Surveillance Devices Act 2004

A computer access warrant must authorise the doing of specified things (subject to any restrictions or conditions specified in the warrant) in relation to the relevant target computer.

The things that may be specified are any of the following that the eligible Judge or nominated ART member considers appropriate in the circumstances:

entering specified premises for the purposes of doing the things mentioned in this subsection;

entering any premises for the purposes of gaining entry to, or exiting, the specified premises;

using:

the target computer; or

a telecommunications facility operated or provided by the Commonwealth or a carrier; or

any other electronic equipment; or

a data storage device;

if necessary to achieve the purpose mentioned in paragraph (c)—adding, copying, deleting or altering other data in the target computer;

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:

using any other computer or a communication in transit to access the relevant data; and

if necessary to achieve that purpose—adding, copying, deleting or altering other data in the computer or the communication in transit;

removing a computer or other thing from premises for the purposes of doing any thing specified in the warrant in accordance with this subsection, and returning the computer or other thing to the premises;

copying any data to which access has been obtained, and that:

appears to be relevant for the purposes of determining whether the relevant data is covered by the warrant; or

is covered by the warrant;

intercepting a communication passing over a telecommunications system, if the interception is for the purposes of doing any thing specified in the warrant in accordance with this subsection;

any other thing reasonably incidental to any of the above.

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).

If:

a computer access warrant authorises the removal of a computer or other thing from premises as mentioned in paragraph (2)(f); and

a computer or thing is removed from the premises in accordance with the warrant;

For the purposes of paragraph (2)(g), if:

access has been obtained to data; and

the data is subject to a form of electronic protection;

For the purposes of this section, data is covered by a warrant if:

in the case of a warrant sought in relation to a relevant offence—access to the data is necessary as described in paragraph 27A(1)(c); or

in the case of a warrant sought in relation to a recovery order—access to the data may assist as described in paragraph 27A(3)(b); or

in the case of a warrant sought in relation to an international assistance authorisation—access to the data is necessary as described in paragraph 27A(4)(b); or

in the case of a warrant sought for the purposes of an integrity operation—access to the data will assist as described in paragraph 27A(5)(b); or

in the case of a warrant sought to determine whether to apply for a post‑sentence order—access to the data would be likely to assist as described in paragraph 27A(5A)(e); or

in the case of a warrant issued on the basis of a Part 5.3 supervisory order that is in force in relation to a person—access to the data would be likely to substantially assist as described in paragraph 27A(6)(b); or

in the case of a warrant sought to determine whether to apply for a Part 9.10 order—access to the data would be likely to assist as described in paragraph 27A(5B)(d); or

in the case of a warrant issued on the basis of a community safety supervision order that is in force in relation to a person—access to the data would be likely to substantially assist as described in paragraph 27A(6A)(b).

Subsection (2) does not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:

materially interfere with, interrupt or obstruct:

a communication in transit; or

the lawful use by other persons of a computer;

cause any other material loss or damage to other persons lawfully using a computer.

A computer access warrant must:

authorise the use of any force against persons and things that is necessary and reasonable to do the things specified in the warrant; and

if the warrant authorises entering premises—state whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night.

If any thing has been done in relation to a computer under:

a computer access warrant; or

this subsection;

any thing reasonably necessary to conceal the fact that any thing has been done under the warrant or under this subsection;

entering any premises where the computer is reasonably believed to be, for the purposes of doing the things mentioned in paragraph (c);

entering any other premises for the purposes of gaining entry to or exiting the premises referred to in paragraph (d);

removing the computer or another thing from any place where it is situated for the purposes of doing the things mentioned in paragraph (c), and returning the computer or other thing to that place;

if, having regard to other methods (if any) of doing the things mentioned in paragraph (c) which are likely to be as effective, it is reasonable in all the circumstances to do so:

using any other computer or a communication in transit to do those things; and

if necessary to achieve that purpose—adding, copying, deleting or altering other data in the computer or the communication in transit;

intercepting a communication passing over a telecommunications system, if the interception is for the purposes of doing any thing mentioned in this subsection;

any other thing reasonably incidental to any of the above;

at any time while the warrant is in force or within 28 days after it ceases to be in force;

if none of the things mentioned in paragraph (c) are done within the 28‑day period mentioned in paragraph (j)—at the earliest time after that 28‑day period at which it is reasonably practicable to do the things mentioned in paragraph (c).

Subsection (7) does not authorise the doing of a thing that is likely to:

materially interfere with, interrupt or obstruct:

a communication in transit; or

the lawful use by other persons of a computer;

cause any other material loss or damage to other persons lawfully using a computer.

If a computer or another thing is removed from a place in accordance with paragraph (7)(f), the computer or thing must be returned to the place within a reasonable period.