Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (98 of 2021)

Schedule 2   Network activity warrants

Part 1   Main amendments

Surveillance Devices Act 2004

11   At the end of Part 5

Add:

43E Extraterritorial operation of network activity warrants

(1) If, before the issue of a network activity warrant, it becomes apparent to the applicant that there will be a need for access to data held in a computer:

(a) in a foreign country; or

(b) on a vessel or aircraft that is registered under the law of a foreign country and 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 unless the eligible Judge or nominated AAT member is satisfied that the access has been agreed to by an appropriate consenting official of the foreign country.

(2) If:

(a) a network activity 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 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 if, and only if, the access has been agreed to by an appropriate consenting official of the foreign country.

(3) Subsections (1) and (2) do not apply to a network activity warrant authorising access to 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.

(4) Despite subsections (1) and (2), if:

(a) a vessel that is registered under the law of a foreign country is in waters beyond the outer limits of the territorial sea of Australia but not beyond the outer limits of the contiguous zone of Australia; and

(b) the relevant offence in respect of which it becomes apparent that access to data held in a computer on the vessel will be required is an offence relating to the customs, fiscal, immigration or sanitary laws of Australia;

there is no requirement for the agreement of an appropriate consenting official of the foreign country concerned in relation to that access while the vessel is in such waters.

(5) Despite subsections (1) and (2), if:

(a) a vessel that is registered under the law of a foreign country is in waters beyond the outer limits of the territorial sea of Australia but not beyond the outer limits of the Australian fishing zone; and

(b) the relevant offence in respect of which it becomes apparent that access to data held in a computer on the vessel will be required is an offence against section 100, 100A, 100B, 101, 101A or 101AA of the Fisheries Management Act 1991 or section 46A, 46B, 46C, 46D, 49A or 51A of the Torres Strait Fisheries Act 1984;

there is no requirement for the agreement of an appropriate consenting official of the foreign country concerned in relation to that access while the vessel is in those waters.

(6) As soon as practicable after the commencement of access to data held in a computer under the authority of a network activity warrant in circumstances where consent to that access is required:

(a) in a foreign country; or

(b) on a vessel or aircraft that is registered under the law of a foreign country;

the chief officer of the law enforcement agency to which the law enforcement officer who applied for the warrant belongs or is seconded must give the Minister evidence in writing that the access has been agreed to by an appropriate consenting official of the foreign country.

(7) An instrument providing evidence of the kind referred to in subsection (6) is not a legislative instrument.

(8) 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) and (2) 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.

(9) For the avoidance of doubt, there is no requirement for the agreement of an appropriate consenting official of the foreign country to the access to data held in a computer under the authority of a network activity 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.