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

Schedule 1   Data disruption

Surveillance Devices Act 2004

47   After section 64A

Insert:

64B Person with knowledge of a computer or a computer system to assist disruption of data etc.

(1) A law enforcement officer of the Australian Federal Police or the Australian Crime Commission (or another person on the officer's behalf) may apply to an eligible Judge or to a nominated AAT member for an order (the assistance order ) requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the law enforcement officer to do one or more of the following:

(a) disrupt data held in a computer that is the subject of:

(i) a data disruption warrant; or

(ii) an emergency authorisation given in response to an application under subsection 28(1C);

(b) access data that is held in the computer described in paragraph (a);

(c) copy data held in the computer described in paragraph (a) to a data storage device;

(d) convert into documentary form or another form intelligible to a law enforcement officer:

(i) data held in the computer described in paragraph (a); or

(ii) data held in a data storage device to which the data was copied as described in paragraph (c).

Grant of assistance order

(2) The eligible Judge or nominated AAT member may grant the assistance order if the eligible Judge or nominated AAT member is satisfied that:

(a) in a case where the computer is the subject of a data disruption warrant - disruption of data held in the computer is:

(i) likely to substantially assist in frustrating the commission of the offences that are covered by the warrant (within the meaning of section 27KE); and

(ii) justifiable and proportionate, having regard to those offences; and

(aa) in a case where the computer is the subject of a data disruption warrant - the assistance order is reasonable and necessary to enable the warrant to be executed; and

(ab) in a case where the computer is the subject of a data disruption warrant - the assistance order is justifiable and proportionate, having regard to:

(i) the nature and gravity of the conduct constituting the offences referred to in paragraph 27KA(1)(c); and

(ii) the likely impact of compliance with the assistance order on the specified person, so far as that matter is known to the eligible Judge or nominated AAT member; and

(iii) the likely impact of compliance with the assistance order on other persons (including persons who may lawfully be using the computer), so far as that matter is known to the eligible Judge or nominated AAT member; and

(b) in a case where the computer is the subject of an emergency authorisation given in response to an application under subsection 28(1C):

(i) there is an imminent risk of serious violence to a person or substantial damage to property; and

(ii) disruption of data held in the computer is immediately necessary for the purpose of dealing with the risk; and

(ba) in a case where the computer is the subject of an emergency authorisation given in response to an application under subsection 28(1C) - the assistance order is reasonable and necessary to enable the emergency authorisation to be executed; and

(bb) in a case where the computer is the subject of an emergency authorisation given in response to an application under subsection 28(1C) - the assistance order is justifiable and proportionate, having regard to:

(i) the risk of serious violence or substantial damage referred to in paragraph 28(1C)(a); and

(ii) the likely impact of compliance with the assistance order on the specified person, so far as that matter is known to the eligible Judge or nominated AAT member; and

(iii) the likely impact of compliance with the assistance order on other persons (including persons who may lawfully be using the computer), so far as that matter is known to the eligible Judge or nominated AAT member; and

(c) in a case where:

(i) the computer is the subject of a data disruption warrant; and

(ii) the assistance order requires the specified person to provide information or assistance to allow the law enforcement officer to do a thing referred to in paragraph (1)(b), (c) or (d) in relation to data;

doing the thing is for the purpose of determining whether the data is covered by the warrant (within the meaning of section 27KE); and

(d) in a case where:

(i) the computer is the subject of an emergency authorisation given in response to an application under subsection 28(1C); and

(ii) the assistance order requires the specified person to provide information or assistance to allow the law enforcement officer to do a thing referred to in paragraph (1)(b), (c) or (d) in relation to data;

doing the thing is for the purpose of determining whether disruption of the data is immediately necessary for the purpose of dealing with an imminent risk of serious violence to a person or substantial damage to property; and

(e) the specified person is:

(i) in a case where the computer is the subject of a data disruption warrant - reasonably suspected of having committed any of the relevant offences referred to in paragraph 27KA(1)(c); or

(ii) in a case where the computer is the subject of emergency authorisation - reasonably suspected of having committed the relevant offence referred to in subsection 28(1C); or

(iii) the owner or lessee of the computer; or

(iv) an employee of the owner or lessee of the computer; or

(v) a person engaged under a contract for services by the owner or lessee of the computer; or

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

(vii) a person who is or was a system administrator for the system including the computer; and

(f) the specified person has relevant knowledge of:

(i) the computer or a computer network of which the computer forms or formed a part; or

(ii) measures applied to protect data held in the computer.

(2A) In determining whether the assistance order should be granted, the eligible Judge or nominated AAT member must have regard to whether the specified person is, or has been, subject to:

(a) another order under this section; or

(b) an order under section 64A of this Act; or

(c) an order under section 3LA or 3ZZVG of the Crimes Act 1914;

so far as that matter is known to the eligible Judge or nominated AAT member.

(2B) Subsection (2A) does not limit the matters to which the eligible Judge or nominated AAT member may have regard.

Duration of assistance order

(2C) If an assistance order is granted in relation to a computer that is the subject of a data disruption warrant, the order ceases to be in force when the warrant ceases to be in force.

(2D) If an assistance order is granted in relation to a computer that is the subject of an emergency authorisation given in response to an application under subsection 28(1C), the order ceases to be in force when the emergency authorisation ceases to be in force.

Protection from civil liability

(2E) A person is not subject to any civil liability in respect of an act done by the person:

(a) in compliance with an assistance order; or

(b) in good faith in purported compliance with an assistance order.

Offence

(3) A person commits an offence if:

(a) the person is subject to an order under this section; and

(b) the person is capable of complying with a requirement in the order; and

(c) the person omits to do an act; and

(d) the omission contravenes the requirement.

Penalty for contravention of this subsection: Imprisonment for 10 years or 600 penalty units, or both.