Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senatory the Honourable Chris Ellison)Schedule 2 - Law enforcement powers relating to computers
This Schedule amends the investigation powers in the Crimes Act and Customs Act that relate to the search and seizure of electronically stored data. The amendments bring the investigation powers up to date with aspects of the draft Council of Europe Convention on Cybercrime and also reflect experience with the existing provisions. The amendments are designed to provide law enforcement agencies with the necessary powers to detect and investigate crime involving the use of computers. Although the existing powers were only introduced in 1994, they, like the computer offences, have been superseded by developments in technology. Existing search powers do not, for example, enable law enforcement agencies to require a person with knowledge of a relevant computer system to assist investigators to access encrypted information.
The large amount of data which can be stored on computer drives and disks and the complex security measures, such as encryption and passwords, which can be used to protect that information present particular problems for investigators. The proposed enhancement of search and seizure powers will assist law enforcement officers in surmounting those problems.
This Item inserts a definition of the term data into subsection 3C(1) of the Crimes Act. The definition corresponds to the definition of data in the new computer offences.
This Item inserts a definition of the term data held in a computer into subsection 3C(1) of the Crimes Act. The definition matches the definition used in the new computer offences.
This Item inserts a definition of data storage device in subsection 3C(1) of the Crimes Act. The definition corresponds to the definition of data storage device in the proposed computer offence provisions.
This Item makes a minor amendment to subsection 3K(1) of the Crimes Act to replace the references to things with references to a thing. The proposed amendment would clarify that section 3K allows a thing (singular) to be moved to another place for examination and processing.
This Item amends subsection 3K(2) of the Crimes Act. The proposed amendment would allow a thing to be moved from the search premises to another place for examination or processing, without the occupiers consent, where it is significantly more practicable than processing the thing at the search premises and where there are reasonable grounds to believe that the thing contains or constitutes evidential material. In determining whether it is significantly more practicable to process or examine the thing at another place, the executing officer or constable assisting must have regard to the timeliness and cost of processing or examining the thing at another place rather than on site and to the availability of expert assistance. In other words, the proposed amendment would permit a thing to be moved to another place if it is significantly faster or less costly to process or examine the thing at that other place or easier to obtain expert assistance to process or examine the thing at the other place.
As the use of computers becomes more widespread, it is becoming increasingly common for information to be stored on computer hard drives, computer disks or other storage devices. Searching computers and related disks can be a difficult exercise. There can be technical problems in searching a computer if the owner has taken steps to build in security measures such as encryption. There may be multi-levels of password protection. The computer may also be programmed to delete or alter data if the right password is not used. In addition, given the large amount of information that can be stored on computer hard drives and computer disks, it can be a time consuming process to search them for evidential material.
In cases which involve a large number of disks, for example, the most effective way of searching the disks may be to develop a search program to search the data on the disks, possibly after loading the data on the disks onto a single device. That process requires computing skills and cannot easily be done at search premises. Provision for moving computer equipment and disks off-site would allow the equipment or disks to be accessed or searched by an expert at premises properly equippedwith external search equipment.
The existing subsection 3K(2) only permits things at the warrant premises to be moved to another place to be examined or processed if it is not practicable to do so at the premises (or if the occupier of the premises consents). The existing provision is too restrictive. The requirement that it be not practicable to process or examine a thing at the warrant premises before it can be moved does not allow consideration to be given to whether it would be more efficient or effective to process or examine the thing at another place. The existing provision reflects the difficulties involved in moving computers at the time it was enacted. Since then computers have become increasingly portable.
This Item makes a minor amendment to subsection 3K(3) of the Crimes Act to replace the reference to things with references to a thing. The proposed amendment clarifies that section 3K allows a thing (singular) to be moved to another place for examination and processing.
This Item inserts proposed new subsections 3K(3A), 3K(3B) and 3K(3C) into the Crimes Act. Proposed subsection 3K(3A) provides that a thing that is moved to another place for examination and processing under proposed subsection 3K(2) may only be moved to that other place for up to 72 hours. Proposed subsection 3K(3B) provides that the officer responsible for executing the search warrant may apply to an issuing officer for an extension of the 72 hour time period if he or she believes on reasonable grounds that the thing cannot be examined or processed within 72 hours. Proposed subsection 3K(3C) provides that the executing officer must give notice of the application for a extension of time to the occupier of the warrant premises and that the occupier is entitled to be heard by the issuing officer in relation to that application.
This Item amends subsection 3L(1) of the Crimes Act and inserts new subsection 3L(1A).
Proposed subsection 3L(1) would clarify that the existing power to operate electronic equipment on premises to find evidential material includes material physically located away from the premises. An executing officer or constable assisting would be able to use a computer on search premises to access data held on computers situated elsewhere, where he or she believes on reasonable grounds that data held on other computers may contain evidential material of a kind covered by the search warrant. Although the current provision arguably permits access to material not held on warrant premises, the proposed amendment would ensure this is clearly stated in the provision.
As most business computers are networked to other desktop computers and to central storage computers, files physically held on one computer are often accessible from another computer. In some cases these computer networks can extend across different office locations. Accordingly, it is critical that law enforcement officers executing a search warrant are able to search not only material on computers located on the search premises but also material accessible from those computers but located elsewhere.
An executing officer would not be required to notify operators of computers not on search premises if data held on those computers is accessed under warrant. The reasons for this are threefold. First, the existing search warrant provisions do not require notification of third parties before searching or seizing their material. Second, it is not practicable to impose a notification requirement on investigating officers, as it will not always be apparent when accessing data whether it is held on premises or off site. For example, computer files accessible from a personal computer connected to a network may be stored on a mainframe computer located elsewhere, but there may be nothing that would indicate to a person accessing those files that they are not held on the search premises. Third, aspects of the current provision are arguably broader than the proposed provision. The existing subsection 3L(1) permits an officer to operate equipment on site to see whether evidential material is accessible by doing so. The provision only requires that the data be accessible from equipment on site, it does not require that it be held on site. In contrast, the proposed provision will only allow an officer to access data if he or she believes on reasonable grounds that it may contain evidential material.
Proposed subsection 3L(1A) would enable law enforcement officers executing a search warrant to copy data held on any electronic equipment or associated devices at search premises to a storage device where there are reasonable grounds for suspecting that the data contains evidential material. This will permit officers to copy all data held on a computer hard drive or data storage device if some of the data contains evidential material or if there are reasonable grounds to suspect the data contains evidential material.
The existing provision only allows evidential material to be copied (Crimes Act, paragraph 3L(2)(c)). Electronic equipment, such as a computer hard drive, can hold large amounts of data. It is often not practicable for officers to search all the data for evidential material while at the search premises and to then copy only the evidential material which is found. The proposed provision would allow officers to copy all the data on a piece of electronic equipment (by imaging a computer hard drive for example) in situations where an initial search of the data uncovers some evidential material or where the officer believes on reasonable grounds that the equipment might contain evidential material.
This Item amends paragraph 3L(2)(b) of the Crimes Act to remove the word or from the end of the paragraph consequent upon the repeal of paragraph 3L(2)(c) by Item 10.
This Item repeals paragraph 3L(2)(c) of the Crimes Act consequent upon the insertion of proposed subsection 3L(1A) into the Crimes Act by Item 8.
This Item amends paragraph 3L(3)(a) of the Crimes Act consequent upon the repeal of paragraph 3L(2)(c) and its replacement with subsection 3L(1A).
This Item inserts proposed new section 3LA into the Crimes Act. Proposed section 3LA would enable a law enforcement officer executing a search warrant to apply to a magistrate for an assistance order. To grant the order, the magistrate would have to be satisfied (i) of the existence of reasonable grounds to suspect a computer on search premises contains evidence of an offence; (ii) that the subject of the order is reasonably suspected of the offence or is the owner of the computer or computer system, or a current employee of the owner; and (iii) that the subject of the order has knowledge of the functioning of the computer or system or measures applied to protect the computer or system.
The person to whom the order is directed would be required to provide the officer, to the extent reasonably practicable, with such information or assistance as is necessary to enable the officer to access data on the computer system, copy it to a storage device or convert it to documentary form. For example, a person could be required to explain how to access the system or to provide a password to enable access. The maximum penalty for non-compliance with the order would be 6 months imprisonment. This is in line with penalties in other Commonwealth legislation (for example, Companies Act 1981 , subsection 14(5); Futures Industry Act 1986 , subsection 15(5); and Australian Securities and Investments Commission Act 1989 , subsection 65(2)).
While there is no requirement to provide such assistance under the existing Crimes Act search warrant provisions, assistance requirements are common in Commonwealth regulatory legislation. Such a power is also contained in the Cybercrime Convention being developed by the Council of Europe (Draft No. 25, Article 19).
This Item amends paragraph 3N(2)(a) of the Crimes Act consequent upon the repeal of paragraph 3L(2)(c) and its replacement with subsection 3L(1A).
Customs Act 1901
The provisions in the Customs Act relating to searches of electronic equipment and associated devices are identical to the provisions in the Crimes Act. The amendments to the Customs Act would ensure that the two sets of provisions remain consistent. As the processing of imports and exports is increasingly computerised, it is also important that the Customs Act provisions are updated to enable effective searches of electronically stored material.
This Item inserts a definition of the term data into section 4 of the Customs Act. The definition corresponds to the definition of data in the new computer offences.
This Item amends paragraph 67EU(1)(b) to remove the reference to programs. The amendment is consequential upon the insertion of a definition of data which includes any program (or part of a program) into section 4 of the Customs Act by Item 14.
This Item amends subsection 67EU(1) to remove the reference to programs. The amendment is consequential upon the insertion of a definition of data which includes any program (or part of a program) into section 4 of the Customs Act by Item 14.
This Item amends subsection 67EU(3) to remove the reference to a program. The amendment is consequential upon the insertion of a definition of data which includes any program (or part of a program) into section 4 of the Customs Act by Item 14.
This Item inserts a definition of the term data held in a computer into subsection 183UA(1) of the Customs Act. The definition matches the definition used in the new computer offences.
This Item inserts a definition of data storage device in subsection 183UA(1) of the Customs Act. The definition corresponds to the definition used in the proposed computer offence provisions.
This Item makes a minor amendment to subsection 2001(1) of the Customs Act to replace the references to things with references to a thing. The proposed amendment will make it clear that section 200 allows a thing (singular) to be moved to another place for examination and processing.
This Item amends subsection 200(2) of the Customs Act. The proposed amendment would allow a thing to be moved from the search premises to another place for examination or processing without the occupiers consent where it is significantly more practicable than processing the thing at the search premises and where there are reasonable grounds to believe that the thing contains or constitutes evidential material. In determining whether it is significantly more practicable to process or examine the thing at another place, the executing officer or person assisting must have regard to the timeliness and cost of processing or examining the thing at another place and to the availability of expert assistance. In other words, the proposed amendment would permit a thing to be moved to another place if it is significantly faster or less costly to process or examine the thing at that other place or easier to obtain expert assistance to process or examine the thing at the other place.
As the use of computers becomes more widespread, it is becoming increasingly common for information to be stored on computer hard drives, computer disks or other storage devices. Searching computers and related disks can be a difficult exercise. There can be technical problems in searching a computer if the owner has taken steps to build in security measures such as encryption. There may be multi-levels of password protection. The computer may also be programmed to delete or alter data if the right password is not used. In addition, given the large amount of information that can be stored on computer hard drives and computer disks, it can be a time consuming process to search them for evidential material.
In cases which involve a large number of disks, for example, the most effective way of searching the disks may be to develop a search program to search the data on the disks, possibly after loading the data on the disks onto a single device. That process requires computing skills and cannot easily be done at search premises. Provision for moving computer equipment and disks off-site would allow the equipment or disks to be accessed or searched by an expert at premises properly equippedwith external search equipment.
The existing subsection 200(2) only permits things at the warrant premises to be moved to another place to be examined or processed if it is not practicable to do so at the premises (or if the occupier of the premises consents). The existing provision is too restrictive. The requirement that it be not practicable to process or examine a thing at the warrant premises before it can be moved does not allow consideration to be given to whether it would be more efficient or effective to process or examine the thing at another place. The existing provision reflects the difficulties involved in moving computers at the time it was enacted. Since then computers have become increasingly portable.
This Item makes a minor amendment to subsection 200(3) of the Customs Act to replace the reference to things with a reference to a thing. The proposed amendment will make it clear that section 200 allows a thing (singular) to be moved to another place for examination and processing.
This Item inserts proposed new subsections 200(3A), 200(3B) and 200(3C) into the Customs Act. Proposed subsection 200(3A) provides that a thing that is moved to another place for examination and processing under proposed subsection 200(2) may only be moved for up to 72 hours. Proposed subsection 200(3B) provides that the officer responsible for executing the search warrant may apply to an issuing officer for an extension of the 72 hour time period if he or she believes on reasonable grounds that the thing cannot be examined or processed within 72 hours. Proposed subsection 200(3C) provides that the executing officer must give notice of the application for a extension of time to the occupier of the warrant premises and that the occupier is entitled to be heard by the issuing officer in relation to that application.
This Item amends subsection 201(1) of the Customs Act and inserts new subsection 201(1A).
Proposed subsection 201(1) would clarify that the existing power to operate electronic equipment on premises to find evidential material includes material physically located away from the premises. An executing officer or person assisting would be able to use a computer on search premises to access data held on computers situated elsewhere, where he or she believes on reasonable grounds that data held on other computers may contain evidential material of a kind covered by the search warrant. Although the current provision arguably permits access to material not held on warrant premises, the proposed amendment would ensure this is clearly stated in the provision.
As most business computers are networked to other desktop computers and to central storage computers, files physically held on one computer are often accessible from another computer. In some cases these computer networks can extend across different office locations. Accordingly, it is critical that law enforcement officers executing a search warrant are able to search not only material on computers located on the search premises but also material accessible from those computers but located elsewhere.
An executing officer would not be required to notify operators of computers not on search premises if data held on those computers is accessed under warrant. The reasons for this are threefold. First, the existing search warrant provisions do not require notification of third parties before searching or seizing their material. Second, it is not practicable to impose a notification requirement on investigating officers, as it will not always be apparent when accessing data whether it is held on premises or off site. For example, computer files accessible from a personal computer connected to a network may be stored on a mainframe computer located elsewhere, but there may be nothing that would indicate to a person accessing those files that they are not held on site. Third, aspects of the current provision are arguably broader than the proposed provision. The existing subsection 201(1) permits an officer to operate equipment on site to see whether evidential material is accessible by doing so. The provision only requires that the data be accessible from equipment on site, it does not require that it be held on site. In contrast, the proposed provision will only allow an officer to access data if he or she believes on reasonable grounds that it may contain evidential material.
Proposed subsection 201(1A) would enable law enforcement officers executing a search warrant to copy data held on any electronic equipment or associated devices at search premises to a storage device where there are reasonable grounds for suspecting that the data contains evidential material. This will permit officers to copy all data held on a computer hard drive or data storage device if some of the data contains evidential material or if there are reasonable grounds to suspect the data contains evidential material.
The existing provision only allows evidential material to be copied (Customs Act, paragraph 201(2)(c)). Electronic equipment, such as a computer hard drive, can hold large amounts of data. It is often not practicable for officers to search all the data for evidential material while at the search premises and to then copy only the evidential material that is found. The proposed provision would allow officers to copy all the data on a piece of electronic equipment (for example by imaging a computer hard drive) in situations where an initial search of the data uncovers some evidential material or where the officer believes on reasonable grounds that the equipment might contain evidential material.
This Item amends paragraph 201(2)(b) of the Customs Act to remove the word or from the end of the paragraph consequent upon the repeal of paragraph 201(2)(c) by Item 26.
This Item repeals paragraph 201(2)(c) of the Customs Act consequent upon the insertion of proposed subsection 201(1A) into the Customs Act.
This Item amends subsection 201(3) of the Customs Act consequent upon the repeal of paragraph 201(2)(c) and its replacement with subsection 201(1A).
This Item inserts proposed new section 201A into the Customs Act. Proposed section 201A would enable a law enforcement officer executing a search warrant to apply to a magistrate for an assistance order. To grant the order, the magistrate would have to be satisfied (i) of the existence of reasonable grounds to suspect a computer on search premises contains evidence of an offence; (ii) that the subject of the order is reasonably suspected of the offence or is the owner of the computer or computer system, or a current employee of the owner; and (iii) that the subject of the order has knowledge of the functioning of the computer or system or measures applied to protect the computer or system.
The person to whom the order is directed would be required to provide the officer, to the extent reasonably practicable, with such information or assistance as is necessary to enable the officer to access data on the computer system, copy it to a storage device or convert it to documentary form. For example, a person could be required to explain how to access the system or to provide a password to enable access. The maximum penalty for non-compliance with the order would be 6 months. This is in line with penalties in other Commonwealth legislation (for example, Companies Act 1981 , subsection 14(5); Futures Industry Act 1986 , subsection 15(5); and Australian Securities and Investments Commission Act 1989 , subsection 65(2)).
While there is no requirement to provide such assistance under the existing Crimes Act search warrant provisions, assistance requirements are common in Commonwealth regulatory legislation. Such a power is also contained in the Cybercrime Convention being developed by the Council of Europe (Draft No. 25, Article 19).
This Item amends subsection 202(1) to remove references a program. The amendment is consequential upon the insertion of a definition of data that includes any program (or part of a program) into section 4 of the Customs Act by Item 14.
This Item amends paragraph 202A(2)(a) of the Customs Act consequent upon the repeal of paragraph 201(2)(c) and its replacement with subsection 201(1A).
Item 31 This Item provides that the amendments made by this Schedule apply only to search warrants that are issued after the commencement of this Schedule.
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