Surveillance Devices Act 2004

An eligible Judge or a nominated ART member may issue a data disruption warrant if satisfied:

that there are reasonable grounds for the suspicion founding the application for the warrant; and

the disruption of data authorised by the warrant is reasonably necessary and proportionate, having regard to the offences referred to in paragraph 27KA(1)(c); 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.

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

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

the likelihood that the disruption of data authorised by the warrant will frustrate the commission of the offences referred to in paragraph 27KA(1)(c); and

the existence of any alternative means of frustrating the commission of the offences referred to in paragraph 27KA(1)(c); and

the nature of the things proposed to be authorised by the warrant in accordance with section 27KE; and

the extent to which the execution of the warrant is likely to result in access to, or disruption of, data of persons lawfully using a computer, and any privacy implications (to the extent known) resulting from that access or disruption; and

any steps that are proposed to be taken to avoid or minimise the extent to which the execution of the warrant is likely to impact on persons lawfully using a computer; and

the extent to which the execution of the warrant is likely to cause a person to suffer a temporary loss of:

money; or

digital currency; or

property (other than data);

if:

the eligible Judge or nominated ART member believes on reasonable grounds that the data covered by the warrant (within the meaning of section 27KE) is data of a person who is working in a professional capacity as a journalist or of an employer of such a person; and

each of the offences referred to in paragraph 27KA(1)(c) is an offence against a secrecy provision;

the public interest in protecting the confidentiality of the identity of the journalist’s source; and

the public interest in facilitating the exchange of information between journalists and members of the public so as to facilitate reporting of matters in the public interest; and

any previous warrant sought or issued under this Division in relation to the alleged relevant offences referred to in paragraph 27KA(1)(c).

For the purposes of having regard to the nature and gravity of the conduct constituting the offences referred to in paragraph 27KA(1)(c), the eligible Judge or a nominated ART member must give weight to the following matters:

whether that conduct amounts to:

an activity against the security of the Commonwealth; or

an offence against Chapter 5 of the Criminal Code;

whether that conduct amounts to:

an activity against the proper administration of Government; or

an offence against Chapter 7 of the Criminal Code;

whether that conduct:

causes, or has the potential to cause, serious violence, or serious harm, to a person; or

amounts to an offence against Chapter 8 of the Criminal Code;

whether that conduct:

causes, or has the potential to cause, a danger to the community; or

amounts to an offence against Chapter 9 of the Criminal Code;

whether that conduct:

causes, or has the potential to cause, substantial damage to, or loss of, data, property or critical infrastructure; or

amounts to an offence against Chapter 10 of the Criminal Code;

whether that conduct involves, or is related to, the commission of:

transnational crime; or

serious crime; or

organised crime;

Subsection (3) does not limit the matters that may be considered by the eligible Judge or nominated ART member.

To avoid doubt, this Act does not prevent a data disruption warrant from being issued in a case where the conduct constituting the offences referred to in paragraph 27KA(1)(c) is not covered by subsection (3).

For the purposes of this section, secrecy provision means a provision of a law of the Commonwealth or of a State that prohibits:

the communication, divulging or publication of information; or

the production of, or the publication of the contents of, a document.