Crimes Act 1914

Part IAAC - Account takeover warrants  

Division 2 - Account takeover warrants  

SECTION 3ZZUP   Determining the application  

(1)    
A magistrate may issue an account takeover warrant if satisfied that there are reasonable grounds for the suspicion founding the application for the warrant.

(2)    
In determining whether an account takeover warrant should be issued, the magistrate must have regard to:

(a)    the nature and gravity of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought; and

(b)    the existence of any alternative means of obtaining the evidence sought to be obtained; and

(c)    the extent to which the privacy of any person is likely to be affected; and

(d)    the likely evidentiary value of any evidence sought to be obtained; and

(da)    the extent to which the execution of the warrant is likely to impact on persons lawfully using a computer, so far as that matter is known to the magistrate; and

(db)    the extent to which the execution of the warrant is likely to cause a person to suffer a temporary loss of:

(i) money; or

(ii) digital currency; or

(iii) property (other than data);

so far as that matter is known to the magistrate; and

(dc)    if:

(i) the magistrate believes on reasonable grounds that each target account is held by a person who is working in a professional capacity as a journalist or of an employer of such a person; and

(ii) the alleged relevant offence, or each of the alleged relevant offences, in respect of which the warrant is sought is an offence against a secrecy provision;

whether the public interest in issuing the warrant outweighs:

(iii) the public interest in protecting the confidentiality of the identity of the journalist ' s source; and

(iv) the public interest in facilitating the exchange of information between journalists and members of the public so as to facilitate reporting of matters in the public interest; and

(e)    any previous warrant sought or issued under this Division in connection with the same online account; and

(f)    any previous warrant sought or issued under this Division in connection with the same alleged relevant offence or the same alleged relevant offences.

(3)    
For the purposes of having regard to the nature and gravity of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought, the magistrate must give weight to the following matters:

(a)    whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought amounts to:

(i) an activity against the security of the Commonwealth; or

(ii) an offence against Chapter 5 of the Criminal Code ;

(b)    whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought amounts to:

(i) an activity against the proper administration of Government; or

(ii) an offence against Chapter 7 of the Criminal Code ;

(c)    whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought:

(i) causes, or has the potential to cause, serious violence, or serious harm, to a person; or

(ii) amounts to an offence against Chapter 8 of the Criminal Code ;

(d)    whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought:

(i) causes, or has the potential to cause, a danger to the community; or

(ii) amounts to an offence against Chapter 9 of the Criminal Code ;

(e)    whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought:

(i) causes, or has the potential to cause, substantial damage to, or loss of, data, property or critical infrastructure; or

(ii) amounts to an offence against Chapter 10 of the Criminal Code ;

(f)    whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought involves, or is related to, the commission of:

(i) transnational crime; or

(ii) serious crime; or

(iii) organised crime;

that is not covered by any of the preceding paragraphs.

(4)    
Subsection (3) does not limit the matters that may be considered by the magistrate.

(5)    
To avoid doubt, this Act does not prevent an account takeover warrant from being issued in a case where the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought is not covered by subsection (3) .

(6)    
For the purposes of this section, secrecy provision means a provision of a law of the Commonwealth or of a State that prohibits:

(a)    the communication, divulging or publication of information; or

(b)    the production of, or the publication of the contents of, a document.