Crimes Act 1914

Part IAA - Search, information gathering, arrest and related powers (other than powers under delayed notification search warrants)  

Division 2 - Search warrants  

SECTION 3K   USE OF EQUIPMENT TO EXAMINE OR PROCESS THINGS  

Equipment may be brought to warrant premises

(1)    

The executing officer of a warrant in relation to premises, or constable assisting, may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant.

Thing may be moved for examination or processing

(2)    

A thing found at warrant premises, or a thing found during a search under a warrant that is in force in relation to a person, may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if:

(a)    

both of the following apply:

(i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;

(ii) the executing officer or constable assisting suspects on reasonable grounds that the thing contains or constitutes evidential material; or

(b)    

for a thing found at warrant premises - the occupier of the premises consents in writing; or

(c)    

for a thing found during a search under a warrant that is in force in relation to a person - the person consents in writing.

Notification of examination or processing and right to be present

(3)    

If a thing is moved to another place for the purpose of examination or processing under subsection (2) , the executing officer must, if it is practicable to do so:

(a)    

inform the person referred to in paragraph (2)(b) or (c) (as the case requires) of the address of the place and the time at which the examination or processing will be carried out; and

(b)    

allow that person or his or her representative to be present during the examination or processing.

(3AA)    

The executing officer need not comply with paragraph (3)(a) or (b) if he or she believes on reasonable grounds that to do so might:

(a)    endanger the safety of a person; or

(b)    prejudice an investigation or prosecution.

Time limit on moving a thing

(3A)    

The thing may be moved to another place for examination or processing for no longer than whichever of the following is applicable:

(a)    if the thing is a computer or data storage device - 30 days;

(b)    otherwise - 14 days.

(3B)    

An executing officer may apply to an issuing officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within the time applicable under subsection (3A) or that time as previously extended.

(3C)    

The executing officer must give notice of the application to the person referred to in paragraph (2)(b) or (c) (as the case requires), and that person is entitled to be heard in relation to the application.

(3D)    

A single extension cannot exceed whichever of the following is applicable:

(a)    if the thing is a computer or data storage device - 14 days;

(b)    otherwise - 7 days.

Equipment at warrant premises may be operated

(4)    

The executing officer of a warrant in relation to premises, or a constable assisting, may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant if the executing officer or constable believes on reasonable grounds that:

(a)    the equipment is suitable for the examination or processing; and

(b)    the examination or processing can be carried out without damage to the equipment or the thing.

Extended powers of examination and processing

(5)    

For the purposes of this section, if a computer or data storage device (the relevant computer or device ) was found in the course of a search authorised under a warrant, the examination or processing of the relevant computer or device may include:

(a)    

using:

(i) the relevant computer or device; or

(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or

(iii) any other electronic equipment; or

(iv) a data storage device;

for the purpose of obtaining access to data (the relevant data ) that is held in the relevant computer or device in order to determine whether the relevant computer or device is a thing that may be seized under the warrant; and

(b)    if necessary to achieve the purpose mentioned in paragraph (a) - to add, copy, delete or alter other data in the relevant computer or device; and

(c)    if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so:

(i) to use any other computer or a communication in transit to access the relevant data; and

(ii) if necessary to achieve that purpose - to add, copy, delete or alter other data in the computer or the communication in transit; and

(d)    

to copy any data to which access has been obtained, and that appears to be relevant for the purposes of determining whether the relevant computer or device is a thing that may be seized under the warrant; and

(e)    to do any other thing reasonably incidental to any of the above.

(6)    

For the purposes of this section, if a computer (the relevant computer) was found in the course of a search authorised under a warrant, the examination or processing of the relevant computer may include:

(a)    

using:

(i) the relevant computer; or

(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or

(iii) any other electronic equipment;

for the purpose of obtaining access to data (the relevant account-based data ) that is account-based data in relation to:

(iv) a person who is the owner or lessee of the relevant computer; or

(v) a person who uses or has used the relevant computer; or

(vi) a deceased person who, before the person ' s death, was the owner or lessee of the relevant computer; or

(vii) a deceased person who, before the person ' s death, used the relevant computer;

in order to determine whether the relevant computer is a thing that may be seized under the warrant; and

(b)    if necessary to achieve the purpose mentioned in paragraph (a) - to add, copy, delete or alter other data in the relevant computer; and

(c)    if, having regard to other methods (if any) of obtaining access to the relevant account-based data which are likely to be as effective, it is reasonable in all the circumstances to do so:

(i) to use any other computer or a communication in transit to access the relevant account-based data; and

(ii) if necessary to achieve that purpose - to add, copy, delete or alter other data in the computer or the communication in transit; and

(d)    

to copy any data to which access has been obtained, and that appears to be relevant for the purposes of determining whether the relevant computer is a thing that may be seized under the warrant; and

(e)    to do any other thing reasonably incidental to any of the above.

(7)    

Subsections (5) and (6) do not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:

(a)    

materially interfere with, interrupt or obstruct:

(i) a communication in transit; or

(ii) the lawful use by other persons of a computer;

unless the addition, deletion or alteration, or the doing of the thing, is necessary to determine:

(iii) in the case of subsection (5) - whether the relevant computer or device is a thing that may be seized under the warrant referred to in that subsection; or

(iv) in the case of subsection (6) - whether the relevant computer is a thing that may be seized under the warrant referred to in that subsection; or

(b)    cause any other material loss or damage to other persons lawfully using a computer.

(8)    

In the case of a warrant that was in force in relation to premises, it is immaterial whether a thing mentioned in subsection (5) or (6) is done:

(a)    at the premises; or

(b)    at any other place.

(9)    

In the case of a warrant that was in force in relation to a person, it is immaterial whether a thing mentioned in subsection (5) or (6) is done:

(a)    in the presence of the person; or

(b)    at any other place.