Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (98 of 2021)
Schedule 2 Network activity warrants
Part 1 Main amendments
Surveillance Devices Act 2004
19 After section 45A
Insert:
45B Prohibition on use, recording, communication or publication of protected network activity warrant information or its admission in evidence
(1) A person commits an offence if:
(a) the person uses, records, communicates or publishes any information; and
(b) the information is protected network activity warrant information; and
(c) the use, recording, communication or publication of the information is not permitted by this section.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person uses, records, communicates or publishes any information; and
(b) the information is protected network activity warrant information; and
(c) the use, recording, communication or publication of the information is not permitted by this section; and
(d) the use, recording, communication or publication of the information:
(i) endangers the health or safety of any person; or
(ii) prejudices the effective conduct of an investigation into a relevant offence.
Penalty: Imprisonment for 10 years.
(3) Subject to subsections (4), (5), (7) and (10), protected network activity warrant information may not be admitted in evidence in any proceedings.
(4) Subsections (1), (2) and (3) do not apply to:
(a) the use, recording, communication or publication of protected network activity warrant information in connection with the administration or execution of this Act; or
(b) the use, recording, communication or publication of any information that has been disclosed in proceedings in open court lawfully; or
(c) the use or communication of protected network activity warrant information by a person who believes on reasonable grounds that the use or communication is necessary to help prevent or reduce the risk of serious violence to a person or substantial damage to property; or
(d) the communication to the Director-General (within the meaning of the Australian Security Intelligence Organisation Act 1979) of protected network activity warrant information that relates or appears to relate to any matter within the functions of that organisation; or
(e) the communication to the agency head (within the meaning of the Intelligence Services Act 2001) of an agency (within the meaning of that Act) of protected network activity warrant information that relates or appears to relate to any matter within the functions of that agency; or
(f) the use, recording or communication of:
(i) protected network activity warrant information referred to in paragraph (d) - by the Director-General (within the meaning of the Australian Security Intelligence Organisation Act 1979), an ASIO employee (within the meaning of that Act) or an ASIO affiliate (within the meaning of that Act); or
(ii) protected network activity warrant information referred to in paragraph (e) - by the agency head (within the meaning of the Intelligence Services Act 2001), or a staff member (within the meaning of that Act), of an agency (within the meaning of that Act);
in the performance of the official functions of the Director-General, ASIO employee, ASIO affiliate, agency head or staff member, as the case may be.
(5) Protected network activity warrant information (other than information that was obtained from the use of a surveillance device under a network activity warrant) may be used, recorded, communicated or published, or may be admitted in evidence, if it is necessary to do so for any of the following purposes:
(a) the purposes of the Australian Federal Police collecting, correlating, analysing or disseminating criminal intelligence in the performance of the functions conferred by section 8 of the Australian Federal Police Act 1979;
(b) the purposes of the Australian Crime Commission collecting, correlating, analysing or disseminating criminal intelligence in the performance of the functions conferred by section 7A of the Australian Crime Commission Act 2002;
(c) the purposes of the Australian Federal Police or the Australian Crime Commission making reports in relation to criminal intelligence;
(d) the making of an application for a warrant;
(e) the making of an application for the variation of a warrant;
(f) the making of an application for the extension of a warrant;
(g) the keeping of records and the making of reports by the Australian Federal Police or the Australian Crime Commission under Division 2;
(h) the purposes of an IGIS official exercising powers, or performing functions or duties, as an IGIS official;
(i) the purposes of an investigation of an offence against subsection (1) or (2);
(j) a proceeding relating to an offence against subsection (1) or (2).
(6) The definition of warrant in subsection 6(1) does not apply to paragraphs (5)(d), (e) and (f) of this section.
Note: This means that warrant has its ordinary meaning.
(7) Protected network activity warrant information that was obtained from the use of a surveillance device under a network activity warrant may be used, recorded, communicated or published, or may be admitted in evidence, if it is necessary to do so for any of the following purposes:
(a) the purposes of doing a thing authorised by a network activity warrant;
(b) the purposes of an IGIS official exercising powers, or performing functions or duties, as an IGIS official;
(c) the purposes of an investigation of an offence against subsection (1) or (2);
(d) a proceeding relating to an offence against subsection (1) or (2).
(8) Protected network activity warrant information may be communicated by an Ombudsman official to an IGIS official for the purposes of the IGIS official exercising powers, or performing functions or duties, as an IGIS official.
(9) Protected network activity warrant information may be communicated by an IGIS official to an Ombudsman official for the purposes of the Ombudsman official exercising powers, or performing functions or duties, as an Ombudsman official.
(10) Protected network activity warrant information may be admitted in evidence in:
(a) a criminal proceeding for an offence against subsection (1) or (2); or
(b) a proceeding that is not a criminal proceeding.
(11) If:
(a) protected network activity warrant information was obtained from access to data, or the use of a surveillance device, under a network activity warrant; and
(b) the warrant was granted in response to an application made by the chief officer of a particular law enforcement agency; and
(c) the information:
(i) is communicated to another law enforcement agency (by communicating it to the chief officer or another officer of that agency) for a particular purpose; or
(ii) is communicated to any agency that is not a law enforcement agency (other than the Office of the Inspector-General of Intelligence and Security, the Australian Security Intelligence Organisation and the agencies within the meaning of the Intelligence Services Act 2001) (by communicating it to the officer in charge of that agency or to another officer of that agency) for a particular purpose;
the information that has been so communicated:
(d) may be communicated from one officer to another within that agency for that purpose only; and
(e) must not be communicated to any person who is not an officer of that agency.