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

Schedule 1   Seizing digital assets

Part 1   Main amendments

Crimes Act 1914

6   After section 3F

Insert:

3FA The things authorised by a search warrant - additional things for digital assets

Warrant in relation to premises - authority to seize digital assets

(1) A warrant that is in force in relation to premises authorises the executing officer or a constable assisting to seize a digital asset if:

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

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

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

(ii) evidential material in relation to another offence that is an indictable offence; or

(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); and

(c) the executing officer or a constable 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 using electronic equipment moved from the premises: see section 3LAA.

Warrant in relation to person - authority to seize digital assets

(2) A warrant that is in force in relation to a person authorises the executing officer or a constable assisting to seize a digital asset if:

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

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

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

(ii) evidential material in relation to another offence that is an indictable offence; or

(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); and

(c) the executing officer or a constable 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 in the person's possession. 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 using electronic equipment moved from the person's possession: see section 3LAA.

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

(3) A warrant that is in force authorises the executing officer or a constable 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.

(4) A warrant that is in force authorises the executing officer or a constable 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).

(5) A warrant that is in force authorises the executing officer or a constable assisting:

(a) to use:

(i) a computer 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;

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 computer mentioned in subparagraph (i); or

(v) a person who uses or has used the computer mentioned in subparagraph (i); or

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

(vii) a deceased person who, before the person's death, used the computer mentioned in subparagraph (i);

in order to determine whether the relevant account-based data suggests the existence of a digital asset 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 computer mentioned in subparagraph (a)(i); 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 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 account-based 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.

Limitation

(6) Subsections (3), (4) and (5) 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

(7) A warrant that is in force also authorises the executing officer or a constable assisting:

(a) for a warrant in relation to premises - 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 3K(2) - to operate the equipment for the purpose of seizing a digital asset under the warrant.

Additional ways of seizing digital assets

(8) Seizing a digital asset under a 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 the Australian Federal Police or a police force or police service of a State or Territory;

(b) transferring the digital asset:

(i) from a digital wallet (or some other thing) recreated or recovered by the Australian Federal Police or a police force or police service of a State or Territory using things found in the course of the search authorised by the warrant; and

(ii) to a digital wallet (or other thing) controlled by the Australian Federal Police or a police force or police service of a State or Territory;

(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.

(9) The power to seize a digital asset under the warrant, or a power covered by subsection (3) or paragraph (7)(b) relating to seizing a digital asset under the warrant, may be exercised, to the extent that the exercise of the power relates to a thing referred to in paragraph (1)(a) or (2)(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 3K(2) - the time applicable under subsection 3K(3A) or that time as previously extended as described in subsection 3K(3B); or

(b) if the thing is seized under this Division - any time that the thing must be returned as described in Subdivision B of Division 4C of this Part; or

(c) if the thing is data that is copied under this Division - the time the Commissioner is satisfied that the data is not required (or is no longer required):

(i) for a purpose mentioned in section 3ZQU; 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) or (2)(a) that suggests the existence of the digital asset.

For example, if 2 or more things referred to in paragraph (1)(a) or (2)(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.

(10) If the period applicable under subsection (9) ends after the 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.

(11) For a warrant related to premises, it is immaterial whether:

(a) a digital asset is seized, as described in this section, at the premises or at any other place; or

(b) a thing mentioned in subsection (3), (4) or (5) is done at the premises or at any other place.

(12) For a warrant related to a person, it is immaterial whether:

(a) a digital asset is seized, as described in this section, in the presence of the person or at any other place; or

(b) a thing mentioned in subsection (3), (4) or (5) is done in the presence of the person or at any other place.