Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (98 of 2021)
Schedule 1 Data disruption
Surveillance Devices Act 2004
27 At the end of Part 5
Add:
43C Extraterritorial operation of data disruption warrants
(1) If, before the issue of a data disruption warrant, it becomes apparent to the applicant for the warrant that there will be a need for access to, and disruption of, data held in a computer:
(a) in a foreign country; or
(b) on a vessel or aircraft that is registered under the law of a foreign country and that is in or above waters beyond the outer limits of the territorial sea of Australia;
the eligible Judge or nominated AAT member considering the application for the warrant must not permit the warrant to authorise that access and disruption unless the eligible Judge or nominated AAT member is satisfied that the access and disruption has been agreed to by an appropriate consenting official of the foreign country.
(2) If:
(a) an application is made under section 33 by an appropriate authorising officer for approval of the giving of an emergency authorisation; and
(b) the emergency authorisation was given in response to an application under subsection 28(1C); and
(c) before the completion of consideration of that section 33 application, it becomes apparent to the applicant that there will be a need for access to, and disruption of, data held in a computer:
(i) in a foreign country; or
(ii) on a vessel or aircraft that is registered under the law of a foreign country and that is in or above waters beyond the outer limits of the territorial sea of Australia;
the eligible Judge or nominated AAT member to whom the section 33 application was made must not permit any data disruption warrant issued on consideration of that section 33 application to authorise that access and disruption unless the eligible Judge or nominated AAT member is satisfied that the access and disruption has been agreed to by an appropriate consenting official of the foreign country.
(3) If:
(a) a data disruption warrant has been issued; and
(b) after the issue of the warrant, it becomes apparent to the law enforcement officer primarily responsible for executing the warrant that there will be a need for access to, and disruption of, data held in a computer that is:
(i) in a foreign country; or
(ii) on a vessel or aircraft that is registered under the law of a foreign country and that is in or above waters beyond the outer limits of the territorial sea of Australia;
the warrant is taken to permit that access and disruption if, and only if, the access and or disruption has been agreed to by an appropriate consenting official of the foreign country.
(4) Subsections (1), (2) and (3) do not apply to a data disruption warrant authorising access to, and disruption of, data if:
(a) the person, or each of the persons, responsible for executing the warrant will be physically present in Australia; and
(b) the location where the data is held is unknown or cannot reasonably be determined.
(5) Despite subsections (1), (2) and (3), if:
(a) a vessel that is registered under the law of a foreign country is in waters beyond the outer limits of the territorial sea of Australia but not beyond the outer limits of the contiguous zone of Australia; and
(b) the relevant offences in respect of which it becomes apparent that access to, and disruption of, data held in a computer on the vessel will be required are offences relating to the customs, fiscal, immigration or sanitary laws of Australia;
there is no requirement for the agreement of an appropriate consenting official of the foreign country concerned in relation to that access or disruption while the vessel is in such waters.
(6) Despite subsections (1), (2) and (3), if:
(a) a vessel that is registered under the law of a foreign country is in waters beyond the outer limits of the territorial sea of Australia but not beyond the outer limits of the Australian fishing zone; and
(b) the relevant offences in respect of which it becomes apparent that access to, and disruption of, data held in a computer on the vessel will be required are offences against section 100, 100A, 100B, 101, 101A or 101AA of the Fisheries Management Act 1991 or section 46A, 46B, 46C, 46D, 49A or 51A of the Torres Strait Fisheries Act 1984;
there is no requirement for the agreement of an appropriate consenting official of the foreign country concerned in relation to that access or disruption while the vessel is in those waters.
(7) As soon as practicable after the commencement of access to, and disruption of, data held in a computer under the authority of a data disruption warrant in circumstances where consent to that access or disruption is required:
(a) in a foreign country; or
(b) on a vessel or aircraft that is registered under the law of a foreign country;
the chief officer of the law enforcement agency to which the law enforcement officer who applied for the warrant belongs or is seconded must give the Minister evidence in writing that the access and disruption has been agreed to by an appropriate consenting official of the foreign country.
(8) An instrument providing evidence of the kind referred to in subsection (7) is not a legislative instrument.
(9) If a vessel or aircraft that is registered under the laws of a foreign country is in or above the territorial sea of another foreign country, subsections (1), (2) and (3) have effect as if the reference to an appropriate consenting official of the foreign country were a reference to an appropriate consenting official of each foreign country concerned.
(10) For the avoidance of doubt, there is no requirement for the agreement of an appropriate consenting official of the foreign country to the access to, and disruption of, data held in a computer under the authority of a data disruption warrant on a vessel or aircraft of a foreign country that is in Australia or in or above waters within the outer limits of the territorial sea of Australia.
43D Evidence obtained from extraterritorial computer access not to be tendered in evidence unless court is satisfied that the evidence was properly obtained
Evidence obtained from access to, or disruption of, data held in a computer undertaken in a foreign country in accordance with subsection 43C(1), (2) or (3) in relation to a relevant offence cannot be tendered in evidence to a court in any proceedings relating to the relevant offence unless the court is satisfied that the access or disruption was agreed to by an appropriate consenting official of the foreign country.