Crimes and Other Legislation Amendment (Omnibus No. 1) Act 2024 (93 of 2024)

Schedule 1   Seizing digital assets

Part 1   Main amendments

Proceeds of Crime Act 2002

30   At the end of Subdivision A of Division 1 of Part 3-5

Add:

228A The things authorised by a search warrant - additional things for digital assets

Authority to seize digital assets

(1) A *search warrant authorises the *executing officer or a *person assisting to *seize a *digital asset if:

(a) in the course of exercising powers under this Part, the executing officer or a person assisting finds one or more things that suggest the existence of the digital asset; and

(b) the executing officer or a person assisting reasonably suspects the digital asset to be:

(i) *tainted property to which the warrant relates; or

(ii) *evidential material in relation to property to which the warrant relates; or

(iii) evidential material (within the meaning of the Crimes Act 1914) relating to an *indictable offence; and

(c) the executing officer or a person assisting reasonably suspects that seizing the digital asset is necessary to prevent the digital asset's concealment, loss or destruction or its use in committing an offence.

Note: For the purposes of paragraph (a), the digital asset need not be found at the premises. Data accessed using powers under this Part may suggest the existence of the digital asset. For example, a thing suggesting the existence of the digital asset could be found by accessing data not held at the premises: see section 245.

Use of electronic equipment etc. to seize a digital asset etc.

(2) A *search warrant 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 *seizing a *digital asset under the warrant; and

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

(c) if it is reasonable in all the circumstances to do so for the purpose of seizing a digital asset under the warrant:

(i) to use any other computer or a *communication in transit; and

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

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

Use of electronic equipment etc. to access data to determine the existence of a digital asset that may be seized etc.

(3) A *search warrant 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 suggests the existence of a *digital asset that may be *seized under the warrant; and

(b) if necessary to achieve that purpose - 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 other 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 suggests the existence of a digital asset that may be seized under the warrant; or

(ii) suggests the existence of a digital asset that may be seized under 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).

Limitation

(4) Subsections (2) and (3) 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 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.

Operation of electronic equipment to seize a digital asset

(5) A *search warrant also authorises the *executing officer or a *person assisting:

(a) to operate electronic equipment at the *premises for the purpose of *seizing a *digital asset under the warrant; and

(b) if electronic equipment is moved to another place under subsection 244(1) - to operate the equipment for the purpose of seizing a digital asset under the warrant.

Additional ways of seizing digital assets

(6) Seizing a *digital asset under a *search warrant includes any of the following:

(a) transferring the digital asset from an existing digital wallet (or some other thing) to a digital wallet (or other thing) controlled by an *enforcement agency;

(b) transferring the digital asset:

(i) from a digital wallet (or some other thing) recreated or recovered by an enforcement agency using things found in the course of the search authorised by the warrant; and

(ii) to a digital wallet (or other thing) controlled by an enforcement agency;

(c) transferring the digital asset in circumstances prescribed by regulations made for the purposes of this paragraph.

Note: The ordinary meaning of seizing a digital asset is extended by the additional ways mentioned in this subsection.

Time limit for seizing digital assets etc.

(7) The power to *seize a *digital asset under the *search warrant, or a power covered by subsection (2) or paragraph (5)(b) relating to seizing a digital asset under the search warrant, may be exercised, to the extent that the exercise of the power relates to a thing referred to in paragraph (1)(a) for the warrant, only during the period starting when the warrant is issued and ending at:

(a) if the thing is moved to another place under subsection 244(1) - the time applicable under subsection 244(2) or that time as previously extended as described in subsection 244(3); or

(b) if the thing is seized under this Part - any time that the thing must be returned as described in Subdivision B or C of Division 3 of this Part; or

(c) if the thing is *data that is copied under this Division - the time the head of the *enforcement agency covered by subsection 225(3) is satisfied that the data is not required (or is no longer required):

(i) for a purpose mentioned in section 266A; or

(ii) for other judicial or administrative review proceedings; or

(d) otherwise - the end of the period of 30 days starting on the day the warrant is issued.

Note: This means the power to seize the digital asset may be exercised at different times if there is more than one thing referred to in paragraph (1)(a) that suggests the existence of the digital asset.

For example, if 2 or more things referred to in paragraph (1)(a) suggest the existence of the digital asset, seizure of the digital asset may occur during the longest period that applies to the digital asset as a result of the application of this subsection in relation to each of those things.

(8) If the period applicable under subsection (7) ends after the *search warrant expires, the powers referred to in that subsection may be exercised during that period as if the warrant were still in force.

Things done in relation to warrants may be done remotely etc.

(9) It is immaterial whether:

(a) a *digital asset is *seized, as described in this section, at the *premises that are the subject of the *search warrant or at any other place; or

(b) a thing mentioned in subsection (2) or (3) is done at the premises that are the subject of the search warrant or at any other place.