TELECOMMUNICATIONS AND OTHER LEGISLATION AMENDMENT (ASSISTANCE AND ACCESS) BILL 2018

2016-2017-2018

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Telecommunications and Other

Legislation Amendment (Assistance and

Access) Bill 2018

No. , 2018

(Attorney-General)

A Bill for an Act to amend the law relating to

telecommunications, computer access warrants and

search warrants, and for other purposes

No. , 2018

Telecommunications and Other Legislation Amendment (Assistance

and Access) Bill 2018

Contents

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

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

Schedules ........................................................................................... 3

Schedule 1--Industry assistance

Part 1--Amendments

Administrative Decisions (Judicial Review) Act 1977

Criminal Code Act 1995

Telecommunications Act 1997

Part 2--Amendments contingent on the commencement of the

Federal Circuit and Family Court of Australia Act

2018

Telecommunications Act 1997

Schedule 2--Computer access warrants etc.

Part 1--Amendments

Australian Security Intelligence Organisation Act 1979

Mutual Assistance in Criminal Matters Act 1987

Surveillance Devices Act 2004

Telecommunications Act 1997

129

Telecommunications (Interception and Access) Act 1979

129

Part 2--Application provisions

139

Part 3--Amendments contingent on the commencement of the

Crimes Legislation Amendment (International Crime

Cooperation and Other Measures) Act 2018

140

International Criminal Court Act 2002

140

International War Crimes Tribunals Act 1995

141

Surveillance Devices Act 2004

142

Schedule 3--Search warrants issued under the Crimes Act

1914

146

Crimes Act 1914

146

Telecommunications and Other Legislation Amendment (Assistance

and Access) Bill 2018

No. , 2018

Schedule 4--Search warrants issued under the Customs Act

1901

155

Customs Act 1901

155

Schedule 5--Australian Security Intelligence Organisation

167

Australian Security Intelligence Organisation Act 1979

167

No. , 2018

Telecommunications and Other Legislation Amendment (Assistance

and Access) Bill 2018

A Bill for an Act to amend the law relating to

telecommunications, computer access warrants and

search warrants, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act is the Telecommunications and Other Legislation

Amendment (Assistance and Access) Act 2018.

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.

Telecommunications and Other Legislation Amendment (Assistance

and Access) Bill 2018

No. , 2018

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,

Part 1

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 9 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

3. Schedule 1,

Part 2

The later of:

(a) immediately after the commencement of

Part 1 of Schedule 1 to this Act; and

(b) immediately after the commencement of

section 3 of the Federal Circuit and

Family Court of Australia Act 2018.

However, the provisions do not commence

at all if the event mentioned in paragraph (b)

does not occur.

4. Schedule 2,

Parts 1 and 2

The day after this Act receives the Royal

Assent.

5. Schedule 2,

Part 3

The later of:

(a) immediately after the commencement of

Part 1 of Schedule 2 to this Act; and

(b) immediately after the commencement of

Part 6 of Schedule 1 to the Crimes

Legislation Amendment (International

Crime Cooperation and Other Measures)

Act 2018.

However, the provisions do not commence

at all if the event mentioned in paragraph (b)

does not occur.

No. , 2018

Telecommunications and Other Legislation Amendment (Assistance

and Access) Bill 2018

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

6. 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.

Schedule 1 Industry assistance

Part 1 Amendments

Telecommunications and Other Legislation Amendment (Assistance

and Access) Bill 2018

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Schedule 1--Industry assistance

Part 1--Amendments

Administrative Decisions (Judicial Review) Act 1977

1 After paragraph (daaa) of Schedule 1

Insert:

(daaaa) decisions under Part 15 of the Telecommunications Act 1997;

Criminal Code Act 1995

2 After subsection 474.6(7) of the Criminal Code

Insert:

(7A) A person is not criminally responsible for an offence against

subsection (5) if the conduct of the person:

(a) is in accordance with a technical assistance request; or

(b) is in compliance with a technical assistance notice; or

3 After subparagraph 476.2(4)(b)(iii) of the Criminal Code

Insert:

or (iv) in accordance with a technical assistance request; or

(v) in compliance with a technical assistance notice; or

(vi) in compliance with a technical capability notice;

4 Dictionary in the Criminal Code

Insert:

technical assistance notice has the same meaning as in Part 15 of

the Telecommunications Act 1997.

technical assistance request has the same meaning as in Part 15 of

the Telecommunications Act 1997.

technical capability notice has the same meaning as in Part 15 of

the Telecommunications Act 1997.

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and Access) Bill 2018

Telecommunications Act 1997

5 Section 7

Insert:

ASIO means the Australian Security Intelligence Organisation.

6 Section 7 (paragraph (a) of the definition of civil penalty

provision)

After "this Act" (first occurring), insert "(other than section 317ZB)".

7 After Part 14

Insert:

Part 15--Industry assistance

Division 1--Introduction

317A Simplified outline of this Part

•

The Director-General of Security, the Director-General of the

Australian Secret Intelligence Service, the Director-General of

the Australian Signals Directorate or the chief officer of an

interception agency may give a technical assistance request to

a designated communications provider.

•

A technical assistance request may ask the provider to do acts

or things on a voluntary basis that are directed towards

ensuring that the provider is capable of giving certain types of

help to ASIO, the Australian Secret Intelligence Service, the

Australian Signals Directorate or an interception agency in

relation to:

(a)

enforcing the criminal law and laws imposing pecuniary

penalties; or

(b)

assisting the enforcement of the criminal laws in force in

a foreign country; or

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(c)

the interests of Australia's national security, the interests

of Australia's foreign relations or the interests of

Australia's national economic well-being.

•

A technical assistance request may ask the provider to give

help to ASIO, the Australian Secret Intelligence Service, the

Australian Signals Directorate or an interception agency on a

voluntary basis in relation to:

(a)

enforcing the criminal law and laws imposing pecuniary

penalties; or

(b)

assisting the enforcement of the criminal laws in force in

a foreign country; or

(c)

the interests of Australia's national security, the interests

of Australia's foreign relations or the interests of

Australia's national economic well-being.

•

The Director-General of Security or the chief officer of an

interception agency may give a designated communications

provider a notice, to be known as a technical assistance notice,

that requires the provider to do acts or things by way of giving

help to ASIO or the agency in relation to:

(a)

enforcing the criminal law and laws imposing pecuniary

penalties; or

(b)

assisting the enforcement of the criminal laws in force in

a foreign country; or

(c)

safeguarding national security.

•

The Attorney-General may give a designated communications

provider a notice, to be known as a technical capability notice.

•

A technical capability notice may require the provider to do

acts or things directed towards ensuring that the provider is

capable of giving certain types of help to ASIO or an

interception agency in relation to:

(a)

enforcing the criminal law and laws imposing pecuniary

penalties; or

(b)

assisting the enforcement of the criminal laws in force in

a foreign country; or

(c)

safeguarding national security.

Industry assistance Schedule 1

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and Access) Bill 2018

•

A technical capability notice may require the provider to do

acts or things by way of giving help to ASIO or an

interception agency in relation to:

(a)

enforcing the criminal law and laws imposing pecuniary

penalties; or

(b)

assisting the enforcement of the criminal laws in force in

a foreign country; or

(c)

safeguarding national security.

317B Definitions

In this Part:

access, when used in relation to material, includes:

(a) access that is subject to a pre-condition (for example, the use

of a password); and

(b) access by way of push technology; and

ASIO affiliate has the same meaning as in the Australian Security

Intelligence Organisation Act 1979.

ASIO employee has the same meaning as in the Australian Security

Intelligence Organisation Act 1979.

chief officer of an interception agency has the meaning given by

section 317ZM.

contracted service provider, in relation to a designated

communications provider, means a person who performs services

for or on behalf of the provider, but does not include a person who

performs such services in the capacity of an employee of the

provider.

Corruption and Crime Commission (WA) means the Corruption

and Crime Commission established by the Corruption, Crime and

Misconduct Act 2003 (WA).

designated communications provider has the meaning given by

section 317C.

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electronic service has the meaning given by section 317D.

eligible activities of a designated communications provider has the

meaning given by section 317C.

entrusted ASD person means a person who:

(a) is a staff member of the Australian Signals Directorate; or

(b) has entered into a contract, agreement or arrangement with

the Australian Signals Directorate; or

contract, agreement or arrangement with the Australian

Signals Directorate.

entrusted ASIO person means an entrusted person (within the

meaning of the Australian Security Intelligence Organisation Act

1979).

entrusted ASIS person means a person who:

(a) is a staff member or agent of the Australian Secret

Intelligence Service; or

(b) has entered into a contract, agreement or arrangement with

the Australian Secret Intelligence Service; or

contract, agreement or arrangement with the Australian

Secret Intelligence Service.

giving help:

(a) when used in relation to ASIO--includes giving help to an

ASIO employee or an ASIO affiliate; or

(b) when used in relation to the Australian Secret Intelligence

Service--includes giving help to a staff member of the

Australian Secret Intelligence Service; or

includes giving help to a staff member of the Australian

Signals Directorate; or

(d) when used in relation to an interception agency--includes

giving help to an officer of the agency.

IGIS official has the same meaning as in the Australian Security

Intelligence Organisation Act 1979.

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and Access) Bill 2018

Independent Broad-based Anti-corruption Commission of

Victoria means the Independent Broad-based Anti-corruption

Commission established by the Independent Broad-based

Anti-corruption Commission Act 2011 (Vic).

Independent Commissioner Against Corruption (SA) means the

person who is the Commissioner (within the meaning of the

Independent Commissioner Against Corruption Act 2012 (SA)).

interception agency means:

(a) the Australian Federal Police; or

(b) the Australian Commission for Law Enforcement Integrity;

(d) the Police Force of a State or the Northern Territory; or

(e) the Independent Commission Against Corruption of New

South Wales; or

(f) the New South Wales Crime Commission; or

(g) the Law Enforcement Conduct Commission of New South

Wales; or

(h) the Independent Broad-based Anti-corruption Commission of

Victoria; or

(i) the Crime and Corruption Commission of Queensland; or

(j) the Independent Commissioner Against Corruption (SA); or

(k) the Corruption and Crime Commission (WA).

Law Enforcement Conduct Commission of New South Wales

means the Law Enforcement Conduct Commission constituted by

the Law Enforcement Conduct Commission Act 2016 (NSW).

listed act or thing has the meaning given by section 317E.

material means material:

(a) whether in the form of text; or

(b) whether in the form of data; or

(d) whether in the form of visual images (moving or otherwise);

(e) whether in any other form; or

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(f) whether in any combination of forms.

member of the staff of the Independent Commissioner Against

Corruption (SA) means a person who is engaged under

subsection 12(1) of the Independent Commissioner Against

Corruption Act 2012 (SA).

officer of an interception agency has the meaning given by

section 317ZM.

staff member, when used in relation to the Australian Secret

Intelligence Service or the Australian Signals Directorate, has the

same meaning as in the Intelligence Services Act 2001.

supply:

(a) when used in relation to:

(i) a facility; or

(ii) customer equipment; or

(iii) a component;

includes supply (including re-supply) by way of sale,

exchange, lease, hire or hire-purchase; and

(b) when used in relation to software--includes provide, grant or

confer rights, privileges or benefits.

technical assistance notice means a notice given under

section 317L.

technical assistance notice information means:

(a) information about any of the following:

(i) the giving of a technical assistance notice;

(ii) the existence or non-existence of a technical assistance

notice;

(iii) the variation of a technical assistance notice;

(iv) the revocation of a technical assistance notice;

(v) the requirements imposed by a technical assistance

notice;

(vi) any act or thing done in compliance with a technical

assistance notice; or

(b) any other information about a technical assistance notice.

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technical assistance request means a request under

paragraph 317G(1)(a).

technical assistance request information means:

(a) information about any of the following:

(i) the giving of a technical assistance request;

(ii) the existence or non-existence of a technical assistance

request;

(iii) the acts or things covered by a technical assistance

request;

(iv) any act or thing done in accordance with a technical

assistance request; or

(b) any other information about a technical assistance request.

technical capability notice means a notice given under

section 317T.

technical capability notice information means:

(a) information about any of the following:

(i) the giving of a technical capability notice;

(ii) consultation relating to the giving of a technical

capability notice;

(iii) the existence or non-existence of a technical capability

notice;

(iv) the variation of a technical capability notice;

(v) the revocation of a technical capability notice;

(vi) the requirements imposed by a technical capability

notice;

(vii) any act or thing done in compliance with a technical

capability notice; or

(b) any other information about a technical capability notice.

317C Designated communications provider etc.

For the purposes of this Part, the following table defines:

(a) designated communications provider; and

(b) the eligible activities of a designated communications

provider.

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and Access) Bill 2018

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Designated communications provider and eligible activities

Item

A person is a designated

communications provider if ...

... and the eligible activities of the

person are ...

the person is a carrier or carriage

service provider

(a) the operation by the person of

telecommunications networks, or

facilities, in Australia; or

(b) the supply by the person of listed

carriage services

the person is a carriage service

intermediary who arranges for the

supply by a carriage service provider

of listed carriage services

(a) the arranging by the person for

the supply by the carriage service

provider of listed carriage

services; or

(b) the operation by the carriage

service provider of

telecommunications networks, or

facilities, in Australia; or

provider of listed carriage

services

the person provides a service that

facilitates, or is ancillary or

incidental to, the supply of a listed

carriage service

the provision by the person of a

service that facilitates, or is ancillary

or incidental to, the supply of a

listed carriage service

the person provides an electronic

service that has one or more

end-users in Australia

the provision by the person of an

electronic service that has one or

more end-users in Australia

the person provides a service that

facilitates, or is ancillary or

incidental to, the provision of an

electronic service that has one or

more end-users in Australia

the provision by the person of a

service that facilitates, or is ancillary

or incidental to, the provision of an

electronic service that has one or

more end-users in Australia

the person develops, supplies or

updates software used, for use, or

likely to be used, in connection with:

(a) a listed carriage service; or

(b) an electronic service that has one

or more end-users in Australia

(a) the development by the person of

any such software; or

(b) the supply by the person of any

such software; or

such software

the person manufactures, supplies,

installs, maintains or operates a

facility

(a) the manufacture by the person of

a facility for use, or likely to be

used, in Australia; or

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Designated communications provider and eligible activities

Item

A person is a designated

communications provider if ...

... and the eligible activities of the

person are ...

(b) the supply by the person of a

facility for use, or likely to be

used, in Australia; or

facility in Australia; or

(d) the maintenance by the person of

a facility in Australia; or

(e) the operation by the person of a

facility in Australia

the person manufactures or supplies

components for use, or likely to be

used, in the manufacture of a facility

for use, or likely to be used, in

Australia

(a) the manufacture by the person of

any such components; or

(b) the supply by the person of any

such components

the person connects a facility to a

telecommunications network in

Australia

the connection by the person of a

facility to a telecommunications

network in Australia

the person manufactures or supplies

customer equipment for use, or

likely to be used, in Australia

(a) the manufacture by the person of

any such customer equipment; or

(b) the supply by the person of any

such customer equipment

the person manufactures or supplies

components for use, or likely to be

used, in the manufacture of customer

equipment for use, or likely to be

used, in Australia

(a) the manufacture by the person of

any such components; or

(b) the supply by the person of any

such components

the person:

(a) installs or maintains customer

equipment in Australia; and

(b) does so otherwise than in the

capacity of end-user of the

equipment

(a) any such installation by the

person of customer equipment;

(b) any such maintenance by the

person of customer equipment

the person:

(a) connects customer equipment to

a telecommunications network in

Australia; and

any such connection by the person

of customer equipment to a

telecommunications network in

Australia

Schedule 1 Industry assistance

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Designated communications provider and eligible activities

Item

A person is a designated

communications provider if ...

... and the eligible activities of the

person are ...

(b) does so otherwise than in the

capacity of end-user of the

equipment

the person is a constitutional

corporation who:

(a) manufactures; or

(b) supplies; or

(d) maintains;

data processing devices

(a) the manufacture by the person of

data processing devices for use,

or likely to be used, in Australia;

(b) the supply by the person of data

processing devices for use, or

likely to be used, in Australia; or

data processing devices in

Australia; or

(d) the maintenance by the person of

data processing devices in

Australia

the person is a constitutional

corporation who:

(a) develops; or

(b) supplies; or

software that is capable of being

installed on a computer, or other

equipment, that is, or is likely to be,

connected to a telecommunications

network in Australia

(a) the development by the person of

any such software; or

(b) the supply by the person of any

such software; or

such software

Note 1:

See also sections 317HAA, 317MAA and 317TAA (provision of

advice to designated communications providers).

Note 2:

See also section 317ZT (alternative constitutional basis).

317D Electronic service

(1) For the purposes of this Part, electronic service means:

(a) a service that allows end-users to access material using a

carriage service; or

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(b) a service that delivers material to persons having equipment

appropriate for receiving that material, where the delivery of

the service is by means of a carriage service;

but does not include:

(d) a datacasting service (within the meaning of the

Broadcasting Services Act 1992).

(2) For the purposes of subsection (1), service includes a website.

(3) For the purposes of this Part, a person does not provide an

electronic service merely because the person supplies a carriage

service that enables material to be accessed or delivered.

(4) For the purposes of this Part, a person does not provide an

electronic service merely because the person provides a billing

service, or a fee collection service, in relation to an electronic

service.

(5) A reference in this section to the use of a thing is a reference to the

use of the thing either:

(a) in isolation; or

(b) in conjunction with one or more other things.

317E Listed acts or things

(1) For the purposes of the application of this Part to a designated

communications provider, listed act or thing means:

(a) removing one or more forms of electronic protection that are

or were applied by, or on behalf of, the provider; or

(b) providing technical information; or

equipment; or

(d) ensuring that information obtained in connection with the

execution of a warrant or authorisation is given in a particular

format; or

(e) facilitating or assisting access to whichever of the following

are the subject of eligible activities of the provider:

(i) a facility;

(ii) customer equipment;

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(iii) a data processing device;

(iv) a listed carriage service;

(v) a service that facilitates, or is ancillary or incidental to,

the supply of a listed carriage service;

(vi) an electronic service;

(vii) a service that facilitates, or is ancillary or incidental to,

the provision of an electronic service;

(viii) software used, for use, or likely to be used, in

connection with a listed carriage service;

(ix) software used, for use, or likely to be used, in

connection with an electronic service;

(x) software that is capable of being installed on a

computer, or other equipment, that is, or is likely to be,

connected to a telecommunications network; or

(f) assisting with the testing, modification, development or

maintenance of a technology or capability; or

(g) notifying particular kinds of changes to, or developments

affecting, eligible activities of the designated

communications provider, if the changes are relevant to the

execution of a warrant or authorisation; or

(h) modifying, or facilitating the modification of, any of the

characteristics of a service provided by the designated

communications provider; or

(i) substituting, or facilitating the substitution of, a service

provided by the designated communications provider for:

(i) another service provided by the provider; or

(ii) a service provided by another designated

communications provider; or

(j) an act or thing done to conceal the fact that any thing has

been done covertly in the performance of a function, or the

exercise of a power, conferred by a law of the

Commonwealth, a State or a Territory, so far as the function

or power relates to:

(i) enforcing the criminal law and laws imposing pecuniary

penalties; or

(ii) assisting the enforcement of the criminal laws in force

in a foreign country; or

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(iii) the interests of Australia's national security, the

interests of Australia's foreign relations or the interests

of Australia's national economic well-being.

(2) Paragraph (1)(j) does not apply to:

(a) making a false or misleading statement; or

(b) engaging in dishonest conduct.

317F Extension to external Territories

This Part extends to every external Territory.

Division 2--Voluntary technical assistance

317G Voluntary technical assistance provided to ASIO, the

Australian Secret Intelligence Service, the Australian

Signals Directorate or an interception agency

(1) If:

(a) any of the following persons:

(i) the Director-General of Security;

(ii) the Director-General of the Australian Secret

Intelligence Service;

(iii) the Director-General of the Australian Signals

Directorate;

(iv) the chief officer of an interception agency;

requests a designated communications provider to do one or

more specified acts or things that:

(v) are in connection with any or all of the eligible activities

of the provider; and

(vi) are covered by subsection (2); and

(b) the provider does an act or thing:

(i) in accordance with the request; or

(ii) in good faith purportedly in accordance with the

request;

then:

relation to, the act or thing mentioned in paragraph (b); and

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(d) an officer, employee or agent of the provider is not subject to

any civil liability for, or in relation to, an act or thing done by

the officer, employee or agent in connection with the act or

thing mentioned in paragraph (b).

(2) The specified acts or things must:

(a) be directed towards ensuring that the designated

communications provider is capable of giving help to:

(i) in a case where the request is made by the

Director-General of Security--ASIO; or

(ii) in a case where the request is made by the

Director-General of the Australian Secret Intelligence

Service--the Australian Secret Intelligence Service; or

(iii) in a case where the request is made by the

Director-General of the Australian Signals

Directorate--the Australian Signals Directorate; or

(iv) in a case where the request is made by the chief officer

of an interception agency--the agency;

in relation to:

(v) the performance of a function, or the exercise of a

power, conferred by or under a law of the

Commonwealth, a State or a Territory, so far as the

function or power relates to a relevant objective; or

(vi) a matter that facilitates, or is ancillary or incidental to, a

matter covered by subparagraph (v); or

(b) be by way of giving help to:

(i) in a case where the request is made by the

Director-General of Security--ASIO; or

(ii) in a case where the request is made by the

Director-General of the Australian Secret Intelligence

Service--the Australian Secret Intelligence Service; or

(iii) in a case where the request is made by the

Director-General of the Australian Signals

Directorate--the Australian Signals Directorate; or

(iv) in a case where the request is made by the chief officer

of an interception agency--the agency;

in relation to:

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(v) the performance of a function, or the exercise of a

power, conferred by or under a law of the

Commonwealth, a State or a Territory, so far as the

function or power relates to a relevant objective; or

(vi) a matter that facilitates, or is ancillary or incidental to, a

matter covered by subparagraph (v).

(3) A request under paragraph (1)(a) is to be known as a technical

assistance request.

(4) Subparagraph (1)(b)(ii) does not apply to an act or thing done by a

designated communications provider unless the act or thing is in

connection with any or all of the eligible activities of the provider.

Relevant objective

(5) For the purposes of this section, relevant objective means:

(a) enforcing the criminal law and laws imposing pecuniary

penalties; or

(b) assisting the enforcement of the criminal laws in force in a

foreign country; or

Australia's foreign relations or the interests of Australia's

national economic well-being.

Listed acts or things

(6) The acts or things that may be specified in a technical assistance

request given to a designated communications provider include

(but are not limited to) listed acts or things, so long as those acts or

things:

(a) are in connection with any or all of the eligible activities of

the provider; and

(b) are covered by subsection (2).

Note:

For listed acts or things, see section 317E.

317H Form of technical assistance request

(1) A technical assistance request may be given:

(a) orally; or

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(b) in writing.

(2) A technical assistance request must not be given orally unless:

(a) an imminent risk of serious harm to a person or substantial

damage to property exists; and

(b) the technical assistance request is necessary for the purpose

of dealing with that risk; and

assistance request in writing.

(3) If a technical assistance request is given orally by:

(a) the Director-General of Security; or

(b) the Director-General of the Australian Secret Intelligence

Service; or

(d) the chief officer of an interception agency;

the Director-General of Security, the Director-General of the

Australian Secret Intelligence Service, the Director-General of the

Australian Signals Directorate or the chief officer, as the case

requires, must:

(e) make a written record of the request; and

(f) do so within 48 hours after the request was given.

(4) If, under subsection (3):

(a) the Director-General of Security; or

(b) the Director-General of the Australian Secret Intelligence

Service; or

(d) the chief officer of an interception agency;

makes a written record of a technical assistance request, the

Director-General of Security, the Director-General of the

Australian Secret Intelligence Service, the Director-General of the

Australian Signals Directorate or the chief officer, as the case

requires, must:

(e) give a copy of the record to the designated communications

provider concerned; and

(f) do so as soon as practicable after the record was made.

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317HAA Provision of advice to designated communications

providers

(1) If the Director-General of Security gives a technical assistance

request to a designated communications provider, the

Director-General of Security must advise the provider that

compliance with the request is voluntary.

(2) If the Director-General of the Australian Secret Intelligence

Service gives a technical assistance request to a designated

communications provider, the Director-General of the Australian

Secret Intelligence Service must advise the provider that

compliance with the request is voluntary.

(3) If the Director-General of the Australian Signals Directorate gives

a technical assistance request to a designated communications

provider, the Director-General of the Australian Signals

Directorate must advise the provider that compliance with the

request is voluntary.

(4) If the chief officer of an interception agency gives a technical

assistance request to a designated communications provider, the

chief officer must advise the provider that compliance with the

request is voluntary.

317HA Duration of technical assistance request

(1) A technical assistance request:

(a) comes in force:

(i) when it is given; or

(ii) if a later time is specified in the request--at that later

time; and

(b) unless sooner revoked, remains in force:

(i) if an expiry date is specified in the request--until the

start of the expiry date; or

(ii) otherwise--at end of the 90-day period beginning when

the request was given.

(2) If a technical assistance request expires, this Part does not prevent

the giving of a fresh technical assistance request in the same terms

as the expired technical assistance request.

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317J Specified period etc.

(1) A technical assistance request may include a request that a

specified act or thing be done within a specified period.

(2) A technical assistance request may include a request that a

specified act or thing be done:

(a) in a specified manner; or

(b) in a way that meets one or more specified conditions.

(3) Subsections (1) and (2) of this section do not limit

subsections 317G(1) and (2).

317JA Variation of technical assistance requests

(1) If a technical assistance request has been given to a designated

communications provider by the Director-General of Security, the

Director-General of Security may vary the request.

(2) If a technical assistance request has been given to a designated

communications provider by the Director-General of the Australian

Secret Intelligence Service, the Director-General of the Australian

Secret Intelligence Service may vary the request.

(3) If a technical assistance request has been given to a designated

communications provider by the Director-General of the Australian

Signals Directorate, the Director-General of the Australian Signals

Directorate may vary the request.

(4) If a technical assistance request has been given to a designated

communications provider by the chief officer of an interception

agency, the chief officer may vary the request.

Form of variation

(5) A variation may be made:

(a) orally; or

(b) in writing.

(6) A variation must not be made orally unless:

(a) an imminent risk of serious harm to a person or substantial

damage to property exists; and

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(b) the variation is necessary for the purpose of dealing with that

risk; and

variation in writing.

(7) If a variation is made orally by:

(a) the Director-General of Security; or

(b) the Director-General of the Australian Secret Intelligence

Service; or

(d) the chief officer of an interception agency;

the Director-General of Security, the Director-General of the

Australian Secret Intelligence Service, the Director-General of the

Australian Signals Directorate or the chief officer, as the case

requires, must:

(e) make a written record of the variation; and

(f) do so within 48 hours after the variation was made.

(8) If, under subsection (7):

(a) the Director-General of Security; or

(b) the Director-General of the Australian Secret Intelligence

Service; or

(d) the chief officer of an interception agency;

makes a written record of a variation, the Director-General of

Security, the Director-General of the Australian Secret Intelligence

Service, the Director-General of the Australian Signals Directorate

or the chief officer, as the case requires, must:

(e) give a copy of the record to the designated communications

provider concerned; and

(f) do so as soon as practicable after the record was made.

Acts or things specified in a varied technical assistance request

(9) The acts or things specified in a varied technical assistance request

must be:

(a) in connection with any or all of the eligible activities of the

designated communications provider concerned; and

(b) covered by subsection 317G(2).

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(10) The acts or things that may be specified in a varied technical

assistance request include (but are not limited to) listed acts or

things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of

the designated communications provider concerned; and

(b) are covered by subsection 317G(2).

Note:

For listed acts or things, see section 317E.

317JB Revocation of technical assistance requests

(1) If a technical assistance request has been given to a person by the

Director-General of Security, the Director-General of Security

may, by written notice given to the person, revoke the request.

(2) If a technical assistance request has been given to a person by the

Director-General of the Australian Secret Intelligence Service, the

Director-General of the Australian Secret Intelligence Service may,

by written notice given to the person, revoke the request.

(3) If a technical assistance request has been given to a person by the

Director-General of the Australian Signals Directorate, the

Director-General of the Australian Signals Directorate may, by

written notice given to the person, revoke the request.

(4) If a technical assistance request has been given to a person by the

chief officer of an interception agency, the chief officer may, by

written notice given to the person, revoke the request.

317K Contract etc.

Any of the following persons:

(a) the Director-General of Security;

(b) the Director-General of the Australian Secret Intelligence

Service;

(d) the chief officer of an interception agency;

may enter into a contract, agreement or arrangement with a

designated communications provider in relation to acts or things

done by the provider in accordance with a technical assistance

request.

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Division 3--Technical assistance notices

317L Technical assistance notices

(1) The Director-General of Security or the chief officer of an

interception agency may give a designated communications

provider a notice, to be known as a technical assistance notice, that

requires the provider to do one or more specified acts or things

that:

(a) are in connection with any or all of the eligible activities of

the provider; and

(b) are covered by subsection (2).

Note:

Section 317ZK deals with the terms and conditions on which such a

requirement is to be complied with.

(2) The specified acts or things must be by way of giving help to:

(a) in a case where the technical assistance notice is given by the

Director-General of Security--ASIO; or

(b) in a case where the technical assistance notice is given by the

chief officer of an interception agency--the agency;

in relation to:

conferred by or under a law of the Commonwealth, a State or

a Territory, so far as the function or power relates to:

(i) enforcing the criminal law and laws imposing pecuniary

penalties; or

(ii) assisting the enforcement of the criminal laws in force

in a foreign country; or

(iii) safeguarding national security; or

(d) a matter that facilitates, or is ancillary or incidental to, a

matter covered by paragraph (c).

Listed acts or things

(3) The acts or things that may be specified in a technical assistance

notice given to a designated communications provider include (but

are not limited to) listed acts or things, so long as those acts or

things:

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(a) are in connection with any or all of the eligible activities of

the provider; and

(b) are covered by subsection (2).

Note:

For listed acts or things, see section 317E.

317M Form of technical assistance notice

(1) A technical assistance notice may be given:

(a) orally; or

(b) in writing.

(2) A technical assistance notice must not be given orally unless:

(a) an imminent risk of serious harm to a person or substantial

damage to property exists; and

(b) the technical assistance notice is necessary for the purpose of

dealing with that risk; and

assistance notice in writing.

(3) If a technical assistance notice is given orally by the

Director-General of Security or the chief officer of an interception

agency, the Director-General of Security or the chief officer, as the

case requires, must:

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

(b) do so within 48 hours after the notice was given.

(4) If, under subsection (3), the Director-General of Security or the

chief officer of an interception agency makes a written record of a

technical assistance notice, the Director-General of Security or the

chief officer, as the case requires, must:

(a) give a copy of the record to the designated communications

provider concerned; and

(b) do so as soon as practicable after the record was made.

317MAA Provision of advice to designated communications

providers

(1) If the Director-General of Security gives a technical assistance

notice to a designated communications provider, the

Director-General of Security must give the provider advice relating

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to the provider's obligations under whichever of sections 317ZA

and 317ZB is applicable, so far as those obligations relate to the

notice.

(2) If the chief officer of an interception agency gives a technical

assistance notice to a designated communications provider, the

chief officer must give the provider advice relating to the

provider's obligations under whichever of sections 317ZA and

317ZB is applicable, so far as those obligations relate to the notice.

317MA Duration of technical assistance notice

(1) A technical assistance notice:

(a) comes in force:

(i) when it is given; or

(ii) if a later time is specified in the notice--at that later

time; and

(b) unless sooner revoked, remains in force:

(i) if an expiry date is specified in the notice--until the

start of the expiry date; or

(ii) otherwise--at end of the 90-day period beginning when

the notice was given.

(2) If a technical assistance notice expires, this Part does not prevent

the giving of a fresh technical assistance notice in the same terms

as the expired technical assistance notice.

317N Compliance period etc.

(1) A technical assistance notice may require a specified act or thing to

be done within a specified period.

(2) A technical assistance notice may require a specified act or thing to

be done:

(a) in a specified manner; or

(b) in a way that meets one or more specified conditions.

(3) Subsections (1) and (2) of this section do not limit

subsections 317L(1) and (2).

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317P Decision-making criteria

The Director-General of Security or the chief officer of an

interception agency must not give a technical assistance notice to a

designated communications provider unless the Director-General

of Security or the chief officer, as the case requires, is satisfied

that:

(a) the requirements imposed by the notice are reasonable and

proportionate; and

(b) compliance with the notice is:

(i) practicable; and

(ii) technically feasible.

Note:

See also section 317ZAA.

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317Y Consultation about a proposal to vary a technical capability

notice

(1) If a technical capability notice has been given to a designated

communications provider, the Attorney-General must not vary the

notice unless the Attorney-General has first:

(a) given the provider a written notice (the consultation notice):

(i) setting out a proposal to vary the technical capability

notice; and

(ii) inviting the provider to make a submission to the

Attorney-General on the proposed variation; and

(b) considered any submission that was received within the time

limit specified in the consultation notice.

(2) A time limit specified in a consultation notice must run for at least

28 days.

(3) If a technical capability notice has been given to a designated

communications provider, the rule in subsection (2) does not apply

to a variation of the notice if:

(a) the Attorney-General is satisfied that the technical capability

notice should be varied as a matter of urgency; or

(b) compliance with subsection (2) is impracticable; or

(4) For the purposes of paragraph (3)(c), a designated communications

provider may waive compliance:

(a) orally; or

(b) in writing.

(5) If compliance is waived orally by a designated communications

provider, the provider must:

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

(b) do so within 48 hours after the waiver was made.

(6) If, under subsection (5), a designated communications provider

makes a written record of the waiver, the provider must:

(a) give a copy of the record to the Attorney-General; and

(b) do so as soon as practicable after the record was made.

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317Z Revocation of technical capability notices

(1) If a technical capability notice has been given to a person, the

Attorney-General may, by written notice given to the person,

revoke the notice.

(2) If a technical capability notice has been given to a person, and the

Attorney-General is satisfied that:

(a) the requirements imposed by the notice are not reasonable

and proportionate; or

(b) compliance with the notice is not:

(i) practicable; and

(ii) technically feasible;

the Attorney-General must, by written notice given to the person,

revoke the notice.

317ZAA Whether requirements imposed by a technical capability

notice are reasonable and proportionate

In considering whether the requirements imposed by a technical

capability notice or a varied technical capability notice are

reasonable and proportionate, the Attorney-General must have

regard to the following matters:

(a) the interests of national security;

(b) the interests of law enforcement;

provider to whom the notice relates;

(d) the objectives of the notice;

(e) the availability of other means to achieve the objectives of

the notice;

(f) the legitimate expectations of the Australian community

relating to privacy and cybersecurity;

(g) such other matters (if any) as the Attorney-General considers

relevant.

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Division 5--Compliance and enforcement

317ZA Compliance with notices--carriers and carriage service

providers

(1) A carrier or carriage service provider must comply with a

requirement under:

(a) a technical assistance notice; or

(b) a technical capability notice;

to the extent that the carrier or provider is capable of doing so.

(2) A person must not:

(a) aid, abet, counsel or procure a contravention of

subsection (1); or

(b) induce, whether by threats or promises or otherwise, a

contravention of subsection (1); or

or party to, a contravention of subsection (1); or

(d) conspire with others to effect a contravention of

subsection (1).

(3) Subsections (1) and (2) are civil penalty provisions.

Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

317ZB Compliance with notices--designated communications

provider (other than a carrier or carriage service

provider)

(1) A designated communications provider (other than a carrier or

carriage service provider) must comply with a requirement under:

(a) a technical assistance notice; or

(b) a technical capability notice;

to the extent that the provider is capable of doing so.

Civil penalty:

(a) if the provider is a body corporate--47,619 penalty units; or

(b) if the provider is not a body corporate--238 penalty units.

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(2) The pecuniary penalty for a contravention by a designated

communications provider of subsection (1) must not be more than:

(a) if the provider is a body corporate--47,619 penalty units; or

(b) if the provider is not a body corporate--238 penalty units.

(3) Subsection 82(5) of the Regulatory Powers (Standard Provisions)

Act 2014 does not apply to a contravention of subsection (1) of this

section.

(4) Sections 564 and 572B do not apply to a contravention of

subsection (1) of this section.

(5) In proceedings for a civil penalty order against a designated

communications provider for a contravention of subsection (1) in

relation to:

(a) a requirement under a technical assistance notice to do an act

or thing in a foreign country; or

(b) a requirement under a technical capability notice to do an act

or thing in a foreign country;

it is a defence if the provider proves that compliance with the

requirement in the foreign country would contravene a law of the

foreign country.

317ZC Civil penalty provision

Enforceable civil penalty provision

(1) Section 317ZB of this Act is enforceable under Part 4 of the

Regulatory Powers (Standard Provisions) Act 2014.

Note:

Part 4 of the Regulatory Powers (Standard Provisions) Act 2014

allows a civil penalty provision to be enforced by obtaining an order

for a person to pay a pecuniary penalty for the contravention of the

provision.

Authorised applicant

(2) For the purposes of Part 4 of the Regulatory Powers (Standard

Provisions) Act 2014, the Communications Access Co-ordinator is

an authorised applicant in relation to section 317ZB of this Act.

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Relevant courts

(3) For the purposes of Part 4 of the Regulatory Powers (Standard

Provisions) Act 2014, the Federal Court and the Federal Circuit

Court of Australia are relevant courts in relation to section 317ZB

of this Act.

Extension to external Territories etc.

(4) Part 4 of the Regulatory Powers (Standard Provisions) Act 2014,

as it applies in relation to section 317ZB of this Act, extends to:

(a) every external Territory; and

(b) acts, omissions, matters and things outside Australia.

317ZD Enforceable undertakings

Enforceable provision

(1) Section 317ZB of this Act is enforceable under Part 6 of the

Regulatory Powers (Standard Provisions) Act 2014.

Authorised person

(2) The Communications Access Co-ordinator is an authorised person

in relation to section 317ZB of this Act for the purposes of Part 6

of the Regulatory Powers (Standard Provisions) Act 2014.

Relevant courts

(3) The Federal Court and the Federal Circuit Court of Australia are

relevant courts in relation to section 317ZB of this Act for the

purposes of Part 6 of the Regulatory Powers (Standard Provisions)

Act 2014.

Extension to external Territories etc.

(4) Part 6 of the Regulatory Powers (Standard Provisions) Act 2014,

as it applies in relation to section 317ZB of this Act, extends to:

(a) every external Territory; and

(b) acts, omissions, matters and things outside Australia.

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317ZE Injunctions

Enforceable provision

(1) Section 317ZB of this Act is enforceable under Part 7 of the

Regulatory Powers (Standard Provisions) Act 2014.

Authorised person

(2) The Communications Access Co-ordinator is an authorised person

in relation to section 317ZB of this Act for the purposes of Part 7

of the Regulatory Powers (Standard Provisions) Act 2014.

Relevant courts

(3) The Federal Court and the Federal Circuit Court of Australia are

relevant courts in relation to section 317ZB of this Act for the

purposes of Part 7 of the Regulatory Powers (Standard Provisions)

Act 2014.

Extension to external Territories etc.

(4) Part 7 of the Regulatory Powers (Standard Provisions) Act 2014,

as it applies in relation to section 317ZB of this Act, extends to:

(a) every external Territory; and

(b) acts, omissions, matters and things outside Australia.

Division 6--Unauthorised disclosure of information etc.

317ZF Unauthorised disclosure of information

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the person is or was:

(i) a designated communications provider; or

(ii) an employee of a designated communications provider;

(iii) a contracted service provider of a designated

communications provider; or

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(iv) an employee of a contracted service provider of a

designated communications provider; or

(v) an entrusted ASIO person; or

(vi) an entrusted ASIS person; or

(vii) an entrusted ASD person; or

(viii) an officer of an interception agency; or

(ix) an officer or employee of the Commonwealth, a State or

a Territory; or

(x) a person appointed under subsection 317W(7); or

(xi) an arbitrator appointed under section 317ZK; and

(i) is technical assistance notice information; or

(ii) is technical capability notice information; or

(iii) is technical assistance request information; or

(iv) was obtained in accordance with a technical assistance

notice; or

(v) was obtained in accordance with a technical capability

notice; or

(vi) was obtained in accordance with a technical assistance

request; and

(d) if the information is covered by subparagraph (c)(i), (ii) or

(iii)--the information has come to the person's knowledge,

or into the person's possession:

(i) if the person is or was a designated communications

provider--in connection with the person's capacity as

such a provider; or

(ii) if the person is or was an employee of a designated

communications provider--because the person is or was

employed by the provider in connection with its

business as such a provider; or

(iii) if the person is or was a contracted service provider of a

designated communications provider--in connection

with the person's business as such a contracted service

provider; or

(iv) if the person is or was an employee of a contracted

service provider of a designated communications

provider--because the person is or was employed by the

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contractor in connection with its business as such a

contracted service provider; or

(v) if the person is or was an entrusted ASIO person--in the

person's capacity as such an entrusted ASIO person; or

(vi) if the person is or was an entrusted ASIS person--in the

person's capacity as such an entrusted ASIS person; or

(vii) if the person is or was an entrusted ASD person--in the

person's capacity as such an entrusted ASD person; or

(viii) if the person is or was an officer of an interception

agency--in the person's capacity as such an officer; or

(ix) if the person is or was an officer or employee of the

Commonwealth, a State or a Territory--in the person's

capacity as such an officer or employee; or

(x) if the person is or was an arbitrator appointed under

section 317ZK--in the person's capacity as such an

arbitrator; and

(e) if the information is covered by subparagraph (c)(iv), (v) or

(vi)--the information has come to the person's knowledge, or

into the person's possession:

(i) if the person is or was an entrusted ASIO person--in the

person's capacity as such an entrusted ASIO person; or

(ii) if the person is or was an entrusted ASIS person--in the

person's capacity as such an entrusted ASIS person; or

(iii) if the person is or was an entrusted ASD person--in the

person's capacity as such an entrusted ASD person; or

(iv) if the person is or was an officer of an interception

agency--in the person's capacity as such an officer; or

(v) if the person is or was an officer or employee of the

Commonwealth, a State or a Territory--in the person's

capacity as such an officer or employee; or

(vi) if the person is or was an arbitrator appointed under

section 317ZK--in the person's capacity as such an

arbitrator.

Penalty: Imprisonment for 5 years.

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Exceptions

(2) Subsection (1) does not apply if the disclosure was authorised

under subsection (3), (5), (6), (7), (8), (9), (10), (11) or (13).

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection--see subsection 13.3(3) of the Criminal Code.

Authorised disclosures--general

(3) A person covered by paragraph (1)(b) may disclose technical

assistance notice information, technical capability notice

information or technical assistance request information:

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

Part; or

(b) 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

Commonwealth, a State or a Territory; or

(d) in connection with the performance of functions, or the

exercise of powers, by:

(i) ASIO; or

(ii) the Australian Secret Intelligence Service; or

(iii) the Australian Signals Directorate; or

(iv) an interception agency; or

(e) for the purpose of obtaining legal advice in relation to this

Part; or

(f) to an IGIS official for the purpose of exercising powers, or

performing functions or duties, as an IGIS official.

(4) For the purposes of subsection (3), this Part includes:

(a) any other provision of this Act, so far as that other provision

relates to this Part; and

(b) the Regulatory Powers (Standard Provisions) Act 2014, so

far as that Act relates to this Part.

Authorised disclosures--IGIS official

(5) An IGIS official may disclose:

(a) technical assistance notice information; or

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(b) technical capability notice information; or

in connection with the IGIS official exercising powers, or

performing functions or duties, as an IGIS official.

Authorised disclosures--information sharing

(6) The Director-General of Security or the Communications Access

Co-ordinator may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

to the chief officer of an interception agency for purposes relating

to the performance of functions, or the exercise of powers, by the

interception agency.

(7) The chief officer of an interception agency may disclose

information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

to the chief officer of another interception agency for purposes

relating to the performance of functions, or the exercise of powers,

by the other interception agency.

(8) The Director-General of Security, the Director-General of the

Australian Signals Directorate or the chief officer of an

interception agency may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

to the Director-General of the Australian Secret Intelligence

Service for purposes relating to the performance of functions, or

the exercise of powers, by the Australian Secret Intelligence

Service.

(9) The Director-General of Security, the Director-General of the

Australian Secret Intelligence Service or the chief officer of an

interception agency may disclose information that is:

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(a) technical assistance notice information; or

(b) technical capability notice information; or

to the Director-General of the Australian Signals Directorate for

purposes relating to the performance of functions, or the exercise

of powers, by the Australian Signals Directorate.

(10) The Communications Access Co-ordinator, the Director-General of

the Australian Secret Intelligence Service, the Director-General of

the Australian Signals Directorate or the chief officer of an

interception agency may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

to the Director-General of Security for purposes relating to the

performance of functions, or the exercise of powers, by ASIO.

(11) The Director-General of Security or the chief officer of an

interception agency may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

to the Communications Access Co-ordinator for purposes relating

to the performance of functions, or the exercise of powers, by the

Communications Access Co-ordinator.

(12) Before disclosing information under subsection (6), (7), (8), (9) or

(10), the Director-General of Security, the Director-General of the

Australian Secret Intelligence Service, the Director-General of the

Australian Signals Directorate or the chief officer of an

interception agency, as the case requires, must notify the

Communications Access Co-ordinator of the proposed disclosure.

Authorised disclosures--statistics

(13) A person who is:

(a) a designated communications provider; or

(b) an employee of a designated communications provider; or

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provider; or

(d) an employee of a contracted service provider of a designated

communications provider;

may, in the person's capacity as such a provider or employee,

disclose:

(e) the total number of technical assistance notices given to the

provider during a period of at least 6 months; or

(f) the total number of technical capability notices given to the

provider during a period of at least 6 months; or

(g) the total number of technical assistance requests given to the

provider during a period of at least 6 months.

Note:

This subsection authorises the disclosure of aggregate statistical

information. That information cannot be broken down:

(a) by agency; or

(b) in any other way.

317ZFA Powers of a court

(1) In a proceeding under, or arising out of:

(a) this Part; or

(b) any other provision of this Act, so far as that other provision

relates to this Part; or

far as that Act relates to this Part;

a court may make such orders as the court considers appropriate in

relation to the disclosure, protection, storage, handling or

destruction, in the proceeding, of:

(d) technical assistance notice information; or

(e) technical capability notice information; or

(f) technical assistance request information;

if the court is satisfied that it is in the public interest to make such

orders.

(2) The powers conferred on a court by subsection (1) are in addition

to any other powers of the court.

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Division 7--Limitations

317ZG Designated communications provider must not be required

to implement or build a systemic weakness or systemic

vulnerability etc.

(1) A technical assistance notice or technical capability notice must

not have the effect of:

(a) requiring a designated communications provider to

implement or build a systemic weakness, or a systemic

vulnerability, into a form of electronic protection; or

(b) preventing a designated communications provider from

rectifying a systemic weakness, or a systemic vulnerability,

in a form of electronic protection.

(2) The reference in paragraph (1)(a) to implement or build a systemic

weakness, or a systemic vulnerability, into a form of electronic

protection includes a reference to implement or build a new

decryption capability in relation to a form of electronic protection.

(3) The reference in paragraph (1)(a) to implement or build a systemic

weakness, or a systemic vulnerability, into a form of electronic

protection includes a reference to one or more actions that would

render systemic methods of authentication or encryption less

effective.

(4) Subsections (2) and (3) are enacted for the avoidance of doubt.

(5) A technical assistance notice or technical capability notice has no

effect to the extent (if any) to which it would have an effect

covered by paragraph (1)(a) or (b).

317ZH General limits on technical assistance notices and technical

capability notices

(1) A technical assistance notice or technical capability notice has no

effect to the extent (if any) to which it would require a designated

communications provider to do an act or thing for which a warrant

or authorisation under any of the following laws is required:

(a) the Telecommunications (Interception and Access) Act 1979;

(b) the Surveillance Devices Act 2004;

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(d) the Australian Security Intelligence Organisation Act 1979;

(e) the Intelligence Services Act 2001;

(f) a law of the Commonwealth (other than this Part) that is not

covered by paragraph (a), (b), (c), (d) or (e);

(g) a law of a State or Territory.

(2) For the purposes of subsection (1):

(a) assume that each law mentioned in that subsection applied

both within and outside Australia; and

(b) assume that each reference in Part 13 to a carriage service

provider included a reference to a designated

communications provider.

(3) A technical assistance notice or technical capability notice has no

effect to the extent (if any) to which it would require a designated

communications provider to:

(a) use a surveillance device (within the meaning of the

Surveillance Devices Act 2004); or

(b) access data held in a computer (within the meaning of the

Surveillance Devices Act 2004);

if a law of a State or Territory requires a warrant or authorisation

for that use or access.

(4) To avoid doubt, subsection (1) or (3) does not prevent a technical

assistance notice or technical capability notice from requiring a

designated communications provider to do an act or thing by way

of giving help to:

(a) ASIO; or

(b) an interception agency;

in relation to:

by paragraph 317L(2)(c) or (d); or

(d) in the case of a technical capability notice--a matter covered

by subparagraph 317T(2)(b)(i) or (ii);

if the doing of the act or thing would:

(e) assist in, or facilitate, giving effect to a warrant or

authorisation under a law of the Commonwealth, a State or a

Territory; or

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(f) give effect to a warrant or authorisation under a law of the

Commonwealth.

(5) To avoid doubt, subsection (1) or (3) does not prevent a technical

capability notice from requiring a designated communications

provider to do an act or thing directed towards ensuring that the

provider is capable of giving listed help (within the meaning of

section 317T) to:

(a) ASIO; or

(b) an interception agency;

in relation to a matter covered by subparagraph 317T(2)(a)(i) or

(ii), if the doing of the act or thing would:

authorisation under a law of the Commonwealth, a State or a

Territory; or

(d) give effect to a warrant or authorisation under a law of the

Commonwealth.

Division 8--General provisions

317ZJ Immunity

(1) A designated communications provider is not subject to any civil

liability for, or in relation to, an act or thing done by the provider:

(a) in compliance; or

(b) in good faith in purported compliance;

with:

(d) a technical capability notice.

(2) Paragraph (1)(b) does not apply to an act or thing done by a

designated communications provider unless the act or thing is in

connection with any or all of the eligible activities of the provider.

(3) An officer, employee or agent of a designated communications

provider is not subject to any civil liability for, or in relation to, an

act or thing done by the officer, employee or agent in connection

with an act or thing done by the provider:

(a) in compliance; or

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(b) in good faith in purported compliance;

with:

(d) a technical capability notice.

(4) Paragraph (3)(b) does not apply to an act or thing done by a

designated communications provider unless the act or thing is in

connection with any or all of the eligible activities of the provider.

317ZK Terms and conditions on which help is to be given etc.

Scope

(1) This section applies if a designated communications provider is

subject to a requirement under:

(a) a technical assistance notice; or

(b) a technical capability notice;

unless:

notice given by the Director-General of Security--the

Director-General of Security is satisfied that it would be

contrary to the public interest for this section to apply to the

requirement; or

(d) in the case of a requirement under a technical assistance

notice given by the chief officer of an interception agency--

the chief officer is satisfied that it would be contrary to the

public interest for this section to apply to the requirement; or

(e) in the case of a requirement under a technical capability

notice--the Attorney-General is satisfied that it would be

contrary to the public interest for this section to apply to the

requirement.

(2) In deciding whether it would be contrary to the public interest for

this section to apply to a requirement, the Director-General of

Security, the chief officer or the Attorney-General, as the case may

be, must have regard to the following matters:

(a) the interests of law enforcement;

(b) the interests of national security;

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(d) the extent to which compliance with the requirement will

impose a regulatory burden on the provider;

(e) the reasons for the giving of the technical assistance notice or

technical capability notice, as the case requires;

(f) such other matters (if any) as the Director-General of

Security, the chief officer or the Attorney-General, as the

case may be, considers relevant.

Basis of compliance

(3) The designated communications provider must comply with the

requirement on the basis that the provider neither:

(a) profits from complying with the requirement; nor

(b) bears the reasonable costs of complying with the

requirement;

unless the provider and the applicable costs negotiator otherwise

agree.

Note:

For applicable costs negotiator, see subsection (16).

Terms and conditions

(4) The designated communications provider must comply with the

requirement on such terms and conditions as are:

(a) agreed between the following parties:

(i) the provider;

(ii) the applicable costs negotiator; or

(b) failing agreement, determined by an arbitrator appointed by

the parties.

Note:

For applicable costs negotiator, see subsection (16).

(5) If:

(a) the parties fail to agree on the appointment of an arbitrator;

and

(b) one of the parties is a carrier or carriage service provider;

the ACMA is to appoint the arbitrator.

(6) If:

(a) the parties fail to agree on the appointment of an arbitrator;

and

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(b) none of the parties is a carrier or carriage service provider;

the Attorney-General is to appoint the arbitrator.

Arbitration

(7) An arbitrator appointed under subsection (5) or (6) must be:

(a) a person specified under subsection (8); or

(b) a person who belongs to a class of persons specified under

subsection (11).

(8) The Minister may, by writing, specify one or more persons for the

purposes of paragraph (7)(a).

(9) An instrument made under subsection (8) is not a legislative

instrument.

(10) Subsection 33(3AB) of the Acts Interpretation Act 1901 does not

apply to the power conferred by subsection (8).

(11) The Minister may, by legislative instrument, specify a class of

persons for the purposes of paragraph (7)(b).

(12) Before making an instrument under subsection (8) or (11), the

Minister must consult the Attorney-General.

(13) If an arbitration under this section is conducted by an arbitrator

appointed by the ACMA, the cost of the arbitration must be

apportioned equally between the parties.

(14) The Minister may, by legislative instrument, make provision for

and in relation to the conduct of an arbitration under this section.

Acquisition of property

(15) This section has no effect to the extent (if any) to which its

operation would result in an acquisition of property (within the

meaning of paragraph 51(xxxi) of the Constitution) otherwise than

on just terms (within the meaning of that paragraph).

Applicable costs negotiator

(16) For the purposes of this section, the applicable costs negotiator is:

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(a) in the case of a requirement under a technical assistance

notice given by the Director-General of Security--the

Director-General of Security; or

(b) in the case of a requirement under a technical assistance

notice given by the chief officer of an interception agency--

the chief officer; or

notice--the person specified in the notice, in accordance with

subsection 317T(12), as the applicable costs negotiator for

the notice.

317ZL Service of notices etc.

Scope

(1) This section applies to:

(a) a summons or process in any proceedings under, or

connected with, this Part; or

(b) a summons or process in any proceedings under, or

connected with, the Regulatory Powers (Standard

Provisions) Act 2014, so far as that Act relates to this Part; or

Part; or

(d) a notice under the Regulatory Powers (Standard Provisions)

Act 2014, so far as that Act relates to this Part; or

(e) a technical capability notice.

Address for service of summons, process or notice

(2) If:

(a) the summons, process or notice, as the case may be, is

required to be served on, or given to, a designated

communications provider; and

(b) the designated communications provider has nominated an

address for service in a document given by the provider to:

(i) the Attorney-General; or

(ii) the Communications Access Co-ordinator; or

(iii) the Director-General of Security; or

(iv) the chief officer of an interception agency;

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the summons, process, or notice, as the case may be, is taken to

have been served on, or given to, the provider if it is left at, or sent

by pre-paid post to, the nominated address for service.

(3) If:

(a) the summons, process or notice, as the case may be, is

required to be served on, or given to, a designated

communications provider; and

(b) the designated communications provider has nominated an

electronic address for service in a document given by the

provider to:

(i) the Attorney-General; or

(ii) the Communications Access Co-ordinator; or

(iii) the Director-General of Security; or

(iv) the chief officer of an interception agency;

the summons, process or notice, as the case may be, is taken to

have been served on, or given to, the provider if it is sent to the

nominated electronic address for service.

Service of summons, process or notice on agent etc.

(4) If:

(a) the summons, process or notice, as the case may be, is

required to be served on, or given to, a body corporate

incorporated outside Australia; and

(b) the body corporate does not have a registered office or a

principal office in Australia; and

the summons, process or notice, as the case may be, is taken to

have been served on, or given to, the body corporate if it is served

on, or given to, the agent.

(5) If:

(a) the summons, process or notice, as the case may be, is

required to be served on, or given to, a body corporate

incorporated outside Australia; and

(b) the body corporate does not have a registered office or a

principal office in Australia; and

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at an address in Australia;

the summons, process or notice, as the case may be, is taken to

have been served on, or given to, the body corporate if it is left at,

or sent by pre-paid post to, that address.

Other matters

(6) Subsections (2), (3), (4) and (5) have effect in addition to:

(a) section 28A of the Acts Interpretation Act 1901; and

(b) sections 587 and 588 of this Act.

Note:

Section 28A of the Acts Interpretation Act 1901 deals with the service

of documents.

317ZM Interception agency--chief officer and officer

For the purposes of this Part, the following table defines:

(a) chief officer of an interception agency; and

(b) officer of an interception agency.

Chief officer and officers of interception agencies

Item

Column 1

Column 2

Column 3

Interception agency

Chief officer

Officer

Australian Federal

Police

the Commissioner

(within the meaning of

the Australian Federal

Police Act 1979)

a member or special

member of the

Australian Federal

Police

Australian Commission

for Law Enforcement

Integrity

the Integrity

Commissioner (within

the meaning of the Law

Enforcement Integrity

Commissioner Act

2006)

(a) the Integrity

Commissioner

(within the meaning

of the Law

Enforcement

Integrity

Commissioner Act

2006); or

(b) a staff member of

ACLEI (within the

meaning of the Law

Enforcement

Integrity

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Chief officer and officers of interception agencies

Item

Column 1

Column 2

Column 3

Interception agency

Chief officer

Officer

Commissioner Act

2006)

Australian Crime

Commission

Chief Executive

Officer of the

Australian Crime

Commission

(a) the Chief Executive

Officer of the

Australian Crime

Commission; or

(b) an examiner (within

the meaning of the

Australian Crime

Commission Act

2002); or

staff of the ACC

(within the meaning

of the Australian

Crime Commission

Act 2002)

Police Force of a State

or the Northern

Territory

the Commissioner of

Police (however

designated) of that

State or Territory

an officer of that Police

Force

Independent

Commission Against

Corruption of New

South Wales

the Chief

Commissioner (within

the meaning of the

Independent

Commission Against

Corruption Act 1988

(NSW))

an officer of the

Commission (within

the meaning of the

Independent

Commission Against

Corruption Act 1988

(NSW)) (other than a

person engaged under

section 104B of that

Act)

New South Wales

Crime Commission

the Commissioner

(within the meaning of

the Crime Commission

Act 2012 (NSW))

an officer of the

Commission (within

the meaning of the

Crime Commission Act

2012 (NSW)) other

than a person engaged

under subsection 74(2)

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Chief officer and officers of interception agencies

Item

Column 1

Column 2

Column 3

Interception agency

Chief officer

Officer

of that Act

Law Enforcement

Conduct Commission

of New South Wales

the Chief

Commissioner (within

the meaning of the Law

Enforcement Conduct

Commission Act 2016

(NSW))

(a) the Chief

Commissioner

(within the meaning

of the Law

Enforcement

Conduct

Commission Act

2016 (NSW)); or

(b) the Commissioner

for Integrity (within

the meaning of the

Law Enforcement

Conduct

Commission Act

2016 (NSW)); or

staff of the

Commission

(within the meaning

of the Law

Enforcement

Conduct

Commission Act

2016 (NSW))

Independent

Broad-based

Anti-corruption

Commission of

Victoria

the Commissioner

(within the meaning of

the Independent

Broad-based

Anti-corruption

Commission Act 2011

(Vic.))

a sworn IBAC Officer

(within the meaning of

the Independent

Broad-based

Anti-corruption

Commission Act 2011

(Vic.))

Crime and Corruption

Commission of

Queensland

the chairperson (within

the meaning of the

Crime and Corruption

Act 2001 (Qld))

a commission officer

(as defined by

paragraph (a) of the

definition of

commission officer in

the Dictionary to the

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Chief officer and officers of interception agencies

Item

Column 1

Column 2

Column 3

Interception agency

Chief officer

Officer

Crime and Corruption

Act 2001 (Qld)) other

than a person engaged

under section 256 of

that Act

Independent

Commissioner Against

Corruption (SA)

the Commissioner

(within the meaning of

the Independent

Commissioner Against

Corruption Act 2012

(SA))

(a) the Commissioner

(within the meaning

of the Independent

Commissioner

Against Corruption

Act 2012 (SA)); or

(b) the Deputy

Commissioner; or

staff of the

Independent

Commissioner

Against Corruption

(SA)

Corruption and Crime

Commission (WA)

the Commissioner

(within the meaning of

the Corruption, Crime

and Misconduct Act

2003 (WA))

an officer of the

Commission (within

the meaning of the

Corruption, Crime and

Misconduct Act 2003

(WA)) other than a

person engaged under

section 182 of that Act

317ZN Delegation by Director-General of Security

(1) The Director-General of Security may, by writing, delegate any or

all of the functions or powers of the Director-General of Security

under Division 2, 3 or 6 to a senior position-holder (within the

meaning of the Australian Security Intelligence Organisation Act

1979).

(2) A delegate must comply with any written directions of the

Director-General of Security.

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317ZP Delegation by Director-General of the Australian Secret

Intelligence Service

(1) The Director-General of the Australian Secret Intelligence Service

may, by writing, delegate any or all of the functions or powers of

the Director-General of the Australian Secret Intelligence Service

under Division 2 or 6 to a person who:

(a) is a staff member of the Australian Secret Intelligence

Service; and

(b) holds, or is acting in, a position in the Australian Secret

Intelligence Service that is equivalent to, or higher than, a

position occupied by an SES employee.

(2) A delegate must comply with any written directions of the

Director-General of the Australian Secret Intelligence Service.

317ZQ Delegation by Director-General of the Australian Signals

Directorate

(1) The Director-General of the Australian Signals Directorate may, by

writing, delegate any or all of the functions or powers of the

Director-General of the Australian Signals Directorate under

Division 2 or 6 to a person:

(a) who is a staff member of the Australian Signals Directorate;

and

(b) who:

(i) is an SES employee, or acting SES employee, in the

Australian Signals Directorate; or

(ii) holds, or is acting in, a position in the Australian Signals

Directorate that is equivalent to, or higher than, a

position occupied by an SES employee.

(2) A delegate must comply with any written directions of the

Director-General of the Australian Signals Directorate.

317ZR Delegation by the chief officer of an interception agency

(1) The chief officer of an interception agency mentioned in an item of

column 1 of the following table may, by writing, delegate any or

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all of the functions or powers of the chief officer under Division 2,

3 or 6 to a person mentioned in column 2 of the item.

Potential delegates

Item

Column 1

Column 2

Interception

agency

Potential delegates

Australian

Federal Police

(a) a Deputy Commissioner (within the meaning of the

Australian Federal Police Act 1979); or

(b) a senior executive AFP employee (within the

meaning of the Australian Federal Police Act 1979)

Australian

Commission for

Law

Enforcement

Integrity

(a) an Assistant Integrity Commissioner (within the

meaning of the Law Enforcement Integrity

Commissioner Act 2006); or

(b) a staff member of ACLEI (within the meaning of the

Law Enforcement Integrity Commissioner Act 2006)

who is an SES employee or acting SES employee

Australian

Crime

Commission

a member of the staff of the ACC (within the meaning of

the Australian Crime Commission Act 2002) who is an

SES employee or acting SES employee

Police Force of a

State or the

Northern

Territory

(a) an Assistant Commissioner of the Police Force or a

person holding equivalent rank; or

(b) a Superintendent of the Police Force or a person

holding equivalent rank

Independent

Commission

Against

Corruption of

New South

Wales

(a) a Commissioner (within the meaning of the

Independent Commission Against Corruption Act

1988 (NSW)); or

(b) an Assistant Commissioner (within the meaning of

the Independent Commission Against Corruption Act

1988 (NSW)); or

the Independent Commission Against Corruption Act

1988 (NSW)) (other than a person engaged under

section 104B of that Act) who is at executive level

New South

Wales Crime

Commission

an officer of the Commission (within the meaning of the

Crime Commission Act 2012 (NSW)) (other than a

person engaged under subsection 74(2) of that Act) who

is at executive level

Law

(a) the Commissioner for Integrity (within the meaning

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Potential delegates

Item

Column 1

Column 2

Interception

agency

Potential delegates

Enforcement

Conduct

Commission of

New South

Wales

of the Law Enforcement Conduct Commission Act

2016 (NSW)); or

(b) a member of the staff of the Commission (within the

meaning of the Law Enforcement Conduct

Commission Act 2016 (NSW)) who is at executive

level

Independent

Broad-based

Anti-corruption

Commission of

Victoria

(a) a Deputy Commissioner of the Commission; or

(b) the Chief Executive Officer of the Commission; or

Independent Broad-based Anti-corruption

Commission Act 2011 (Vic.)) who is at executive

level

Crime and

Corruption

Commission of

Queensland

a senior executive officer (within the meaning of the

Crime and Corruption Act 2001 (Qld))

Independent

Commissioner

Against

Corruption (SA)

(a) the Deputy Commissioner; or

(b) a member of the staff of the Independent

Commissioner Against Corruption who is at

executive level

(2) A delegate must comply with any written directions of the chief

officer.

Executive level

(3) For the purposes of this section, a person is at executive level, in

relation to an interception agency of New South Wales, if the

person occupies an office or position at an equivalent level to that

of a Public Service senior executive (within the meaning of the

Government Sector Employment Act 2013 (NSW)).

(4) For the purposes of this section, a person is at executive level, in

relation to an interception agency of Victoria, if the person

occupies an office or position at an equivalent level to that of an

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executive (within the meaning of the Public Administration Act

2004 (Vic.)).

(5) For the purposes of this section, a person is at executive level, in

relation to an interception agency of South Australia, if the person

occupies an office or position at an equivalent level to that of an

executive employee (within the meaning of the Public Sector Act

2009 (SA)).

317ZS Annual reports

(1) The Minister must, as soon as practicable after each 30 June, cause

to be prepared a written report that sets out:

(a) the number of technical assistance requests that were given

during the year ending on that 30 June by the chief officers of

interception agencies; and

(b) the number of technical assistance notices that were given

during the year ending on that 30 June by the chief officers of

interception agencies; and

(i) given during the year ending on that 30 June; and

(ii) directed towards ensuring that designated

communications providers are capable of giving help to

interception agencies.

(2) A report under subsection (1) must be included in the report

prepared under subsection 186(2) of the Telecommunications

(Interception and Access) Act 1979 relating to the year ending on

that 30 June.

317ZT Alternative constitutional basis

(1) Without limiting its effect apart from this section, this Part also has

effect as provided by this section.

(2) This Part also has the effect it would have if each reference in this

Part to a designated communications provider were, by express

provision, confined to a designated communications provider that

is a constitutional corporation.

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Part 2--Amendments contingent on the

commencement of the Federal Circuit and

Family Court of Australia Act 2018

Telecommunications Act 1997

8 Subsections 317ZC(3), 317ZD(3) and 317ZE(3)

Omit "Federal Circuit Court of Australia", substitute "Federal Circuit

and Family Court of Australia (Division 2)".

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Schedule 2--Computer access warrants etc.

Part 1--Amendments

Australian Security Intelligence Organisation Act 1979

1 Section 4

Insert:

intercept a communication passing over a telecommunications

system has the same meaning as in the Telecommunications

(Interception and Access) Act 1979.

2 Subsection 24(4) (definition of relevant device recovery

provision)

After "subsection", insert "25A(8),".

3 Subsection 24(4) (definition of relevant device recovery

provision)

Omit "or (3B)", substitute ", (3B) or (3C), 27E(6)".

4 Paragraph 25A(4)(ab)

Repeal the paragraph, substitute:

(ab) 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;

5 After paragraph 25A(4)(ab)

Insert:

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

purposes of doing any thing specified in the warrant in

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accordance with this subsection, and returning the computer

or other thing to the premises;

6 After paragraph 25A(4)(b)

Insert:

(ba) 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;

7 At the end of section 25A

Add:

Concealment of access etc.

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

(a) the warrant; or

(b) this subsection;

the Organisation is authorised to do any of the following:

thing has been done under the warrant or under this

subsection;

(d) enter any premises where the computer is reasonably

believed to be, for the purposes of doing the things

mentioned in paragraph (c);

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

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

(f) remove 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) use any other computer or a communication in transit to

do those things; and

(ii) if necessary to achieve that purpose--add, copy, delete

or alter other data in the computer or the communication

in transit;

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(h) intercept 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:

(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).

8 After subsection 27A(3B)

Insert:

(3C) If any thing has been done in relation to a computer under:

(a) a warrant under this section that authorises the Organisation

to do acts or things referred to in subsection 25A(4); or

(b) this subsection;

the Organisation is authorised to do any of the following:

thing has been done under the warrant or under this

subsection;

(d) enter any premises where the computer is reasonably

believed to be, for the purposes of doing the things

mentioned in paragraph (c);

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

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

(f) remove 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) use any other computer or a communication in transit to

do those things; and

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(ii) if necessary to achieve that purpose--add, copy, delete

or alter other data in the computer or the communication

in transit;

(h) intercept 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:

(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).

9 Paragraph 27E(2)(d)

Repeal the paragraph, substitute:

(d) 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) use any other computer or a communication in transit

for the purpose referred to in paragraph (c); and

(ii) if necessary to achieve that purpose--add, copy, delete

or alter other data in the computer or the communication

in transit;

10 After paragraph 27E(2)(d)

Insert:

(da) remove a computer or other thing from premises for the

purposes of doing any thing authorised under this subsection,

and returning the computer or other thing to the premises;

11 After paragraph 27E(2)(e)

Insert:

(ea) intercept a communication passing over a

telecommunications system, if the interception is for the

purposes of doing any thing authorised under this subsection;

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12 At the end of section 27E

Add:

Concealment of access etc.

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

(a) a subsection (2) authorisation; or

(b) under this subsection;

the Organisation is authorised to do any of the following:

thing has been done under the subsection (2) authorisation or

under this subsection;

(d) enter any premises where the computer is reasonably

believed to be, for the purposes of doing the things

mentioned in paragraph (c);

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

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

(f) remove 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) use any other computer or a communication in transit to

do those things; and

(ii) if necessary to achieve that purpose--add, copy, delete

or alter other data in the computer or the communication

in transit;

(h) intercept 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:

(j) at any time while the authorisation 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

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

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

13 Subsection 33(1)

Repeal the subsection.

14 Paragraph 34(2)(b)

After "25A(4)", insert "or (8) or 27A(3C)".

15 Paragraph 34(2)(b)

After "27E(2)", insert "or (6)".

16 At the end of section 34

Add:

(3) For the purposes of this section, any thing done under

subsection 25A(8) is taken to have been done under a warrant

issued under section 25A.

(4) For the purposes of this section, any thing done under

subsection 27A(3C) is taken to have been done under a warrant

issued under section 27A.

(5) For the purposes of this section, any thing done under

subsection 27E(6) is taken to have been done under a warrant

issued under section 27C.

17 Subsection 34AA(5) (definition of relevant authorising

provision)

Before "26B(5)", insert "25A(8),".

18 Subsection 34AA(5) (definition of relevant authorising

provision)

Omit "or (3B)", substitute ", (3B) or (3C), 27E(6)".

Mutual Assistance in Criminal Matters Act 1987

25 Subsection 3(1) (definition of protected information)

After "44(1)(a),", insert "(aa),".

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and Access) Bill 2018

26 After Part IIIBA

Insert:

Part IIIBB--Assistance in relation to data held in

computers

15CB Simplified outline of this Part

•

If a foreign country requests the Attorney-General to arrange

for access to data held in a computer, the Attorney-General

may authorise an eligible law enforcement officer to apply for

a computer access warrant under section 27A of the

Surveillance Devices Act 2004.

•

The authorisation relates to an investigation, or investigative

proceeding, relating to a criminal matter involving an offence

against the law of the foreign country.

Note:

See subsection 27A(4) of the Surveillance Devices Act 2004.

15CC Requests by foreign countries for assistance in relation to data

held in computers

(1) The Attorney-General may, in the Attorney-General's discretion,

authorise an eligible law enforcement officer, in writing, to apply

for a computer access warrant under section 27A of the

Surveillance Devices Act 2004 if the Attorney-General is satisfied

that:

(a) an investigation, or investigative proceeding, relating to a

criminal matter involving an offence against the law of a

foreign country (the requesting country) that is punishable

by a maximum penalty of imprisonment for 3 years or more,

imprisonment for life or the death penalty has commenced in

the requesting country; and

(b) the requesting country requests the Attorney-General to

arrange for access to data held in a computer (the target

computer); and

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relation to:

(i) ensuring that data obtained as a result of access under

the warrant will only be used for the purpose for which

it is communicated to the requesting country; and

(ii) the destruction of a document or other thing containing

data obtained as a result of access under the warrant;

and

(iii) any other matter the Attorney-General considers

appropriate.

(2) The target computer 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).

(3) In this section:

computer has the same meaning as in the Surveillance Devices Act

2004.

data has the same meaning as in the Surveillance Devices Act

2004.

data held in a computer has the same meaning as in the

Surveillance Devices Act 2004.

eligible law enforcement officer means a person mentioned in

column 3 of item 5 of the table in subsection 6A(6), or in column 3

of item 5 of the table in subsection 6A(7), of the Surveillance

Devices Act 2004.

Surveillance Devices Act 2004

27 Title

After "devices", insert "and access to data held in computers".

28 After paragraph 3(a)

Insert:

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(aaa) to establish procedures for law enforcement officers to obtain

warrants and emergency authorisations that:

(i) are for access to data held in computers; and

(ii) relate to criminal investigations and the location and

safe recovery of children to whom recovery orders

relate; and

29 After paragraph 3(aa)

Insert:

(aaaa) to establish procedures for law enforcement officers to obtain

warrants for access to data held in computers in cases where

a control order is in force, and access to the data would be

likely to substantially assist in:

(i) protecting the public from a terrorist act; or

(ii) preventing the provision of support for, or the

facilitation of, a terrorist act; or

(iii) preventing the provision of support for, or the

facilitation of, the engagement in a hostile activity in a

foreign country; or

(iv) determining whether the control order, or any

succeeding control order, has been, or is being,

complied with; and

30 After paragraph 3(b)

Insert:

(ba) to restrict the use, communication and publication of

information that is obtained through accessing data held in

computers or that is otherwise connected with computer data

access operations; and

31 Paragraph 3(c)

After "surveillance device operations", insert "and computer data access

operations".

32 Subsection 4(1)

Omit all the words after "Territory,", substitute:

that:

(a) prohibits or regulates the use of surveillance devices; or

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(b) prohibits or regulates access to data held in computers.

33 After subsection 4(4)

Insert:

(4A) 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 data held in a computer; and

(b) in relation to a relevant offence or a recovery order.

34 After subsection 4(5)

Insert:

(5A) For the avoidance of doubt, it is intended that a warrant may be

issued under this Act for access to data held in a computer in a case

where a control order is in force, and access to the data would be

likely to substantially assist in:

(a) protecting the public from a terrorist act; or

(b) preventing the provision of support for, or the facilitation of,

a terrorist act; or

the engagement in a hostile activity in a foreign country; or

(d) determining whether the control order, or any succeeding

control order, has been, or is being, complied with.

35 Subsection 6(1)

Insert:

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.

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).

36 Subsection 6(1) (definition of computer)

Repeal the definition, substitute:

Computer access warrants etc. Schedule 2

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and Access) Bill 2018

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.

37 Subsection 6(1)

Insert:

computer access warrant means a warrant issued under

section 27C or subsection 35A(4) or (5).

control order access warrant means a computer access warrant

issued in response to an application under subsection 27A(6).

data includes:

(a) information in any form; and

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

data held in a computer includes:

(a) data held in any removable data storage device for the time

being held in a computer; and

(b) data held in a data storage device on a computer network of

which the computer forms a part.

data storage device means a thing (for example, a disk or file

server) containing (whether temporarily or permanently), or

designed to contain (whether temporarily or permanently), data for

use by a computer.

38 Subsection 6(1) (definition of data surveillance device)

Omit "a computer", substitute "an electronic device for storing or

processing information".

39 Subsection 6(1)

Insert:

general computer access intercept information has the same

meaning as in the Telecommunications (Interception and Access)

Act 1979.

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intercepting a communication passing over a telecommunications

system has the same meaning as in the Telecommunications

(Interception and Access) Act 1979.

40 Subsection 6(1) (definition of mutual assistance

application)

Repeal the definition, substitute:

mutual assistance application means:

(a) an application for a surveillance device warrant; or

(b) an application for a computer access warrant;

made under a mutual assistance authorisation.

41 Subsection 6(1) (definition of mutual assistance

authorisation)

Omit "subsection 15CA(1)", substitute, "subsection 15CA(1) or

15CC(1)".

42 Subsection 6(1) (paragraph (db) of the definition of

relevant offence)

After "warrant,", insert "a computer access warrant,".

43 Subsection 6(1) (definition of remote application)

Omit "or 23", substitute, ", 23 or 27B".

44 Subsection 6(1)

Insert:

telecommunications facility means a facility within the meaning of

the Telecommunications Act 1997.

45 Subsection 6(1) (definition of unsworn application)

Omit "or 22(4) and (5)", substitute ", 22(4) and (5), 27A(9) and (10),

27A(11) and (12) or 27A(13) and (14)".

46 Subsection 6(1) (definition of warrant)

Repeal the definition, substitute:

warrant means:

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(a) a surveillance device warrant; or

(b) a retrieval warrant; or

47 At the end of subsection 10(1)

Add:

; (c) a computer access warrant.

48 Subsection 10(2)

Before "warrant", insert "surveillance device warrant or a retrieval".

49 At the end of Part 2

Add:

Division 4--Computer access warrants

27A Application for computer access warrant

Warrants sought for offence investigations

(1) A law enforcement officer (or another person on the law

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

computer access 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

necessary, in the course of that investigation, for the purpose

of enabling evidence to be obtained of:

(i) the commission of those offences; or

(ii) the identity or location of the offenders.

(2) If the application is being made by or on behalf of a State or

Territory law enforcement officer, the reference in subsection (1)

to a relevant offence does not include a reference to a State offence

that has a federal aspect.

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Warrants sought for recovery orders

(3) A law enforcement officer (or another person on the law

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

computer access warrant if:

(a) a recovery order is in force; and

(b) the law enforcement officer suspects on reasonable grounds

that access to data held in a computer (the target computer)

may assist in the location and safe recovery of the child to

whom the recovery order relates.

Warrants sought for mutual assistance investigations

(4) A law enforcement officer (or another person on the law

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

computer access warrant if the law enforcement officer:

(a) is authorised to do so under a mutual assistance authorisation;

and

(b) suspects on reasonable grounds that access to data held in a

computer (the target computer) is necessary, in the course of

the investigation or investigative proceeding to which the

authorisation relates, for the purpose of enabling evidence to

be obtained of:

(i) the commission of the offence to which the

authorisation relates; or

(ii) the identity or location of the persons suspected of

committing the offence.

Warrants sought for integrity operations

(5) A federal law enforcement officer (or another person on the federal

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

computer access warrant if:

(a) an integrity authority is in effect authorising an integrity

operation in relation to an offence that it is suspected has

been, is being or is likely to be committed by a staff member

of a target agency; and

(b) the federal law enforcement officer suspects on reasonable

grounds that access to data held in a computer (the target

computer) will assist the conduct of the integrity operation

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by enabling evidence to be obtained relating to the integrity,

location or identity of any staff member of the target agency.

Control order access warrants

(6) A law enforcement officer (or another person on the law

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

computer access warrant if:

(a) a control order is in force in relation to a person; and

(b) the law enforcement officer suspects on reasonable grounds

that access to data held in a computer (the target computer)

to obtain information relating to the person would be likely to

substantially assist in:

(i) protecting the public from a terrorist act; or

(ii) preventing the provision of support for, or the

facilitation of, a terrorist act; or

(iii) preventing the provision of support for, or the

facilitation of, the engagement in a hostile activity in a

foreign country; or

(iv) determining whether the control order, or any

succeeding control order, has been, or is being,

complied with.

Note:

For control orders that have been made but not come into force, see

section 6C.

Procedure for making applications

(7) An application under subsection (1), (3), (4), (5) or (6) may be

made to an eligible Judge or to a nominated AAT member.

(8) 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--warrants sought for offence investigations

(9) If a law enforcement officer believes that:

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

to in subsection (1) is necessary 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.

(10) If subsection (9) 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.

Unsworn applications--warrants sought for recovery orders

(11) If a law enforcement officer believes that:

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

to in subsection (3) may assist as described in

paragraph (3)(b); 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 (3) may be made

before an affidavit is prepared or sworn.

(12) If subsection (11) 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.

Unsworn applications--control order access warrants

(13) If a law enforcement officer believes that:

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

to in subsection (6) would be likely to substantially assist as

described in paragraph (6)(b); 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 (6) may be made

before an affidavit is prepared or sworn.

(14) If subsection (13) 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

(15) The target computer referred to in subsection (1), (3), (4), (5) or (6)

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).

27B Remote application

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

application for a computer access warrant to be made in person, the

application may be made under section 27A 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.

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27C Determining the application

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

computer access warrant if satisfied:

(a) in the case of a warrant sought in relation to a relevant

offence--that there are reasonable grounds for the suspicion

founding the application for the warrant; and

(b) in the case of a warrant sought in relation to a recovery

order--that such an order is in force and that there are

reasonable grounds for the suspicion founding the application

for the warrant; and

assistance authorisation--that such an authorisation is in

force and that there are reasonable grounds for the suspicion

founding the application for the warrant; and

(d) in the case of a warrant sought for the purposes of an

integrity operation--that the integrity authority for the

operation is in effect, and that there are reasonable grounds

for the suspicions founding the application for the warrant (as

mentioned in paragraphs 27A(5)(a) and (b)); and

(e) in the case of a control order access warrant--that a control

order is in force in relation to a person, and that access to

data held in the relevant target computer to obtain

information relating to the person would be likely to

substantially assist in:

(i) protecting the public from a terrorist act; or

(ii) preventing the provision of support for, or the

facilitation of, a terrorist act; or

(iii) preventing the provision of support for, or the

facilitation of, the engagement in a hostile activity in a

foreign country; or

(iv) determining whether the control order, or any

succeeding control order, has been, or is being,

complied with; and

(f) 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

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

impracticable for the application to have been made in

person.

Note:

For control orders that have been made but not come into force, see

section 6C.

(2) In determining whether a computer access warrant should be

issued, the eligible Judge or nominated AAT member must have

regard to:

(a) in the case of a warrant sought in relation to a relevant

offence or a mutual assistance authorisation, or for the

purposes of an integrity operation--the nature and gravity of

the alleged offence; and

(b) in the case of a warrant sought to assist in the location and

safe recovery of a child to whom a recovery order relates--

the circumstances that gave rise to the making of the order;

and

affected; and

(d) the existence of any alternative means of obtaining the

evidence or information sought to be obtained; and

(e) in the case of a warrant sought in relation to a relevant

offence or a recovery order, or for the purposes of an

integrity operation--the likely evidentiary or intelligence

value of any evidence or information sought to be obtained;

and

(f) in the case of a warrant sought in relation to a mutual

assistance authorisation--the likely evidentiary or

intelligence value of any evidence or information sought to

be obtained, to the extent that this is possible to determine

from information obtained from the foreign country to which

the authorisation relates; and

(g) in the case of a control order access warrant issued on the

basis of a control order that is in force in relation to a

person--the likely value of the information sought to be

obtained, in:

(i) protecting the public from a terrorist act; or

(ii) preventing the provision of support for, or the

facilitation of, a terrorist act; or

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(iii) preventing the provision of support for, or the

facilitation of, the engagement in a hostile activity in a

foreign country; or

(iv) determining whether the control order, or any

succeeding control order, has been, or is being,

complied with; and

(h) in the case of a control order access warrant issued on the

basis of a control order that is in force in relation to a

person--whether the access to data held in the relevant target

computer in accordance with the warrant would be the means

of obtaining the evidence or information sought to be

obtained, that is likely to have the least interference with any

person's privacy; and

(i) in the case of a control order access warrant issued on the

basis of a control order that is in force in relation to a

person--the possibility that the person:

(i) has engaged, is engaging, or will engage, in a terrorist

act; or

(ii) has provided, is providing, or will provide, support for a

terrorist act; or

(iii) has facilitated, is facilitating, or will facilitate, a terrorist

act; or

(iv) has provided, is providing, or will provide, support for

the engagement in a hostile activity in a foreign country;

(v) has facilitated, is facilitating, or will facilitate, the

engagement in a hostile activity in a foreign country; or

(vi) has contravened, is contravening, or will contravene, the

control order; or

(vii) will contravene a succeeding control order; and

(j) in the case of a warrant sought in relation to a relevant

offence or a recovery order--any previous warrant sought or

issued under this Division in connection with the same

alleged offence or the same recovery order; and

(k) in the case of a control order access warrant issued on the

basis of a control order that is in force in relation to a

person--any previous control order access warrant sought or

issued on the basis of a control order relating to the person.

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27D What must a computer access warrant contain?

(1) A computer access warrant must:

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

issuing the warrant is satisfied of the matters referred to in

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

to in subsection 27C(2); and

(b) specify:

(i) the name of the applicant; and

(ii) if the warrant relates to one or more alleged relevant

offences--the alleged offences in respect of which the

warrant is issued; and

(iii) if the warrant relates to a recovery order--the date the

order was made and the name of the child to whom the

order relates; and

(iv) if the warrant relates to a mutual assistance

authorisation--the offence or offences against the law

of a foreign country to which the authorisation relates;

and

(v) if the warrant is issued for the purposes of an integrity

operation--the integrity authority for the operation and

each alleged relevant offence in relation to which the

authority was granted; and

(vi) the date the warrant is issued; and

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

computer--the computer; and

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

particular premises--the premises; and

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

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

person--the person (whether by name or otherwise);

and

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

subsection (3)); and

(xi) the name of the law enforcement officer primarily

responsible for executing the warrant.

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(2) If a control order access warrant is issued on the basis of a control

order that is in force in relation to a person, the warrant must also

specify the following details in relation to the control order:

(a) the name of the person;

(b) the date the control order was made;

confirmed control order.

(3) A warrant may only be issued:

(a) for a period of no more than 90 days; or

(b) if the warrant is issued for the purposes of an integrity

operation--for a period of no more than 21 days.

Note:

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

may be discontinued earlier--see section 27H.

(4) In the case of a warrant authorising the access to data held in the

target computer on premises that are vehicles, the warrant need

only specify the class of vehicle in relation to which the access to

data held in the target computer is authorised.

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

person's name.

(6) 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.

27E What a computer access warrant authorises

(1) A computer access 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.

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(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;

(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

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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) 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

(4) For the purposes of this section, data is covered by a warrant if:

(a) in the case of a warrant sought in relation to a relevant

offence--access to the data is necessary as described in

paragraph 27A(1)(c); or

(b) in the case of a warrant sought in relation to a recovery

order--access to the data may assist as described in

paragraph 27A(3)(b); or

assistance authorisation--access to the data is necessary as

described in paragraph 27A(4)(b); or

(d) in the case of a warrant sought for the purposes of an

integrity operation--access to the data will assist as

described in paragraph 27A(5)(b); or

(e) in the case of a control order access warrant--access to the

data would be likely to substantially assist as described in

paragraph 27A(6)(b).

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

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(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

(6) A computer access 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.

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

(a) a computer access 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:

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(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:

(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).

27F Extension and variation of computer access warrant

(1) A law enforcement officer to whom a computer access 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:

(i) 90 days after the day the warrant would otherwise

expire; or

(ii) if the warrant is issued for the purposes of an integrity

operation--21 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 27A and 27B 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

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

subsection 27C(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.

27G Revocation of computer access warrant

(1) A computer access 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 paragraphs 27H(2)(a) and (b),

27H(3)(a) and (b), 27H(4)(a) and (b), 27H(5)(a) and (b), 27H(6)(a)

and (b) or 27H(7)(a) and (b) apply in relation to a computer access

warrant, the chief officer of the law 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;

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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.

27H Discontinuance of access under warrant

Scope

(1) This section applies if a computer access warrant is issued to a law

enforcement officer.

Discontinuance of access

(2) If:

(a) the computer access warrant has been sought by or on behalf

of a law enforcement officer in relation to a relevant offence;

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 data under the warrant is no longer required for

the purpose of enabling evidence to be obtained of:

(i) the commission of the relevant offence; or

(ii) the identity or location of the offender;

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

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

authorised by the warrant is discontinued.

(3) If:

(a) the computer access warrant has been sought by or on behalf

of a law enforcement officer in relation to a recovery order;

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 data under the warrant is no longer required for

the purpose of locating and safely recovering the child to

whom the recovery order relates;

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

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

authorised by the warrant is discontinued.

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(4) If:

(a) the computer access warrant has been sought by or on behalf

of a law enforcement officer as authorised under a mutual

assistance authorisation; 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 data under the warrant is no longer required for

the purpose of enabling evidence to be obtained of:

(i) the commission of the offence against a law of a foreign

country to which the authorisation relates; or

(ii) the identity or location of the persons suspected of

committing the offence;

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

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

authorised by the warrant is discontinued.

(5) If:

(a) the computer access warrant has been sought by or on behalf

of a federal law enforcement officer for the purposes of an

integrity operation; and

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

law enforcement officer belongs or is seconded is satisfied

that:

(i) access to data under the warrant is no longer necessary

for the purposes of the integrity operation; or

(ii) the integrity authority for the integrity operation is no

longer in effect;

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

section 27G, take the steps necessary to ensure access to data

authorised by the warrant is discontinued.

(6) If:

(a) the computer access warrant is a control order access warrant

issued on the basis of a control order that was in force in

relation to a person; 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 data under the warrant to obtain information

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relating to the person is no longer required for any of the

following purposes:

(i) protecting the public from a terrorist act;

(ii) preventing the provision of support for, or the

facilitation of, a terrorist act;

(iii) preventing the provision of support for, or the

facilitation of, the engagement in a hostile activity in a

foreign country;

(iv) determining whether the control order, or any

succeeding control order, has been, or is being,

complied with;

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

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

authorised by the warrant is discontinued as soon as practicable.

(7) If:

(a) the computer access warrant is a control order access warrant

issued on the basis of a control order that was in force in

relation to a person; and

(b) no control order is in force in relation to the person;

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

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

authorised by the warrant is discontinued as soon as practicable.

(8) 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 27G, the eligible Judge or nominated

AAT member must take the steps necessary to ensure that access to

data authorised by the warrant is discontinued as soon as

practicable.

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

who is primarily responsible for executing the warrant, believes

that access to data under the warrant is no longer necessary for the

purpose:

(a) if the warrant was issued in relation to a relevant offence--of

enabling evidence to be obtained of the commission of the

relevant offence or the identity or location of the offender; or

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(b) if the warrant was issued in relation to a recovery order--of

enabling the location and safe recovery of the child to whom

the order relates; or

authorisation--of enabling evidence to be obtained of:

(i) the commission of the offence against a law of a foreign

country to which the authorisation relates; or

(ii) the identity or location of the persons suspected of

committing the offence;

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.

(10) In the case of a warrant issued for the purposes of an integrity

operation, if the law enforcement officer to whom the warrant is

issued, or who is primarily responsible for executing the warrant,

believes that:

(a) access to data under the warrant is no longer necessary for

those purposes; or

(b) the integrity authority for the integrity operation is no longer

in effect;

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.

50 After subsection 28(1)

Insert:

(1A) A law enforcement officer may apply to an appropriate authorising

officer for an emergency authorisation for access to 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:

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

substantial damage to property exists; and

(b) access to data held in the target computer is immediately

necessary for the purpose of dealing with that risk; and

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urgency that access to data held in the target computer is

warranted; and

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

computer access warrant.

(1B) The target computer 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).

51 Subsections 28(2), (3) and (4)

After "application", insert "mentioned in subsection (1) or (1A)".

52 After subsection 29(1)

Insert:

(1A) A law enforcement officer may apply to an appropriate authorising

officer for an emergency authorisation for access to data held in a

computer (the target computer) if:

(a) a recovery order is in force; and

(b) the law enforcement officer reasonably suspects that:

(i) the circumstances are so urgent as to warrant immediate

access to data held in the target computer; and

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

computer access warrant.

(1B) The target computer 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).

53 Subsections 29(2) and (3)

After "application", insert "mentioned in subsection (1) or (1A)".

54 After subsection 30(1)

Insert:

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(1A) If:

(a) a law enforcement officer is conducting an investigation into:

(i) an offence against section 233BAA of the Customs Act

1901 (with respect to goods listed in Schedule 4 to the

Customs (Prohibited Imports) Regulations 1956 or in

Schedule 8 or 9 to the Customs (Prohibited Exports)

Regulations 1958); or

(ii) an offence under the Crimes (Traffic in Narcotic Drugs

and Psychotropic Substances) Act 1990 or an offence

against Part 9.1 of the Criminal Code (other than

section 308.1 or 308.2); or

(iii) an offence against section 73.2 or 73.3 or Division 91 of

the Criminal Code; or

(iv) an offence under Subdivision A of Division 72 or

Division 80, 101, 102, 103, 270, 272 or 273 of the

Criminal Code; or

(v) an offence against section 233B or 233C of the

Migration Act 1958;

or more than one offence; and

(b) the law enforcement officer reasonably suspects that:

(i) access to data held in a computer (the target computer)

is immediately necessary to prevent the loss of any

evidence relevant to that investigation; and

(ii) the circumstances are so serious and the matter is of

such urgency that access to data held in the target

computer is warranted; and

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

computer access warrant;

the law enforcement officer may apply to an appropriate

authorising officer for an emergency authorisation for access to

data held in the target computer.

(1B) The target computer 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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55 Subsection 30(2)

After "application", insert "mentioned in subsection (1) or (1A)".

56 Subsection 30(3)

Omit "The", substitute "In the case of an application mentioned in

subsection (1), the".

57 At the end of section 30

Add:

(4) In the case of an application mentioned in subsection (1A), the

appropriate authorising officer may give the emergency

authorisation if satisfied that:

(a) an investigation is being conducted into an offence referred

to in paragraph (1A)(a); and

(b) there are reasonable grounds for the suspicion referred to in

paragraph (1A)(b).

58 Subsections 32(1) and (2)

After "authorisation", insert "for the use of a surveillance device".

59 After subsection 32(2)

Insert:

(2A) An emergency authorisation for access to data held in a computer

may authorise anything that a computer access warrant may

authorise.

60 After subsection 32(3)

Insert:

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

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

performance of the officer's duty.

61 Subsection 33(2)

Omit "The", substitute "In the case of an application for an emergency

authorisation for the use of a surveillance device, the".

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103

62 After subsection 33(2)

Insert:

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

access to 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.

63 Subsection 34(1)

Omit "section 28", substitute "subsection 28(1)".

64 After subsection 34(1)

Insert:

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

emergency authorisation given in response to an application under

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

considering the application must, in particular, and being mindful

of the intrusive nature of accessing 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;

(b) the extent to which issuing a computer access 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;

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

apply for a computer access warrant.

65 Subsection 34(2)

Omit "section 29", substitute "subsection 29(1)".

66 After subsection 34(2)

Insert:

(2A) Before deciding an application for approval of the giving of an

emergency authorisation given in response to an application under

subsection 29(1A), the eligible Judge or nominated AAT member

considering the application must, in particular, and being mindful

of the intrusive nature of accessing data held in the target computer

mentioned in that subsection, consider the following:

(a) the urgency of enforcing the recovery order;

(b) the extent to which access to data held in the target computer

mentioned in that subsection would assist in the location and

safe recovery of the child to whom the recovery order relates;

alternative methods to assist in the location and safe recovery

of the child;

(d) how much the use of alternative methods to assist in the

location and safe recovery of the child might have prejudiced

the effective enforcement of the recovery order;

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

apply for a computer access warrant.

67 Subsection 34(3)

Omit "section 30", substitute "subsection 30(1)".

68 At the end of section 34

Add:

(4) Before deciding an application for approval of the giving of an

emergency authorisation given in response to an application under

subsection 30(1A), the eligible Judge or nominated AAT member

must, in particular, and being mindful of the intrusive nature of

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105

accessing data held in the target computer mentioned in that

subsection, consider the following:

(a) the nature of the risk of the loss of evidence;

(b) the extent to which issuing a computer access 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) whether or not it was practicable in the circumstances to

apply for a computer access warrant.

69 Section 35 (heading)

Repeal the heading, substitute:

35 Judge or nominated AAT member may approve giving of an

emergency authorisation for the use of a surveillance

device

70 Subsection 35(1)

Omit "under section 28", substitute "in response to an application under

subsection 28(1)".

71 Subsection 35(1)

Omit "approve the application", substitute "give the approval".

72 Subsection 35(2)

Omit "under section 29", substitute "in response to an application under

subsection 29(1)".

73 Subsection 35(2)

Omit "approve the application", substitute "give the approval".

74 Subsection 35(3)

Omit "under section 30", substitute "in response to an application under

subsection 30(1)".

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75 Subsection 35(3)

Omit "approve the application", substitute "give the approval".

76 After section 35

Insert:

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

emergency authorisation for access to 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(1A), 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) accessing data held in the target computer mentioned in that

subsection may have helped reduce the risk; and

computer access warrant.

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

emergency authorisation in response to an application under

subsection 29(1A) in relation to a recovery order, the eligible

Judge or nominated AAT member may give the approval if

satisfied that:

(a) the recovery order was in force at the time the emergency

authorisation was given; and

(b) there were reasonable grounds to suspect that:

(i) the enforcement of the recovery order was urgent; and

(ii) accessing data held in the target computer mentioned in

that subsection may have assisted in the prompt location

and safe recovery of the child to whom the order relates;

and

(iii) it was not practicable in the circumstances to apply for a

computer access warrant.

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

emergency authorisation in response to an application under

subsection 30(1A), the eligible Judge or nominated AAT member

may give the approval if satisfied that:

(a) there were reasonable grounds to suspect that:

(i) there was a risk of loss of evidence; and

(ii) accessing data held in the target computer mentioned in

that subsection may have helped reduce the risk; and

(b) it was not practicable in the circumstances to apply for a

computer access warrant.

(4) If, under subsection (1), (2) or (3), 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 computer access

warrant relating to the continued access to data held in the

relevant target computer as if the application for the approval

were an application for a computer access warrant under

Division 4 of Part 2; or

(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 data held in the relevant

target computer has ceased--order that access to data held in

that computer cease.

(5) If, under subsection (1), (2) or (3), 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 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 computer access warrant under Division 4

of Part 2 is currently justified--issue a computer access

warrant relating to the subsequent access to such data as if

the application for the approval were an application for a

computer access warrant under Division 4 of Part 2.

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(6) 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.

77 Section 36

After "section 35", insert "or 35A".

78 Section 41 (definition of appropriate consenting official)

Repeal the definition, substitute:

appropriate consenting official, in relation to a foreign country:

(a) when used in section 42 or 43--means an official of that

country having authority in that country to give consent to

the use of surveillance devices in that country or on a vessel

or aircraft registered under the laws of that country; or

(b) when used in section 43A or 43B--means an official of that

country having authority in that country to give consent to

access to data held in computers in that country or on a vessel

or aircraft registered under the laws of that country.

79 Section 42 (heading)

Repeal the heading, substitute:

42 Extraterritorial operation of surveillance device warrants

80 Subsection 42(1)

Before "warrant" (first occurring), insert "surveillance device".

81 After paragraph 42(2)(a)

Insert:

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

application under subsection 28(1); and

82 Paragraph 42(2)(b)

After "of that", insert "section 33".

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83 Subsection 42(2)

After "whom the", insert "section 33".

84 Subsection 42(2)

After "consideration of that", insert "section 33".

85 Paragraph 42(3)(a)

Before "warrant", insert "surveillance device".

86 Subsections 42(6) and (9)

Before "warrant" (first occurring), insert "surveillance device".

87 At the end of Part 5

Add:

43A Extraterritorial operation of computer access warrants

(1) If, before the issue of a computer access warrant in relation to the

investigation of a relevant offence in response to an application

made by or on behalf of a federal law enforcement officer, it

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

access to data held in a computer:

(a) in a foreign country; or

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

foreign country and is in or above waters beyond the outer

limits of the territorial sea of Australia;

to assist in that investigation, 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) application is made under section 33 by an appropriate

authorising officer who is a federal law enforcement officer

for approval of the giving of an emergency authorisation

relating to the investigation of a relevant offence; and

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

application under subsection 28(1A); and

application, it becomes apparent to the applicant that there

will be a need for access to data held in a computer:

(i) in a foreign country; or

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

a foreign country and is in or above waters beyond the

outer limits of the territorial sea of Australia;

to assist in the investigation to which the emergency

authorisation related;

the eligible Judge or nominated AAT member to whom the

section 33 application was made must not permit any computer

access warrant issued on consideration of that section 33

application 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.

(3) If:

(a) a computer access warrant has been issued in relation to the

investigation of a relevant offence in response to an

application by or on behalf of a federal law enforcement

officer; 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 is in or above waters beyond the

outer limits of the territorial sea of Australia;

to assist in that investigation;

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.

(4) Subsections (1), (2) and (3) do not apply to a computer access

warrant authorising access to data if:

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(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 offence in respect of which it becomes apparent

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

required is an offence relating to the customs, fiscal,

immigration or sanitary laws of Australia;

there is no requirement for the agreement of an appropriate

consenting official of the foreign country concerned in relation to

that access while the vessel is in such waters.

(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 offence in respect of which it becomes apparent

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

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

101A or 101AA of the Fisheries Management Act 1991 or

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

Fisheries Act 1984;

there is no requirement for the agreement of an appropriate

consenting official of the foreign country concerned in relation to

that access while the vessel is in those waters.

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

held in a computer under the authority of a computer access

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;

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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.

(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

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 data held in a computer under the authority

of a computer access warrant of 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.

43B Evidence obtained from extraterritorial computer access not to

be tendered in evidence unless court satisfied properly

obtained

Evidence obtained from access to data held in a computer

undertaken in a foreign country in accordance with

subsection 43A(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 was agreed to by an appropriate consenting official of the

foreign country.

88 Subsection 44(1) (after paragraph (a) of the definition of

protected information)

Insert:

(aa) any information (other than general computer access

intercept information) obtained from access to data under:

(i) a computer access warrant; or

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(ii) an emergency authorisation for access to data held in a

computer; or

90 Subsection 44(1) (at the end of subparagraph (d)(iii) of the

definition of protected information)

Add "or".

91 Subsection 44(1) (after subparagraph (d)(iii) of the

definition of protected information)

Insert:

(iv) in a case where the information was obtained 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 43A;

91A Subsection 44(1) (at the end of the definition of

protected information)

Add:

Note:

For protection of general computer access intercept information, see

Part 2-6 of the Telecommunications (Interception and Access) Act

1979.

92 Section 46 (heading)

Repeal the heading, substitute:

46 Dealing with records obtained by using a surveillance device or

accessing data held in a computer

93 Paragraph 46(1)(a)

After "protected information", insert "or general computer access

intercept information".

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94 Subsection 46(2)

Omit "The officer in charge of any agency that is not a law enforcement

agency but that, as described in subsection 45(4) or (5) or 45A(1),

receives records or reports obtained by use of a surveillance device:",

substitute:

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

subsection 45(4) or (5) or 45A(1), receives records or reports

obtained by:

(aa) using a surveillance device; or

(ab) accessing data held in a computer;

the officer in charge of the agency:

95 After subsection 46A(1)

Insert:

(1A) If:

(a) a record or report is in the possession of a law enforcement

agency; and

(b) the record or report comprises information obtained from

access to data under a control order access warrant issued on

the basis of a control order made in relation to a person; and

include the purpose, of obtaining information that would be

likely to substantially assist in connection with determining

whether the control order, or any succeeding control order,

has been, or is being, complied with; and

(d) access to the data occurred when the control order had been

made, but had not come into force because it had not been

served on the person; and

(e) the chief officer of the agency is satisfied that none of the

information obtained from accessing the data is likely to

assist in connection with:

(i) the protection of the public from a terrorist act; or

(ii) preventing the provision of support for, or the

facilitation of, a terrorist act; or

(iii) preventing the provision of support for, or the

facilitation of, the engagement in a hostile activity in a

foreign country;

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the chief officer of the agency must cause the record or report to be

destroyed as soon as practicable.

96 Subsection 46A(2)

After "subsection (1)", insert "or (1A)".

97 After section 47

Insert:

47A Protection of computer access 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 computer access

technologies or methods.

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

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

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

disclose it in the proceeding.

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

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

proceeding must take into account whether disclosure of the

information:

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

(b) is in the public interest.

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

which a law enforcement officer cannot be compelled to disclose

information or make statements in relation to the information.

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

that publication of any information disclosed in the proceeding

could reasonably be expected to reveal details of computer access

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.

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(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:

computer access 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 obtaining access to data held in the

computer; or

(b) technologies or methods relating to adding, copying, deleting

or altering other data in a computer, 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:

(d) an emergency authorisation given in response to an

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

proceeding includes a proceeding before a court, tribunal or Royal

Commission.

98 Subsection 49(2)

Omit "an authorisation referred to in paragraph (1)(b) or (c),", substitute

"an emergency authorisation for the use of a surveillance device, or a

tracking device authorisation,".

99 After subsection 49(2A)

Insert:

(2B) In the case of a computer access warrant, or an emergency

authorisation, for access to data held in a computer, the report

must:

(a) state whether the warrant or authorisation was executed; and

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(b) 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 data

under the warrant or authorisation; and

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

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

accessed; and

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

located; and

(vi) if the warrant is issued, or the authorisation is given, in

respect of the investigation of a relevant offence--give

details of the benefit to the investigation of the accessed

data and of the general use made, or to be made, of any

evidence or information obtained by the access to data;

and

(vii) if the warrant is issued, or the authorisation is given, in

respect of the location and safe recovery of a child to

whom a recovery order relates--give details of the use

of the accessed data in assisting with the location and

safe recovery of the child; and

(viii) if the warrant is issued, or the authorisation is given, for

the purposes of an integrity operation--give details of

the benefit to the operation of the accessed data and of

the general use made, or to be made, of any evidence or

information obtained by the access to data; and

(ix) if the warrant is a control order access warrant--give

the details specified in subsection (2C); and

(x) give details of the communication of evidence or

information obtained by access to data held in the

computer to persons other than officers of the agency;

and

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

any) to which the warrant or authorisation was subject;

and

(i) the number of extensions or variations; and

(ii) the reasons for them.

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(2C) For the purposes of subparagraph (2B)(b)(ix), the details are:

(a) the benefit of obtaining access to data held in the computer

in:

(i) protecting the public from a terrorist act; or

(ii) preventing the provision of support for, or the

facilitation of, a terrorist act; or

(iii) preventing the provision of support for, or the

facilitation of, the engagement in a hostile activity in a

foreign country; or

(iv) determining whether a control order has been, or is

being, complied with; and

(b) the general use to be made of any evidence or information

obtained by access to data held in the computer.

100 Subsection 49A(1)

After "control order warrant", insert "or control order access warrant".

101 Paragraph 49A(2)(a)

After "control order warrant", insert "or control order access warrant".

102 After paragraph 49A(2)(b)

Insert:

(ba) subsection 27G(2), to the extent it applies to a control order

access warrant;

103 After paragraph 49A(2)(c)

Insert:

(ca) section 45 or subsection 46(1), to the extent it applies to

protected information obtained, under a control order access

warrant, from access to data held in a computer;

104 Subsection 49A(3)

After "control order warrant", insert "or control order access warrant".

105 Paragraphs 50(1)(g), (h) and (i)

Repeal the paragraphs, substitute:

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(g) the number of arrests made by law enforcement officers of

the agency during that year on the basis (wholly or partly) of

information obtained by:

(i) the use of a surveillance device under a warrant; or

(ii) access under a warrant to data held in a computer; or

(iii) an emergency authorisation for the use of a surveillance

device; or

(iv) an emergency authorisation for access to data held in a

computer; or

(v) a tracking device authorisation; and

(h) the number of instances during that year in which the

location and safe recovery of children to whom recovery

orders related was assisted (wholly or partly) by information

obtained by:

(i) the use of a surveillance device under a warrant; or

(ii) access under a warrant to data held in a computer; or

(iii) an emergency authorisation for the use of a surveillance

device; or

(iv) an emergency authorisation for access to data held in a

computer; or

(v) a tracking device authorisation; and

(i) the number of prosecutions for relevant offences that were

commenced during that year in which information obtained

by:

(i) the use of a surveillance device under a warrant; or

(ii) access under a warrant to data held in a computer; or

(iii) an emergency authorisation for the use of a surveillance

device; or

(iv) an emergency authorisation for access to data held in a

computer; or

(v) a tracking device authorisation;

was given in evidence and the number of those prosecutions

in which a person was found guilty; and

106 Paragraph 50(1)(j)

After "surveillance devices", insert ", access to data held in computers".

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107 Subsection 50A(6) (definition of control order

information)

Repeal the definition, substitute:

control order information means:

(a) information that, if made public, could reasonably be

expected to enable a reasonable person to conclude that a

control order warrant authorising:

(i) the use of a surveillance device on particular premises;

(ii) the use of a surveillance device in or on a particular

object or class of object; or

(iii) the use of a surveillance device in respect of the

conversations, activities or location of a particular

person;

is likely to be, or is not likely to be, in force; or

(b) information that, if made public, could reasonably be

expected to enable a reasonable person to conclude that a

control order access warrant authorising:

(i) access to data held in a particular computer; or

(ii) access to data held in a computer on particular premises;

(iii) access to data held in a computer associated with, used

by or likely to be used by, a particular person;

is likely to be, or is not likely to be, in force.

108 Paragraph 51(b)

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

109 Paragraphs 52(1)(e), (f), (g) and (h)

Repeal the paragraphs, substitute:

(e) details of each use by the agency, or by a law enforcement

officer of the agency, of information obtained by:

(i) the use of a surveillance device by a law enforcement

officer of the agency; or

(ii) access, by a law enforcement officer of the agency, to

data held in a computer;

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(f) details of each communication by a law enforcement officer

of the agency to a person other than a law enforcement

officer of the agency of information obtained by:

(i) the use of a surveillance device by a law enforcement

officer of the agency; or

(ii) access, by a law enforcement officer of the agency, to

data held in a computer;

(g) details of each occasion when, to the knowledge of a law

enforcement officer of the agency, information obtained by:

(i) the use of a surveillance device by a law enforcement

officer of the agency; or

(ii) access, by a law enforcement officer of the agency, to

data held in a computer;

was given in evidence in a relevant proceeding;

(h) details of each occasion when, to the knowledge of a law

enforcement officer of the agency, information obtained by:

(i) the use of a surveillance device by a law enforcement

officer of the agency; or

(ii) access, by a law enforcement officer of the agency, to

data held in a computer;

was used in the location and safe recovery of a child to whom

a recovery order related;

110 Paragraph 52(1)(j)

After "subsection 46A(1)", insert "or (1A)".

111 After subparagraph 53(2)(c)(iiic)

Insert:

(iiid) if the warrant is a control order access warrant that was

issued on the basis of a control order--the date the

control order was made; and

112 At the end of subsection 62(1)

Add:

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

with:

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

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(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:

(v) a computer access warrant; or

(vi) an emergency authorisation for access to data held in a

computer.

113 Subsection 62(3)

After "section 35", insert "or 35A".

114 After section 64

Insert:

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

assist access etc.

(1) A law enforcement officer (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) access data held in a computer that is the subject of:

(i) a computer access warrant; or

(ii) an emergency authorisation given in response to an

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

(b) copy data held in the computer described in paragraph (a) to

a data storage device;

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 (b).

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Warrants and emergency authorisations relating to relevant

offences

(2) In the case of a computer that is the subject of:

(a) a computer access warrant issued in relation to a relevant

offence; or

(b) an emergency authorisation given in response to an

application under subsection 28(1A);

the eligible Judge or nominated AAT member may grant the

assistance order if the eligible Judge or nominated AAT member is

satisfied that:

data held in the computer is necessary in the course of the

investigation for the purpose of enabling evidence to be

obtained of:

(i) the commission of those offences; or

(ii) the identity or location of the offenders; and

(d) the specified person is:

(i) reasonably suspected of having committed any of the

offences to which the warrant or emergency

authorisation relates; or

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

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

device; or

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

owner or lessee of the computer or device; or

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

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

system including the computer or device; and

(e) the specified person has relevant knowledge of:

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

the computer or device forms or formed a part; or

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

device.

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Warrants and emergency authorisations relating to recovery

orders

(3) In the case of a computer that is the subject of:

(a) a computer access warrant issued in relation to a recovery

order; or

(b) an emergency authorisation given in response to an

application under subsection 29(1A);

the eligible Judge or nominated AAT member may grant the

assistance order if the eligible Judge or nominated AAT member is

satisfied that:

data held in the computer may assist in the location and safe

recovery of the child to whom the recovery order relates; and

(d) the specified person is:

(i) the owner or lessee of the computer or

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

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

owner or lessee of the computer; or

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

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

system including the computer; and

(e) 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.

Warrants relating to mutual assistance authorisations

(4) In the case of a computer that is the subject of a computer access

warrant issued in relation to a mutual assistance authorisation, 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 is necessary, in the course of the

investigation or investigative proceeding to which the

authorisation relates, for the purpose of enabling evidence to

be obtained of:

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(i) the commission of the offence to which the

authorisation relates; or

(ii) the identity or location of the persons suspected of

committing the offence; and

(b) the specified person is:

(i) reasonably suspected of committing the offence to

which the authorisation relates; 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.

Warrants relating to integrity operations

(5) In the case of a computer that is the subject of a computer access

warrant issued in relation to an integrity operation, 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 assist the conduct of the

integrity operation by enabling evidence to be obtained

relating to the integrity, location or identity of a particular

staff member of the target agency; and

(b) the specified person is:

(i) the staff member; 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

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(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.

Warrants relating to control orders

(6) In the case of a computer that is subject to a computer access

warrant issued on the basis of a control order, 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 the

data held in the computer would be likely to substantially

assist in:

(i) protecting the public from a terrorist act; or

(ii) preventing the provision of support for, or the

facilitation of, a terrorist act; or

(iii) preventing the provision of support for, or the

facilitation of, the engagement in a hostile activity in a

foreign country; or

(iv) determining whether the control order, or any

succeeding control order, has been, or is being,

complied with; and

(b) the specified person is:

(i) the subject of the control order; 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.

Computer access warrants etc. Schedule 2

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Emergency authorisations relating to risk of loss of evidence

(7) In the case of a computer that is the subject of an emergency

authorisation given in response to an application under

subsection 30(1A), 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 is necessary to prevent the loss of

any evidence relevant to the investigation to which the

subsection 30(1A) application relates; and

(b) the specified person is:

(i) reasonably suspected of having committed any of the

offences to which the emergency authorisation relates;

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

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

device; or

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

owner or lessee of the computer or device; or

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

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

system including the computer or device; and

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

the computer or device forms or formed a part; or

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

device.

Offence

(8) 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.

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Penalty for contravention of this subsection: Imprisonment for 10

years or 600 penalty units, or both.

115 After subsection 65(1)

Insert:

(1A) If:

(a) information or a record is purportedly obtained through

accessing, under a computer access warrant or emergency

authorisation, particular data held in a computer; and

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

emergency authorisation; and

authorisation would be a sufficient authority for accessing the

data;

then:

(d) access to the data is taken to be as valid; and

(e) the information or record obtained through accessing the data

may be dealt with, or given in evidence in any proceeding;

as if the warrant or emergency authorisation did not have that

defect or irregularity.

116 Subsection 65(2)

After "subsection (1)", insert "or (1A)".

117 After subsection 65A(2)

Insert:

Control order access warrant

(2A) If:

(a) a control order access warrant was issued on the basis that an

interim control order was in force; and

(b) a court subsequently declares the interim control order to be

void;

a criminal proceeding does not lie against a person in respect of

anything done, or omitted to be done, in good faith by the person:

Computer access warrants etc. Schedule 2

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129

(d) in the purported exercise of a power, or the purported

performance of a function or duty, in a case where the

purported exercise of the power, or the purported

performance of the function or duty, is consequential on the

warrant.

(2B) Subsection (2A) does not apply to a thing done, or omitted to be

done, at a particular time if, at that time, the person knew, or ought

reasonably to have known, of the declaration.

118 Section 65B (heading)

Repeal the heading, substitute:

65B Dealing with information obtained under a control order

warrant, control order access warrant, tracking device

authorisation etc.--control order declared to be void

119 After subparagraph 65B(1)(a)(i)

Insert:

(ia) a control order access warrant was issued on the basis

that an interim control order was in force;

Telecommunications Act 1997

119A After paragraph 313(7)(c)

Insert:

(caa) giving effect to authorisations under section 31A of that Act;

Telecommunications (Interception and Access) Act 1979

120 Subsection 5(1)

Insert:

ASIO computer access intercept information means information

obtained under:

(a) an ASIO computer access warrant; or

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(b) subsection 25A(8) of the Australian Security Intelligence

Organisation Act 1979; or

(d) an authorisation under section 27E of the Australian Security

Intelligence Organisation Act 1979; or

(e) subsection 27E(6) of the Australian Security Intelligence

Organisation Act 1979;

by intercepting a communication passing over a

telecommunications system.

ASIO computer access warrant means:

(a) a warrant issued under section 25A of the Australian Security

Intelligence Organisation Act 1979; or

(b) a warrant issued under section 27A of the Australian Security

Intelligence Organisation Act 1979 that authorises the

Organisation to do any of the acts or things referred to in

subsection 25A(4) or (8) of that Act; or

Intelligence Organisation Act 1979.

general computer access intercept information means information

obtained under a general computer access warrant by intercepting a

communication passing over a telecommunications system.

general computer access warrant means a warrant issued under

section 27C of the Surveillance Devices Act 2004.

121 Subsection 5(1) (at the end of the definition of restricted

record)

Add ", but does not include a record of general computer access

intercept information".

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

warrant)

After "definition)", insert ", a general computer access warrant or an

ASIO computer access warrant".

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123 After paragraph 7(2)(b)

Insert:

(ba) the interception of a communication under subsection 25A(4)

or (8), 27A(1) or (3C), 27E(2) or 27E(6) of the Australian

Security Intelligence Organisation Act 1979; or

(bb) the interception of a communication under subsection 27E(7)

of the Surveillance Devices Act 2004; or

123A Subsection 31(1)

Omit "system by employees of the authority authorised under

section 31B.", substitute:

system:

(a) if one or more carriers are specified in the request for the

purposes of this paragraph--by:

(i) employees of the security authority authorised under

section 31B; and

(ii) employees of those carriers; or

(b) if no carriers are specified in the request for the purposes of

paragraph (a)--by employees of the security authority

authorised under section 31B.

123B Subsection 31A(1)

Omit "system by employees of the security authority authorised under

section 31B.", substitute:

system:

(a) if one or more carriers are specified in the request for the

purposes of paragraph 31(1)(a)--by:

(i) employees of the security authority authorised under

section 31B; and

(ii) employees of those carriers; or

(b) if no carriers are specified in the request for the purposes of

paragraph 31(1)(a)--by employees of the security authority

authorised under section 31B.

123BA After subsection 31A(4)

Insert:

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(4A) If paragraph (1)(a) applies to the authorisation, this Part does not

require that an authorised interception must involve:

(a) one or more employees of the security authority referred to in

that paragraph; and

(b) one or more employees of a carrier referred to in that

paragraph;

acting together or in the presence of each other.

123C After section 31A

Insert:

31AA Carrier to be notified of authorisation etc.

(1) If:

(a) the Attorney-General gives a section 31A authorisation in

response to an application made by:

(i) the head (however described) of a security authority; or

(ii) a person acting as that head; and

(b) the authorisation covers the employees of a carrier;

the head (however described) of the security authority, or a person

acting as that head, must cause a copy of the authorisation to be

given to the authorised representative of the carrier as soon as

practicable.

(2) If:

(a) the Attorney-General has given a section 31A authorisation

in response to an application made by:

(i) the head (however described) of a security authority; or

(ii) a person acting as that head; and

(b) the authorisation is varied or revoked; and

the head (however described) of the security authority, or a person

acting as that head, must cause:

(d) an authorised representative of the carrier to be immediately

informed of the variation or revocation; and

(e) a copy of the variation or revocation to be given to the

authorised representative as soon as practicable.

Computer access warrants etc. Schedule 2

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123D At the end of Part 2-4

Add:

31E Employees of security authorities

(1) For the purposes of this Part:

(a) an ASIO employee is taken to be an employee of the

Organisation; and

(b) an ASIO affiliate is taken to be an employee of the

Organisation.

(2) For the purposes of this Part, if:

(a) a person is a staff member (within the meaning of the

Intelligence Services Act 2001) of an agency (within the

meaning of that Act); and

(b) the agency is a security authority;

the person is taken to be an employee of the security authority.

124 After section 63AA

Insert:

63AB Dealing in general computer access intercept information

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

general computer access warrant:

(a) communicate general computer access intercept information

to another person; or

(b) make use of general computer access intercept information;

information; or

(d) give general computer access intercept information in

evidence in a proceeding.

(2) A person may:

(a) communicate general computer access intercept information

to another person; or

(b) make use of general computer access intercept information;

Schedule 2 Computer access warrants etc.

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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 the Organisation or of ASIS, AGO or

ASD (within the meanings of that Act);

(h) 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);

(i) 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).

63AC Dealing in ASIO computer access intercept information

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

ASIO computer access warrant:

(a) communicate ASIO computer access intercept information to

another person; or

(b) make use of ASIO computer access intercept information; or

information; or

(d) give ASIO computer access intercept information in evidence

in a proceeding.

(2) A person may:

(a) communicate ASIO computer access intercept information to

another person; or

Computer access warrants etc. Schedule 2

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(b) make use of ASIO computer access intercept information; or

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 the Organisation or of ASIS, AGO or

ASD (within the meanings of that Act);

(h) 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);

(i) 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).

124A At the end of section 63B

Add:

(5) If an employee of a carrier has obtained lawfully intercepted

information under a section 31A authorisation that was given in

response to an application made by the head (however described)

of a security authority or a person acting as that head, the employee

may:

(a) communicate the information to:

(i) an employee of the security authority; or

(ii) another employee of the carrier; or

(iii) if the authorisation covers the employees of one or more

other carriers--an employee of any of those other

carriers; or

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(b) make use of the information; or

if:

(d) the employee does so for the purposes of the development or

testing of technologies, or interception capabilities, to which

the authorisation relates; and

(e) the communication or use of the information, or the making

of the record, as the case may be, does not contravene a

condition to which the authorisation is subject.

125 Paragraph 64(1)(a)

After "foreign intelligence information", insert "or ASIO computer

access intercept information".

126 Paragraph 65(1)(a)

After "information", insert "other than ASIO computer access intercept

information".

126AA At the end of section 65 (after the note)

Add:

(4) If lawfully intercepted information was obtained under a

section 31A authorisation, subsection (1) of this section does not

authorise the communication of the information in accordance with

subsection 18(3) of the Australian Security Intelligence

Organisation Act 1979 to:

(a) a staff member of an authority of the Commonwealth; or

(b) a staff member of an authority of a State;

unless the communication is for the purpose of the development or

testing of technologies, or interception capabilities, of:

(d) the Organisation.

(5) If lawfully intercepted information was obtained under a

section 31A authorisation, subsection (1) of this section does not

authorise the communication of the information in accordance with

subsection 18(4A) of the Australian Security Intelligence

Organisation Act 1979 to a staff member of ASIS, ASD or AGO

Computer access warrants etc. Schedule 2

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unless the communication is for the purpose of the development or

testing of technologies, or interception capabilities, of:

(a) ASIS, ASD or AGO, as the case requires; or

(b) the Organisation.

(6) If lawfully intercepted information was obtained under a

section 31A authorisation, subsection (1) of this section does not

authorise the communication of the information in accordance with

subsection 19A(4) of the Australian Security Intelligence

Organisation Act 1979 to a staff member of a body referred to in

paragraph 19A(1)(d) or (e) of that Act unless the communication is

for the purpose of the development or testing of technologies, or

interception capabilities, of:

(a) that body; or

(b) the Organisation.

(7) For the purposes of subsections (4), (5) and (6), authority of the

Commonwealth, authority of a State, ASIS, ASD, AGO and staff

member have the same respective meanings as in the Australian

Security Intelligence Organisation Act 1979.

126A Paragraph 65A(1)(a)

After "foreign intelligence information", insert "or information obtained

under a section 31A authorisation".

127 Paragraph 67(1)(a)

After "foreign intelligence information", insert "or general computer

access intercept information".

128 Section 68

After "communicate lawfully intercepted information", insert "(other

than general computer access intercept information)".

129 Subsection 74(1)

After "foreign intelligence information", insert ", general computer

access intercept information or ASIO computer access intercept

information".

Schedule 2 Computer access warrants etc.

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130 Subsection 75(1)

After "other than", insert "a general computer access warrant or".

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

After "63A,", insert "63AB, 63AC,".

131A After paragraph 108(2)(ca)

Insert:

(cb) accessing a stored communication under a general computer

access warrant; or

Computer access warrants etc. Schedule 2

Application provisions Part 2

No. , 2018

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and Access) Bill 2018

139

Part 2--Application provisions

132 Application

--computer access warrants

(1)

The amendments of sections 25A and 27A of the Australian Security

Intelligence Organisation Act 1979 made by this Schedule apply in

relation to a warrant issued after the commencement of this item.

(2)

The amendments of section 27E of the Australian Security Intelligence

Organisation Act 1979 made by this Schedule apply in relation to an

authorisation given after the commencement of this item.

(3)

The amendments of sections 50 and 50A of the Surveillance Devices

Act 2004 made by this Schedule apply in relation to a report in respect

of:

(a) the financial year in which this item commences; or

(b) a later financial year.

(4)

The amendment of section 31 of the Telecommunications (Interception

and Access) Act 1979 made by this Schedule applies in relation to a

request made after the commencement of this item.

(5)

The amendments of section 31A of the Telecommunications

(Interception and Access) Act 1979 made by this Schedule apply in

relation to an authorisation given in response to a request made after the

commencement of this item.

Schedule 2 Computer access warrants etc.

Part 3 Amendments contingent on the commencement of the Crimes Legislation

Amendment (International Crime Cooperation and Other Measures) Act 2018

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and Access) Bill 2018

No. , 2018

Part 3--Amendments contingent on the

commencement of the Crimes Legislation

Amendment (International Crime

Cooperation and Other Measures) Act 2018

International Criminal Court Act 2002

133 After Division 12A of Part 4

Insert:

Division 12B--Requests for access to data held in

computers

79B Authorising applications for computer access warrants

(1) The Attorney-General may authorise, in writing, an eligible law

enforcement officer to apply for a computer access warrant under

section 27A of the Surveillance Devices Act 2004 if:

(a) the ICC has requested the Attorney-General to arrange for the

access to data held in a computer (the target computer); and

(b) the Attorney-General is satisfied that an investigation is

being conducted by the Prosecutor, or a proceeding is before

the ICC; and

appropriate undertakings for:

(i) ensuring that data obtained as a result of access under

the warrant will only be used for the purpose for which

it is communicated to the ICC; and

(ii) the destruction of a document or other thing containing

data obtained as a result of access under the warrant;

and

(iii) any other matter the Attorney-General considers

appropriate.

Note:

The eligible law enforcement officer can only apply for the warrant if

the officer reasonably suspects that the access to data held in the target

Computer access warrants etc. Schedule 2

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141

computer is necessary for the investigation or proceeding (see

subsection 27A(4) of the Surveillance Devices Act 2004).

(2) The target computer 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).

(3) In this section:

computer has the same meaning as in the Surveillance Devices Act

2004.

data has the same meaning as in the Surveillance Devices Act

2004.

data held in a computer has the same meaning as in the

Surveillance Devices Act 2004.

eligible law enforcement officer means a person mentioned in

column 3 of table item 5 in subsection 6A(6), or column 3 of table

item 5 in subsection 6A(7), of the Surveillance Devices Act 2004.

International War Crimes Tribunals Act 1995

134 After Division 1A of Part 4

Insert:

Division 1B--Requests for access to data held in computers

32B Authorising applications for computer access warrants

(1) The Attorney-General may authorise, in writing, an eligible law

enforcement officer to apply for a computer access warrant under

section 27A of the Surveillance Devices Act 2004 if:

(a) a Tribunal has requested the Attorney-General to arrange for

access to data held in a computer (the target computer); and

(b) the Attorney-General is satisfied that a proceeding is before,

or an investigation is being conducted by, the Tribunal; and

Schedule 2 Computer access warrants etc.

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Amendment (International Crime Cooperation and Other Measures) Act 2018

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and Access) Bill 2018

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appropriate undertakings for:

(i) ensuring that data obtained as a result of the access

under the warrant will only be used for the purpose for

which it is communicated to the Tribunal; and

(ii) the destruction of a document or other thing containing

data obtained as a result of access under the warrant;

and

(iii) any other matter the Attorney-General considers

appropriate.

Note:

The eligible law enforcement officer can only apply for the warrant if

the officer reasonably suspects that the access to data held in the target

computer is necessary for the investigation or proceeding (see

subsection 27A(4) of the Surveillance Devices Act 2004).

(2) In this section:

computer has the same meaning as in the Surveillance Devices Act

2004.

data has the same meaning as in the Surveillance Devices Act

2004.

data held in a computer has the same meaning as in the

Surveillance Devices Act 2004.

eligible law enforcement officer means a person mentioned in

column 3 of table item 5 in subsection 6A(6), or column 3 of table

item 5 in subsection 6A(7), of the Surveillance Devices Act 2004.

Surveillance Devices Act 2004

135 Subsection 6(1) (definition of international assistance

application)

Repeal the definition, substitute:

international assistance application means:

(a) an application for a surveillance device warrant; or

(b) an application for a computer access warrant;

made under an international assistance authorisation.

Computer access warrants etc. Schedule 2

Amendments contingent on the commencement of the Crimes Legislation Amendment

(International Crime Cooperation and Other Measures) Act 2018 Part 3

No. , 2018

Telecommunications and Other Legislation Amendment (Assistance

and Access) Bill 2018

143

136 Subsection 6(1) (paragraph (a) of the definition of

international assistance authorisation)

After "15CA(1)", insert "or 15CC(1)".

137 Subsection 27A(4)

Repeal the subsection, substitute:

Warrants sought for international assistance investigations

(4) A law enforcement officer (or a person on the officer's behalf) may

apply for the issue of a computer access warrant if the officer:

(a) is authorised to do so under an international assistance

authorisation; and

(b) suspects on reasonable grounds that access to data held in a

computer (the target computer) is necessary, in the course of

the investigation or investigative proceeding to which the

authorisation relates, for the purpose of enabling evidence to

be obtained of:

(i) the commission of an offence to which the authorisation

relates; or

(ii) the identity or location of the persons suspected of

committing the offence.

138 Paragraphs 27C(1)(c) and (2)(a)

Omit "a mutual assistance authorisation", substitute "an international

assistance authorisation".

139 Paragraph 27C(2)(f)

Repeal the paragraph, substitute:

(f) in the case of a warrant sought in relation to an international

assistance authorisation--the likely evidentiary or

intelligence value of any evidence or information sought to

be obtained, to the extent that this is possible to determine

from information obtained from the international entity to

which the authorisation relates; and

140 Subparagraph 27D(1)(b)(iv)

Repeal the paragraph, substitute:

Schedule 2 Computer access warrants etc.

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(iv) if the warrant relates to an international assistance

authorisation--each offence to which the authorisation

relates; and

141 Paragraph 27E(3)(c)

Omit "a mutual assistance authorisation", substitute "an international

assistance authorisation".

142 Paragraph 27H(4)(a)

Omit "a mutual assistance authorisation", substitute "an international

assistance authorisation".

143 Subparagraph 27H(4)(b)(i)

Repeal the subparagraph, substitute:

(i) the commission of any offence to which the

authorisation relates; or

144 Paragraph 27H(9)(c)

Repeal the paragraph, substitute:

assistance authorisation--of enabling evidence to be obtained

of:

(i) the commission of any offence to which the

authorisation relates; or

(ii) the identity or location of the persons suspected of

committing the offence;

145 Subsection 64A(4)

Repeal the subsection, substitute:

Warrants relating to international assistance authorisations

(4) In the case of a computer that is the subject of a computer access

warrant issued in relation to an international assistance

authorisation, the eligible Judge or nominated AAT member may

grant the assistance order if the eligible Judge or nominated AAT

member is satisfied that:

Computer access warrants etc. Schedule 2

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

data held in the computer is necessary, in the course of the

investigation or investigative proceeding to which the

authorisation relates, for the purpose of enabling evidence to

be obtained of:

(i) the commission of an offence to which the authorisation

relates; or

(ii) the identity or location of the persons suspected of

committing the offence; and

(b) the specified person is:

(i) reasonably suspected of committing an offence to which

the authorisation relates; 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.

146 Application of amendments

The amendments made by this Part apply in relation to a request made

to the Attorney-General by the ICC, a Tribunal or a foreign country:

(a) at or after the commencement of this item; or

(b) before the commencement of this item, if, immediately

before that commencement, the Attorney-General had yet to

make a decision on the request;

whether conduct, a crime or an offence to which the request relates

occurred before, on or after that commencement.

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Schedule 3--Search warrants issued under

the Crimes Act 1914

Crimes Act 1914

1 Subsection 3C(1)

Insert:

account-based data has the meaning given by section 3CAA.

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.

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).

electronic service has the same meaning as in the Enhancing

Online Safety Act 2015.

telecommunications facility means a facility within the meaning of

the Telecommunications Act 1997.

2 After section 3C

Insert:

3CAA Account-based data

(1) For the purposes of this Part, if:

(a) an electronic service has accounts for end-users; and

(b) either:

(i) a person holds an account with the electronic service; or

(ii) a person is, or is likely to be, a user of an account with

the electronic service; and

particular data provided by the service;

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the data is account-based data in relation to the person.

(2) For the purposes of this Part, if:

(a) an electronic service has accounts for end-users; and

(b) either:

(i) a deceased person held, before the person's death, an

account with the electronic service; or

(ii) a deceased person, before the person's death, was, or

was likely to be, a user of an account with the electronic

service; and

the use of appropriate equipment), access particular data

provided by the service;

the data is account-based data in relation to the deceased person.

(3) For the purposes of this section, account has the same meaning as

in the Enhancing Online Safety Act 2015.

3 After subsection 3F(2)

Insert:

(2A) A warrant that is in force authorises the executing officer or a

constable assisting:

(a) to use:

(i) a computer, or data storage device, found in the course

of a search authorised under the warrant; 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 computer or device mentioned in

subparagraph (i) at any time when the warrant is in force, in

order to determine whether the relevant data is evidential

material of a kind specified in the warrant; and

(b) if necessary to achieve the purpose mentioned in

paragraph (a)--to add, copy, delete or alter other data in the

computer or device mentioned in subparagraph (a)(i); and

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to the relevant data which are likely to be as effective, it is

reasonable in all the circumstances to do so:

(i) to use any other computer or a communication in transit

to access the relevant data; and

(ii) if necessary to achieve that purpose--to add, copy,

delete or alter other data in the computer or the

communication in transit; and

(d) to copy 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 evidential material of a kind

specified in the warrant; or

(ii) is evidential material of a kind specified in the warrant;

and

(e) to do 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).

(2B) A warrant that is in force authorises the executing officer or a

constable assisting:

(a) to use:

(i) a computer found in the course of a search authorised

under the warrant; or

(ii) a telecommunications facility operated or provided by

the Commonwealth or a carrier; or

(iii) any other electronic equipment;

for the purpose of obtaining access to data (the relevant

account-based data) that is account-based data in relation to:

(iv) a person who is the owner or lessee of the computer

mentioned in subparagraph (i); or

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

in subparagraph (i); or

(vi) a deceased person who, before the person's death, was

the owner or lessee of the computer mentioned in

subparagraph (i); or

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(vii) a deceased person who, before the person's death, used

the computer mentioned in subparagraph (i);

in order to determine whether the relevant account-based data

is evidential material of a kind specified in the warrant; and

(b) if necessary to achieve the purpose mentioned in

paragraph (a)--to add, copy, delete or alter other data in the

computer mentioned in subparagraph (a)(i); and

to the relevant account-based data which are likely to be as

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

(i) to use any other computer or a communication in transit

to access the relevant account-based data; and

(ii) if necessary to achieve that purpose--to add, copy,

delete or alter other data in the computer or the

communication in transit; and

(d) to copy any data to which access has been obtained, and that:

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

whether the relevant account-based data is evidential

material of a kind specified in the warrant; or

(ii) is evidential material of a kind specified in the warrant;

and

(e) to do any other thing reasonably incidental to any of the

above.

(2C) Subsections (2A) and (2B) do 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.

(2D) In the case of a warrant that is in force in relation to premises, it is

immaterial whether a thing mentioned in subsection (2A) or (2B) is

done:

(a) at the premises; or

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(b) at any other place.

(2E) In the case of a warrant that is in force in relation to a person, it is

immaterial whether a thing mentioned in subsection (2A) or (2B) is

done:

(a) in the presence of the person; or

(b) at any other place.

4 Subsection 3K(3A)

Omit "14 days.", substitute:

whichever of the following is applicable:

(a) if the thing is a computer or data storage device--30 days;

(b) otherwise--14 days.

5 Subsection 3K(3B)

Omit "14 days", substitute "the time applicable under subsection (3A)".

6 Subsection 3K(3D)

Omit "7 days.", substitute:

whichever of the following is applicable:

(a) if the thing is a computer or data storage device--14 days;

(b) otherwise--7 days.

6A At the end of section 3K

Add:

Extended powers of examination and processing

(5) For the purposes of this section, if a computer or data storage

device (the relevant computer or device) was found in the course

of a search authorised under a warrant, the examination or

processing of the relevant computer or device may include:

(a) using:

(i) the relevant computer or device; or

(ii) a telecommunications facility operated or provided by

the Commonwealth or a carrier; or

(iii) any other electronic equipment; or

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(iv) a data storage device;

for the purpose of obtaining access to data (the relevant data)

that is held in the relevant computer or device in order to

determine whether the relevant computer or device is a thing

that may be seized under the warrant; and

(b) if necessary to achieve the purpose mentioned in

paragraph (a)--to add, copy, delete or alter other data in the

relevant computer or device; and

to the relevant data which are likely to be as effective, it is

reasonable in all the circumstances to do so:

(i) to use any other computer or a communication in transit

to access the relevant data; and

(ii) if necessary to achieve that purpose--to add, copy,

delete or alter other data in the computer or the

communication in transit; and

(d) to copy any data to which access has been obtained, and that

appears to be relevant for the purposes of determining

whether the relevant computer or device is a thing that may

be seized under the warrant; and

(e) to do any other thing reasonably incidental to any of the

above.

(6) For the purposes of this section, if a computer (the relevant

computer) was found in the course of a search authorised under a

warrant, the examination or processing of the relevant computer

may include:

(a) using:

(i) the relevant computer; or

(ii) a telecommunications facility operated or provided by

the Commonwealth or a carrier; or

(iii) any other electronic equipment;

for the purpose of obtaining access to data (the relevant

account-based data) that is account-based data in relation to:

(iv) a person who is the owner or lessee of the relevant

computer; or

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

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(vi) a deceased person who, before the person's death, was

the owner or lessee of the relevant computer; or

(vii) a deceased person who, before the person's death, used

the relevant computer;

in order to determine whether the relevant computer is a

thing that may be seized under the warrant; and

(b) if necessary to achieve the purpose mentioned in

paragraph (a)--to add, copy, delete or alter other data in the

relevant computer; and

to the relevant account-based data which are likely to be as

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

(i) to use any other computer or a communication in transit

to access the relevant account-based data; and

(ii) if necessary to achieve that purpose--to add, copy,

delete or alter other data in the computer or the

communication in transit; and

(d) to copy any data to which access has been obtained, and that

appears to be relevant for the purposes of determining

whether the relevant computer is a thing that may be seized

under the warrant; and

(e) to do any other thing reasonably incidental to any of the

above.

(7) Subsections (5) and (6) do 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 determine:

(iii) in the case of subsection (5)--whether the relevant

computer or device is a thing that may be seized under

the warrant referred to in that subsection; or

(iv) in the case of subsection (6)--whether the relevant

computer is a thing that may be seized under the warrant

referred to in that subsection; or

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

lawfully using a computer.

(8) In the case of a warrant that was in force in relation to premises, it

is immaterial whether a thing mentioned in subsection (5) or (6) is

done:

(a) at the premises; or

(b) at any other place.

(9) In the case of a warrant that was in force in relation to a person, it

is immaterial whether a thing mentioned in subsection (5) or (6) is

done:

(a) in the presence of the person; or

(b) at any other place.

7 Subsection 3LAA(1)

Omit "to access data (including data held at another place).", substitute:

to:

(a) access data (including data held at another place); or

(b) access account-based data.

8 After subparagraph 3LA(1)(a)(i)

Insert:

(ia) is found in the course of an ordinary search of a person,

or a frisk search of a person, authorised by a warrant

under section 3E; or

9 Subsection 3LA(5)

Repeal the subsection, substitute:

Offences

(5) 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.

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Penalty: Imprisonment for 5 years or 300 penalty units, or both.

(6) 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; and

(e) the offence to which the relevant warrant relates is:

(i) a serious offence; or

(ii) a serious terrorism offence.

Penalty for contravention of this subsection: Imprisonment for 10

years or 600 penalty units, or both.

10 After paragraph 3N(2)(a)

Insert:

(aa) the thing embodies data that was accessed under the warrant

at a place other than the premises; or

11 After subsection 3ZQV(3)

Insert:

(3A) If the electronic equipment was seized under a warrant,

subsection (2) does not apply to data that was generated after the

expiry of the warrant.

12 Application of amendments

The amendments of sections 3F, 3K, 3LAA, 3LA, 3N and 3ZQV of the

Crimes Act 1914 made by this Schedule apply in relation to a warrant

issued after the commencement of this item.

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Schedule 4--Search warrants issued under

the Customs Act 1901

Customs Act 1901

1 Subsection 183UA(1)

Insert:

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).

recently used conveyance, in relation to a search of a person,

means a conveyance that the person had operated or occupied at

any time within 24 hours before the search commenced.

1A Subsection 183UA(1) (definition of search warrant)

After "section 198", insert "or 199A".

2 Subsection 183UA(1)

Insert:

serious offence has the same meaning as in Part IAA of the Crimes

Act 1914.

telecommunications facility means a facility within the meaning of

the Telecommunications Act 1997.

3 Section 198 (heading)

Repeal the heading, substitute:

198 When search warrants relating to premises can be issued

4 Section 199 (heading)

Repeal the heading, substitute:

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199 The things that are authorised by a search warrant relating to

premises

4A After subsection 199(4)

Insert:

(4A) A warrant that is in force in relation to premises authorises the

executing officer or a person assisting:

(a) to use:

(i) a computer, or data storage device, found in the course

of a search authorised under the warrant; 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 computer or device mentioned in

subparagraph (i) at any time when the warrant is in force, in

order to determine whether the relevant data is evidential

material of a kind specified in the warrant; and

(b) if necessary to achieve the purpose mentioned in

paragraph (a)--to add, copy, delete or alter other data in the

computer or device mentioned in subparagraph (a)(i); and

to the relevant data which are likely to be as effective, it is

reasonable in all the circumstances to do so:

(i) to use any other computer or a communication in transit

to access the relevant data; and

(ii) if necessary to achieve that purpose--to add, copy,

delete or alter other data in the computer or the

communication in transit; and

(d) to copy 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 evidential material of a kind

specified in the warrant; or

(ii) is evidential material of a kind specified in the warrant;

and

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(e) to do 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).

(4B) Subsection (4A) 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.

(4C) It is immaterial whether a thing mentioned in subsection (4A) is

done:

(a) at the warrant premises; or

(b) at any other place.

5 After section 199

Insert:

199A When search warrants relating to persons can be issued

(1) A judicial officer may issue a warrant authorising an ordinary

search or a frisk search of a person if the judicial officer is

satisfied, by information on oath or affirmation, that there are

reasonable grounds for suspecting that the person has in the

person's possession, or will within the next 72 hours have in the

person's possession, any computer, or data storage device, that is

evidential material.

(2) If the person applying for the warrant has, at any time previously,

applied for a warrant under this section relating to the same person,

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the person applying for the warrant must state particulars of those

applications, and their outcome, in the information.

(3) If a judicial officer issues a warrant, the judicial officer is to state

in the warrant:

(a) the offence to which the warrant relates; and

(b) the name or description of the person to whom the warrant

relates; and

person inserts the name of another authorised person in the

warrant, is to be responsible for executing the warrant; and

(d) the time at which the warrant expires (see subsection (4));

and

(e) whether the warrant may be executed at any time or only

during particular hours.

(4) The time stated in the warrant under paragraph (3)(d) as the time at

which the warrant expires must be a time that is not later than the

end of the seventh day after the day on which the warrant is issued.

Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified

must not be later than midnight on Monday in the following week.

(5) The judicial officer is also to state, in a warrant in relation to a

person:

(a) that the warrant authorises the seizure of a computer or data

storage device found, in the course of the search, on or in the

possession of the person or in a recently used conveyance, if

the executing officer or a person assisting believes on

reasonable grounds that:

(i) the computer or device is evidential material in relation

to an offence to which the warrant relates; and

(ii) the seizure of the computer or device is necessary to

prevent its concealment, loss or destruction or its use in

committing an offence; and

(b) the kind of search of a person that the warrant authorises.

(6) Paragraph (3)(d) and subsection (4) do not prevent the issue of

successive warrants in relation to the same person.

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199B The things that are authorised by a search warrant relating to

a person

(1) A warrant that is in force in relation to a person (the target person)

authorises the executing officer or person assisting:

(a) to search:

(i) the target person as specified in the warrant; and

(ii) any recently used conveyance;

for computers or data storage devices of the kind specified in

the warrant; and

(b) to:

(i) seize computers or data storage devices of that kind; or

(ii) record fingerprints from computers or data storage

devices; or

(iii) to take samples for forensic purposes from computers or

data storage devices;

found in the course of the search; and

target person or in the conveyance in the course of the search

that the executing officer or person assisting believes on

reasonable grounds to be:

(i) prohibited goods that are unlawfully carried by the

target person; or

(ii) seizable items.

(2) A warrant that is in force in relation to a person (the target person)

authorises the executing officer or a person assisting:

(a) to use:

(i) a computer, or data storage device, found in the course

of a search authorised under the warrant; 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 computer or device mentioned in

subparagraph (i) at any time when the warrant is in force, in

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order to determine whether the relevant data is evidential

material of a kind specified in the warrant; and

(b) if necessary to achieve the purpose mentioned in

paragraph (a)--to add, copy, delete or alter other data in the

computer or device mentioned in subparagraph (a)(i); and

to the relevant data which are likely to be as effective, it is

reasonable in all the circumstances to do so:

(i) to use any other computer or a communication in transit

to access the relevant data; and

(ii) if necessary to achieve that purpose--to add, copy,

delete or alter other data in the computer or the

communication in transit; and

(d) to copy 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 evidential material of a kind

specified in the warrant; or

(ii) is evidential material of a kind specified in the warrant;

and

(e) to do 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) 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.

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(4) It is immaterial whether a thing mentioned in subsection (2) is

done:

(a) in the presence of the target person; or

(b) at any other place.

(5) If the warrant states that it may be executed only during particular

hours, the warrant must not be executed outside those hours.

(6) If the warrant authorises an ordinary search or a frisk search of the

target person, a search of the target person different from that so

authorised must not be done under the warrant.

5A Subsection 200(1)

Omit "executing officer or a person assisting", substitute "executing

officer of a warrant in relation to premises, or a person assisting,".

5AA Subsection 200(2)

Omit "thing found at the premises", substitute "thing found at warrant

premises, or a thing found during a search under a warrant that is in

force in relation to a person,".

5B Paragraph 200(2)(b)

Repeal the paragraph, substitute:

(b) for a thing found at warrant premises--the occupier of the

premises consents in writing; or

force in relation to a person--the person consents in writing.

5C Paragraph 200(3)(a)

Omit "occupier", substitute "person referred to in paragraph (2)(b) or

5D Paragraph 200(3)(b)

Omit "the occupier", substitute "that person".

6 Subsection 200(3A)

Omit "72 hours.", substitute:

whichever of the following is applicable:

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(a) if the thing is a computer or data storage device--30 days;

(b) otherwise--72 hours.

7 Subsection 200(3B)

Omit "72 hours", substitute "the time applicable under

subsection (3A)".

7A Subsection 200(3C)

Omit "occupier of the premises, and the occupier", substitute "person

referred to in paragraph (2)(b) or (c) (as the case requires), and that

person".

8 After subsection 200(3C)

Insert:

(3D) If the thing is a computer or data storage device, a single extension

cannot exceed 14 days.

8AA Subsection 200(4)

Omit "executing officer or a person assisting", substitute "executing

officer of a warrant in relation to premises, or a person assisting,".

8A After section 201

Insert:

201AA Use of electronic equipment at other place

(1) If electronic equipment is moved to another place under

subsection 200(2), the executing officer or a person assisting may

operate the equipment to access data (including data held at

another place).

(2) If the executing officer or person assisting suspects on reasonable

grounds that any data accessed by operating the electronic

equipment constitutes evidential material, the executing officer or

person assisting may copy any or all of the data accessed by

operating the electronic equipment to a disk, tape or other

associated device.

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(3) If the Comptroller-General of Customs is satisfied that the data is

not required (or is no longer required) for:

(a) investigating an offence against a law of the Commonwealth,

a State or a Territory; or

(b) judicial proceedings or administrative review proceedings; or

Act 1976 or the Privacy Act 1988;

the Comptroller-General of Customs must arrange for:

(d) the removal of the data from any device subject to customs

control; and

(e) the destruction of any other reproduction of the data subject

to customs control.

(4) If the executing officer or a person assisting, after operating the

equipment, finds that evidential material is accessible by doing so,

the executing officer or person assisting may:

(a) seize the equipment and any disk, tape or other associated

device; or

(b) if the material can be put in documentary form--put the

material in that form and seize the documents so produced.

(5) The executing officer or a person assisting may seize equipment

under paragraph (4)(a) only if:

(a) it is not practicable to copy the data as mentioned in

subsection (2) or to put the material in documentary form as

mentioned in paragraph (4)(b); or

(b) possession of the equipment by the person referred to in

paragraph 200(2)(b) or (c) (as the case requires) could

constitute an offence.

9 Paragraphs 201A(1)(a), (b) and (c)

Repeal the paragraphs, substitute:

(a) access data held in, or accessible from, a computer or data

storage device that:

(i) is on warrant premises; or

(ii) has been seized under this Subdivision; or

(iii) is found in the course of an ordinary search of a person,

or a frisk search of a person, authorised by a search

warrant;

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(b) copy data held in, or accessible from, a computer, or data

storage device, described in paragraph (a) to another data

storage device;

an executing officer:

(i) data held in, or accessible from, a computer, or data

storage device, described in paragraph (a); or

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

copied as described in paragraph (b).

10 Paragraph 201A(2)(a)

After "the computer", insert "or data storage device".

11 Subparagraph 201A(2)(b)(ii)

After "the computer", insert "or device".

12 Subparagraph 201A(2)(b)(iii)

Omit "; and", substitute "or device; or".

13 At the end of paragraph 201A(2)(b)

Add:

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

owner or lessee of the computer or device; or

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

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

system including the computer or device; and

14 Subparagraph 201A(2)(c)(i)

After "the computer or", insert "device or".

15 Subparagraph 201A(2)(c)(i)

After "which the computer", insert "or device".

16 Subparagraph 201A(2)(c)(i)

After "forms", insert "or formed".

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17 Subparagraph 201A(2)(c)(ii)

After "the computer", insert "or device".

18 Subsection 201A(3)

Repeal the subsection, substitute:

Offences

(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 5 years or 300 penalty units, or both.

(4) 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; and

(e) the offence to which the relevant warrant relates is a serious

offence.

Penalty for contravention of this subsection: Imprisonment for 10

years or 600 penalty units, or both.

18A Paragraph 201B(1)(a)

After "201(1)", insert "or 201AA(1)".

18B Paragraph 201B(1)(d)

After "or (2)", insert "or 201AA(2) or (4)".

18C Paragraph 202(1)(a)

Omit "or 201", substitute ", 201 or 201AA".

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18D Paragraph 202A(2)(a)

After "201(2)(b)", insert "or 201AA(4)(a)".

19 Subsection 203K(5)

After "198(1),", insert "199A(1),".

20 Subsection 203M(4)

After "198,", insert "199A,".

21 Application of amendments

(1)

The amendments of sections 199, 200 and 201A of the Customs Act

1901 made by this Schedule apply in relation to a warrant issued after

the commencement of this item.

(2)

Section 201AA of the Customs Act 1901 (as amended by this Schedule)

applies in relation to a warrant issued after the commencement of this

item.

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Schedule 5--Australian Security Intelligence

Organisation

Australian Security Intelligence Organisation Act 1979

1 After subsection 16(1)

Insert:

(1A) The Director-General may, by writing, delegate any or all of the

Director-General's functions or powers under section 21A to a

senior position-holder.

2 At the end of Division 1 of Part III

Add:

21A Voluntary assistance provided to the Organisation

Assistance provided in accordance with a request by the

Director-General

(1) If:

(a) the Director-General requests a person or body to engage in

conduct; and

(b) the Director-General is satisfied, on reasonable grounds, that

the conduct is likely to assist the Organisation in the

performance of its functions; and

request; and

(d) the conduct does not involve the person or body committing

an offence against a law of the Commonwealth, a State or a

Territory; and

(e) the conduct does not result in significant loss of, or serious

damage to, property;

the person or body is not subject to any civil liability for, or in

relation to, the conduct.

(2) A request under paragraph (1)(a) may be made:

(a) orally; or

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(b) in writing.

(3) If a request under paragraph (1)(a) is made orally, the

Director-General must:

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

(b) do so within 48 hours after the request was made.

(4) The Director-General may enter into a contract, agreement or

arrangement with a person or body in relation to conduct engaged

in by the person or body in accordance with a request under

paragraph (1)(a).

Unsolicited disclosure of information etc.

(5) If:

(a) a person or body engages in conduct that consists of, or is

connected with:

(i) giving information to the Organisation; or

(ii) giving or producing a document to the Organisation; or

(iii) making one or more copies of a document and giving

those copies to the Organisation; and

(b) the person reasonably believes that the conduct is likely to

assist the Organisation in the performance of its functions;

and

an offence against a law of the Commonwealth, a State or a

Territory; and

(d) the conduct does not result in significant loss of, or serious

damage to, property; and

(e) subsection (1) does not apply to the conduct;

the person or body is not subject to any civil liability for, or in

relation to, the conduct.

Copies of, or extracts from, documents

(6) The Organisation may make and retain copies of, or take and retain

extracts from, a document given or produced to the Organisation:

(a) in accordance with a request under paragraph (1)(a); or

(b) under paragraph (5)(a).

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Subsections (1) and (5) have effect despite other laws

(7) Subsections (1) and (5) have effect despite anything in a law of the

Commonwealth, a State or a Territory (whether passed or made

before or after the commencement of this section) unless the law

expressly provides otherwise.

Certificate

(8) The Director-General may give a certificate in writing certifying

one or more facts relevant to the question of whether the

Director-General was satisfied, on reasonable grounds, that

particular conduct was likely to assist the Organisation in the

performance of its functions.

(9) In any proceedings that involve determining whether subsection (1)

or (5) applies to particular conduct, a certificate given under

subsection (8) is prima facie evidence of the facts certified.

Compensation for acquisition of property

(10) If the operation of this section would result in an acquisition of

property (within the meaning of paragraph 51(xxxi) of the

Constitution) from a person otherwise than on just terms (within

the meaning of that paragraph), the Commonwealth is liable to pay

a reasonable amount of compensation to the person.

(11) If the Commonwealth and the person do not agree on the amount

of the compensation, the person may institute proceedings in the

Federal Court of Australia for the recovery from the

Commonwealth of such reasonable amount of compensation as the

court determines.

3 At the end of Division 2 of Part III

Add:

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Subdivision J--Assistance relating to access to data

34AAA Person with knowledge of a computer or a computer system

to assist access to data

(1) The Director-General may request the Attorney-General to make

an order requiring a specified person to provide any information or

assistance that is reasonable and necessary to allow the

Organisation to do one or more of the following:

(a) access data held in, or accessible from, a computer or data

storage device that:

(i) is the subject of a warrant under section 25A, 26 or

27A; or

(ii) is the subject of an authorisation under section 27E or

27F; or

(iii) is on premises in relation to which a warrant under

section 25, 26 or 27A is in force; or

(iv) is on premises in relation to which an authorisation

under section 27D or 27F is in force; or

(v) is found in the course of an ordinary search of a person,

or a frisk search of a person, authorised by a warrant

under section 25 or 27A; or

(vi) is found in the course of an ordinary search of a person,

or a frisk search of a person, authorised under

section 27D; or

(vii) has been removed from premises under a warrant under

section 25, 26 or 27A; or

(viii) has been removed from premises under section 27D; or

(ix) has been seized under section 34ZB;

(b) copy data held in, or accessible from, a computer, or data

storage device, described in paragraph (a) to another data

storage device;

an ASIO employee or ASIO affiliate:

(i) data held in, or accessible from, a computer, or data

storage device, described in paragraph (a); or

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

copied as described in paragraph (b); or

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(iii) data held in a computer or data storage device removed

from premises under a warrant under section 25, 26 or

27A; or

(iv) data held in a computer or data storage device removed

from premises under section 27D.

(2) The Attorney-General may make the order if:

(a) in a case where the computer or data storage device:

(i) is the subject of a warrant under section 27A; or

(ii) is on premises in relation to which a warrant under

section 27A is in force; or

(iii) is found in the course of an ordinary search of a person,

or a frisk search of a person, authorised by a warrant

under section 27A; or

(iv) has been removed from premises under a warrant under

section 27A;

the Attorney-General is satisfied, on reasonable grounds,

that:

(v) access by the Organisation to data held in, or accessible

from, the computer or data storage device will be for the

purpose of obtaining foreign intelligence relating to a

matter specified in the relevant notice under

subsection 27A(1); and

(vi) on the basis of advice received from the Defence

Minister or the Foreign Affairs Minister, the collection

of foreign intelligence relating to that matter is in the

interests of Australia's national security, Australia's

foreign relations or Australia's national economic

well-being; and

(b) in a case where paragraph (a) does not apply--the

Attorney-General is satisfied that there are reasonable

grounds for suspecting that access by the Organisation to data

held in, or accessible from, the computer or data storage

device will substantially assist the collection of intelligence

in accordance with this Act in respect of a matter that is

important in relation to security; and

the specified person is:

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(i) reasonably suspected of being involved in activities that

are prejudicial to security; or

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

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

device; or

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

owner or lessee of the computer or device; or

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

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

system including the computer or device; and

(d) the Attorney-General is satisfied, on reasonable grounds, that

the specified person has relevant knowledge of:

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

the computer or device forms or formed a part; or

(ii) measures applied to protect data held in, or accessible

from, the computer or device.

(3) If the computer or data storage device is not on premises in relation

to which a warrant is in force, the order must:

(a) specify the period within which the person must provide the

information or assistance; and

(b) specify the place at which the person must provide the

information or assistance; and

Attorney-General as the conditions to which the requirement

on the person to provide the information or assistance is

subject.

(4) 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 5

years or 300 penalty units, or both.

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