House of Representatives

Explanatory Memorandum

Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP

Schedule 2 - Search warrants

GENERAL OUTLINE

The amendments contained in this Schedule target two main aspects of the search warrant provisions in the Crimes Act 1914 . Firstly, the reforms will allow material seized under Part IAA of the Crimes Act to be used by, and shared between, Commonwealth, State and Territory law enforcement agencies. This is necessary for the proper investigation of offences which cross jurisdictional boundaries.

The second component of the amendments will ensure that law enforcement agencies are able to effectively and efficiently access and search electronic equipment.

Crimes Act 1914

Items 1 and 2

Paragraph 3ZV(1)(b) and subsection 3ZV(2) deal with when things seized under section 3T (searches without warrant in emergency situations) must be returned. Section 3ZW allows a magistrate to make an order that a thing seized under section 3T can be retained for a further period.

Sections 3ZV and 3ZW will be repealed by Item 10 and replaced by the insertion of sections 3ZQY and 3ZQZ under Item 8. New section 3ZQY will set out when things seized under Division 3 of Part IAA (eg section 3T) must be returned. New section 3ZQZ will allow a magistrate to make an order that a thing seized under Division 3 can be retained for a further period.

Item 9 will also insert new section 3ZQX which replaces the remainder of section 3ZV, dealing with things seized under provisions in Part IAA other than section 3T.

Items 1 and 2 are necessary as a consequence of Items 9 and 10.

A range of provisions in Part IAA confer powers and functions on magistrates. Subsection 3C(1) provides that in certain sections (including section 3ZW) magistrate has a meaning affected by section 3CA. This is because the functions under those sections (including section 3ZW) are not traditional functions of judicial officers.

Section 3CA provides, among other things, that: the function of making an order under section 3ZW is conferred on the magistrate in a personal capacity (subsection 3CA(1)); an order made by a magistrate under section 3ZW only has effect by virtue of this Act and the order not to be taken by implication to be made by a court (subsection 3CA(2)); a magistrate performing a function under section 3ZW has the same protection and immunity as if the magistrate were performing that function as a member of the Court to which they belong; and, the Governor-General may make arrangements for magistrates to perform the functions of making orders under section 3ZW (subsection 3CA(4)).

Item 1 will replace the reference to section 3ZW in subsection 3C(1) with new section 3ZQZ. Item 2 will replace references to section 3ZW in subsections 3CA(1)-(4) with new section 3ZQZ.

Item 3

Subsection 3F(5) currently provides that a thing that has been seized (seized material) can be made available to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate. This provision limits the ability of Commonwealth law enforcement officers to share seized material with State or Territory officers for the purpose of investigating a State offence. This has prevented effective law enforcement cooperation between the Commonwealth and the States and Territories. The provision also prevents Commonwealth law enforcement agencies from sharing seized material with foreign agencies for the investigation of an Australian offence.

Item 9 will insert detailed rules governing the sharing of seized material under new section 3ZQU. Accordingly, subsection 3F(5) is no longer necessary and will be repealed by Item 3.

Item 4

Section 3L governs the use of electronic equipment which is found on a search warrant premises. Subsection 3L(1A) allows an executing officer to copy data and take it from the warrant premises.

Subsection 3L(1B) outlines when data taken from electronic equipment at the premises must be destroyed. Currently under subsection 3L(1B), data must be destroyed if the Commissioner of the AFP is satisfied that the data is not required, or no longer required, for:

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investigating a Commonwealth, State or Territory offence

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judicial proceedings or administrative review proceedings

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investigating or resolving complaints under the Ombudsman Act about the AFP or under the Privacy Act, or

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investigating or resolving AFP conduct or practices issues.

Item 9 will insert detailed rules governing the use of seized material under new section 3ZQU. These uses generally include the purposes set out in subsection 3L(1B).

This item will repeal and replace paragraph 3L(1B)(b), and instead require data to be destroyed if the Commissioner is satisfied that the data is not required, or no longer required, for a purpose mentioned in new section 3ZQU (to be inserted by Item 9) or for other judicial or administrative review proceedings.

The reference to judicial or administrative review proceedings will be retained, as things seized in certain circumstances may be needed for administrative review or judicial proceedings outside the scope of uses that will be listed in new section 3ZQU. The other requirements currently in paragraph 3L(1B)(b) will be contained in section 3ZQU.

It would be inappropriate to include any judicial or administrative review proceedings as a reason for which something can be shared under subsection 3ZQU(1). However, it is important that data is not required to be destroyed if it is required for judicial or administrative review proceedings. An example of where a thing seized during the execution of a warrant may be needed for administrative or judicial review proceedings is where a challenge to the execution of the warrant is brought before a court. In this instance, it may be necessary to produce the things seized as evidence in the proceedings as proof that they were properly seized under the warrant.

Items 5 - 8

Division 3A of Part IAA sets out powers to stop, question and search persons in relation to terrorist acts. Under Division 3A, police officers have search and seizure powers (sections 3UD and 3UE respectively).

Section 3UF outlines how a thing seized under section 3UE is to be dealt with. In particular, subsections 3UF(4)-(7) set out when a thing that has been seized needs to be returned. Further, subsection 3UF(9) and section 3UG deal with applications and orders for things that are seized to be returned or retained for a further period (or otherwise dealt with).

Items 5, 6 and 7 will repeal subsections 3UF(4)-(7) and (9) and section 3UG respectively. These provisions will be replaced by new sections 3ZQZA and 3ZQZB inserted by Item 9. New sections 3ZQZA and 3ZQZB will set out when things seized under Division 3A must be returned. New section 3ZQZA will allow a magistrate to make an order that a thing seized under Division 3A can be retained for a further period. Under section 3UK, the powers and duties in Division 3A (other than the those in sections 3UF and 3UG which deal with the return of seized things) are subject to a 10 year sunset clause (from the date of commencement of the Division, which was 15 December 2005). Item 8 will remove the reference to section 3UG from section 3UK as Item 7 will repeal section 3UG.

Item 9

Part IAA sets out the main search, information gathering and arrest powers that police use to investigate Commonwealth offences (as well as Territory offences and State offences with a federal aspect).

Item 9 will insert a comprehensive regime for:

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the use and sharing of things that are seized, and documents that are produced, under Part IAA (new section 3ZQU)

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operating seized electronic equipment and compensation for damage to electronic equipment (new sections 3ZQV and 3ZQW), and

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the return of things seized under Part IAA (new sections 3ZQX - 3ZQZB).

Subdivision A - using and sharing of seized things and documents produced

A search warrant for the investigation of Commonwealth offences can be obtained by applying to an issuing officer. For a warrant to be issued, the issuing officer must be satisfied that there are reasonable grounds for suspecting that there is or will be in the next 72 hours evidential material on the premises (subsection 3E(1)). Evidential material is defined in subsection 3C(1) of the Crimes Act to mean a thing relevant to an indictable or summary offence, including such a thing in electronic form.

A thing can be seized under a warrant if it is relevant to the offence stated in the warrant or if the executing officer believes it to be evidential material in relation to another offence. This includes operating and seizing electronic equipment that is on a warrant premises.

Use and sharing of things seized and documents produced

The current provisions in Part IAA do not specify how things seized under Part IAA can be used. As a result, there is uncertainty as to whether law enforcement agencies can use seized material for purposes other than those for which it was seized. For example, it is not clear whether things seized for the investigation of a particular offence can be used for: the investigation or prosecution an unrelated offence; for proceedings under the Proceeds of Crime Act; or other law enforcement purposes such as applying for the use of a control order under Part 5.3 of the Criminal Code). The legislation governing other investigative methods such as surveillance devices or telecommunications intercepts contain detailed rules about use of any information obtained. It is therefore possible that a court could limit the uses of material seized to purposes specifically provided for in Part IAA.

Subsection 3F(5) currently provides that a thing that has been seized can be made available to 'officers of other agencies' if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate. This provision limits the ability of the officer who seized the thing sharing the seized material with State or Territory police officers for the purpose of investigating a State offence. This has prevented effective law enforcement cooperation between the Commonwealth and the States and Territories. The provision also prevents seized things being shared with foreign agencies for the investigation of an Australian offence.

Sharing of seized things with a foreign agency for the investigation of a foreign offence is governed by the Mutual Assistance in Criminal Matters Act 1987 .

Division 4B provides authorised AFP officers with the power to request information or documents relating to terrorist acts and serious terrorism and non-terrorism offences. Terrorist act is defined as having the same meaning as in subsection 100.1(1) of the Criminal Code. A terrorism offence is defined in section 3 of the Crimes Act to mean an offence against Subdivision A of Division 72 of the Criminal Code or an offence against Part 5.3 of the Criminal Code. A serious offence is offence is defined in section 3C of the Crimes Act as any Commonwealth or Territory offence or State offence with a federal aspect that is punishable by 2 or more years imprisonment that is not a serious terrorism offence (most terrorism offences). Like things seized under Part IAA, Division 4B also does not specify how seized documents can be used and whether they can be used for purposes other than those for which they were produced.

To enable police to properly perform their duties, it is important that things or documents that are lawfully acquired (either by being seized under Part IAA or produced under Division 4B) are able to be used or shared for any necessary purpose connected with, or related to, law enforcement functions and activities. Accordingly, this item will insert Division 4C which will comprehensively govern how things seized under Part IAA, or information and documents produced under Division 4B, can be used and shared.

However, the new Division will not expand or alter in any way the grounds on which a search warrant can be obtained or the grounds upon which things may be seized or the grounds on which documents can be required to be produced under Division 4B. For example, under the amendments, it will still not be possible to seek a search warrant purely for the purpose of obtaining material to support control order or proceeds of crime proceedings, or to seize material for those purposes.

Section 3L currently details the powers of officers executing a warrant in relation to electronic equipment. However, there are no provisions governing how equipment can be used after seizure, and what material may be accessed from electronic equipment after it has been seized.

Section 3ZQU

Section 3ZQU will govern the use and sharing of things seized under Part IAA and information and documents produced under Division 4B.

Subsection 3ZQU(1) will set out the purposes for which things or information and documents (including copies of documents) can be used and shared by a constable or Commonwealth officer with another constable or Commonwealth officer.

Constable is defined in subsection 3(1) as a member or special member of the AFP or a member of the police force or police service of a State or Territory. Commonwealth officer is defined in subsection 3(1) as a person holding office under, or employed by, the Commonwealth (including Commonwealth public servants).

This means, for example, that under subsection 3ZQU, a constable who is a member (or special member) of the AFP will be able to share a thing seized under Part IAA with another member (or special member) of the AFP, with a constable who is a member of a State or Territory police force or service, or with a Commonwealth officer.

Enabling things that have been seized, or information or documents that have been produced, to be used by, or and shared, with constables is appropriate as both the AFP and a State or Territory police force or service may be involved in the investigation of Commonwealth offences (or Territory offences or State offences with a federal aspect) as part of a joint task force. Enabling things that have been seized, or documents that have been produced, to be used by, or shared with, Commonwealth officers is also appropriate. For example, it may be necessary to share a seized thing with a tax auditor for revenue enforcement purposes.

Under subsection 3ZQU(1), the use and sharing of things that have been seized, or documents that have been produced, will be permitted if it is necessary to do so for the reasons below. The provisions do not presuppose that these uses are not available currently, but puts the issue beyond doubt by providing a direct legislative basis for each of the following uses.

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Preventing, investigating or prosecuting an offence (offence is defined in subsection 3C(1) as an offence against a law of the Commonwealth (other than the Defence Force Discipline Act 1982 ), an offence against a law of a Territory, or a State offence that has a federal aspect (defined in section 3AA). For example, the AFP execute a search warrant on a premises as part of the investigation of a Commonwealth serious drug offence. In conducting the search, evidence relevant to the suspected drug offences (such as banking records) is seized. It is later discovered that the banking records reveal evidence of an unrelated offence (such as money-laundering). It is appropriate that the bank records can be used as evidence to support a prosecution not only for the drug offences for which they were originally seized, but also for of the money-laundering offences.

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Proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002 or a corresponding law within the meaning of either of these Acts. For example, it is also appropriate that evidence seized in relation to a Commonwealth serious drug offence is able to be used in confiscation proceedings under the Proceeds of Crime Act for example, to seek an order to restrain the property of the suspect (section 18, Proceeds of Crime Act 2002).

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Proceedings for the forfeiture of the thing under a law of the Commonwealth (for example, section 229 of the Customs Act 1901 ). For example, if drugs are seized in relation to a Commonwealth serious drug offence, and those drugs were illegally imported, the inclusion of this purpose will allow the drugs, and any other evidence obtained, to be used as evidence in proceedings for the forfeiture of the drugs.

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Proceedings, applications, requests relating to control orders and preventative detention orders under Part 5.3 of the Criminal Code. For example, if a search warrant is executed as part of the investigation of possible terrorism offences, it is appropriate that any evidence seized during the execution of that warrant be able to be used to support an application for, or proceedings related to, control orders and preventative detention orders. This ensures the AFP has all evidence available to them when taking actions under Part 5.3 to prevent terrorist attacks.

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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; investigating or resolving an AFP conduct or practices issue (which are dealt with under Part V of the AFP Act); investigating or resolving a complaint under the Ombudsman Act or the Privacy Act; and investigating or inquiring into a corruption issue under the Law Enforcement Integrity Commissioner Act 2006 . These uses are all necessary to ensure the oversight mechanisms in place to monitor the exercise of police powers are able to operate effectively. These provisions will also enable the use or sharing for proceedings in relation to any of the above issues. For example, where the Integrity Commissioner is investigating an allegation of corruption, it may be necessary for him or her to be able to access things the person the subject of the allegation has seized. Similarly, a thing that has been seized may also be relevant to the investigation of a complaint under the Privacy Act.

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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 (for example, a document produced under Division 4B will be able to be used in deciding whether to make an application for an interim control order under section 104.3 of the Criminal Code)

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The performance of the functions of the AFP under section 8 of the AFP Act. The AFP's functions include the provision of police services, the safeguarding of Commonwealth interests and performing the functions conferred by the Witness Protection Act 1994 and the Proceeds of Crime Acts. This purpose will ensure that the AFP have the legislative authority to use and share seized material, and information and documents, for all AFP purposes whether or not they are covered by another item in subsection 3ZQU(1).

Subsection 3ZQU(2) will allow a 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 other use that is required or authorised by or under a law of a State or a Territory. Subsection 3ZQU(3) will also allow a constable or Commonwealth officer to make available to another constable or Commonwealth officer a thing seized under this Part, or the original or a copy of a document produced under Division 4B, to be used for any purpose for which the making available of the thing or document is required or permitted by a law of a State or Territory. These provisions are necessary to ensure that they do not override any other provision in State or Territory legislation which allows seized material to be used for other purposes.

Subsection 3ZQU(4) states that this section will not limit any other law of the Commonwealth that requires or authorises the use of a document or other thing, or requires or authorises the making available (however described) of a document or other thing. This also clarifies that these provisions, while providing direct legislative authority for certain uses, will not override any other uses authorised under another law of the Commonwealth.

All of these purposes for using and sharing things that are seized, and documents produced, are important in ensuring that law enforcement agencies are able to operate within a clear framework that enables them to properly carry out their designated functions.

The use and sharing of things that have been seized, and documents that have been produced, is also necessary for the proper investigation of offences which cross jurisdictional boundaries. Serious and organised criminal activity does not respect State and Territory borders, or the divide between Commonwealth, State and Territory legislative powers. It is important that there are appropriate mechanisms in place to allow evidential material to be used and shared to combat multi-jurisdictional crime. Under the current provisions, where the AFP discovers that things they have seized are relevant to a State offence, it is unclear whether there is scope for the AFP to share the item with the relevant State law enforcement agency. One mechanism to facilitate sharing of physical items with State law enforcement agencies is for the AFP to notify the relevant State law enforcement agency about the seizure. The State law enforcement agency would then execute a search warrant on the AFP in order to seize the material. This amendment will ensure there is a direct basis for the sharing of material between agencies.

Subsection 3ZQU(5) will provide a clear legislative basis for things that have been seized under Part IAA, or information and documents produced under Division 4B, to be shared by a constable or Commonwealth officer with State and Territory law enforcement agencies. State or Territory law enforcement agency will be defined in subsection 3ZQU(7) as the police force or police service of a State or Territory, and law enforcement bodies in New South Wales (Crime Commission, Independent Commission Against Corruption and Police Integrity Commission), Victoria (Office of Police Integrity), Queensland (Crime and Misconduct Commission) and Western Australia (Corruption and Crime Commission). It is appropriate to allow sharing with these agencies as they are responsible for law enforcement in the States and Territories. This definition is based on the definition of 'law enforcement agency' in section 6 of the Surveillance Devices Act 2004 .

Under subsection 3ZQU(5), a thing that has been seized, or a document (or copy of a document) that has been produced will be able to be shared for any or all of the purposes listed in subsection 3ZQU(1)-(3) (described above) as well as any or all of the following additional purposes (but not for any other purpose).

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Preventing, investigating or prosecuting an offence against a law of a State or Territory. It is appropriate to allow evidence to be shared with State and Territory law enforcement agencies to enable multi-jurisdictional criminal activity to be properly investigated and prosecuted. Crimes crossing jurisdictional boundaries are becoming more prevalent due to increases in information and communication technology and the increasing sophistication of serious and organised crime groups.

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Proceedings under a corresponding law for a State or Territory offence (within the meaning of the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002). These provisions will enable the seized things to be shared with the appropriate State or Territory law enforcement agency if needed for confiscation proceedings.

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Proceedings for the forfeiture of things under a law of a State or Territory.

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Deciding whether to institute proceedings or to take other action mentioned in any of the above.

Subsection 3ZQU(5) provides a framework governing the purposes for which constables and Commonwealth officers can share things that are seized or documents that are produced with State and Territory law enforcement agencies. While this subsection will regulate the decision by a constable or Commonwealth officer to share material, it will not govern the process of how such material would be shared, or how the State or Territory law enforcement agency then uses the material. This is because such matters are not within the scope of the Commonwealth's legislative powers.

Subsection 3ZQU(5) will also allow material to be shared with foreign agencies that have responsibility for law enforcement, intelligence gathering, or security for the same purposes outlined for sharing with State and Territory law enforcement agencies. These provisions will not enable the item to be shared for the investigation of a foreign offence. This will continue to be governed by the Mutual Assistance in Criminal Matters Act 1987 .

It is appropriate to allow material to be shared with foreign agencies for the investigation of Commonwealth, State or Territory offences due to the international aspect of many modern offences. For example, child pornography images are often shared by computer users across the globe. Seizure of a hard drive from a computer can provide evidence of the distribution and origin of images. The data seized from the hard drive (including images) may be required to be shared with foreign law enforcement agencies to determine the origin of images.

Subsection 3ZQU(6) will provide that new Division 4C will not prevent the Minister from entering into an arrangement (under his or her Executive power) with a State or Territory Minister to govern the sharing and disposal of things that are seized, or documents (or copies of documents) that are produced under Part IAA.

A Ministerial arrangement could be used to set out the responsibilities and duties of both the sharing and receiving agency, including:

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the process for when something is to be shared

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the relevant record-keeping responsibilities of both jurisdictions, and

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who bears responsibility for the loss of, or damage to, the shared material.

New South Wales is the only jurisdiction that currently allows material to be shared with the Commonwealth under a ministerial arrangement. Section 29A of the Terrorism (Police Powers) Act 2002 (NSW) allows the relevant New South Wales and Commonwealth Ministers to enter into a ministerial arrangement allowing:

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New South Wales to share things seized under the Terrorism (Police Powers) Act with the Commonwealth, if the material may be relevant to the investigation of an offence against the law of the Commonwealth, and

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the Commonwealth to share things seized under the law of the Commonwealth with New South Wales, that may be relevant to the investigation of an offence against the law of New South Wales.

As the Terrorism (Police Powers) Act does not allow for a unilateral arrangement, New South Wales could not share material with the Commonwealth unless a ministerial arrangement is in place which also allows the Commonwealth to share material with New South Wales.

This subsection will ensure that the Minister will be able to enter into a ministerial arrangement with a State or Territory, to enable sharing with a jurisdiction which requires a ministerial arrangement to govern when seized material can be shared by the particular State or Territory. If a ministerial arrangement is not required under the State or Territory legislation, the Commonwealth would still be able to share seized material with a State or Territory under the legislative provisions in section 3ZQU.

Section 3ZQV

Under section 3L, an executing officer can operate equipment at the search warrant premises to access data held in, or accessible from, the equipment at the search warrant premises. Section 3K allows a thing found at the warrant premises to be moved to another place for examination or processing to determine if it may be seized under the warrant.

However, if the executing officer seizes or moves the electronic equipment, it is not clear what can be done with the equipment when it is no longer on the warrant premises. It is likely that an officer who seizes or moves a mobile phone, could operate that phone at any time, and at any premises, to access Short Message Service (SMS) messages which are stored on the memory contained within the handset. However, it is unclear if officers have the power to access voicemail messages from the seized or moved mobile phone that is stored on computer servers held with a telecommunications company.

Subsection 3ZQV(1) will provide that the section will apply to all electronic seized under Part IAA of the Crimes Act or moved from warrant premises under section 3K.

Subsection 3ZQV(2) will recognise that an officer who seizes, or moves under section 3K, any electronic equipment (for example, a mobile phone) will be able to operate that equipment at any location after it has been seized or moved for the purpose of determining whether data held on or accessible from the electronic equipment is evidential material. This is necessary to ensure officers are able to properly analyse all material seized or moved from a warrant premises in the same way they would further analyse documents taken a warrant premises.

Paragraph 3ZQV(3)(a) will allow data held on the electronic equipment to be accessed. For example, word documents or photos saved on a computer's hard drive. This paragraph also extends to accessing data on the electronic equipment at the time of examination or processing that may not have been held on the electronic equipment at the time the electronic equipment was seized or moved. For example, this will allow a phone to be operated to access an SMS that was sent to the phone after the phone was seized or moved.

Paragraph 3ZQV(3)(b) will also allow data that is not held on the electronic equipment, but can be accessed by using the electronic equipment, to be accessed. For example, accessing a voicemail message, stored on the computer server of a telecommunications company, made prior to the seizure of a mobile phone.

This paragraph also extends to data that was not accessible by using the electronic equipment at the time of the electronic equipment was seized or moved. For example, after a mobile phone is seized (or moved), a voice mail message is recorded and stored on the computer server of a telecommunications company. This voicemail message, even though it was made after the time of seizure, can be lawfully accessed under this section.

The Telecommunications (Interception and Access) Act 1979 provides a warrant-based regime for covertly accessing stored communications. For the purposes of that regime, a stored communication is a communication (such as a voice mail) that can only be accessed by the parties to the communication (eg the recipient of the voicemail) or a telecommunications company (upon whose computer server the voicemail is stored).

Accessing voicemail or other electronic data under section 3ZQV (even where the voicemail was received after the mobile phone was seized) is different from accessing a stored communication because the data is being accessed overtly rather than covertly as the individual knows that his or her mobile phone has been seized. Section 3Q of the Crimes Act requires the executing officer, or constable assisting, to provide a receipt of all things seized under a warrant.

This section will not affect the time limits in section 3K which apply to how long electronic equipment can be moved for (to be amended in Items 14 and 15).

Section 3ZQW will provide for the payment of compensation for any damage resulting from the use of electronic equipment under section 3ZQV. Compensation will be payable for any damage to the electronic equipment itself, to data recorded on, or accessed from the electronic equipment, or programs associated with the equipment.

If the owner and the Commonwealth cannot agree on a reasonable level of compensation, the owner or user can institute court proceedings. The court will then determine what a reasonable amount of compensation will be in the circumstances.

This principle is consistent with existing provisions of Part IAA (eg section 3M) and the Commonwealth's constitutional obligation to pay just terms for acquisition of property (including loss of property other than under forfeiture or penalty).

Subdivisions B, C and D

Part IAA currently has three different schemes governing when a thing that has been seized must be returned. Paragraph 3ZV(1)(a) sets out when things seized under Part IAA must be returned. Paragraph 3ZV(1)(b) and subsection 3ZV(2) deal with when things seized under section 3T (Division 3 - searches without warrant in emergency situations) must be returned. Section 3ZW allows a magistrate to make an order that a thing seized under section 3T can be retained for a further period. Further, subsections 3UF(4)-(7) provide when a thing that has been seized under Division 3A must be returned and subsection 3UF(9) and section 3UG deal with applications and orders for things that are seized to be returned or retained for a further period (or otherwise dealt with).

Sections 3ZV and 3ZW, subsections 3UF(4)-(7) and (9) and section 3UG will be repealed by Items 5-7 and 10, and will be replaced by the insertion of Subdivisions B, C and D under this item.

While generally these new Subdivisions are based on the current provisions for returning things that are seized (or for making an order allowing further retention of the thing), there is substantive change relating to who must return things.

Section 3ZV and subsections 3UF(4)-(7) and (9) impose the obligation to return the thing that is seized on the constable who seized the thing. Further, only the constable who seized the thing may apply for an order under section 3ZW or 3UG that the thing may be retained for a further period. Constable is defined in subsection 3(1) to mean a member or special member of the AFP or a member of a State or Territory police force or police service.

It is not operationally practicable to require the constable who seized the thing to continue to retain responsibility for the thing until it is returned. This is because the officer may not continue to be involved with the operation, or the thing may be required to be used for a different purpose that the seizing officer is not involved in.

Subdivisions B, C and D will place the obligation to return a thing that has been seized, and the person who may make applications to magistrates, on the Commissioner of the AFP. This power will be able to be delegated to any constable under Item 10 which inserts new s3ZW. A 'constable' can include a State or Territory police officer (section 3C).

This delegation provision ensures that the officer who is the most appropriate to handle retention in each case will be tasked with that responsibility. It is appropriate that there be capacity for the Commissioner to delegate to State or Territory police, given that they have access to the Part IAA search and seizure powers and will in some cases have immediate control over the handling of seized material.

Subdivision B - Returning things seized under Division 2 or 4

Section 3ZQX

Section 3ZQX will replace current section 3ZV (which will be repealed by Item 10).

Subsection 3ZQX(1) will outline when a thing seized under Divisions 2 or 4 needs to be returned to the person from whom it was seized, or to the owner of the thing. This subsection will require the Commissioner of the AFP to take reasonable steps to return the thing: when it is not required, or no longer required, for a purpose set out in section 3ZQU (also inserted by this item) or for administrative or judicial review proceedings.

Section 3ZQU, inserted by this item, sets out the purposes for which a thing that has been seized, or a document produced, under Part IAA can be used or shared. These purposes include: investigating a Commonwealth, Territory or State offence with a federal aspect; proceedings under the Proceeds of Crime Act 1987 or Proceeds of Crime Act 2002; and proceedings for control orders or preventative detention orders.

The reference to judicial or administrative review proceedings will be necessary as things seized in certain circumstances may be needed for administrative review or judicial proceedings outside the scope of uses that will be listed in new section 3ZQU. An example of where a thing seized during the execution of a warrant may be needed for administrative or judicial review proceedings is where a challenge to the execution of the warrant is brought before a court. In this instance, it may be necessary to produce the things seized as evidence in the proceedings as proof that they were properly seized under the warrant.

However, under section 3ZQX, the Commissioner will not have to take reasonable steps to return the thing that has been seized if the thing:

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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 Territory, or

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is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

Section 3ZQX differs from section 3ZV in three ways. First, and for the reasons described above, it imposes the obligation to return the thing that has been seized on the Commissioner of the AFP rather than the constable who seized the thing. Second, paragraph 3ZV(1)(a) only requires the thing to be returned if the reason for its seizure no longer exists or it is decided that it is not to be used in evidence. Section 3ZQX will require the thing to be returned when it is not required, or no longer required, for a purpose set out in section 3ZQU (also inserted by this item) or for administrative or judicial review proceedings.

Finally, subsection 3ZV(1) does not require the return of the thing if the thing is forfeited or forfeitable to the Commonwealth or is subject of a dispute as to ownership. Section 3ZQX includes an additional scenario so that the thing will not have to be returned if 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 Territory.

Subdivision C - Returning things seized under Division 3

Sections 3ZQY and 3ZQZ

Sections 3ZQY and 3ZQZ will replace section 3ZV and 3ZW which will be repealed by item 10.

Section 3ZQY will require the Commissioner to take reasonable steps to return a thing seized under Division 3 when one of the following two things occur:

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the seized thing is not required or no longer required for use or sharing for one of the purposes in section 3ZQU or for administrative or judicial review proceedings, or

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60 days passes after the thing has been seized.

Section 3ZQU, inserted by this item, sets out the purposes for which a thing that has been seized, or a document produced, under Part IAA can be used or shared. These purposes include: investigating a Commonwealth, Territory or State offence with a federal aspect; proceedings under the Proceeds of Crime Act 1987 or Proceeds of Crime Act 2002; and proceedings for control orders or preventative detention orders.

The reference to judicial or administrative review proceedings will be necessary as things seized in certain circumstances may be needed for administrative review or judicial proceedings outside the scope of uses that will be listed in new section 3ZQU. An example of where a thing seized during the execution of a warrant may be needed for administrative or judicial review proceedings is where a challenge to the execution of the warrant is brought before a court. In this instance, it may be necessary to produce the things seized as evidence in the proceedings as proof that they were properly seized under the warrant.

However, the thing will not have to be returned under section 3ZQY if the thing:

•

is likely to be used in evidence in proceedings in that have commenced

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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 Territory

•

may be retained because of an order under section 3ZQZ, or

•

is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

Section 3ZQY will differ from section 3ZV in three ways. First, and for the reasons described above, it imposes the obligation to return the thing that has been seized on the Commissioner of the AFP rather than the constable who seized the thing. Second, paragraph 3ZV(1)(b) only requires the thing to be returned if the reason for its seizure no longer exists, it is decided that it is not to be used in evidence or the period of 60 days after its seizure ends. Section 3ZQY will differ from paragraph 3ZV(1)(b) in that the thing will have to be returned if it is not required, or no longer required, for a purpose set out in section 3ZQU (also inserted by this item) or for administrative or judicial review proceedings.

Finally, subsection 3ZV(2) allows a thing to be retained if the thing is likely to be used in evidence in proceedings that have commenced; 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 Territory; or may be retained because of an order under section 3ZW. Section 3ZQY will, as well as the reasons in subsection 3ZV(2), allow a thing to continue to be retained if the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

Section 3ZQZ will allow the Commissioner to apply to a Magistrate for an order to retain the thing beyond the 60 days. The Magistrate will be able to grant an order allowing the thing to be retained for the period specified in the order if satisfied that the thing is being used, or is required to be used for a purpose in section 3ZQU.

Prior to making the application, the Commissioner will have to take reasonable steps to discover and notify each person who has an interest in the retention of the thing.

Section 3ZQZ will differ from section 3ZW in two ways. Firstly, section 3ZW only allows the constable who seized the thing to apply for the order. Section 3ZQZ, for the reasons described above, will allow the Commissioner of the AFP to make the application. Secondly, section 3ZW only allows a magistrate to order that a thing continue to be retained if it is necessary for the purposes of an investigation as to whether an offence has been committed, or to enable evidence of an offence to be secured for the purposes of a prosecution. Section 3ZQZ will allow a magistrate to order that a thing can continue to be retained if satisfied that the thing is being used, or is required to be used, for a purpose mention in section 3ZQU or for other judicial or administrative review proceedings.

Subdivision D - Returning things seized under Division 3A

Sections 3ZQZA and 3ZQZB

Sections 3ZQZA and 3ZQZB will replace subsections 3UF(4)-(7) and 3UF(9) and section 3UG which will be repealed by items 5 to 7.

Under section 3ZQZA, the owner of a thing seized under Division 3A will be able to request the return of a thing. If a request is made, the Commissioner will be required to take reasonable steps to return the thing to the owner.

The Commissioner will not be required to take those steps if the Commissioner suspects on reasonable grounds that the thing, if returned, is likely to be used in the commission of a terrorist act, a terrorism offence or other serious offence. Terrorist act will have the same meaning as in subsection 100.1(1) of the Criminal Code. A terrorism offence is defined in section 3 of the Crimes Act to mean an offence against Subdivision A of Division 72 of the Criminal Code or an offence against Part 5.3 of the Criminal Code. A serious offence is defined in subsection 3C(1) of the Crimes Act as any Commonwealth or Territory offence or State offence with a federal aspect that is punishable by 2 or more years imprisonment that is not a serious terrorism offence (most terrorism offences).

The Commissioner will also not have to take steps to return the thing if the thing is being used, or is required to be used for a purpose in section 3ZQU or for administrative or judicial review proceedings.

Section 3ZQU, inserted by this item, sets out the purposes for which a thing that has been seized, or a document produced, under Part IAA can be used or shared. These purposes include: investigating a Commonwealth, Territory or State offence with a federal aspect; proceedings under the Proceeds of Crime Act 1987 or Proceeds of Crime Act 2002; and proceedings for control orders or preventative detention orders.

The reference to judicial or administrative review proceedings will be necessary as things seized in certain circumstances may be needed for administrative review or judicial proceedings outside the scope of uses that will be listed in new section 3ZQU. An example of where a thing seized during the execution of a warrant may be needed for administrative or judicial review proceedings is where a challenge to the execution of the warrant is brought before a court. In this instance, it may be necessary to produce the things seized as evidence in the proceedings as proof that they were properly seized under the warrant.

The Commissioner will also be able to apply to a magistrate for an order under section 3ZQZB to retain the thing if he or she wishes to retain the thing beyond 90 days.

Section 3ZQZA will differ from subsection 3UF(4)-(7) and 3UF(9) in two ways. First, section 3ZQZA will impose the obligation to return the thing that has been seized on the Commissioner of the AFP rather than on the police officer responsible for the thing for the time being. This change is to ensure consistency with Subdivisions B and C which will refer to the Commissioner. Second, subsections 3UF(6) and (7) outline that the thing does not need to be returned if the thing is likely to be used in the commission of a terrorist act or serious offence, or the thing is evidence of, or relating to, a terrorist act or serious offence. Under section 3ZQZA, a thing will not have to be returned if the Commissioner suspects on reasonable grounds that the thing, if returned, is likely to be used in the commission of a terrorist act, a terrorism offence or other serious offence, or the thing is being used, or is required to be used for a purpose in section 3ZQU or for administrative or judicial review proceedings.

Section 3ZQZB will provide that if an application is made, the owner of the thing has the right to appear and be heard at the application. The magistrate may order that the thing be retained if the thing is being used, or is required to be used for a purpose in section 3ZQU or for administrative or judicial review proceedings.

If the magistrate is satisfied that the thing, if returned, is likely to be used in the commission of a terrorist act, a terrorism offence or other serious offence, he or she will be able to order that the thing:

•

continue to be retained

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be forfeited to the Commonwealth, or

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be sold or otherwise disposed of.

The magistrate must otherwise order the thing be returned to the owner.

This section will differ from section 3UG in three ways. First, for the reasons outlined above, the Commissioner will be allowed to make the application.

Second, under subsection 3UG(3), the magistrate must order the thing be retained if satisfied that the thing is evidence of, or relating to, a terrorist act or serious offence. Subsection 3ZQZB(3) will expand this to require the magistrate to order the thing be retained if satisfied that the thing is being used, or is required to be used for a purpose in section 3ZQU or for administrative or judicial review proceedings.

Third, subsection 3UG(4) only allows a magistrate to make an order if the magistrate suspects that, if the thing is returned to the owner, the thing is likely to be used in the commission of a terrorist act or serious offence. Subsection 3ZQZB will expand this to also allow an order to be made if the magistrate suspects that, if the thing is returned to the owner, the thing is likely to be used in the commission of a terrorism offence.

Item 10

Part IAA currently has three different schemes governing when a thing that has been seized must be returned. Two of those schemes are set out in section 3ZV and section 3ZW. Those provisions will be replaced by Item 9, and since they will no longer be required, will be repealed by this item. The new provisions inserted by Item 9 impose obligations on the Commissioner of the AFP to return things that have been seized under Part IAA, and allow the Commissioner to make applications to a magistrate for things to be retained for a further period (or otherwise dealt with).

This item will also insert new 3ZW which will allow the Commissioner to delegate to a constable any or all of his or her powers under Part IAA. Constable is defined in subsection 3(1) as a member or special member of the AFP or a member of the police force or police service of a State or Territory. The only powers, functions and duties in Part IAA for which the Commissioner will be responsible are those relating to the use, sharing and retention of seized material (as inserted by Item 9) and the Commissioner's related powers in relation to the removal or destruction of data on a computer under the existing section 3L and new section 3LAA (inserted by Item 20).

It is necessary to confer the power on the Commissioner because the current approach of placing the responsibility on the officer who seized the item is not practicable. The provision will allow the Commissioner to delegate the power to the officer most appropriately placed to be handling the returning of the item. This is necessary due to the large amounts of seized material that police officers deal with. State and Territory police officers have access to the Part IAA search and seizure powers and will in some cases have immediate control over the handling of seized material. As such, it is necessary and appropriate for the Commissioner to be able to delegate the responsibility of returning seized items to State and Territory police officer officers (a 'constable' can include a State or Territory police officer).

Item 11

This item is an application provision that states that the amendments in this Schedule will apply in relation to things seized, or documents produced, before, on or after commencement of this Part.

This will allow law enforcement agencies to deal appropriately with evidence that they have lawfully acquired prior to the commencement of the amendments.

Part 2 - Use of equipment under warrant

Items 12-15

Where a warrant has been issued under Part IAA, section 3K allows an executing officer or constable assisting to move a thing to another place when it is significantly more practicable to do so and there are reasonable grounds to believe that the thing contains or constitutes evidential material (subsection 3K(2)). Subsections 3K(3)-(3C) allow or require the executing officer to do certain things once a thing has been moved under subsection 3K(2).

Executing officer and constable assisting are both defined in subsection 3C(1) and, to summarise, refer to the constable responsible for executing a warrant, a constable assisting in the execution of a warrant, or a person who is not a constable but who has been authorised to assist in executing the warrant. Evidential material is defined in subsection 3C(1) to mean a thing relevant to an indictable or summary offence, including such a thing in electronic form.

To seize an item, it needs to be relevant to the offence to which the warrant relates or the executing officer needs to believe it is relevant to another offence. Seizure of a thing enables officers to retain that thing for the purposes listed in section 3ZQU (see Item 9). Moving a thing is a separate process. An officer is not able to use a thing which has been moved for the purposes in section 3ZQU. They are only able to examine or process the thing for the purposes of determining whether or not it is able to be seized.

Item 12

This item will amend subparagraph 3K(2)(a)(ii) so that the executing officer or constable assisting only needs to have reasonable grounds to suspect that the thing contains or constitutes evidential material before being able to move it to another place for further examination.

Requiring an executing officer or constable assisting to determine that there are reasonable grounds to believe that the thing contains or constitutes evidential material' is both conceptually and operationally problematic. The test of 'reasonable grounds to believe' is the same test that the executing officer or constable assisting must apply in determining whether to seize a thing that is not specified in the warrant under paragraph 3F(1)(d). If an executing officer or constable assisting genuinely holds 'reasonable grounds to believe' that the thing is evidential material, then it is questionable why they would elect to move the thing for further analysis under section 3K when they would already have grounds to seize the thing under section 3F.

A further example of where the 'reasonable grounds to believe' test in paragraph 3K(2)(a) creates operational difficulties for law enforcement agencies is where a significant amount of material written in a foreign language is located. In these situations, the executing officer, due to their inability to understand its contents, may be unable to form a belief on reasonable grounds that the material contains or constitutes evidential material. This amendment will address this difficulty by allowing the material to be moved if there is a suspicion, on the basis of other material seized or the context of the execution of the warrant, that the thing may contain or constitute such material.

Item 13

Subsection 3K(3) requires the executing officer, if practicable to do so, to:

•

inform the occupier of the search warrant premises of the place and time at which the thing that has been moved under subsection 3K(2) will be examined or processed (paragraph 3K(3)(a), and

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allow the occupier or his/her representative to be present during the examination or processing in the same way they are entitled to be present during the execution of a search warrant (paragraph 3K(b)).

This provision can pose a security concern in some cases by allowing a person suspected of serious offences, including serious and organised crime, to be present with forensics and other police staff during an examination. There is also a risk that sensitive information about investigative practices and procedures could be revealed.

This item will amend insert new section 3AA which will allow an executing officer not to comply with the requirements in paragraphs 3K(a) and (b) if the executing officer believes on reasonable grounds that having the person present might endanger the safety of a person or prejudice an investigation or prosecution. This is similar to subsection 3P(2) under which the right to observe a search ceases if the person impedes the search.

Item 14 and 15

Subsection 3K(3A) currently provides that a thing can only be moved under subsection 3K(2) to another place for examination or processing for a maximum of 72 hours. Subsection 3K(3B) allows an executing officer to apply to an issuing officer for one or more extensions of that time. The executing officer must give notice of the application to extend to the occupier of the premises from where the thing has been moved and the occupier is entitled to be heard in relation to the application (subsection 3K(3C)). Issuing officer is defined in subsection 3C(1) as a magistrate or a justice of the peace or other person employed in a State or Territory court authorised to issue search/arrest warrants.

Item 14 will amend subsections 3K(3A) and 3K(3B) to increase the time period that a thing may be moved to another place for examination from 72 hours to 14 days.

The 72 hour limit for moving a thing for examination or processing poses operational difficulties where it is necessary to examine a large volume of both documentary and electronically stored material.

Operational advice from the AFP indicates that the factors that have directly increased the time required to forensically search and examine data stored on electronic equipment include:

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an increase in the types of electronic equipment that data is able to be stored on including 'thumb' and micro drives, personal organisers, mobile phones, smart cards (including stored value cards and controlled access cards), flash cards (as found in hand held devices and digital camera), GPS systems and navigation units

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an increase in the complexity of electronic storage mediums

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an increase in electronic storage capacity, and

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an increase in the prevalence of security software and encryption technology.

Using current technology, the time required to comprehensively search a single computer hard drive is approximately one day. However, it is not uncommon for multiple pieces of electronic equipment to be seized during a search. For example, a search on a single premise could result in the seizure of two personal computers, two laptops, two external hard drives and two thumb drives. It is not uncommon for an average household to have at least this range of electronic equipment. It would take a computer forensic team, working exclusively on that project, an entire week to preview all the data seized (in excess of three terabytes).

The time required to search the data can then be further exacerbated by factors such as:

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the seizure of material located at multiple premises as part of the one operation which is often the case in the investigation of serious and organised crime offences

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the time taken to decrypt an encrypted computer - on average it takes at least three days to decrypt a computer and longer depending on the complexity of the encryption system, and

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data or material in a foreign language.

Accordingly, an increase from 72 hours to 14 days is necessary for electronic equipment to be properly examined.

Extending the period for which a thing may be moved for examination or processing may potentially cause damage or inconvenience to the occupier of the premises from where the thing was removed. To mitigate potential loss, new subsections 3LAA(2) and (4) (inserted by Item 20) will allow officers to make copies of the thing off-site, so that the original can be returned to the occupier.

Currently subsection 3K(3B) does not place a cap on the amount of time an issuing officer can further extend the period of time to examine or process the thing. Item 15 will insert subsection 3K(3D) which will limit any extension to 7 days. This will require law enforcement officers to continue to justify to an issuing officer why it is necessary for the thing to continue to be retained.

Items 16 - 19

These items will rationalise the various thresholds for examining and seizing material under Part IAA in a similar way to Item 12.

Item 16

Section 3L(1) currently allows an executing officer or a constable assisting to operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she believes on reasonable grounds that the data might constitute evidential material and the equipment can be operated without damaging it. This test is operationally problematic. A search warrant provides authority for the executing officer to search a premises for any evidential material specified in the warrant. As electronic equipment forms part of the warrant premises, it is not necessary for an executing officer or constable assisting to have to form an additional level of belief before they are able to access/operate/examine electronic equipment.

This item will amend subsection 3L(1) to remove this additional threshold. The subsection will simply state that when executing a warrant, an executing officer or a constable assisting to operate electronic equipment at the warrant premises to access data (including data not held at the premises).

This will enable an officer, when executing a warrant to search a computer in the same way a desk or filing cabinet would be searched for documents. This item will not affect in any way the circumstances in which electronic equipment, including data, can be seized.

Items 17

Subsection 3L(1A) allows an executing officer to copy data and take it from the warrant premises if they believe on reasonable grounds that any data accessed by operating the equipment constitutes evidential material.

Requiring an executing officer or constable assisting to determine that there are reasonable grounds to believe that the thing contains or constitutes evidential material' is both conceptually and operationally problematic. The 'reasonable grounds to believe' test is the same test that the executing officer or constable assisting must apply in determining whether a thing that is not specified in the warrant may be seized under paragraph 3F(1)(d). If an executing officer or constable assisting genuinely holds 'reasonable grounds to believe' the thing is evidential material, then it is questionable why they would elect to copy the thing for further analysis under section 3L(1A) when they would already have grounds to seize the thing under section 3F.

This item will amend subsection 3L(1A) to change the test for when data found on electronic equipment can be copied from the reasonable grounds to believe to a reasonable grounds to suspect test. This amendment will bring the provision in line with subparagraph 3K(2)(a)(ii) (which will be amended by Item 12) and simplify and provide consistency across the Act.

This item will also remove the reference to 'might' in subsection 3L(1A). This change is in addition to lowering the test required in these provisions from belief to suspect. If the word 'might' was kept in those provisions, there would still be uncertainty as to how the test was intended to operate. The change will simplify the operation of these provisions and provide clarity to officers as to when they are able to be exercised.

Item 18

Subsection 3L(1A) currently states that if the executing officer or constable assisting suspects (see Item 17) on reasonable grounds that any data accessed by operating the electronic equipment might constitute evidential material, he or she may copy the data to a disk, tape or other associated device brought to, or at, the premises, and take the device from the premises.

This item will amend subsection 3L(1A) to clarify that where, after operating the equipment, the officer suspects (see Item 17) on reasonable grounds that some data constitutes evidential material, he or she will be able to copy any or all data accessed by operating the equipment.

This change will reflect the intention of this provision when it was inserted into the Crimes Act by the Cybercrime Act 2001 . This is necessary as it is often not practicable for officers to search all the data for evidential material while at the search premises and to then copy only the evidential material which is found given the large amounts of data that can be held on electronic equipment.

The amendment will ensure that officers are able to copy all the data on a piece of electronic equipment where an initial search of the equipment uncovers some data which constitutes evidential material.

Item 19

Subsection 3L(4) currently allows an officer to do whatever is necessary to secure electronic equipment on the warrant premises (for example, by placing a guard) where they believe on reasonable grounds that:

•

evidential material may be accessible by operating electronic equipment,

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expert assistance is required to operate the equipment, and

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if action is not taken, the material may be destroyed, altered or otherwise interfered with.

Requiring an executing officer or constable assisting to determine that there are reasonable grounds to believe that evidential material may be accessible by operating the equipment is both conceptually and operationally problematic. The 'reasonable grounds to believe' test is the same test that the executing officer or constable assisting must apply in determining whether a thing that is not specified in the warrant may be seized under paragraph 3F(1)(d). If an executing officer or constable assisting genuinely holds 'reasonable grounds to believe' the thing is evidential material, then it is questionable why they would elect to guard the thing when they would already have grounds to seize the thing under section 3F.

This Item will amend subsection 3L(4) to change the test for equipment may be guarded from the reasonable grounds to believe to a reasonable grounds to suspect test. This amendment will bring the provision in line with subparagraph 3K(2)(a)(ii) (which will be amended by Item 12), as well as paragraph 3LA(2)(a) (which will be amended by Item 20) and simplify and provide consistency across the Act.

Item 20

Section 3L governs the use of electronic equipment at the search warrant premises. Subsection 3K(2) allows a thing found at the warrant premises to be moved to another place for examination or processing to determine if it may be seized under the warrant. However, there is no equivalent provision to section 3L governing the use of electronic equipment after it has been moved from the warrant premises under subsection 3K(2).

Section 3LA currently enables the officer responsible for executing a warrant to apply to a magistrate for an 'assistance order'. An assistance order requires a person to provide reasonable assistance to the officer to access data stored on a computer at the search warrant premises. Officers may need assistance because data contained on a computer on the search warrant premises may be encrypted or access to the data on the computer may be password protected. Once an order is granted, a person is required to provide such assistance as is reasonable. The type of assistance can vary from providing passwords, giving details of encryption methods or explaining how to access the system. It is an offence to fail to comply with the order.

Section 3LAA

Item 20 will insert new section 3LAA. Section 3LAA is modelled on section 3L (as amended by Items 16-19) and will set out what the executing officer or constable assisting are able to do if they move things for further examination under subsection 3K(2).

Subsection 3LAA(1) will allow an executing officer or constable assisting to operate equipment moved under subsection 3K(2) to access data from the equipment. This will include operating electronic equipment to access data that may not be physically located on that particular electronic equipment. This is necessary as computers are able to be networked to other computers and are able to access files held on other computers. For example, a business' computer networks can extend across different office locations. Accordingly, it is critical that law enforcement officers are able to search material accessible from those computers but located elsewhere.

This subsection will enable the executing officer or constable assisting to operate equipment after it has been moved under section 3K. The officer needs to have suspected on reasonable grounds that the equipment contained evidential material for it to be moved under subsection 3K(2) (which will be amended by Item 12).

Executing officer and constable assisting are both defined in subsection 3C(1) and, to summarise, refer to the constable responsible for executing a warrant, a constable assisting in the execution of a warrant, or a person who is not a constable but who has been authorised to assist in executing the warrant. Constable is defined in subsection 3(1) as a member or special member of the AFP or a member of a State or Territory police force or police service.

Subsection 3LAA(2) will allow the executing officer, or constable assisting, to copy any or all data to a disk or tape if, after operating the equipment, they suspect any data constitutes evidential material.

Data is defined in subsection 3C(1) as information in any form or any program (or part of a program). Evidential material is defined in subsection 3C(1) to mean a thing relevant to an indictable or summary offence, including such a thing in electronic form.

Subsection 3LAA(2) will permit officers to copy any or all data held on a computer hard drive or data storage device if after an initial search of the computer, the officer suspects on reasonable grounds that the equipment might contain evidential material. This is necessary because it is not practicable to search entire computer hard drives where a large amount of data is stored. Copying the data will enable the data/electronic equipment to be returned to the owner.

Subsection 3LAA(3) will impose an obligation on the Commissioner to remove or destroy the data copied under subsection 3LAA(2) if it is no longer needed for the purposes specified in section 3ZQU (as inserted by Item 9) or for administrative or judicial review proceedings. This mirrors the retention provisions in new subdivisions B, C and D of Division 4C (also inserted by Item 9) which ensure that seized material (including data) is held no longer than necessary.

Subsection 3LAA(4) will allow the equipment to be seized if the executing officer or constable assisting finds, after operating the equipment, that evidential material is on the equipment. It will also allow the executing officer or constable assisting to put the material in documentary form. For example, printing a photo that has been saved onto the equipment.

Subsection 3LAA(5) is a safeguard for the occupier. It will ensure that an executing officer or constable assisting is only able to seize the equipment under subsection 3LAA(4) if it would be impractical to copy the data from the equipment or put it in documentary form. This provision will ensure that the occupier is given their equipment back, where possible, to cause minimal inconvenience to them. However, the equipment is also able to be seized and not returned to the owner if possession of the equipment could constitute an offence. An example of this would include a computer which contains child pornography or child abuse material, the possession of which is an offence under section 474.23 of the Criminal Code.

Section 3LA

Operational experience with section 3LA has identified six limitations with the section:

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there is no provision allowing assistance to be sought to access data stored in places other than a computer (eg a USB drive)

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there is no provision for seeking assistance when data needs to be converted into an intelligible form

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there are restrictions on who can apply for an assistance order

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there are restrictions on who can be required to provide assistance under an order

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there is no provision for assistance when a computer or data has been seized or otherwise lawfully moved from warrant premises,

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the penalty for failing to comply with an assistance order is not high enough to deter non-compliance.

Item 20 repeals and replaces section 3LA to address these limitations and improve the effectiveness of the section.

The changes to section 3LA are designed to ensure criminal investigation powers in Part IAA are sufficient to overcome challenges posed by technological developments such as encryption techniques.

Self-incrimination

Requiring a person to provide assistance for officers to access evidence could be considered to threaten a person's privilege against self-incrimination. However, section 3LA (as it currently stands or as repealed and replaced by this item) does not impact on this privilege. The privilege against self-incrimination arises when a person is required to provide documents or things, or answer questions that would tend to incriminate themselves. This is not the case with section 3LA which only requires a person to provide information which will enable a constable to properly conduct a search of their computer or data. The officer or constable still has to conduct the search to determine if there is evidential material on the computer. The assistance order cannot require a person to assist an officer or constable to navigate through data on a computer, or to point to evidential material. The assistance order only requires the person to provide an officer or constable with the assistance that is reasonable for them to have access to the data on a computer.

Subsection 3LA(1)

Currently, an executing officer can apply to a magistrate for an order requiring a specified person to provide information or assistance to the officer to enable them to access, take copies of and convert into documentary form any material stored on a computer held in or accessible from warrant premises .

New subsection 3LA(1) will depart from existing subsection 3LA(1) in the following ways.

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A constable, rather than the executing officer, will be able to apply for an assistance order. It is often impracticable for the executing officer to go from the warrant premises where the computer or data storage device is located to get an order from a magistrate, and then back to the premises to execute the order. Also, the executing officer may not be the most appropriate person to seek the order after the seizure of a computer or data storage device, as that person may have changed roles and a different person may be responsible for the computer or data storage device. Changing the person who may seek an assistance order to a constable will provide for better operational effectiveness for the scheme by ensuring that the person applying for the order is the most appropriate person at the time to do so.

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The source of material that an assistance order can apply to will be expanded to include data storage devices (including USB drives and external hard drives), rather than being limited to data held in, or accessible from, a computer. This change is necessary to keep pace with changes in technology that allow data to be stored in places other than a computer on the premises. A related change is that assistance can now be sought to copy data to a storage device (although assistance can already be sought to copy the data).

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In addition to being able to seek assistance with converting data in documentary form, assistance will also be able to be sought to convert the data into another form intelligible to the constable. For example, data on a computer or data storage device may be encrypted and not in a form which is intelligible. This amendment will enable officers to obtain assistance to convert the encrypted data into a form that is intelligible to the officer. For example, a computer that is encrypted, will present information in raw state with random characters. Such a computer will require the input of a password to present the data in a non-encrypted state that is intelligible to the constable. The decrypted data can then be saved in this form.

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An assistance order will compel assistance in accessing data held in, or accessible from, a computer or data storage device that has been moved or seized from the warrant premises. This is important because it may not be clear that assistance will be necessary until after the computer or data storage device has been moved or seized from the warrant premises.

Subsection 3LA(2)

Currently, a magistrate can only make an assistance order against a specified person if satisfied that:

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there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device

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the specified person is:

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a person who is reasonably suspected of having committed the offence stated in the relevant warrant

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an owner or lessee of the computer, or

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an employee of the owner or lessee of the computer or a person who is reasonably suspected of having committed the offence stated in the relevant warrant, and

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the specified person has relevant knowledge of the computer or computer network of which the computer forms a part, or knowledge of the measures applied to protect the data.

There are no changes to the first and third grounds upon which a magistrate must be satisfied before issuing an assistance order, other than those changes necessary as a result of expanding the scope of orders to data storage devices. Further, the assistance order will continue to need to specify the exact person who is required to provide assistance. It will not be possible to obtain a generic assistance order which requires the assistance of any person the constable considers may be able to assist with accessing the computer or data storage device.

However, new subsection 3LA(2) will expand the classes of persons who can be required to give assistance or information for accessing material stored on a computer or a data storage device. An order will now be able to require assistance from:

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a person engaged under a contract for services by the owner or lessee of the computer or device

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a person who uses or has used the computer or device, or

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a person who is or was a system administrator for the system including the computer or device.

The current categories of persons who can be ordered to provide assistance limit the utility of the provision. In particular, it is possible that the only person who knows the password or encryption on a computer or data storage device is neither the suspect nor the owner of the computer or data storage device. In such cases, an assistance order could not currently be sought against the person as they do not fall within any of the current categories.

There may be situations where the constable is not able to locate the suspect, the owner or an employee of the owner of the computer or data storage device. However, if another user of the computer or data storage device can provide the necessary assistance, subsection 3LA(2) will also allow the constable to require these people to provide assistance. For example, there may be other people in the owner's household or work area that use the computer or data storage device and who are able to access the data on the computer or data storage device.

Subsections 3LA(3) & 3LA(4)

Currently, when and for how long an assistance order is in force is not specified. New subsections 3LA(3) and 3LA(4) will together clarify that a constable must obtain separate orders from a magistrate for requiring a person's assistance before and after the seizure of a computer or data storage device. Where an order requiring a person to provide assistance is issued before equipment is seized, the order will only be valid until the equipment is seized. If the officer requires additional information or assistance after the equipment is seized, he or she will have to apply to the magistrate for another order.

After the equipment has been taken from the warrant premises, it is necessary to require a separate order to be sought, to ensure that the order specifies the timeframe in which assistance is to be provided, where it is to be provided and any other conditions the magistrate considers appropriate.

Subsection 3LA(5)

The current penalty for failing to comply with an assistance order is six months imprisonment. However, this penalty is not sufficient when compared to the term of imprisonment the person may be subject to if they were to provide assistance. For example, as person may possibly be subject to a longer term of imprisonment if providing assistance (such as the key to decrypt data) led to the discovery of child pornography images (that may not have been found because of encryption). It is possible that the person subject to an order would choose not to comply with the order and be subject to six months imprisonment, rather than comply with the order and possibly be subject to a much higher penalty.

The penalty under new subsection 3LA(5) will be two years imprisonment. Given the serious nature of many of the offences for which an assistance order may need to be sought, it is appropriate that the penalty for failing to comply with an assistance order is set at a sufficiently high enough level. The general defences to criminal responsibility in Part 2.3 of the Criminal Code will continue to apply to the offence.

Items 21 and 22

Section 3LB ensures that where electronic equipment is operated to access data not on the warrant premises, the occupier of the other premises must be notified that the data was accessed.

This item will ensure that where data is accessed under new subsection 3LAA(1) (inserted by Item 20), or will continue to be accessed under subsections 3LAA(2) or (4) (also inserted by Item 20), the executing officer or constable assisting will be required to notify the occupier of the other premises if it is practicable to do so. This amendment will bring consistency to the provisions, so the same rules will apply whether the executing officer is accessing the data from a computer on or off the warrant premises.

Item 23

Section 3M provides for the payment of compensation for damage caused to equipment as a result of it being operated under sections 3K or 3L.

This item will repeal and replace section 3M, and extend its application to ensure that if damage is caused to equipment as a result of it being operated under section 3LAA (inserted by Item 20), compensation will be available in the same circumstances as compensation is currently available in relation to sections 3K or 3L.

This item will also extend the scope of section 3M to ensure that compensation is available if there is damage to data recorded on, or accessed from the electronic equipment, or programs associated with the equipment as well as damage to the equipment itself. This is consistent with new section 3ZQW (inserted by Item 9) which will provide compensation for damage done to seized electronic equipment operated under new section 3ZQV (also inserted by Item 9).

Item 24

Section 3N provides for copies of seized things to be provided to the occupier of the warrant premises or their representative. This item will amend paragraph 3N(2)(a) of so that an executing officer or constable assisting is not required to provide a copy of material that has been put in documentary form in accordance with proposed paragraph 3LAA(4)(b). Paragraph 3LAA(4)(b) will avoid the need to seize equipment as it will allow the seizable data to be put into documentary form and then the documents seized. As the occupier will still have the data on the electronic equipment, it will not be necessary for the occupier to be provided with copies of the documents that were seized.

Item 25

This item is an application provision that states that the amendments in this Part will only apply to warrants issued on or after the commencement of this item.

However, the amendments to section 3LA will apply only in relation to orders made after the commencement, even if the data or computer which is the subject of the order, was seized, or moved from the warrant premises prior to the commencement of these provisions. This is necessary to allow law enforcement agencies to deal appropriately with evidence that they have lawfully acquired.