the warrant is discontinued.

(3) If the chief officer of a law enforcement agency is notified that a

warrant has been revoked by an eligible Judge or a nominated

AAT member under section 27KG, the chief officer must take the

steps necessary to ensure that access to, and disruption of, data

authorised by the warrant is discontinued as soon as practicable.

(4) If the law enforcement officer to whom the warrant is issued, or

who is primarily responsible for executing the warrant, believes

that access to, and disruption of, data under the warrant is no

longer necessary for the purposes referred to in

paragraph 27KA(1)(c), the law enforcement officer must

immediately inform the chief officer of the law enforcement

agency to which the law enforcement officer belongs or is

seconded.

27KJ Relationship of this Division to parliamentary privileges and

immunities

To avoid doubt, this Division does not affect the law relating to the

powers, privileges and immunities of any of the following:

(a) each House of the Parliament;

(b) the members of each House of the Parliament;

committees of both Houses of the Parliament.

14 Subsection 28(1B)

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

15 After subsection 28(1B)

Insert:

(1C) A law enforcement officer of the Australian Federal Police or the

Australian Crime Commission may apply to an appropriate

authorising officer for an emergency authorisation for disruption of

data held in a computer (the

target computer

) if, in the course of an

investigation of a relevant offence, the law enforcement officer

reasonably suspects that:

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(a) an imminent risk of serious violence to a person or

substantial damage to property exists; and

(b) disruption of data held in the target computer is immediately

necessary for the purpose of dealing with that risk; and

urgency that disruption of data held in the target computer is

warranted; and

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

disruption warrant.

(1D) The target computer mentioned in subsection (1C) may be any one

or more of the following:

(a) a particular computer;

(b) a computer on particular premises;

person (whose identity may or may not be known).

16 Subsections 28(3) and (4)

Omit "or (1A)", substitute ", (1A) or (1C)".

17 At the end of section 28

Add:

Statutory conditions--disruption of data held in a computer

(5) An emergency authorisation for disruption of data held in a

computer is subject to the following conditions:

(a) the authorisation must not be executed in a manner that

results in damage to data unless the damage is justified and

proportionate, having regard to the risk of serious violence or

substantial damage referred to in paragraph (1C)(a);

(b) the authorisation must not be executed in a manner that

causes a person to suffer a permanent loss of:

(i) money; or

(ii) digital currency; or

(iii) property (other than data).

18 After subsection 32(2A)

Insert:

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(2B) An emergency authorisation for disruption of data held in a

computer may authorise anything that a data disruption warrant

may authorise.

19 After subsection 32(3A)

Insert:

(3B) A law enforcement officer may, under an emergency authorisation,

disrupt data held in a computer only if the officer is acting in the

performance of the officer's duty.

20 Subsection 32(4)

After "(2A)", insert "or (2B)".

21 After subsection 33(2A)

Insert:

(2B) In the case of an application for an emergency authorisation for

disruption of data held in a computer, the application:

(a) must specify:

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

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

warrant; and

(b) must be supported by an affidavit setting out the grounds on

which the approval (and warrant, if any) is sought; and

under section 31 in relation to the emergency authorisation.

22 After subsection 34(1A)

Insert:

(1B) Before deciding an application for approval of the giving of an

emergency authorisation given in response to an application under

subsection 28(1C), the eligible Judge or nominated AAT member

considering the application must, in particular, and being mindful

of the intrusive nature of accessing and disrupting data held in the

target computer mentioned in that subsection, consider the

following:

(a) the nature of the risk of serious violence to a person or

substantial damage to property;

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(b) the extent to which issuing a data disruption warrant would

have helped reduce or avoid the risk;

alternative methods to help reduce or avoid the risk;

(d) how much the use of alternative methods could have helped

reduce or avoid the risk;

(e) how much the use of alternative methods would have

prejudiced the safety of the person or property because of

delay or for another reason;

(f) whether or not it was practicable in the circumstances to

apply for a data disruption warrant.

23 After section 35A

Insert:

35B Judge or nominated AAT member may approve giving of an

emergency authorisation for disruption of data held in a

computer

(1) After considering an application for approval of the giving of an

emergency authorisation in response to an application under

subsection 28(1C), the eligible Judge or nominated AAT member

may give the approval if satisfied that there were reasonable

grounds to suspect that:

(a) there was a risk of serious violence to a person or substantial

damage to property; and

(b) disruption of data held in the target computer mentioned in

that subsection may have helped reduce the risk; and

disruption warrant.

(2) If, under subsection (1), the eligible Judge or nominated AAT

member approves the giving of an emergency authorisation, the

eligible Judge or nominated AAT member may:

(a) unless paragraph (b) applies--issue a data disruption warrant

relating to the continued access to, and disruption of, data

held in the relevant target computer as if the application for

the approval were an application for a data disruption warrant

under Division 5 of Part 2; or

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(b) if the eligible Judge or nominated AAT member is satisfied

that, since the application for the emergency authorisation,

the activity that required access to, and disruption of, data

held in the relevant target computer has ceased--order that

access to, and disruption of, data held in that computer cease.

(3) If, under subsection (1), the eligible Judge or nominated AAT

member does not approve the giving of an emergency

authorisation, the eligible Judge or nominated AAT member may:

(a) order that access to, and disruption of, data held in the

relevant target computer cease; or

(b) if the eligible Judge or nominated AAT member is of the

view that, although the situation did not warrant the

emergency authorisation at the time that authorisation was

given, the use of a data disruption warrant under Division 5

of Part 2 is currently justified--issue a data disruption

warrant relating to the subsequent access to, and disruption

of, such data as if the application for the approval were an

application for a data disruption warrant under Division 5 of

Part 2.

(4) In any case, the eligible Judge or nominated AAT member may

order that any information obtained from or relating to the exercise

of powers under the emergency authorisation, or any record of that

information, be dealt with in a manner specified in the order, so

long as the manner does not involve the destruction of that

information.

24 Section 36

Omit "or 35A", substitute ", 35A or 35B".

25 At the end of Part 3

Add:

36A Relationship of this Part to parliamentary privileges and

immunities

To avoid doubt, this Part does not affect the law relating to the

powers, privileges and immunities of any of the following:

(a) each House of the Parliament;

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(b) the members of each House of the Parliament;

committees of both Houses of the Parliament.

26 Section 41 (paragraph (b) of the definition of

appropriate

consenting official

)

Omit "or 43B", substitute ", 43B, 43C or 43D".

27 At the end of Part 5

Add:

43C Extraterritorial operation of data disruption warrants

(1) If, before the issue of a data disruption warrant, it becomes

apparent to the applicant for the warrant that there will be a need

for access to, and disruption of, data held in a computer:

(a) in a foreign country; or

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

foreign country and that is in or above waters beyond the

outer limits of the territorial sea of Australia;

the eligible Judge or nominated AAT member considering the

application for the warrant must not permit the warrant to authorise

that access and disruption unless the eligible Judge or nominated

AAT member is satisfied that the access and disruption has been

agreed to by an appropriate consenting official of the foreign

country.

(2) If:

(a) an application is made under section 33 by an appropriate

authorising officer for approval of the giving of an

emergency authorisation; and

(b) the emergency authorisation was given in response to an

application under subsection 28(1C); and

application, it becomes apparent to the applicant that there

will be a need for access to, and disruption of, data held in a

computer:

(i) in a foreign country; or

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(ii) on a vessel or aircraft that is registered under the law of

a foreign country and that is in or above waters beyond

the outer limits of the territorial sea of Australia;

the eligible Judge or nominated AAT member to whom the

section 33 application was made must not permit any data

disruption warrant issued on consideration of that section 33

application to authorise that access and disruption unless the

eligible Judge or nominated AAT member is satisfied that the

access and disruption has been agreed to by an appropriate

consenting official of the foreign country.

(3) If:

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

(b) after the issue of the warrant, it becomes apparent to the law

enforcement officer primarily responsible for executing the

warrant that there will be a need for access to, and disruption

of, data held in a computer that is:

(i) in a foreign country; or

(ii) on a vessel or aircraft that is registered under the law of

a foreign country and that is in or above waters beyond

the outer limits of the territorial sea of Australia;

the warrant is taken to permit that access and disruption if, and

only if, the access and or disruption has been agreed to by an

appropriate consenting official of the foreign country.

(4) Subsections (1), (2) and (3) do not apply to a data disruption

warrant authorising access to, and disruption of, data if:

(a) the person, or each of the persons, responsible for executing

the warrant will be physically present in Australia; and

(b) the location where the data is held is unknown or cannot

reasonably be determined.

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

(a) a vessel that is registered under the law of a foreign country

is in waters beyond the outer limits of the territorial sea of

Australia but not beyond the outer limits of the contiguous

zone of Australia; and

(b) the relevant offences in respect of which it becomes apparent

that access to, and disruption of, data held in a computer on

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the vessel will be required are offences relating to the

customs, fiscal, immigration or sanitary laws of Australia;

there is no requirement for the agreement of an appropriate

consenting official of the foreign country concerned in relation to

that access or disruption while the vessel is in such waters.

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

(a) a vessel that is registered under the law of a foreign country

is in waters beyond the outer limits of the territorial sea of

Australia but not beyond the outer limits of the Australian

fishing zone; and

(b) the relevant offences in respect of which it becomes apparent

that access to, and disruption of, data held in a computer on

the vessel will be required are offences against section 100,

100A, 100B, 101, 101A or 101AA of the

Fisheries

Management Act 1991

or section 46A, 46B, 46C, 46D, 49A

or 51A of the

Torres Strait Fisheries Act 1984

;

there is no requirement for the agreement of an appropriate

consenting official of the foreign country concerned in relation to

that access or disruption while the vessel is in those waters.

(7) As soon as practicable after the commencement of access to, and

disruption of, data held in a computer under the authority of a data

disruption warrant in circumstances where consent to that access or

disruption is required:

(a) in a foreign country; or

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

foreign country;

the chief officer of the law enforcement agency to which the law

enforcement officer who applied for the warrant belongs or is

seconded must give the Minister evidence in writing that the access

and disruption has been agreed to by an appropriate consenting

official of the foreign country.

(8) An instrument providing evidence of the kind referred to in

subsection (7) is not a legislative instrument.

(9) If a vessel or aircraft that is registered under the laws of a foreign

country is in or above the territorial sea of another foreign country,

subsections (1), (2) and (3) have effect as if the reference to an

appropriate consenting official of the foreign country were a

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reference to an appropriate consenting official of each foreign

country concerned.

(10) For the avoidance of doubt, there is no requirement for the

agreement of an appropriate consenting official of the foreign

country to the access to, and disruption of, data held in a computer

under the authority of a data disruption warrant on a vessel or

aircraft of a foreign country that is in Australia or in or above

waters within the outer limits of the territorial sea of Australia.

43D Evidence obtained from extraterritorial computer access not to

be tendered in evidence unless court is satisfied that the

evidence was properly obtained

Evidence obtained from access to, or disruption of, data held in a

computer undertaken in a foreign country in accordance with

subsection 43C(1), (2) or (3) in relation to a relevant offence

cannot be tendered in evidence to a court in any proceedings

relating to the relevant offence unless the court is satisfied that the

access or disruption was agreed to by an appropriate consenting

official of the foreign country.

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

protected information

)

Insert:

(ab) any information (other than data disruption intercept

information) obtained from access to, or disruption of, data

under:

(i) a data disruption warrant; or

(ii) an emergency authorisation for disruption of data held

in a computer; or

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

protected information

)

After "obtained", insert ", purportedly under a computer access warrant

or an emergency authorisation for access to data held in a computer,".

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

definition of

protected information

)

Add "or".

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

definition of

protected information

)

Insert:

(v) in a case where the information was obtained,

purportedly under a data disruption warrant or an

emergency authorisation for disruption of data held in a

computer, through access to, or disruption of, data held

in a computer in a foreign country, or on a vessel or

aircraft that is registered under the law of a foreign

country and that is in or above waters beyond the outer

limit of Australia's territorial sea--without the

agreement of the appropriate consenting official of that

foreign country, and of any other foreign country,

whose agreement is required under section 43C;

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

protected information

)

Omit "such".

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

protected

information

)

Omit "Note", substitute "Note 1".

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

protected

information

)

Add:

Note 2:

For protection of data disruption intercept information, see Part 2-6 of

the

Telecommunications (Interception and Access) Act 1979

35 After subsection 45(6)

Insert:

(6A) Protected information may be communicated by an Ombudsman

official to an IGIS official for the purposes of the IGIS official

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exercising powers, or performing functions or duties, as an IGIS

official.

36 Paragraph 46(1)(a)

Omit "or general computer access intercept information", substitute ",

general computer access intercept information or data disruption

intercept information".

37 At the end of paragraph 46(2)(ab)

Add "or".

38 After paragraph 46(2)(ab)

Insert:

(ac) disrupting data held in a computer;

39 After section 47A

Insert:

47B Protection of data disruption technologies and methods

(1) In a proceeding, a person may object to the disclosure of

information on the ground that the information, if disclosed, could

reasonably be expected to reveal details of data disruption

technologies or methods.

(2) If the person conducting or presiding over the proceeding is

satisfied that the ground of objection is made out, the person may

order that the person who has the information not be required to

disclose it in the proceeding.

(3) In determining whether or not to make an order under

subsection (2), the person conducting or presiding over the

proceeding must take into account whether disclosure of the

information:

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

(b) is in the public interest.

(4) Subsection (2) does not affect a provision of another law under

which a law enforcement officer cannot be compelled to disclose

information or make statements in relation to the information.

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(5) If the person conducting or presiding over a proceeding is satisfied

that publication of any information disclosed in the proceeding

could reasonably be expected to reveal details of data disruption

technologies or methods, the person must make any orders

prohibiting or restricting publication of the information that the

person considers necessary to ensure that those details are not

revealed.

(6) Subsection (5) does not apply to the extent that the person

conducting or presiding over the proceeding considers that the

interests of justice require otherwise.

(7) In this section:

data disruption technologies or methods

means technologies or

methods relating to the use of:

(a) a computer; or

(b) a telecommunications facility operated or provided by the

Commonwealth or a carrier; or

(d) a data storage device;

for either or both of the following purposes:

(e) disrupting data held in the computer;

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

where the technologies or methods have been, or are being,

deployed in giving effect to:

(g) a data disruption warrant; or

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

computer.

proceeding

includes a proceeding before a court, tribunal or Royal

Commission.

40 After subsection 49(2C)

Insert:

(2D) In the case of:

(a) a data disruption warrant for disruption of data held in a

computer; or

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

computer;

the report must:

(d) if so:

(i) state the name of the person primarily responsible for

the execution of the warrant or authorisation; and

(ii) state the name of each person involved in accessing or

disrupting data under the warrant or authorisation; and

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

disrupted; and

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

accessed or disrupted; and

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

located; and

(vi) give details of the benefit of the use of the warrant or

authorisation in frustrating criminal activity; and

(vii) give details of the access to, and disruption of, data

under the warrant or authorisation; and

(viii) give details of the compliance with the conditions (if

any) to which the warrant or authorisation was subject;

and

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

(i) the number of extensions or variations; and

(ii) the reasons for them.

41 After section 49B

Insert:

49C Notification to Ombudsman of things done under a data

disruption warrant

If:

(a) a data disruption warrant was issued in response to an

application made by a law enforcement officer of a law

enforcement agency; and

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

warrant;

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the chief officer of the law enforcement agency must:

(i) that the warrant was issued; and

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

and

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

42 After paragraph 50(1)(ea)

Insert:

(eb) if the agency is the Australian Federal Police or the

Australian Crime Commission--the kinds of offences

targeted by data disruption warrants issued during that year

in response to applications made by or on behalf of law

enforcement officers of the agency; and

43 Paragraph 51(b)

Omit "or 27G(4)", substitute ", 27G(4) or 27KG(4)".

44 At the end of subsection 62(1)

Add:

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

with:

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

(ii) the making use of; or

(iii) the making of a record of; or

(iv) the custody of a record of;

information obtained from access to, or disruption of, data

under:

(v) a data disruption warrant; or

(vi) an emergency authorisation for disruption of data held

in a computer.

45 Subsection 62(3)

Omit "or 35A", substitute ", 35A or 35B".

46 Paragraph 64(2)(a)

After "access to", insert ", or disrupting,".

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47 After section 64A

Insert:

64B Person with knowledge of a computer or a computer system to

assist disruption of data etc.

(1) A law enforcement officer of the Australian Federal Police or the

Australian Crime Commission (or another person on the officer's

behalf) may apply to an eligible Judge or to a nominated AAT

member for an order (the

assistance order

) requiring a specified

person to provide any information or assistance that is reasonable

and necessary to allow the law enforcement officer to do one or

more of the following:

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

(i) a data disruption warrant; or

(ii) an emergency authorisation given in response to an

application under subsection 28(1C);

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

paragraph (a);

a data storage device;

(d) convert into documentary form or another form intelligible to

a law enforcement officer:

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

(ii) data held in a data storage device to which the data was

copied as described in paragraph (c).

Grant of assistance order

(2) The eligible Judge or nominated AAT member may grant the

assistance order if the eligible Judge or nominated AAT member is

satisfied that:

(a) in a case where the computer is the subject of a data

disruption warrant--disruption of data held in the computer

is:

(i) likely to substantially assist in frustrating the

commission of the offences that are covered by the

warrant (within the meaning of section 27KE); and

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(ii) justifiable and proportionate, having regard to those

offences; and

(b) in a case where the computer is the subject of an emergency

authorisation given in response to an application under

subsection 28(1C):

(i) there is an imminent risk of serious violence to a person

or substantial damage to property; and

(ii) disruption of data held in the computer is immediately

necessary for the purpose of dealing with the risk; and

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

and

(ii) the assistance order requires the specified person to

provide information or assistance to allow the law

enforcement officer to do a thing referred to in

paragraph (1)(b), (c) or (d) in relation to data;

doing the thing is for the purpose of determining whether the

data is covered by the warrant (within the meaning of

section 27KE); and

(d) in a case where:

(i) the computer is the subject of an emergency

authorisation given in response to an application under

subsection 28(1C); and

(ii) the assistance order requires the specified person to

provide information or assistance to allow the law

enforcement officer to do a thing referred to in

paragraph (1)(b), (c) or (d) in relation to data;

doing the thing is for the purpose of determining whether

disruption of the data is immediately necessary for the

purpose of dealing with an imminent risk of serious violence

to a person or substantial damage to property; and

(e) the specified person is:

(i) in a case where the computer is the subject of a data

disruption warrant--reasonably suspected of having

committed any of the relevant offences referred to in

paragraph 27KA(1)(c); or

(ii) in a case where the computer is the subject of

emergency authorisation--reasonably suspected of

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having committed the relevant offence referred to in

subsection 28(1C); or

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

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

(v) a person engaged under a contract for services by the

owner or lessee of the computer; or

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

(vii) a person who is or was a system administrator for the

system including the computer; and

(f) the specified person has relevant knowledge of:

(i) the computer or a computer network of which the

computer forms or formed a part; or

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

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

(d) the omission contravenes the requirement.

Penalty for contravention of this subsection: Imprisonment for 10

years or 600 penalty units, or both.

48 Paragraph 65(1A)(a)

After "computer access warrant", insert ", data disruption warrant".

49 After subsection 65(1A)

Insert:

(1B) If:

(a) data is disrupted purportedly under:

(i) a data disruption warrant; or

(ii) an emergency authorisation for disruption of data held

in a computer; and

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

emergency authorisation; and

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authorisation would be a sufficient authority for disrupting

the data;

disruption of the data is taken to be as valid as if the warrant or

emergency authorisation did not have that defect or irregularity.

50 Subsection 65(2)

Omit "or (1A)", substitute ", (1A) or (1B)".

51 After section 65B

Insert:

65C Evidence obtained from access to, or disruption of, data under

a data disruption warrant etc.

This Act does not prevent evidence obtained from access to, or

disruption of, data under:

(a) a data disruption warrant; or

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

computer;

from being admissible as evidence in a proceeding relating to a

relevant offence.

Telecommunications (Interception and Access) Act 1979

52 Subsection 5(1)

Insert:

data disruption intercept information

means information obtained

under a data disruption warrant by intercepting a communication

passing over a telecommunications system.

data disruption warrant

has the same meaning as in the

Surveillance Devices Act 2004

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

restricted

record

)

Add "or a record of data disruption intercept information".

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

warrant

)

After "general computer access warrant", insert ", a data disruption

warrant".

55 Paragraph 7(2)(bb)

After "27E(7)", insert "or 27KE(9)".

56 After section 63AC

Insert:

63AD Dealing in data disruption intercept information etc.

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

data disruption warrant:

(a) communicate data disruption intercept information to another

person; or

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

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

proceeding.

(2) A person may:

(a) communicate data disruption intercept information to another

person; or

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

if the information relates, or appears to relate, to the involvement,

or likely involvement, of a person in one or more of the following

activities:

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

(e) acting for, or on behalf of, a foreign power (within the

meaning of the

Australian Security Intelligence Organisation

Act 1979

);

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

(g) activities that pose a risk, or are likely to pose a risk, to the

operational security (within the meaning of the

Intelligence

Services Act 2001

) of ASIS (within the meaning of that Act);

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(h) activities that pose a risk, or are likely to pose a risk, to the

operational security (within the ordinary meaning of that

expression) of the Organisation or of AGO or ASD (within

the meanings of the

Intelligence Services Act 2001

);

(i) activities related to the proliferation of weapons of mass

destruction or the movement of goods listed from time to

time in the Defence and Strategic Goods List (within the

meaning of regulation 13E of the

Customs (Prohibited

Exports) Regulations 1958

);

(j) activities related to a contravention, or an alleged

contravention, by a person of a UN sanction enforcement law

(within the meaning of the

Charter of the United Nations Act

1945

(3) A person may, in connection with:

(a) the performance by an Ombudsman official of the

Ombudsman official's functions or duties; or

(b) the exercise by an Ombudsman official of the Ombudsman

official's powers;

communicate to the Ombudsman official, or make use of, or make

a record of, data disruption intercept information.

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

(a) the performance by the Ombudsman official of the

Ombudsman official's functions or duties; or

(b) the exercise by the Ombudsman official of the Ombudsman

official's powers;

communicate to another person, or make use of, or make a record

of, data disruption intercept information.

(5) A person may, in connection with:

(a) the performance by an IGIS official of the IGIS official's

functions or duties; or

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

communicate to the IGIS official, or make use of, or make a record

of, data disruption intercept information.

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

(a) the performance by the IGIS official of the IGIS official's

functions or duties; or

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(b) the exercise by the IGIS official of the IGIS official's

powers;

communicate to another person, or make use of, or make a record

of, data disruption intercept information.

(7) If:

(a) information was obtained by intercepting a communication

passing over a telecommunications system; and

(b) the interception was purportedly for the purposes of doing a

thing specified in a data disruption warrant; and

warrant;

then:

(d) a person may, in connection with:

(i) the performance by an Ombudsman official of the

Ombudsman official's functions or duties; or

(ii) the exercise by an Ombudsman official of the

Ombudsman official's powers;

communicate to the Ombudsman official, or make use of, or

make a record of, that information; and

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

(i) the performance by the Ombudsman official of the

Ombudsman official's functions or duties; or

(ii) the exercise by the Ombudsman official of the

Ombudsman official's powers;

communicate to another person, or make use of, or make a

record of, that information; and

(f) a person may, in connection with:

(i) the performance by an IGIS official of the IGIS

official's functions or duties; or

(ii) the exercise by an IGIS official of the IGIS official's

powers;

communicate to the IGIS official, or make use of, or make a

record of, that information; and

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

(i) the performance by the IGIS official of the IGIS

official's functions or duties; or

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(ii) the exercise by the IGIS official of the IGIS official's

powers;

communicate to another person, or make use of, or make a

record of, that information.

(8) Despite subsection 13.3(3) of the

Criminal Code

, in a prosecution

for an offence against section 63 of this Act, an Ombudsman

official or an IGIS official does not bear an evidential burden in

relation to the matters in subsection (4), (6) or (7) of this section.

57 Paragraph 67(1)(a)

Omit "or general computer access intercept information", substitute ",

general computer access intercept information or data disruption

intercept information".

58 Section 68

After "general computer access intercept information", insert "or data

disruption intercept information".

59 Subsection 74(1)

After "general computer access intercept information", insert ", data

disruption intercept information".

60 Subsection 75(1)

After "general computer access warrant", insert ", a data disruption

warrant".

61 Paragraphs 77(1)(a) and (b)

After "63AC,", insert "63AD,".

62 After paragraph 108(2)(cb)

Insert:

(cc) accessing a stored communication under a data disruption

warrant; or

Schedule 2

Network activity warrants

Part 1

Main amendments

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

No. , 2020

Schedule 2--Network activity warrants

Part 1--Main amendments

Surveillance Devices Act 2004

1 After paragraph 3(aab)

Insert:

(aac) to establish procedures for the chief officer of the Australian

Federal Police or the Australian Crime Commission to obtain

warrants that:

(i) authorise access to data held in computers; and

(ii) will substantially assist in the collection of intelligence

that relates to criminal networks of individuals; and

2 After subsection 4(4B)

Insert:

(4C) For the avoidance of doubt, it is intended that a warrant may be

issued under this Act:

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

(b) in relation to the collection of intelligence that relates to a

criminal network of individuals.

3 Subsection 6(1)

Insert:

criminal network of individuals

has the meaning given by

section 7A.

electronically linked group of individuals

means a group of 2 or

more individuals, where each individual in the group does, or is

likely to do, either or both of the following things:

(a) use the same electronic service as at least one other

individual in the group;

(b) communicate with at least one other individual in the group

by electronic communication.

electronic communication

means a communication of information:

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(a) whether in the form of text; or

(b) whether in the form of data; or

(d) whether in the form of visual images (animated or

otherwise); or

(e) whether in any other form; or

(f) whether in any combination of forms;

by means of guided and/or unguided electromagnetic energy.

electronic service

has the same meaning as in Part 15 of the

Telecommunications Act 1997

network activity warrant

means a warrant issued under

section 27KM.

network activity warrant intercept information

has the same

meaning as in the

Telecommunications (Interception and Access)

Act 1979

protected network activity warrant information

has the meaning

given by section 44A.

4 Subsection 6(1) (definition of

remote application

)

Omit "or 27KB", substitute, ", 27KB or 27KL".

5 Subsection 6(1) (definition of

unsworn application

)

Omit "or 27KA(4) and (5)", substitute ", 27KA(4) and (5) or 27KK(5)

and (6)".

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

warrant

)

Add:

; or (e) a network activity warrant.

7 At the end of subsection 10(1)

Add:

; (e) a network activity warrant.

8 After section 7

Insert:

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7A Criminal network of individuals

(1) For the purposes of this Act, a

criminal network of individuals

an electronically linked group of individuals, where one or more

individuals in the group:

(a) have engaged, are engaging, or are likely to engage, in

conduct that constitutes a relevant offence; or

(b) have facilitated, are facilitating, or are likely to facilitate, the

engagement, by another person (whether or not an individual

in the group), in conduct that constitutes a relevant offence.

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

(a) the identities of the individuals in the group can be

ascertained; or

(b) the details of the relevant offences can be ascertained; or

composition of the group.

9 At the end of Part 2

Add:

Division 6--Network activity warrants

27KK Application for network activity warrant

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

Crime Commission may apply for the issue of a network activity

warrant if the chief officer suspects on reasonable grounds that:

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

and

(b) access to data held in a computer (the

target computer

) that

is, from time to time, used, or likely to be used, by any of the

individuals in the group will substantially assist in the

collection of intelligence that:

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

group; and

(ii) is relevant to the prevention, detection or frustration of

one or more kinds of relevant offences.

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

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(a) the identities of the individuals in the group can be

ascertained; or

(b) the target computer can be identified; or

(d) there are likely to be changes, from time to time, in the

composition of the group.

Procedure for making applications

(3) An application under subsection (1) may be made to an eligible

Judge or to a nominated AAT member.

(4) An application:

(a) must specify:

(i) the name of the applicant; and

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

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

setting out the grounds on which the warrant is sought.

Unsworn applications

(5) If the chief officer of the Australian Federal Police or the

Australian Crime Commission believes that:

(a) immediate access to data held in the target computer referred

to in subsection (1) will substantially assist as described in

paragraph (1)(b); and

(b) it is impracticable for an affidavit to be prepared or sworn

before an application for a warrant is made by the chief

officer;

an application by the chief officer for a warrant under

subsection (1) may be made before an affidavit is prepared or

sworn.

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

(a) provide as much information as the eligible Judge or

nominated AAT member considers is reasonably practicable

in the circumstances; and

(b) not later than 72 hours after the making of the application,

send a duly sworn affidavit to the eligible Judge or

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nominated AAT member, whether or not a warrant has been

issued.

Target computer

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

(a) must be a computer that is, from time to time, used or likely

to be used by an individual (whose identity may or may not

be known); and

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

(i) a particular computer;

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

premises.

27KL Remote application

(1) If the chief officer of the Australian Federal Police or the

Australian Crime Commission believes that it is impracticable for

an application for a network activity warrant to be made in person,

the application may be made under section 27KK by telephone,

fax, email or any other means of communication.

(2) If transmission by fax is available and an affidavit has been

prepared, the person applying must transmit a copy of the affidavit,

whether sworn or unsworn, to the eligible Judge or to the

nominated AAT member who is to determine the application.

27KM Determining the application

(1) An eligible Judge or a nominated AAT member may issue a

network activity warrant if satisfied:

(a) that there are reasonable grounds for the suspicion founding

the application for the warrant; and

(b) in the case of an unsworn application--that it would have

been impracticable for an affidavit to have been sworn or

prepared before the application was made; and

impracticable for the application to have been made in

person.

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(2) In determining whether a network activity warrant should be

issued, the eligible Judge or nominated AAT member must have

regard to:

(a) the nature and gravity of the conduct constituting the kinds of

offences in relation to which information will be obtained

under the warrant; and

(b) the extent to which access to data under the warrant will

assist in the collection of intelligence that:

(i) relates to the group referred to in paragraph 27KK(1)(a)

or to any of the individuals in the group; and

(ii) is relevant to the prevention, detection or frustration of

one or more kinds of relevant offences; and

obtained; and

(d) whether the things authorised by the warrant are

proportionate to the likely intelligence value of any

information sought to be obtained; and

(e) the existence of any alternative, or less intrusive, means of

obtaining the information sought to be obtained; and

(f) the extent to which the execution of the warrant is likely to

result in access to data of persons who are lawfully using a

computer; and

(g) any previous warrant sought or issued under this Division in

relation to the group referred to in paragraph 27KK(1)(a).

(3) If a network activity warrant is issued in response to an application

made by the chief officer of the Australian Federal Police or the

Australian Crime Commission, the chief officer must:

(a) notify the issue of the warrant to the Inspector-General of

Intelligence and Security; and

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

27KN What must a network activity warrant contain?

(1) A network activity warrant must:

(a) state that the eligible Judge or nominated AAT member

issuing the warrant is satisfied of the matters referred to in

subsection 27KM(1) and has had regard to the matters

referred to in subsection 27KM(2); and

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(b) specify:

(i) the name of the applicant; and

(ii) the kinds of relevant offences in respect of which the

warrant is issued; and

(iii) the criminal network of individuals to which the warrant

relates; and

(iv) the date the warrant is issued; and

(v) the period during which the warrant is in force (see

subsection (2)); and

(vi) the name of the law enforcement officer primarily

responsible for executing the warrant; and

(vii) any conditions subject to which things may be done

under the warrant; and

specify:

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

(ii) the purpose or purposes for which the surveillance

device may be used under the warrant.

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

days.

Note:

The access to data held in the target computer pursuant to a warrant

may be discontinued earlier--see section 27KS.

(3) A warrant must be signed by the person issuing it and include the

person's name.

(4) For the purposes of subparagraph (1)(b)(iii), a criminal network of

individuals may be specified by identifying one or more matters or

things that are sufficient to identify the criminal network of

individuals.

(5) As soon as practicable after completing and signing a warrant

issued on a remote application, the person issuing it must:

(a) inform the applicant of:

(i) the terms of the warrant; and

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

was issued; and

(b) give the warrant to the applicant while retaining a copy of the

warrant for the person's own record.

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27KP What a network activity warrant authorises

(1) A network activity warrant must authorise the doing of specified

things (subject to any restrictions or conditions specified in the

warrant) in relation to the relevant target computer.

(2) The things that may be specified are any of the following that the

eligible Judge or nominated AAT member considers appropriate in

the circumstances:

(a) entering specified premises for the purposes of doing the

things mentioned in this subsection;

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

exiting, the specified premises;

(i) the target computer; or

(ii) a telecommunications facility operated or provided by

the Commonwealth or a carrier; or

(iii) any other electronic equipment; or

(iv) a data storage device;

for the purpose of obtaining access to data (the

relevant data

)

that is held in the target computer at any time while the

warrant is in force, in order to determine whether the relevant

data is covered by the warrant;

(d) if necessary to achieve the purpose mentioned in

paragraph (c)--adding, copying, deleting or altering other

data in the target computer;

(e) if, having regard to other methods (if any) of obtaining

access to the relevant data which are likely to be as effective,

it is reasonable in all the circumstances to do so:

(i) using any other computer or a communication in transit

to access the relevant data; and

(ii) if necessary to achieve that purpose--adding, copying,

deleting or altering other data in the computer or the

communication in transit;

(f) removing a computer or other thing from premises for the

purposes of doing any thing specified in the warrant in

accordance with this subsection, and returning the computer

or other thing to the premises;

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(g) copying any data to which access has been obtained, and

that:

(i) appears to be relevant for the purposes of determining

whether the relevant data is covered by the warrant; or

(ii) is covered by the warrant;

(h) intercepting a communication passing over a

telecommunications system, if the interception is for the

purposes of doing any thing specified in the warrant in

accordance with this subsection;

(i) using a surveillance device for the purposes of doing any

thing specified in the warrant in accordance with this

subsection;

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

Note:

As a result of the warrant, a person who, by means of a

telecommunications facility, obtains access to data stored in a

computer will not commit an offence under Part 10.7 of the

Criminal

Code

or equivalent State or Territory laws (provided that the person

acts within the authority of the warrant).

(3) If:

(a) a network activity warrant authorises the removal of a

computer or other thing from premises as mentioned in

paragraph (2)(f); and

(b) a computer or thing is removed from the premises in

accordance with the warrant;

the computer or thing must be returned to the premises within a

reasonable period.

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

(a) access has been obtained to data; and

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

the data is taken to be relevant for the purposes of determining

whether the relevant data is covered by the warrant.

When data is covered by a warrant

(5) For the purposes of this section, data is

covered by

a warrant if

access to the data will substantially assist as described in

paragraph 27KK(1)(b). To avoid doubt, it is immaterial whether

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the composition of the group mentioned in that paragraph changes

during the period when the warrant is in force.

Certain acts not authorised

(6) Subsection (2) does not authorise the addition, deletion or

alteration of data, or the doing of any thing, that is likely to:

(a) materially interfere with, interrupt or obstruct:

(i) a communication in transit; or

(ii) the lawful use by other persons of a computer;

unless the addition, deletion or alteration, or the doing of the

thing, is necessary to do one or more of the things specified

in the warrant; or

(b) cause any other material loss or damage to other persons

lawfully using a computer.

Warrant must provide for certain matters

(7) A network activity warrant must:

(a) authorise the use of any force against persons and things that

is necessary and reasonable to do the things specified in the

warrant; and

(b) if the warrant authorises entering premises--state whether

entry is authorised to be made at any time of the day or night

or during stated hours of the day or night.

Concealment of access etc.

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

(a) a network activity warrant; or

(b) this subsection;

then, in addition to the things specified in the warrant, the warrant

authorises the doing of any of the following:

thing has been done under the warrant or under this

subsection;

(d) entering any premises where the computer is reasonably

believed to be, for the purposes of doing the things

mentioned in paragraph (c);

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(e) entering any other premises for the purposes of gaining entry

to or exiting the premises referred to in paragraph (d);

(f) removing the computer or another thing from any place

where it is situated for the purposes of doing the things

mentioned in paragraph (c), and returning the computer or

other thing to that place;

(g) if, having regard to other methods (if any) of doing the things

mentioned in paragraph (c) which are likely to be as

effective, it is reasonable in all the circumstances to do so:

(i) using any other computer or a communication in transit

to do those things; and

(ii) if necessary to achieve that purpose--adding, copying,

deleting or altering other data in the computer or the

communication in transit;

(h) intercepting a communication passing over a

telecommunications system, if the interception is for the

purposes of doing any thing mentioned in this subsection;

(i) using a surveillance device, if the use is for the purposes of

doing any thing mentioned in this subsection;

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

at the following time:

(k) at any time while the warrant is in force or within 28 days

after it ceases to be in force;

(l) if none of the things mentioned in paragraph (c) are done

within the 28-day period mentioned in paragraph (k)--at the

earliest time after that 28-day period at which it is reasonably

practicable to do the things mentioned in paragraph (c).

(9) Subsection (8) does not authorise the doing of a thing that is likely

to:

(a) materially interfere with, interrupt or obstruct:

(i) a communication in transit; or

(ii) the lawful use by other persons of a computer;

unless the doing of the thing is necessary to do one or more

of the things specified in subsection (8); or

(b) cause any other material loss or damage to other persons

lawfully using a computer.

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(10) If a computer or another thing is removed from a place in

accordance with paragraph (8)(f), the computer or thing must be

returned to the place within a reasonable period.

27KQ Extension and variation of network activity warrant

(1) If a network activity warrant was issued in response to an

application by the chief officer of the Australian Federal Police or

the Australian Crime Commission, the chief officer may apply, at

any time before the expiry of the warrant:

(a) for an extension of the warrant for a period of no more than

90 days after the day the warrant would otherwise expire; or

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

(2) The application is to be made to an eligible Judge or to a

nominated AAT member and must be accompanied by the original

warrant.

(3) Sections 27KK and 27KL apply, with any necessary changes, to an

application under this section as if it were an application for the

warrant.

(4) The eligible Judge or nominated AAT member may grant an

application if satisfied that the matters referred to in

subsection 27KM(1) still exist, having regard to the matters in

subsection 27KM(2).

(5) If the eligible Judge or nominated AAT member grants the

application, the eligible Judge or nominated AAT member must

endorse the new expiry date or the other varied term on the original

warrant.

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

(7) If a network activity warrant is extended or varied in response to an

application made by the chief officer of the Australian Federal

Police or the Australian Crime Commission, the chief officer must:

(a) notify the extension or variation to the Inspector-General of

Intelligence and Security; and

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

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27KR Revocation of network activity warrant

(1) A network activity warrant may, by instrument in writing, be

revoked by an eligible Judge or nominated AAT member on the

initiative of the eligible Judge or nominated AAT member at any

time before the expiration of the period of validity specified in the

warrant.

(2) If the circumstances set out in subsection 27KS(2) apply in relation

to a network activity warrant:

(a) if the warrant was issued in response to an application made

by the chief officer of the Australian Federal Police--the

chief officer of the Australian Federal Police must, by

instrument in writing, revoke the warrant; or

(b) if the warrant was issued in response to an application made

by the chief officer of the Australian Crime Commission--

the chief officer of the Australian Crime Commission must,

by instrument in writing, revoke the warrant.

(3) The instrument revoking a warrant must be signed by the eligible

Judge, the nominated AAT member, the chief officer of the

Australian Federal Police or the chief officer of the Australian

Crime Commission, as the case requires.

(4) If an eligible Judge or nominated AAT member revokes a warrant,

the eligible Judge or nominated AAT member must give a copy of

the instrument of revocation to:

(a) if the warrant was issued in response to an application made

by the chief officer of the Australian Federal Police--the

chief officer of the Australian Federal Police; or

(b) if the warrant was issued in response to an application made

by the chief officer of the Australian Crime Commission--

the chief officer of the Australian Crime Commission.

(5) If:

(a) an eligible Judge or nominated AAT member revokes a

warrant; and

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

executing the warrant;

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the law enforcement officer is not subject to any civil or criminal

liability for any act done in the proper execution of that warrant

before the officer is made aware of the revocation.

(6) If:

(a) a network activity warrant was issued in response to an

application made by the chief officer of the Australian

Federal Police or the Australian Crime Commission; and

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

warrant;

the chief officer must:

and Security; and

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

(7) If a network activity warrant is revoked by the chief officer of the

Australian Federal Police or the Australian Crime Commission, the

chief officer must:

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

and Security; and

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

27KS Discontinuance of access under warrant

Scope

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

Discontinuance of access

(2) If:

(a) the warrant was sought by the chief officer of the Australian

Federal Police or the Australian Crime Commission; and

(b) the chief officer is satisfied that access to data under the

warrant is no longer required for the purpose referred to in

paragraph 27KK(1)(b);

the chief officer must, in addition to revoking the warrant under

section 27KR, take the steps necessary to ensure that access to data

authorised by the warrant is discontinued.

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(3) If:

(a) the warrant was sought by the chief officer of the Australian

Federal Police or the Australian Crime Commission; and

(b) the chief officer is notified that the warrant has been revoked

by an eligible Judge or a nominated AAT member under

section 27KR;

the chief officer must take the steps necessary to ensure that access

to data authorised by the warrant is discontinued as soon as

practicable.

(4) If the law enforcement officer who is primarily responsible for

executing the warrant believes that access to data under the warrant

is no longer necessary for the purpose referred to in

paragraph 27KK(1)(b), the law enforcement officer must

immediately inform the chief officer of the law enforcement

agency to which the law enforcement officer belongs or is

seconded.

27KT Relationship of this Division to parliamentary privileges and

immunities

To avoid doubt, this Division does not affect the law relating to the

powers, privileges and immunities of any of the following:

(a) each House of the Parliament;

(b) the members of each House of the Parliament;

committees of both Houses of the Parliament.

10 Section 41 (paragraph (b) of the definition of

appropriate

consenting official

)

Omit "or 43D", substitute ", 43D or 43E".

11 At the end of Part 5

Add:

43E Extraterritorial operation of network activity warrants

(1) If, before the issue of a network activity warrant, it becomes

apparent to the applicant that there will be a need for access to data

held in a computer:

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(a) in a foreign country; or

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

foreign country and that is in or above waters beyond the

outer limits of the territorial sea of Australia;

the eligible Judge or nominated AAT member considering the

application for the warrant must not permit the warrant to authorise

that access unless the eligible Judge or nominated AAT member is

satisfied that the access has been agreed to by an appropriate

consenting official of the foreign country.

(2) If:

(a) a network activity warrant has been issued; and

(b) after the issue of the warrant, it becomes apparent to the law

enforcement officer primarily responsible for executing the

warrant that there will be a need for access to data held in a

computer that is:

(i) in a foreign country; or

(ii) on a vessel or aircraft that is registered under the law of

a foreign country and that is in or above waters beyond

the outer limits of the territorial sea of Australia;

the warrant is taken to permit that access if, and only if, the access

has been agreed to by an appropriate consenting official of the

foreign country.

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

authorising access to data if:

(a) the person, or each of the persons, responsible for executing

the warrant will be physically present in Australia; and

(b) the location where the data is held is unknown or cannot

reasonably be determined.

(4) Despite subsections (1) and (2), if:

(a) a vessel that is registered under the law of a foreign country

is in waters beyond the outer limits of the territorial sea of

Australia but not beyond the outer limits of the contiguous

zone of Australia; and

(b) the relevant offence in respect of which it becomes apparent

that access to data held in a computer on the vessel will be

required is an offence relating to the customs, fiscal,

immigration or sanitary laws of Australia;

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there is no requirement for the agreement of an appropriate

consenting official of the foreign country concerned in relation to

that access while the vessel is in such waters.

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

(a) a vessel that is registered under the law of a foreign country

is in waters beyond the outer limits of the territorial sea of

Australia but not beyond the outer limits of the Australian

fishing zone; and

(b) the relevant offence in respect of which it becomes apparent

that access to data held in a computer on the vessel will be

required is an offence against section 100, 100A, 100B, 101,

101A or 101AA of the

Fisheries Management Act 1991

section 46A, 46B, 46C, 46D, 49A or 51A of the

Torres Strait

Fisheries Act 1984

;

there is no requirement for the agreement of an appropriate

consenting official of the foreign country concerned in relation to

that access while the vessel is in those waters.

(6) As soon as practicable after the commencement of access to data

held in a computer under the authority of a network activity

warrant in circumstances where consent to that access is required:

(a) in a foreign country; or

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

foreign country;

the chief officer of the law enforcement agency to which the law

enforcement officer who applied for the warrant belongs or is

seconded must give the Minister evidence in writing that the access

has been agreed to by an appropriate consenting official of the

foreign country.

(7) An instrument providing evidence of the kind referred to in

subsection (6) is not a legislative instrument.

(8) If a vessel or aircraft that is registered under the laws of a foreign

country is in or above the territorial sea of another foreign country,

subsections (1) and (2) have effect as if the reference to an

appropriate consenting official of the foreign country were a

reference to an appropriate consenting official of each foreign

country concerned.

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(9) For the avoidance of doubt, there is no requirement for the

agreement of an appropriate consenting official of the foreign

country to the access to data held in a computer under the authority

of a network activity warrant on a vessel or aircraft of a foreign

country that is in Australia or in or above waters within the outer

limits of the territorial sea of Australia.

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

protected information

)

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

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

protected information

)

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

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

protected information

)

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

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

protected information

)

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

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

protected information

)

After "obtained", insert "(otherwise than purportedly under a network

activity warrant)".

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

protected information

)

After "warrant" (last occurring), insert "(other than a network activity

warrant)".

18 After section 44

Insert:

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44A What is protected network activity warrant information?

For the purposes of this Act,

protected network activity warrant

information

means:

(a) any information (other than network activity warrant

intercept information) obtained from access to data under a

network activity warrant; or

(b) any information obtained from the use of a surveillance

device under a network activity warrant; or

existence of, or the expiration of, a network activity warrant;

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

(i) a criminal network of individuals specified in a network

activity warrant; or

(ii) an individual in a criminal network of individuals

specified in a network activity warrant; or

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

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

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

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

(ii) in a case where the information was obtained,

purportedly under a network activity warrant, through

access to data held in a computer in a foreign country,

or on a vessel or aircraft that is registered under the law

of a foreign country and that is in or above waters

beyond the outer limit of Australia's territorial sea--

without the agreement of the appropriate consenting

official of that foreign country, and of any other foreign

country, whose agreement is required under

section 43E;

in contravention of the requirement for a network activity

warrant.

Note:

For protection of network activity warrant intercept information, see

Part 2-6 of the

Telecommunications (Interception and Access) Act

1979

19 After section 45A

Insert:

Network activity warrants

Schedule 2

Main amendments

Part 1

No. , 2020

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

45B Prohibition on use, recording, communication or publication of

protected network activity warrant information or its

admission in evidence

(1) A person commits an offence if:

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

information; and

(b) the information is protected network activity warrant

information; and

information is not permitted by this section.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if:

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

information; and

(b) the information is protected network activity warrant

information; and

information is not permitted by this section; and

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

information:

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

(ii) prejudices the effective conduct of an investigation into

a relevant offence.

Penalty: Imprisonment for 10 years.

(3) Subject to subsections (4), (5), (7) and (10), protected network

activity warrant information may not be admitted in evidence in

any proceedings.

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

(a) the use, recording, communication or publication of

protected network activity warrant information in connection

with the administration or execution of this Act; or

(b) the use, recording, communication or publication of any

information that has been disclosed in proceedings in open

court lawfully; or

Schedule 2

Network activity warrants

Part 1

Main amendments

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

No. , 2020

warrant information by a person who believes on reasonable

grounds that the use or communication is necessary to help

prevent or reduce the risk of serious violence to a person or

substantial damage to property; or

(d) the communication to the Director-General (within the

meaning of the

Australian Security Intelligence Organisation

Act 1979

) of protected network activity warrant information

that relates or appears to relate to any matter within the

functions of that organisation; or

(e) the communication to the agency head (within the meaning

of the

Intelligence Services Act 2001

) of an agency (within

the meaning of that Act) of protected network activity

warrant information that relates or appears to relate to any

matter within the functions of that agency; or

(f) the use, recording or communication of:

(i) protected network activity warrant information referred

to in paragraph (d)--by the Director-General (within the

meaning of the

Australian Security Intelligence

Organisation Act 1979

), an ASIO employee (within the

meaning of that Act) or an ASIO affiliate (within the

meaning of that Act); or

(ii) protected network activity warrant information referred

to in paragraph (e)--by the agency head (within the

meaning of the

Intelligence Services Act 2001

), or a

staff member (within the meaning of that Act), of an

agency (within the meaning of that Act);

in the performance of the official functions of the

Director-General, ASIO employee, ASIO affiliate, agency

head or staff member, as the case may be.

(5) Protected network activity warrant information (other than

information that was obtained from the use of a surveillance device

under a network activity warrant) may be used, recorded,

communicated or published, or may be admitted in evidence, if it is

necessary to do so for any of the following purposes:

(a) the purposes of the Australian Federal Police collecting,

correlating, analysing or disseminating criminal intelligence

in the performance of the functions conferred by section 8 of

the

Australian Federal Police Act 1979

;

Network activity warrants

Schedule 2

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Part 1

No. , 2020

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

(b) the purposes of the Australian Crime Commission collecting,

correlating, analysing or disseminating criminal intelligence

in the performance of the functions conferred by section 7A

of the

Australian Crime Commission Act 2002

;

Australian Crime Commission making reports in relation to

criminal intelligence;

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

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

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

(g) the keeping of records and the making of reports by the

Australian Federal Police or the Australian Crime

Commission under Division 2;

(h) the purposes of an IGIS official exercising powers, or

performing functions or duties, as an IGIS official;

(i) the purposes of an investigation of an offence against

subsection (1) or (2);

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

(2).

(6) The definition of

warrant

in subsection 6(1) does not apply to

paragraphs (5)(d), (e) and (f) of this section.

Note:

This means that warrant has its ordinary meaning.

(7) Protected network activity warrant information that was obtained

from the use of a surveillance device under a network activity

warrant may be used, recorded, communicated or published, or

may be admitted in evidence, if it is necessary to do so for any of

the following purposes:

(a) the purposes of doing a thing authorised by a network

activity warrant;

(b) the purposes of an IGIS official exercising powers, or

performing functions or duties, as an IGIS official;

subsection (1) or (2);

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

(2).

Schedule 2

Network activity warrants

Part 1

Main amendments

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

No. , 2020

(8) Protected network activity warrant information may be

communicated by an Ombudsman official to an IGIS official for

the purposes of the IGIS official exercising powers, or performing

functions or duties, as an IGIS official.

(9) Protected network activity warrant information may be

communicated by an IGIS official to an Ombudsman official for

the purposes of the Ombudsman official exercising powers, or

performing functions or duties, as an Ombudsman official.

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

evidence in:

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

(2); or

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

(11) If:

(a) protected network activity warrant information was obtained

from access to data, or the use of a surveillance device, under

a network activity warrant; and

(b) the warrant was granted in response to an application made

by the chief officer of a particular law enforcement agency;

and

(i) is communicated to another law enforcement agency

(by communicating it to the chief officer or another

officer of that agency) for a particular purpose; or

(ii) is communicated to any agency that is not a law

enforcement agency (other than the Office of the

Inspector-General of Intelligence and Security, the

Australian Security Intelligence Organisation and the

agencies within the meaning of the

Intelligence Services

Act 2001

) (by communicating it to the officer in charge

of that agency or to another officer of that agency) for a

particular purpose;

the information that has been so communicated:

(d) may be communicated from one officer to another within that

agency for that purpose only; and

(e) must not be communicated to any person who is not an

officer of that agency.

Network activity warrants

Schedule 2

Main amendments

Part 1

No. , 2020

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

20 After section 46

Insert:

46AA Dealing with records obtained by accessing data under a

network activity warrant

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

Crime Commission:

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

(i) protected network activity warrant information; or

(ii) network activity warrant intercept information;

is kept in a secure place that is not accessible to people who

are not entitled to deal with the record or report; and

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

paragraph (a):

(i) as soon as practicable after the making of the record or

report if the chief officer is satisfied that no civil or

criminal proceeding to which the material contained in

the record or report relates has been, or is likely to be,

commenced and that the material contained in the

record or report is not likely to be required in

connection with an activity referred to in

subsection 45B(4) or a purpose referred to in

subsection 45B(5) or (7); and

(ii) within the period of 5 years after the making of the

record or report, and within each period of 5 years

thereafter, unless, before the end of that period, the chief

officer is satisfied in relation to the material contained

in the record or report of a matter referred to in

subparagraph (i) and certifies to that effect.

(2) If an agency is not a law enforcement agency but, as described in

subsection 45B(5) or (7), receives records or reports obtained by

accessing data, or using a surveillance device, under a network

activity warrant, the officer in charge of the agency:

(a) must ensure that every record or report that is so received is

kept in a secure place that is not accessible to people who are

not entitled to deal with the record or report; and

Schedule 2

Network activity warrants

Part 1

Main amendments

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

No. , 2020

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

paragraph (a):

(i) as soon as practicable after the receipt of the record or

report by the agency if the officer in charge is satisfied

that no civil or criminal proceeding to which the

material contained in the record or report relates has

been, or is likely to be, commenced and that the material

contained in the record or report is not likely to be

required in connection with an activity referred to in

subsection 45B(4) or a purpose referred to in

subsection 45B(5) or (7); and

(ii) within the period of 5 years after the making of the

record or report, and within each period of 5 years

thereafter, unless, before the end of that period, the

officer in charge is satisfied in relation to the material

contained in the record or report of a matter referred to

in subparagraph (i) and certifies to that effect.

(3) Subsection (2) does not apply to the Office of the

Inspector-General of Intelligence and Security.

21 Subsection 47A(7) (after paragraph (c) of the definition of

computer access technologies or methods

)

Insert:

(ca) a network activity warrant; or

22 After subsection 49(2D)

Insert:

(2E) In the case of a network activity warrant for access to data held in a

computer, the report must:

(a) state whether the warrant was executed; and

(b) if so:

(i) state the name of the person primarily responsible for

the execution of the warrant; and

(ii) state the name of each person involved in accessing data

under the warrant; and

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

Network activity warrants

Schedule 2

Main amendments

Part 1

No. , 2020

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

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

accessed; and

(v) give details of any premises, if known, at which the

computer was located; and

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

warrant; and

(vii) give details of the extent to which the execution of the

warrant has contributed to the prevention, detection or

frustration of one or more kinds of relevant offences;

and

(viii) give details of the extent to which the execution of the

warrant has assisted the agency in carrying out its

functions; and

(ix) give details of the communication of information

obtained by accessing data under the warrant to persons

other than officers of the agency; and

(x) give details of the compliance with the conditions (if

any) to which the warrant was subject; and

(xi) give details of the information that was obtained from

access to data under the warrant; and

(xii) give details of how the information that was obtained

under the warrant was used; and

(xiii) give details of whether the information that was

obtained under the warrant was destroyed or retained

under section 46AA; and

(xiv) give details of any premises accessed,

telecommunications intercepted or computers removed

from premises under the warrant; and

(xv) give details of any activities undertaken under

subsection 27KP(8) in relation to the warrant; and

(xvi) give details of any assistance orders made under

subsection 64A(6A) in relation to the warrant; and

(i) the number of extensions or variations; and

(ii) the reasons for them.

23 After section 49C

Insert:

Schedule 2

Network activity warrants

Part 1

Main amendments

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

No. , 2020

49D Notification to Inspector-General of Intelligence and Security of

things done under a network activity warrant

If:

(a) a network activity warrant was issued in response to an

application made by the chief officer of the Australian

Federal Police or the Australian Crime Commission; and

(b) a thing mentioned in subsection 27KP(8) was done under the

warrant after the 28-day period mentioned in

paragraph 27KP(8)(k);

the chief officer must:

the fact that the thing was done under the warrant after the

28-day period mentioned in paragraph 27KP(8)(k); and

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

24 After paragraph 50(1)(eb)

Insert:

(ec) if the agency is the Australian Federal Police or the

Australian Crime Commission--the kinds of offences in

relation to which information was obtained under network

activity warrants issued during that year in response to

applications made by the chief officer of the agency; and

25 Paragraph 51(b)

Omit "or 27KG(4)", substitute ", 27KG(4) or 27KR(4)".

26 After paragraph 52(1)(h)

Insert:

(ha) if the agency is the Australian Federal Police or the

Australian Crime Commission--details of things done under

subsection 27KP(8) in relation to a network activity warrant;

27 Paragraph 52(1)(j)

After "46(1)(b)", insert "or 46AA(1)(b)".

28 After subsection 55(1)

Insert:

Network activity warrants

Schedule 2

Main amendments

Part 1

No. , 2020

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

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

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

(b) the remaining provisions of this Act so far as they relate to

network activity warrants.

29 At the end of subsection 62(1)

Add:

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

with:

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

(ii) the making use of; or

(iii) the making of a record of; or

(iv) the custody of a record of;

information obtained from access to data under a network

activity warrant.

30 After subparagraph 64A(1)(a)(i)

Insert:

(ia) a network activity warrant; or

31 After subsection 64A(6)

Insert:

Network activity warrant

(6A) In the case of a computer that is the subject of a network activity

warrant, the eligible Judge or nominated AAT member may grant

the assistance order if the eligible Judge or nominated AAT

member is satisfied that:

(a) there are reasonable grounds for suspecting that access to

data held in the computer will substantially assist in the

collection of intelligence that:

(i) relates to the group referred to in paragraph 27KK(1)(a)

or to any of the individuals in the group; and

(ii) is relevant to the prevention, detection or frustration of

one or more kinds of relevant offences; and

(b) the specified person is:

Schedule 2

Network activity warrants

Part 1

Main amendments

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

No. , 2020

(i) reasonably suspected of having committed any of the

relevant offences in respect of which the warrant was

issued; or

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

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

(iv) a person engaged under a contract for services by the

owner or lessee of the computer; or

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

(vi) a person who is or was a system administrator for the

system including the computer; and

(i) the computer or a computer network of which the

computer forms or formed a part; or

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

32 Paragraph 65(1A)(a)

After "data disruption warrant", insert ", network activity warrant".

Network activity warrants

Schedule 2

Consequential amendments

Part 2

No. , 2020

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

Part 2--Consequential amendments

Australian Crime Commission Act 2002

33 Subsection 51(4) (at the end of the definition of

relevant

Act

)

Add:

; or (e) the

Inspector-General of Intelligence and Security Act 1986

or any other Act, or instrument made under an Act, that

confers functions, duties or powers on the Inspector-General

of Intelligence and Security.

34 After paragraph 59AA(1B)(f)

Insert:

(fa) the Inspector-General of Intelligence and Security;

Australian Federal Police Act 1979

35 Subsection 4(1)

Insert:

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

36 Subsection 40ZA(3)

Omit "and (6)", substitute ", (6) and (6A)".

37 After subsection 40ZA(6)

Insert:

(6A) Subsection (2) does not prevent a person from making a record of,

or divulging or communicating, information for the purpose of an

IGIS official exercising powers, or performing functions or duties,

as an IGIS official.

Schedule 2

Network activity warrants

Part 2

Consequential amendments

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

No. , 2020

38 After paragraph 60A(2)(f)

Insert:

; or (g) the purposes of an IGIS official carrying out, performing or

exercising any of the IGIS official's duties, functions or

powers as an IGIS official.

Australian Human Rights Commission Act 1986

39 Subsection 3(1)

Insert:

ACIC

means the agency known as the Australian Criminal

Intelligence Commission established by the

Australian Crime

Commission Act 2002

examiner

of ACIC means an examiner within the meaning of the

Australian Crime Commission Act 2002

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

40 At the end of subsection 11(3)

Add:

Note:

Both the Commission and the Inspector-General of Intelligence and

Security have functions in relation to ACIC and the Australian Federal

Police. The Commission and the Inspector-General can transfer

matters between each other and share information in relation to

actions taken by any of those agencies (see subsection 20(4C),

section 46PZ and subsection 49(4C) of this Act, and Part IIIA of the

Inspector-General of Intelligence and Security Act 1986

41 At the end of subsection 20(1)

Add:

Note:

A complaint is taken to have been made to the Commission if all or

part of a complaint is transferred to the Commission under

section 32AD of the

Inspector-General of Intelligence and Security

Act 1986

(see section 46PZ of this Act).

Network activity warrants

Schedule 2

Consequential amendments

Part 2

No. , 2020

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

42 After subsection 20(4B)

Insert:

(4C) If:

(a) a complaint has been made to the Commission in relation to:

(i) an act or practice of ACIC (except an act or practice of

an examiner of ACIC performing functions and

exercising powers as an examiner); or

(ii) an act or practice of the Australian Federal Police; and

(b) because the Commission is of the opinion that the subject

matter of the complaint could be more effectively or

conveniently dealt with by the Inspector-General of

Intelligence and Security under the

Inspector-General of

Intelligence and Security Act 1986

, the Commission decides

not to inquire, or not to continue to inquire, into that act or

practice;

the Commission must:

complaint or part of the complaint; and

(d) if the Inspector-General agrees to the transfer of the

complaint or part of the complaint--transfer the complaint or

part to the Inspector-General as soon as is reasonably

practicable; and

(e) as soon as is reasonably practicable, take reasonable steps to

give notice in writing to the complainant stating that the

complaint or part has been so transferred; and

(f) give to the Inspector-General any information or documents

that relate to the complaint or part and are in the possession,

or under the control, of the Commission.

(4D) Without limiting subsection (4C), the Commission may consult

with, and obtain an agreement from, the Inspector-General of

Intelligence and Security by entering into an arrangement with the

Inspector-General relating to the transfer of complaints (or parts)

generally.

43 Subsection 46P(1) (note)

Omit "Note", substitute "Note 1".

Schedule 2

Network activity warrants

Part 2

Consequential amendments

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

No. , 2020

44 At the end of subsection 46P(1)

Add:

Note 2:

Under section 46PZ, a complaint may be taken to be lodged with the

Commission if all or part of a complaint is transferred from the

Inspector-General of Intelligence and Security under section 32AD of

the

Inspector-General of Intelligence and Security Act 1986

45 Before section 47

Insert:

46PZ Transfer of complaints from the Inspector-General of

Intelligence and Security

(1) If the Inspector-General of Intelligence and Security transfers all or

part of a complaint to the Commission under section 32AD of the

Inspector-General of Intelligence and Security Act 1986

, in respect

of an act or practice of ACIC or the Australian Federal Police, the

Commission may determine, in writing, that a complaint is taken to

have been:

(a) made as referred to in paragraph 20(1)(b) of this Act; or

(b) lodged under section 46P of this Act.

Note:

The Commission may also transfer a complaint or part of a complaint

to the Inspector-General of Intelligence and Security under

subsection 20(4C).

(2) The determination has effect accordingly.

(3) The determination is not a legislative instrument.

46 Subsection 49(4A)

After "20(4A)(e)", insert "or (4C)(f)".

47 After subsection 49(4B)

Insert:

(4C) Subsection (1) does not prevent the Commission, or a person

acting for or on behalf of the Commission, from giving information

or documents to an IGIS official for the purpose of the IGIS

official exercising a power, or performing a function or duty, as an

IGIS official.

Network activity warrants

Schedule 2

Consequential amendments

Part 2

No. , 2020

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

Note:

A defendant bears an evidential burden in relation to a matter in

subsection (4C) (see subsection 13.3(3) of the

Criminal Code

Australian Information Commissioner Act 2010

48 Section 3

Insert:

IGIS official

has the meaning given by subsection 29(6).

49 After paragraph 29(2)(c)

Insert:

; or (d) the person:

(i) records or otherwise uses the information for the

purpose of an IGIS official exercising a power, or

performing a function or duty, as an IGIS official; or

(ii) discloses the information to an IGIS official for the

purpose of the IGIS official exercising a power, or

performing a function or duty, as an IGIS official.

50 At the end of section 29

Add:

(6) In this Act:

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

Inspector-General of Intelligence and Security Act 1986

51 Subsection 3(1)

Insert:

ACIC

means the agency known as the Australian Criminal

Intelligence Commission established by the

Australian Crime

Commission Act 2002

CEO of ACIC

means the Chief Executive Officer of ACIC.

Schedule 2

Network activity warrants

Part 2

Consequential amendments

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

No. , 2020

52 Subsection 3(1) (after paragraph (d) of the definition of

head

)

Insert:

(e) in relation to ACIC--the CEO of ACIC; or

(ea) in relation to the Australian Federal Police--the

Commissioner of Police; or

53 Subsection 3(1)

Insert:

Information Commissioner

: see section 3A of the

Australian

Information Commissioner Act 2010

Inspector-General ADF

means the Inspector-General of the

Australian Defence Force referred to in section 110B of the

Defence Act 1903

integrity body

(a) means any of the following:

(i) the Ombudsman;

(ii) the Australian Human Rights Commission;

(iii) the Information Commissioner;

(iv) the Integrity Commissioner;

(v) the Inspector-General ADF; and

(b) for a complaint--has the meaning given by

paragraph 11(4A)(a).

Integrity Commissioner

has the meaning given by section 5 of the

Law Enforcement Integrity Commissioner Act 2006

54 Subsection 3(1) (definition of

intelligence agency

)

Repeal the definition, substitute:

intelligence agency

means:

(a) ASIO, ASIS, AGO, DIO, ASD or ONI; or

(b) the following agencies that have an intelligence function:

(i) the Australian Federal Police;

(ii) ACIC.

Network activity warrants

Schedule 2

Consequential amendments

Part 2

No. , 2020

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

55 Subsection 3(1)

Insert:

intelligence function

(a) for ACIC--means:

(i) the collection, correlation, analysis, production and

dissemination of intelligence obtained by ACIC from

the execution of a network activity warrant; or

(ii) the performance of a function, or the exercise of a

power, conferred on a law enforcement officer of ACIC

by the network activity warrant provisions of the

Surveillance Devices Act 2004

; or

(b) for the Australian Federal Police--means:

(i) the collection, correlation, analysis, production and

dissemination of intelligence obtained by the Australian

Federal Police from the execution of a network activity

warrant; or

(ii) the performance of a function, or the exercise of a

power, conferred on a law enforcement officer of the

Australian Federal Police by the network activity

warrant provisions of the

Surveillance Devices Act

2004

law enforcement officer

, when used in relation to the Australian

Federal Police or ACIC, has the same meaning as in the

Surveillance Devices Act 2004

network activity warrant

has the same meaning as in the

Surveillance Devices Act 2004

network activity warrant provisions of the Surveillance Devices

Act 2004

means:

(a) Division 6 of Part 2 of that Act; or

(b) the remaining provisions of that Act so far as they relate to

network activity warrants.

56 After subsection 8(3)

Insert:

Schedule 2

Network activity warrants

Part 2

Consequential amendments

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

No. , 2020

(3A) Subject to this section, the functions of the Inspector-General in

relation to ACIC or the Australian Federal Police are:

(a) at the request of the Attorney-General or the responsible

Minister; or

(b) of the Inspector-General's own motion; or

to inquire into any of the following matters, to the extent that the

matter relates to an intelligence function of that agency:

(d) the compliance by that agency with the laws of the

Commonwealth and of the States and Territories;

(e) the compliance by that agency with directions or guidelines

given to that agency by the responsible Minister;

(f) the propriety of particular activities of that agency;

(g) the effectiveness and appropriateness of the procedures of

that agency relating to the legality or propriety of the

activities of that agency;

(h) any matter that relates to an act or practice of that agency,

referred to the Inspector-General by the Australian Human

Rights Commission:

(i) that is or may be inconsistent with or contrary to any

human right; or

(ii) that constitutes or may constitute discrimination; or

(iii) that is or may be unlawful under the

Age Discrimination

Act 2004

, the

Disability Discrimination Act 1992

, the

Racial Discrimination Act 1975

or the

Sex

Discrimination Act 1984

;

(i) in relation to ACIC--the compliance by that agency with:

(i) directions or guidelines given to that agency; or

(ii) policies or other decisions made;

by the Board of ACIC or the Inter-Governmental Committee

established under the

Australian Crime Commission Act

2002

(3B) The functions of the Inspector-General under subsection (3A) do

not include inquiring into any action taken by an examiner (within

the meaning of the

Australian Crime Commission Act 2002

) of

ACIC in performing functions or exercising powers as an

examiner.

Network activity warrants

Schedule 2

Consequential amendments

Part 2

No. , 2020

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

57 Subsection 8(5)

Omit "and (3)", substitute ", (3) and (3A)".

58 Subsection 8(5)

After "DIO", insert ", ACIC, the Australian Federal Police".

59 Paragraph 8A(1)(b)

Omit "intelligence agency", substitute "intelligence agency (within the

meaning of this Act); and".

60 After paragraph 8A(1)(b)

Insert:

Police--the conduct relates to that agency's intelligence

functions;

61 Subsection 8A(1)

After "so relates", insert "as described in paragraph (b)".

62 Paragraph 9AA(b)

Omit "paragraph 8(1)(d)", substitute "paragraphs 8(1)(d) and (3A)(b)".

63 After paragraph 9AA(b)

Insert:

(ba) inquire into action taken by the Board of ACIC or the

Inter-Governmental Committee established under the

Australian Crime Commission Act 2002

except to the extent

necessary to perform the functions of the Inspector-General

referred to in paragraph 8(3A)(f); or

64 Section 9A

Before "The functions", insert "(1)".

65 At the end of section 9A

Add:

(2) For the purposes of conducting an inspection of an intelligence

agency under subsection (1) in a case where the agency is ACIC or

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the Australian Federal Police, the Inspector-General or a member

of staff assisting the Inspector-General referred to in

paragraph 32(1)(a):

(a) may, at all reasonable times, enter and remain on any

premises (including any land or place); and

(b) is entitled to all reasonable facilities and assistance that the

head of the agency is capable of providing; and

any information, documents or other property of the agency;

and

(d) may examine, make copies of or take extracts from any

information or documents.

66 At the end of subsection 10(1)

Add:

Note 1:

A complaint is taken to have been made under this Act if all or part of

the complaint is transferred to the Inspector-General by an integrity

body (see section 32AE of this Act).

Note 2:

See also Part IIIA which deals with relationships with other agencies

and information sharing.

67 Before subsection 11(2)

Insert:

When inquiry or further inquiry into complaints is not required

68 After subsection 11(4)

Insert:

(4A) Without limiting paragraph (2)(c), the Inspector-General may

decide not to inquire into, or not to inquire further into, a complaint

or part of a complaint in relation to action taken by an intelligence

agency if:

(a) a complaint in respect of the action has been, or could have

been, made by the complainant to any of the following

persons or bodies (the

integrity body

for the complaint):

(i) the Ombudsman;

(ii) the Australian Human Rights Commission, under

Division 3 of Part II (human rights complaints) or

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Part IIB (unlawful discrimination complaints) of the

Australian Human Rights Commission Act 1986

;

(iii) the Information Commissioner under Part V of the

Privacy Act 1988

;

(iv) the Integrity Commissioner;

(v) the Inspector-General ADF; and

(b) the Inspector-General is satisfied that the subject matter of

the complaint or the part of the complaint could be more

effectively or conveniently dealt with by the integrity body

for the complaint.

Note:

The complaint or part of the complaint may be transferred to the

integrity body for the complaint under section 32AD.

Inquiries into complaints about employment, contracts and related

matters

69 Paragraph 15(3)(a)

After "ASD" (wherever occurring), insert ", ACIC, the Australian

Federal Police".

70 Paragraph 21(1B)(a)

After "ASD" (wherever occurring), insert ", ACIC, the Australian

Federal Police".

71 After Part III

Insert:

Part IIIA--Relationships with other agencies and

information sharing

32AC Information sharing with integrity bodies

(1) The Inspector-General may share information or documents with

an integrity body (the

receiving body

) if:

(a) the information or documents are obtained by the

Inspector-General in the course of exercising powers, or

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performing functions or duties, in relation to ACIC or the

Australian Federal Police; and

(b) the information or documents are relevant to the receiving

body's functions; and

the receiving body has satisfactory arrangements in place for

protecting the information or documents.

(2) To avoid doubt, the Inspector-General may share information or

documents with an integrity body whether or not the

Inspector-General is transferring a complaint or part of a complaint

to the integrity body.

(3) Without limiting paragraph (1)(c), the Inspector-General may make

arrangements with the head of an intelligence agency in relation to

protecting information or documents provided to the

Inspector-General by the agency.

32AD Transferring complaints to other integrity bodies

If the Inspector-General decides under subsection 11(4A) not to

inquire into, or not to inquire further into, a complaint or part of a

complaint in relation to action taken by an intelligence agency, the

Inspector-General may transfer all or part of the complaint to the

integrity body for the complaint.

Note:

The complaint is taken to have been made under the Act establishing

the integrity body (see sections 46PZ of the

Australian Human Rights

Commission Act 1986

, 23A of the

Law Enforcement Integrity

Commissioner Act 2006

, 5B of the

Ombudsman Act 1976

and 49B of

the

Privacy Act 1988

32AE Complaints transferred by integrity bodies

For the purposes of this Act, a complaint is taken to have been

made to the Inspector-General under this Act if all or part of the

complaint is transferred (however described) to the

Inspector-General by an integrity body.

Note:

Complaints may be transferred to the Inspector-General under

subsections 20(4C) of the

Australian Human Rights Commission Act

1986

, 6F(3) of the

Ombudsman Act 1976

and 50(3) of the

Privacy Act

1988

, and paragraph 110C(3)(b) of the

Defence Act 1903

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72 At the end of subsection 32A(1)

Add:

; (e) in the case of ACIC or the Australian Federal Police:

(i) a report given to the Minister under section 46 of the

Public Governance, Performance and Accountability

Act 2013

; or

(ii) any other report prepared on a periodic basis, and given

to the responsible Minister, that the Inspector-General is

satisfied relates to the performance by ACIC or the

Australian Federal Police of its intelligence functions;

(f) in the case of ACIC--a report that:

(i) is provided to the Board of ACIC or to the

Inter-Governmental Committee established under the

Australian Crime Commission Act 2002

; and

(ii) the Inspector-General is satisfied relates to the

performance by ACIC of its intelligence functions;

if the report was prepared:

(iii) by the CEO of ACIC; or

(iv) by the Chair of the Board and is in the possession of

ACIC.

73 After paragraph 32A(5)(a)

Insert:

(aa) in the case of ACIC or the Australian Federal Police, the

head of the agency has not provided the responsible Minister

with a copy of a report mentioned in subparagraph (1)(e)(i);

74 At the end of section 32A

Add:

(6) In the case of ACIC, if the CEO of ACIC or the Chair of the Board

(as the case requires) has not given the Board or the

Inter-Governmental Committee established under the

Australian

Crime Commission Act 2002

a copy of a report mentioned in

paragraph (1)(f), the CEO or Chair need not give a copy of the

report to the Inspector-General until the report has been given to

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the Board or the Inter-Governmental Committee (as the case

requires).

75 Subsections 32B(2) and (4)

Repeal the subsections, substitute:

(1A) This section also applies to any guidelines or directions:

(a) that relate to the performance by ACIC or the Australian

Federal Police of that agency's intelligence functions; and

(b) that are given:

(i) by the responsible Minister to the head of ACIC or the

Australian Federal Police; or

(ii) to ACIC by the Board of ACIC or by the

Inter-Governmental Committee established under the

Australian Crime Commission Act 2002

(2) As soon as practicable after a direction or guideline is given to the

head of that agency, the Inspector-General must be given a copy of

the direction or guideline by:

(a) the Minister; or

(b) for directions or guidelines referred to in

subparagraph (1A)(b)(ii)--the CEO of ACIC.

76 After section 34B

Insert:

34C No evidential burden for IGIS officials in relation to defences to

secrecy offences

(1) Despite subsections 13.3(2) and (3) of the

Criminal Code

, in a

prosecution for any offence of:

(a) disclosing, making a record of, or using, information or a

document; or

(b) causing information or a document to be disclosed, recorded

or used;

an IGIS official does not bear an evidential burden in relation to

whether the disclosure, record or use is for the purposes of, or in

connection with, that or any other IGIS official exercising a power,

or performing a function or duty, as an IGIS official.

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(2) Subsection (1) applies even if the offence referred to in that

subsection has additional physical elements to those referred to in

paragraph (1)(a) or (b).

(3) To avoid doubt:

(a) an offence may be covered by subsection (1) even if the

offence does not refer to disclosing, making a record of, or

using, information or a document; and

(b) without limiting paragraph (a):

(i) disclosing information or a document includes

communicating information or a document; and

(ii) making a record of information or a document includes

reproducing information or a document; and

(iii) using information or a document includes dealing with,

reading or examining information or a document.

Law Enforcement Integrity Commissioner Act 2006

77 Subsection 5(1)

Insert:

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

78 Subsection 5(1) (paragraph (b) of the definition of

law

enforcement secrecy provision

)

Omit "section 45", substitute "sections 45 and 45B".

79 After section 23

Insert:

23A Transfer of complaints from the Inspector-General of

Intelligence and Security

If:

(a) the Inspector-General of Intelligence and Security transfers

all or part of a complaint to the Integrity Commissioner under

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section 32AD of the

Inspector-General of Intelligence and

Security Act 1986

; and

(b) the complaint or the part of the complaint involves an

allegation, or information, that raises a corruption issue;

the person who made the complaint is taken to have referred the

allegation or information to the Integrity Commissioner under

subsection 23(1).

80 After subsection 90(3A)

Insert:

Disclosure to IGIS officials

(3B) Nothing in a direction given by the Integrity Commissioner

prevents:

(a) a person from disclosing hearing material to an IGIS official;

(b) an IGIS official using hearing material, for the purpose of the

IGIS official performing a function, or exercising a power, as

an IGIS official; or

is not an IGIS official if the hearing material could be

disclosed to the person under paragraph (1)(b).

(3C) However, if the Commissioner is satisfied that the disclosure or use

would be reasonably likely to prejudice the performance of

functions, or the exercise of powers, of the Integrity

Commissioner, the Integrity Commissioner may direct under

subsection (1) that subsection (3B) does not apply.

(3D) The Integrity Commissioner must consult the Inspector-General of

Intelligence and Security as soon as practicable after giving a

direction under subsection (1) in accordance with subsection (3C).

81 After paragraph 208(3)(a)

Insert:

(aa) the Inspector-General of Intelligence and Security;

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82 Subsection 208(7)

After "or (6)", insert "(except to the Inspector-General of Intelligence

and Security for the purpose of performing the Inspector-General's

functions)".

83 At the end of section 208

Add:

Notifying the Attorney-General

(8) The Integrity Commissioner must notify the Attorney-General if

the Integrity Commissioner intends to give section 149 certified

information to the Inspector-General of Intelligence and Security.

Ombudsman Act 1976

84 Subsection 3(1)

Insert:

examiner

of ACC has the meaning given by the

Australian Crime

Commission Act 2002

85 After section 5A

Insert:

5B Transfer of complaints from the Inspector-General of

Intelligence and Security

A complaint is taken to have been made under this Act in respect

of action taken by:

(a) ACC (except action taken by an examiner of ACC

performing functions or exercising powers as an examiner);

(b) the Australian Federal Police;

if the Inspector-General of Intelligence and Security transfers all or

part of the complaint to the Ombudsman under section 32AD of

the

Inspector-General of Intelligence and Security Act 1986

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Note:

A complaint or part of a complaint can also be transferred from the

Ombudsman to the Inspector-General of Intelligence and Security

under section 6F of this Act.

86 Subsection 6A(1)

After "Ombudsman may", insert "(subject to subsection (3))".

87 At the end of section 6A

Add:

(3) However, the Ombudsman must not, under this section, transfer a

complaint or part of a complaint to the Inspector-General of

Intelligence and Security.

Note:

The Ombudsman may transfer a complaint or part of a complaint

made in relation to action taken by ACC to the Inspector-General of

Intelligence and Security under section 6F.

88 After section 6E

Insert:

6F Transfer of complaints to the Inspector-General of Intelligence

and Security

(1) This section applies if the Ombudsman forms the opinion that:

(a) a complainant has complained, or could complain, to the

Inspector-General of Intelligence and Security under the

Inspector-General of Intelligence and Security Act 1986

relation to action taken by:

(i) ACC (except action taken by an examiner of ACC

performing functions or exercising powers as an

examiner); or

(ii) the Australian Federal Police; and

(b) the complaint could be more appropriately or effectively

dealt with by the Inspector-General of Intelligence and

Security.

Requirement to consult with Inspector-General of Intelligence and

Security

(2) The Ombudsman:

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(a) must consult the Inspector-General of Intelligence and

Security about the complaint or the part of the complaint that

relates to the action; and

(b) may decide not to investigate the action, or not to continue to

investigate the action.

Transfer to Inspector-General of Intelligence and Security

(3) If the Ombudsman decides not to investigate, or not to continue to

investigate, an action under paragraph (2)(b), and the

Inspector-General of Intelligence and Security agrees to the

transfer of the complaint or the part of the complaint, the

Ombudsman must:

(a) transfer the complaint or part to the Inspector-General of

Intelligence and Security; and

(b) as soon as is reasonably practicable, take reasonable steps to

give the complainant written notice that the complaint or part

has been transferred; and

information or documents relating to the complaint or part

that are in the possession, or under the control, of the

Ombudsman.

Relationship with other provisions

(4) This section does not limit the power of the Ombudsman to

transfer a complaint or part of a complaint to the Inspector-General

of Intelligence and Security under another provision of this Act or

any other Act.

(5) Subsection 35(2) does not prevent the Ombudsman, or an officer

acting on behalf of the Ombudsman, from giving information or

documents under paragraph (3)(c) of this section.

89 At the end of subsection 35(6)

Add:

; or (d) from giving information or a document to the

Inspector-General of Intelligence and Security in accordance

with section 35AB.

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90 After section 35AA

Insert:

35AB Disclosure of information and documents to

Inspector-General of Intelligence and Security

(1) This section applies if:

(a) either:

(i) the Ombudsman obtains information or a document in

relation to a Commonwealth agency (within the

meaning of the

Inspector-General of Intelligence and

Security Act 1986

) in the course of performing a

function under this or any other Act; or

(ii) the Ombudsman prepares a report or other information

in relation to an agency referred to in subparagraph (i);

and

(b) the Ombudsman is of the opinion that the information,

document or report is, or may be, relevant to the performance

by the Inspector-General of Intelligence and Security of a

function of the Inspector-General.

(2) Nothing in this Act precludes the Ombudsman from:

(a) disclosing the information; or

(b) making a statement that includes the information; or

to the Inspector-General.

91 At the end of subsections 35B(1) and 35C(1)

Add ", except to the Inspector-General of Intelligence and Security in

accordance with section 35AB".

Privacy Act 1988

92 After section 49A

Insert:

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49B Transfer of complaints from the Inspector-General of

Intelligence and Security

An individual is taken to have complained to the Information

Commissioner under subsection 36(1)

in respect of action taken by

ACC or the Australian Federal Police if the Inspector-General of

Intelligence and Security transfers all or part of the complaint to

the Information Commissioner under section 32AD of the

Inspector-General of Intelligence and Security Act 1986

93 Subsection 50(1) (after paragraph (e) of the definition of

alternative complaint body

)

Insert:

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

94 After subparagraph 50(2)(a)(iv)

Insert:

(iva) to the Inspector-General of Intelligence and Security

under the

Inspector-General of Intelligence and Security

Act 1986

; or

95 After subparagraph 50(3)(a)(iv)

Insert:

(iva) to the Inspector-General of Intelligence and Security

under the

Inspector-General of Intelligence and Security

Act 1986

; or

Public Interest Disclosure Act 2013

96 Section 8

Insert:

ACIC

means the agency known as the Australian Criminal

Intelligence Commission established by the

Australian Crime

Commission Act 2002

examiner

of ACIC has the meaning given by the

Australian Crime

Commission Act 2002

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intelligence function

, in relation to ACIC or the Australian Federal

Police, has the meaning given by the

Inspector-General of

Intelligence and Security Act 1986

97 Section 34 (table item 1, column 2, after paragraph (c))

Insert:

(ca) if the discloser believes on reasonable grounds that:

(i) the disclosure relates to action taken by ACIC or the Australian Federal Police

in relation to that agency's intelligence functions; and

(ii) it would be appropriate for the disclosure to be investigated by the IGIS;

the IGIS;

98 Section 42 (note 2)

After "intelligence agency", insert ", or ACIC or the Australian Federal

Police in relation to that agency's intelligence functions".

99 Subparagraph 43(3)(a)(iii)

After "intelligence agency", insert ", or ACIC or the Australian Federal

Police in relation to that agency's intelligence functions".

100 After subsection 43(3)

Insert:

(3A) The authorised officer must not allocate the handling of the

disclosure to the IGIS in relation to action taken by an examiner of

ACIC performing functions and exercising powers as an examiner.

101 Paragraphs 44(1A)(a) and (b)

After "intelligence agency", insert ", or ACIC or the Australian Federal

Police in relation to that agency's intelligence functions".

102 Section 46 (note)

After "intelligence agency", insert ", or ACIC or the Australian Federal

Police in relation to that agency's intelligence functions".

103 At the end of paragraph 50A(1)(b)

Add "and".

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104 After paragraph 50A(1)(b)

Insert:

disclosure does not relate to the intelligence functions of the

agency;

105 Paragraph 50A(2)(b)

Repeal the paragraph, substitute:

(b) either:

(i) the agency is an intelligence agency; or

(ii) the agency is ACIC or the Australian Federal Police,

and the disclosure relates to the intelligence functions of

the agency;

106 Subsection 52(4)

Repeal the subsection, substitute:

(4) If:

(a) the agency is the IGIS or an intelligence agency; or

(b) the agency is ACIC or the Australian Federal Police, and the

disclosure relates to the intelligence functions of the agency;

the IGIS may extend, or further extend, the 90-day period by such

additional period (which may exceed 90 days) as the IGIS

considers appropriate:

(d) if the agency is not the IGIS--on application made by the

principal officer of the agency; or

(e) on application made by the discloser.

107 Section 58 (note)

After "intelligence agency", insert ", or ACIC or the Australian Federal

Police in relation to that agency's intelligence functions".

108 After paragraph 63(a)

Insert:

(aa) assisting, in relation to the intelligence functions of ACIC or

the Australian Federal Police:

(i) principal officers of that agency; and

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(ii) authorised officers of that agency; and

(iii) public officials who belong to that agency; and

(iv) former public officials who belonged to that agency;

in relation to the operation of this Act; and

109 After paragraph 63(b)

Insert:

(ba) conducting educational and awareness programs relating to

this Act, in relation to the intelligence functions of ACIC or

the Australian Federal Police, to the extent to which this Act

relates to:

(i) that agency; and

(ii) public officials who belong to that agency; and

(iii) former public officials who belonged to that agency;

and

110 Section 63 (note)

Repeal the note, substitute:

Note:

Section 8A of the

Inspector-General of Intelligence and Security Act

1986

extends the IGIS's functions to cover disclosures of information

allocated under section 43 of this Act (whether or not they are

allocated to the IGIS), if the disclosable conduct with which the

information is concerned relates to:

(a) an intelligence agency; or

(b) ACIC or the Australian Federal Police, in relation to the

intelligence functions of the agency.

111 Transitional

--section 52 of the

Public Interest Disclosure

Act 2013

The amendment of section 52 of the

Public Interest Disclosure Act

2013

made by this Part does not affect the continuity of a period that

was extended, or further extended, under subsection 52(4) of that Act

before the commencement of this item.

Telecommunications (Interception and Access) Act 1979

112 Subsection 5(1)

Insert:

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network activity warrant

has the same meaning as in the

Surveillance Devices Act 2004

network activity warrant intercept information

means information

obtained under a network activity warrant by intercepting a

communication passing over a telecommunications system.

113 Subsection 5(1) (definition of

restricted record

)

Omit "or a record of data disruption intercept information", substitute ",

a record of data disruption intercept information or a record of network

activity warrant intercept information".

114 Subsection 5(1) (paragraph (b) of the definition of

warrant

)

After "data disruption warrant", insert ", a network activity warrant".

115 Paragraph 7(2)(bb)

Omit "or 27KE(9)", substitute ", 27KE(9) or 27KP(8)".

116 After section 63AD

Insert:

63AE Dealing in network activity warrant intercept information etc.

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

network activity warrant:

(a) communicate network activity warrant intercept information

to another person; or

(b) make use of network activity warrant intercept information;

information; or

(d) give network activity warrant intercept information in

evidence in:

(i) a criminal proceeding for an offence against section 105

so far as the offence relates to contravening section 63;

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

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(2) A person may:

(a) communicate network activity warrant intercept information

to another person; or

(b) make use of network activity warrant intercept information;

information;

if the information relates, or appears to relate, to the involvement,

or likely involvement, of a person in one or more of the following

activities:

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

(e) acting for, or on behalf of, a foreign power (within the

meaning of the

Australian Security Intelligence Organisation

Act 1979

);

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

(g) activities that pose a risk, or are likely to pose a risk, to the

operational security (within the meaning of the

Intelligence

Services Act 2001

) of ASIS (within the meaning of that Act);

(h) activities that pose a risk, or are likely to pose a risk, to the

operational security (within the ordinary meaning of that

expression) of the Organisation or of AGO or ASD (within

the meanings of the

Intelligence Services Act 2001

);

(i) activities related to the proliferation of weapons of mass

destruction or the movement of goods listed from time to

time in the Defence and Strategic Goods List (within the

meaning of regulation 13E of the

Customs (Prohibited

Exports) Regulations 1958

);

(j) activities related to a contravention, or an alleged

contravention, by a person of a UN sanction enforcement law

(within the meaning of the

Charter of the United Nations Act

1945

(3) A person may, in connection with:

(a) the performance by an IGIS official of the IGIS official's

functions or duties; or

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

communicate to the IGIS official, or make use of, or make a record

of, network activity warrant intercept information.

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

(a) the performance by the IGIS official of the IGIS official's

functions or duties; or

(b) the exercise by the IGIS official of the IGIS official's

powers;

communicate to another person, or make use of, or make a record

of, network activity warrant intercept information.

(5) If:

(a) information was obtained by intercepting a communication

passing over a telecommunications system; and

(b) the interception was purportedly for the purposes of doing a

thing specified in a network activity warrant; and

warrant;

then:

(d) a person may, in connection with:

(i) the performance by an IGIS official of the IGIS

official's functions or duties; or

(ii) the exercise by an IGIS official of the IGIS official's

powers;

communicate to the IGIS official, or make use of, or make a

record of, that information; and

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

(i) the performance by the IGIS official of the IGIS

official's functions or duties; or

(ii) the exercise by the IGIS official of the IGIS official's

powers;

communicate to another person, or make use of, or make a

record of, that information.

(6) Despite subsection 13.3(3) of the

Criminal Code

, in a prosecution

for an offence against section 63 of this Act, an IGIS official does

not bear an evidential burden in relation to the matters in

subsection (4) or (5) of this section.

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117 Paragraph 67(1)(a)

Omit "or data disruption intercept information", substitute ", data

disruption intercept information or network activity warrant intercept

information".

118 Section 68

Omit "or data disruption intercept information", substitute ", data

disruption intercept information or network activity warrant intercept

information".

119 Subsection 74(1)

After "data disruption intercept information", insert ", network activity

warrant intercept information".

120 Subsection 75(1)

After "data disruption warrant", insert ", a network activity warrant".

121 Paragraphs 77(1)(a) and (b)

After "63AD,", insert "63AE,".

122 After paragraph 108(2)(cc)

Insert:

(cd) accessing a stored communication under a network activity

warrant; or

Account takeover warrants

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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.

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•

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:

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(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;

(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.

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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

(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

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.

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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

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.

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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;

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

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

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.

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ACC

(3) For the purposes of this Part, an

appropriate authorising officer

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

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

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) by means of a written document signed by the applicant

(such an application is a

formal application

); or

(b) if the applicant has reason to believe that the delay caused by

making a formal application may affect the success of the

investigation--orally in person, or by telephone, email, fax

or any other means of communication (such an application is

urgent 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.

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(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

affected; and

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

obtained; 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.

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:

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(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

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.

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(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);

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;

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(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

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;

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then, in addition to the things specified in the warrant, the warrant

authorises the doing of any of the following:

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,

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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.

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(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:

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(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

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.

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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;

committees of both Houses of the Parliament.

Division 3--Emergency authorisations

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

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:

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(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

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

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(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;

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

account takeover warrant.

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(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:

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(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;

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

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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

(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.

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

(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.

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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

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

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

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(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:

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(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.

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(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

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.

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Division 6--Reporting and record keeping

3ZZVL Chief officers' 6 monthly reports to the Minister and the

Ombudsman

(1) As soon as practicable after 30 June and 31 December 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 6

months, and the dates on which those applications were

made; and

(b) the number of account takeover warrants issued during the

previous 6 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

made by law enforcement officers of the Australian Federal

Police or the ACC, as the case requires, during the previous 6

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 6 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 6 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

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Federal Police or the ACC, as the case requires, during the

previous 6 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 6 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 6 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 6

months, and the dates on which those applications were

made; and

(j) the number of emergency authorisations given during the

previous 6 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 6

months were refused:

(i) the number of those refusals; and

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(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 6

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 6 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 6

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;

(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;

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(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

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

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(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

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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;

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(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;

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.

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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

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

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(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 6

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

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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

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

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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:

(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

(d) would disclose one of the following:

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(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).

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(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 6

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

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(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

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

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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:

(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.

Controlled operations

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Schedule 4--Controlled operations

Crimes Act 1914

1 Paragraph 15GI(2)(d)

Before "that the operation", insert "so far as the conduct involved in the

controlled operation is not conducted online--".

2 Paragraph 15GQ(2)(d)

Before "that the operation", insert "so far as the conduct involved in the

controlled operation is not conducted online--".

3 Paragraph 15GV(2)(d)

Before "that the operation", insert "so far as the conduct involved in the

controlled operation is not conducted online--".

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Schedule 5--Minor amendments

Surveillance Devices Act 2004

1 Subsection 43A(10)

Omit "of a vessel", substitute "on a vessel".

2 Before paragraph 45(4)(a)

Insert:

(aa) the use, recording, communication or publication of

protected information in connection with the administration

or execution of this Act; or

3 Subparagraph 45(4)(e)(i)

After "by", insert "the Director-General (within the meaning of the

Australian Security Intelligence Organisation Act 1979

),".

4 Subparagraph 45(4)(e)(i)

Omit "(within the meaning of the

Australian Security Intelligence

Organisation Act 1979

)", substitute "(within the meaning of that Act)".

5 Subparagraph 45(4)(e)(ii)

After "by", insert "the agency head (within the meaning of the

Intelligence Services Act 2001

), or".

6 Subparagraph 45(4)(e)(ii)

Omit "(within the meaning of the

Intelligence Services Act 2001

)",

substitute "(within the meaning of that Act),".

Telecommunications (Interception and Access) Act 1979

7 Paragraph 63AB(2)(g)

Repeal the paragraph, substitute:

(g) activities that pose a risk, or are likely to pose a risk, to the

operational security (within the meaning of the

Intelligence

Services Act 2001

) of ASIS (within the meaning of that Act);

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(ga) activities that pose a risk, or are likely to pose a risk, to the

operational security (within the ordinary meaning of that

expression) of the Organisation or of AGO or ASD (within

the meanings of the

Intelligence Services Act 2001

);

8 Paragraph 63AC(2)(g)

Repeal the paragraph, substitute:

(g) activities that pose a risk, or are likely to pose a risk, to the

operational security (within the meaning of the

Intelligence

Services Act 2001

) of ASIS (within the meaning of that Act);

(ga) activities that pose a risk, or are likely to pose a risk, to the

operational security (within the ordinary meaning of that

expression) of the Organisation or of AGO or ASD (within

the meanings of the

Intelligence Services Act 2001

);

Commonwealth of Australia Bills

SURVEILLANCE LEGISLATION AMENDMENT (IDENTIFY AND DISRUPT) BILL 2020