Commonwealth Consolidated Acts Commonwealth Consolidated Acts1 Subsection 3C(1) (definition of magistrate )
Omit "3ZW", substitute "3ZQZ".
2 Section 3CA
Omit "3ZW" (wherever occurring), substitute "3ZQZ".
3 Subsection 3F(5)
Repeal the subsection.
4 Paragraph 3L(1B)(b)
Repeal the paragraph, substitute:
(b) the Commissioner is satisfied that the data is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings;
5 Subsections 3UF(4) to (7)
Repeal the subsections.
Note: The heading to section 3UF is replaced by the heading " Seizure notices ".
6 Subsection 3UF(9)
Repeal the subsection.
7 Section 3UG
Repeal the section.
8 Subsection 3UK(1)
Omit "sections 3UF and 3UG", substitute "section 3UF".
9 After Division 4B of Part IAA
Insert:
Division 4C -- Using, sharing and returning things seized and documents produced
Subdivision A -- Using and sharing things seized and documents produced
3ZQU Purposes for which things and documents may be used and shared
Use and sharing of thing or document by constable or Commonwealth officer
(1) A constable or Commonwealth officer may use, or make available to another constable or Commonwealth officer to use, a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for the purpose of any or all of the following if it is necessary to do so for that purpose:
(a) preventing, investigating or prosecuting an offence;
(b) proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002 ;
(c) proceedings under a corresponding law (within the meaning of either of the Acts mentioned in paragraph (b)) that relate to a State offence that has a federal aspect;
(d) proceedings for the forfeiture of the thing under a law of the Commonwealth;
(e) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104 or 105 of the Criminal Code ;
(f) investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part;
(g) investigating or resolving an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979 ) under Part V of that Act;
(h) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988 ;
(i) investigating or inquiring into a corruption issue under the Law Enforcement Integrity Commissioner Act 2006 ;
(j) proceedings in relation to a complaint, allegation or issue mentioned in paragraph (f), (g), (h) or (i);
(k) deciding whether to institute proceedings, to make an application or request, or to take any other action, mentioned in any of the preceding paragraphs of this subsection;
(l) the performance of the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979 .
(2) A constable or Commonwealth officer may use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any other use that is required or authorised by or under a law of a State or a Territory.
(3) A constable or Commonwealth officer may make available to another constable or Commonwealth officer to use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any purpose for which the making available of the thing or document is required or authorised by a law of a State or Territory.
(4) To avoid doubt, this section does not limit any other law of the Commonwealth that:
(a) requires or authorises the use of a document or other thing; or
(b) requires or authorises the making available (however described) of a document or other thing.
Sharing thing or document for use by State, Territory or foreign agency
(5) A constable or Commonwealth officer may make a thing seized under this Part, or the original or a copy of a document produced under Division 4B, available to:
(a) a State or Territory law enforcement agency; or
(b) an agency that has responsibility for:
(i) law enforcement in a foreign country; or
(ii) intelligence gathering for a foreign country; or
(iii) the security of a foreign country;
to be used by that agency for a purpose mentioned in subsection (1), (2) or (3) and the purpose of any or all of the following (but not for any other purpose):
(c) preventing, investigating or prosecuting an offence against a law of a State or Territory;
(d) proceedings under a corresponding law (within the meaning of the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002 );
(e) proceedings for the forfeiture of the thing under a law of a State or Territory;
(f) deciding whether to institute proceedings or to take any other action mentioned in any of paragraphs (1)(a) to (l) (inclusive), subsection (2) or (3) or paragraph (c), (d) or (e) of this subsection.
Ministerial arrangements for sharing
(6) This Division does not prevent the Minister from making an arrangement with a Minister of a State or Territory for:
(a) the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (3) and (5), of things seized under this Part and originals and copies of documents produced under Division 4B; and
(b) the disposal by the agency of such things, originals and copies when they are no longer of use to that agency for those purposes.
Note: This subsection does not empower the Minister to make such an arrangement.
Definition
(7) In this section:
"State or Territory law enforcement agency" means:
(a) the police force or police service of a State or Territory; or
(b) the New South Wales Crime Commission constituted by the New South Wales Crime Commission Act 1985 of New South Wales; or
(c) the Independent Commission Against Corruption constituted by the Independent Commission Against Corruption Act 1988 of New South Wales; or
(d) the Police Integrity Commission constituted by the Police Integrity Commission Act 1996 of New South Wales; or
(e) the Office of Police Integrity continued by the Police Integrity Act 2008 of Victoria; or
(f) the Crime and Misconduct Commission of Queensland; or
(g) the Corruption and Crime Commission established by the Corruption and Crime Commission Act 2003 of Western Australia.
3ZQV Operating seized electronic equipment
(1) This section applies to electronic equipment seized under this Part or moved from warrant premises under section 3K.
(2) The electronic equipment may be operated at any location after it has been seized or moved, for the purpose of determining whether data that is evidential material is held on or accessible from the electronic equipment, and obtaining access to such data.
(3) The data referred to in subsection (2) includes, but is not limited to, the following:
(a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized;
(b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.
(4) If the electronic equipment was seized under a warrant or moved under section 3K, the electronic equipment may be operated before or after the expiry of the warrant.
(5) This section does not limit the operation of other provisions of this Part that relate to dealing with items seized under this Part or moved under section 3K.
Note: For example, this section does not affect the operation of the time limits in section 3K on examination or processing of a thing removed under that section from warrant premises.
3ZQW Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in section 3ZQV:
(i) damage is caused to the equipment; or
(ii) damage is caused to data recorded on the equipment or data access to which was obtained from the operation of the equipment; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.
(4) If the equipment was seized or moved from premises, then, in determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier's employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
(5) Compensation is payable out of money appropriated by the Parliament.
(6) For the purposes of subsection (1):
"damage" , in relation to data, includes damage by erasure of data or addition of other data.
Subdivision B -- Returning things seized under Division 2 or 4
3ZQX When things seized under Division 2 or 4 must be returned
(1) If the Commissioner is satisfied that a thing seized under Division 2 or 4 is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the Commissioner must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.
(2) However, the Commissioner does not have to take those steps if:
(a) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(b) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
Subdivision C -- Returning things seized under Division 3
3ZQY When things seized under Division 3 must be returned
(1) If:
(a) the Commissioner is satisfied that a thing seized under Division 3 is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings; or
(b) the period of 60 days after the thing's seizure ends;
the Commissioner must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.
(2) However, the Commissioner does not have to take those steps if:
(a) proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or
(b) the thing may be retained because of an order under section 3ZQZ; or
(c) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(d) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
3ZQZ Magistrate may permit a thing seized under Division 3 to be retained
(1) The Commissioner may apply to a magistrate for an order under this section that a thing seized under Division 3 may be retained for a period if the application is made:
(a) before the end of 60 days after the seizure; or
(b) before the end of a period previously specified in an order in relation to the thing under this section.
(2) If the magistrate is satisfied that the thing is being used, or is required to be used, for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the magistrate may order that the thing may be retained for the period specified in the order.
(3) Before making the application, the Commissioner must:
(a) take reasonable steps to discover who has an interest in the retention of the thing; and
(b) if it is practicable to do so, notify each person who the Commissioner believes to have such an interest of the proposed application.
Subdivision D -- Returning things seized under Division 3A
3ZQZA Owner may request return of thing
(1) The Commissioner must take reasonable steps to return a thing seized under Division 3A if the owner requests the return of the thing.
(2) However, the Commissioner does not have to take those steps if:
(a) the Commissioner suspects on reasonable grounds that if the thing is returned to the owner, the thing is likely to be used by the owner or another person in the commission of a terrorist act, a terrorism offence or a serious offence; or
(b) the Commissioner is satisfied that the thing is being used, or is required to be used, for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings.
(3) If:
(a) the owner of a thing requests the return of the thing:
(i) within 90 days after the date of the seizure notice served under section 3UF in relation to the thing; or
(ii) if subsection 3UF(2) applied in relation to the thing so that a seizure notice was not served--within 90 days after the day on which the thing was seized; and
(b) the thing has not been returned to the owner by the end of the 90th day;
the Commissioner must, before the end of the 95th day:
(c) take reasonable steps to return the thing to the owner; or
(d) apply to a magistrate for an order under section 3ZQZB.
(4) In this section:
"terrorist act" has the same meaning as in subsection 100.1(1) of the Criminal Code .
3ZQZB Magistrate may permit a thing seized under Division 3A to be retained, forfeited etc.
(1) If subsection 3ZQZA(3) applies, the Commissioner may apply to a magistrate for an order in relation to the thing.
(2) The magistrate must, in determining an application by the Commissioner under subsection (1), allow the owner of the thing to appear and be heard.
(3) If the magistrate is satisfied that the thing is being used, or is required to be used, for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the magistrate may order that the thing may be retained for the period specified in the order.
(4) If the magistrate is satisfied that there are reasonable grounds to suspect that, if the thing is returned to the owner, the thing is likely to be used by the owner or another person in the commission of a terrorist act, a terrorism offence or a serious offence, the magistrate may make any of the following orders:
(a) that the thing may be retained for the period specified in the order;
(b) that the thing is forfeited to the Commonwealth;
(c) that the thing is to be sold and the proceeds given to the owner;
(d) that the thing is to be otherwise sold or disposed of.
(5) If the magistrate is not satisfied as mentioned in subsection (3) or (4), the magistrate must order that the thing be returned to the owner.
(6) In this section:
"terrorist act" has the same meaning as in subsection 100.1(1) of the Criminal Code .
10 Sections 3ZV and 3ZW
Repeal the sections, substitute:
3ZW Delegation by Commissioner
The Commissioner may delegate to a constable any or all of the Commissioner's powers, functions or duties under this Part.
11 Application
The amendments made by this Part apply in relation to:
(a) a thing seized before, on or after the commencement of this Part; and
(b) a document produced before, on or after the commencement of this Part.
Part 2 -- Use of equipment under warrant
12 Subparagraph 3K(2)(a)(ii)
Repeal the subparagraph, substitute:
(ii) the executing officer or constable assisting suspects on reasonable grounds that the thing contains or constitutes evidential material; or
13 After subsection 3K(3)
Insert:
(3AA) The executing officer need not comply with paragraph (3)(a) or (b) if he or she believes on reasonable grounds that to do so might:
(a) endanger the safety of a person; or
(b) prejudice an investigation or prosecution.
14 Subsections 3K(3A) and (3B)
Omit "72 hours", substitute "14 days".
15 After subsection 3K(3C)
Insert:
(3D) A single extension cannot exceed 7 days.
16 Subsection 3L(1)
Repeal the subsection, substitute:
(1) The executing officer or a constable assisting may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes evidential materia l .
Note: A constable can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 3LA.
17 Subsection 3L(1A)
Omit "believes on reasonable grounds that any data accessed by operating the electronic equipment might constitute", substitute "suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes".
18 Paragraphs 3L(1A)(a) and (b)
Omit "the data", substitute "any or all of the data accessed by operating the electronic equipment".
19 Subsection 3L(4)
Omit "believes", substitute "suspects".
20 Section 3LA
Repeal the section, substitute:
3LAA Use of electronic equipment at other place
(1) If electronic equipment found at the warrant premises is moved to another place under subsection 3K(2), the executing officer or a constable assisting may operate the equipment to access data (including data held at another place).
(2) If the executing officer or constable assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.
(3) If the Commissioner is satisfied that the data is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the Commissioner must arrange for:
(a) the removal of the data from any device in the control of the Australian Federal Police; and
(b) the destruction of any other reproduction of the data in the control of the Australian Federal Police.
(4) If the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she 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) A constable 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 by the occupier of the equipment could constitute an offence.
3LA Person with knowledge of a computer or a computer system to assist access etc.
(1) A constable may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a constable 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 on warrant premises; or
(ii) has been removed from warrant premises under subsection 3K(2) and is at another place for examination or processing; or
(iii) has been seized under this Division and is no longer on the warrant premises;
(b) copy data held in, or accessible from, a computer, or data storage device, described in paragraph (a) to another data storage device;
(c) convert into documentary form or another form intelligible to a constable:
(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
(iii) data held in a data storage device removed from warrant premises under subsection 3L(1A).
(2) The magistrate may grant the order if the magistrate is satisfied that:
(a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device; and
(b) the specified person is:
(i) reasonably suspected of having committed the offence stated in the relevant warrant; or
(ii) the owner or lessee of the computer or 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; or
(vi) a person who is or was a system administrator for the system including the computer or device; and
(c) 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:
(a) the computer or data storage device that is the subject of the order is seized under this Division; and
(b) the order was granted on the basis of an application made before the seizure;
the order does not have effect on or after the seizure.
Note: An application for another order under this section relating to the computer or data storage device may be made after the seizure. If the other order is made after the computer or device has been removed from the warrant premises, that other order can specify conditions relating to the provision of information or assistance.
(4) If the computer or data storage device is not on warrant premises, 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
(c) specify the conditions (if any) determined by the magistrate as the conditions to which the requirement on the person to provide the information or assistance is subject.
(5) A person commits an offence if the person fails to comply with the order.
Penalty for contravention of this subsection: Imprisonment for 2 years.
21 Paragraph 3LB(1)(a)
After "subsection 3L(1)", insert "or 3LAA(1)".
22 Paragraph 3LB(1)(d)
After "subsection 3L(1A) or (2)", insert "or 3LAA(2) or (4)".
23 Section 3M
Repeal the section, substitute:
3M Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in section 3K, 3L or 3LAA:
(i) damage is caused to the equipment; or
(ii) damage is caused to data recorded on the equipment or data access to which was obtained from the operation of the equipment; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier's employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
(5) Compensation is payable out of money appropriated by the Parliament.
(6) For the purposes of subsection (1):
"damage" , in relation to data, includes damage by erasure of data or addition of other data.
24 Paragraph 3N(2)(a)
After "paragraph 3L(2)(b)", insert "or 3LAA(4)(b)".
25 Application
(1) The amendments made by this Part apply in relation to warrants issued on or after the commencement of this Part.
(2) However, section 3LA of the Crimes Act 1914 as amended by this Part applies in relation to orders under that section made after the commencement of the amendments. For this purpose it does not matter whether one or more of the following events occurred before, on or after that commencement:
(a) the issue of the warrant concerned;
(b) the removal or seizure of the computer or data storage device (if such removal or seizure is relevant to applying for or making the order concerned).