Surveillance Devices Act 2004

An eligible Judge or a nominated ART member may issue a computer access warrant if satisfied:

in the case of a warrant sought in relation to a relevant offence—that there are reasonable grounds for the suspicion founding the application for the warrant; and

in the case of a warrant sought in relation to a recovery order—that such an order is in force and that there are reasonable grounds for the suspicion founding the application for the warrant; and

in the case of a warrant sought in relation to an international assistance authorisation—that such an authorisation is in force and that there are reasonable grounds for the suspicion founding the application for the warrant; and

in the case of a warrant sought for the purposes of an integrity operation—that the integrity authority for the operation is in effect, and that there are reasonable grounds for the suspicions founding the application for the warrant (as mentioned in paragraphs 27A(5)(a) and (b)); and

in the case of a computer access warrant sought to determine whether to apply for a post‑sentence order—that the conditions in paragraphs 27A(5A)(a), (b) and (d) are met, and there are reasonable grounds for the suspicions founding the application for the warrant (as mentioned in paragraphs 27A(5A)(c) and (e)); and

in the case of a computer access warrant sought to determine whether to apply for a Part 9.10 order—that the conditions in paragraphs 27A(5B)(a) and (c) are met, and there are reasonable grounds for the suspicions founding the application for the warrant (as mentioned in paragraphs 27A(5B)(b) and (d)); and

in the case of a computer access warrant sought in relation to a Part 5.3 supervisory order that is in force in relation to a person—that the order is in force in relation to the person, and there are reasonable grounds for the suspicion founding the application for the warrant (as mentioned in paragraph 27A(6)(b)); and

in the case of a computer access warrant sought in relation to a community safety supervision order that is in force in relation to a person—that the order is in force in relation to the person, and there are reasonable grounds for the suspicion founding the application for the warrant (as mentioned in paragraph 27A(6A)(b)); and

in the case of an unsworn application—that it would have been impracticable for an affidavit to have been sworn or prepared before the application was made; and

in the case of a remote application—that it would have been impracticable for the application to have been made in person.

For Part 5.3 supervisory orders that have been made but not come into force, see section 6C. For community safety supervision orders that have been made but not come into force, see section 6E.

In determining whether a computer access warrant should be issued, the eligible Judge or nominated ART member must have regard to:

in the case of a warrant sought in relation to a relevant offence or an international assistance authorisation, or for the purposes of an integrity operation—the nature and gravity of the alleged offence; and

in the case of a warrant sought to assist in the location and safe recovery of a child to whom a recovery order relates—the circumstances that gave rise to the making of the order; and

the extent to which the privacy of any person is likely to be affected; and

the existence of any alternative means of obtaining the evidence or information sought to be obtained; and

in the case of a warrant sought in relation to a relevant offence or a recovery order, or for the purposes of an integrity operation—the likely evidentiary or intelligence value of any evidence or information sought to be obtained; and

in the case of a warrant sought in relation to an international assistance authorisation—the likely evidentiary or intelligence value of any evidence or information sought to be obtained, to the extent that this is possible to determine from information obtained from the international entity to which the authorisation relates; and

in the case of a warrant sought in relation to a relevant offence or a recovery order—any previous warrant sought or issued under this Division in connection with the same alleged offence or the same recovery order.

In addition to the matters in subsection (2), in determining whether to issue a computer access warrant sought to determine whether to apply for a post‑sentence order in relation to a person, the eligible Judge or nominated ART member must have regard to:

the likely value of the information sought to be obtained in determining whether to apply for the post‑sentence order; and

any previous application for a computer access warrant sought or issued to determine whether to apply for a post‑sentence order in relation to the person.

In addition to the matters in subsection (2), in determining whether to issue a computer access warrant sought in a case where a Part 5.3 supervisory order is in force in relation to a person, the eligible Judge or nominated ART member must have regard to:

the likely value of the information sought to be obtained, in:

achieving a Part 5.3 object; or

determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and

whether the access to the data in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained, that is likely to have the least interference with any person’s privacy; and

if the order is a control order:

the possibility that the person has engaged, is engaging, or will engage, in a terrorist act; or

the possibility that the person has provided, is providing, or will provide, support for a terrorist act; or

the possibility that the person has facilitated, is facilitating, or will facilitate, a terrorist act; or

the possibility that the person has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country; or

the possibility that the person has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country; and

if the order is an extended supervision order or interim supervision order—the possibility that the person has committed, is committing, or will commit, a serious Part 5.3 or 5.3A offence; and

in relation to any Part 5.3 supervisory order—the possibility that the person has contravened, is contravening, or will contravene, the order or a succeeding Part 5.3 supervisory order; and

any previous computer access warrant sought or issued on the basis of a Part 5.3 supervisory order that is or was in force in relation to the person.

In addition to the matters in subsection (2), in determining whether to issue a computer access warrant sought to determine whether to apply for a Part 9.10 order in relation to a person, the eligible Judge or nominated ART member must have regard to:

the likely value of the information sought to be obtained in determining whether to apply for the Part 9.10 order; and

any previous application for a computer access warrant sought or issued to determine whether to apply for a Part 9.10 order in relation to the person.

In addition to the matters in subsection (2), in determining whether to issue a computer access warrant sought in a case where a community safety supervision order is in force in relation to a person, the eligible Judge or nominated ART member must have regard to:

the likely value of the information sought to be obtained, in:

achieving a Part 9.10 object; or

determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

whether the access to the data in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained, that is likely to have the least interference with any person’s privacy; and

the possibility that the person has committed, is committing, or will commit, a serious violent or sexual offence; and

the possibility that the person has contravened, is contravening, or will contravene, the community safety supervision order or a succeeding community safety supervision order; and

any previous computer access warrant sought or issued on the basis of a community safety supervision order that is or was in force in relation to the person.