Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (148 of 2018)

Schedule 4   Search warrants issued under the Customs Act 1901

Customs Act 1901

5   After section 199

Insert:

199A When search warrants relating to persons can be issued

(1) A judicial officer may issue a warrant authorising an ordinary search or a frisk search of a person if the judicial officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that the person has in the person's possession, or will within the next 72 hours have in the person's possession, any computer, or data storage device, that is evidential material.

(2) If the person applying for the warrant has, at any time previously, applied for a warrant under this section relating to the same person, the person applying for the warrant must state particulars of those applications, and their outcome, in the information.

(3) If a judicial officer issues a warrant, the judicial officer is to state in the warrant:

(a) the offence to which the warrant relates; and

(b) the name or description of the person to whom the warrant relates; and

(c) the name of the authorised person who, unless the authorised person inserts the name of another authorised person in the warrant, is to be responsible for executing the warrant; and

(d) the time at which the warrant expires (see subsection (4)); and

(e) whether the warrant may be executed at any time or only during particular hours.

(4) The time stated in the warrant under paragraph (3)(d) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.

Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.

(5) The judicial officer is also to state, in a warrant in relation to a person:

(a) that the warrant authorises the seizure of a computer or data storage device found, in the course of the search, on or in the possession of the person or in a recently used conveyance, if the executing officer or a person assisting believes on reasonable grounds that:

(i) the computer or device is evidential material in relation to an offence to which the warrant relates; and

(ii) the seizure of the computer or device is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

(b) the kind of search of a person that the warrant authorises.

(6) Paragraph (3)(d) and subsection (4) do not prevent the issue of successive warrants in relation to the same person.

199B The things that are authorised by a search warrant relating to a person

(1) A warrant that is in force in relation to a person (the target person ) authorises the executing officer or person assisting:

(a) to search:

(i) the target person as specified in the warrant; and

(ii) any recently used conveyance;

for computers or data storage devices of the kind specified in the warrant; and

(b) to:

(i) seize computers or data storage devices of that kind; or

(ii) record fingerprints from computers or data storage devices; or

(iii) to take samples for forensic purposes from computers or data storage devices;

found in the course of the search; and

(c) to seize other things found on or in the possession of the target person or in the conveyance in the course of the search that the executing officer or person assisting believes on reasonable grounds to be:

(i) prohibited goods that are unlawfully carried by the target person; or

(ii) seizable items.

(2) A warrant that is in force in relation to a person (the target person ) authorises the executing officer or a person assisting:

(a) to use:

(i) a computer, or data storage device, found in the course of a search authorised under the warrant; 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 computer or device mentioned in subparagraph (i) at any time when the warrant is in force, in order to determine whether the relevant data is evidential material of a kind specified in the warrant; and

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

(i) appears to be relevant for the purposes of determining whether the relevant data is evidential material of a kind specified in the warrant; or

(ii) is evidential material of a kind specified in the warrant; and

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

Note: As a result of the warrant, a person who, by means of a telecommunications facility, obtains access to data stored in a computer etc. will not commit an offence under Part 10.7 of the Criminal Code or equivalent State or Territory laws (provided that the person acts within the authority of the warrant).

(3) Subsection (2) does 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 do one or more of the things specified in the warrant; or

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

(4) It is immaterial whether a thing mentioned in subsection (2) is done:

(a) in the presence of the target person; or

(b) at any other place.

(5) If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.

(6) If the warrant authorises an ordinary search or a frisk search of the target person, a search of the target person different from that so authorised must not be done under the warrant.