Surveillance Devices Act 2004

A data disruption 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;

obtaining access to data (the relevant data) that is held in the target computer at any time while the warrant is in force, in order to determine whether the relevant data is covered by the warrant;

disrupting the relevant data at any time while the warrant is in force, if doing so is likely to assist in frustrating the commission of one or more relevant offences covered by the warrant;

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

if, having regard to other methods (if any) of obtaining access to, or disrupting, 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 or disrupt 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 data disruption 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 disruption of the data is likely to substantially assist as described in paragraph 27KA(1)(c).

For the purposes of this section, a relevant offence is covered by a warrant if the relevant offence is referred to in paragraph 27KA(1)(c).

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, unless the loss or damage is reasonably necessary, and proportionate, to do one or more of the things specified in the warrant.

A data disruption 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 data disruption 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 (9) 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, unless the loss or damage is reasonably necessary, and proportionate, to do one or more of the things specified in the warrant or authorised by subsection (9).

If a computer or another thing is removed from a place in accordance with paragraph (9)(f), the computer or thing must be returned to the place as soon as is reasonably practicable to do so once the computer or thing is no longer required for the purposes of doing any thing mentioned in paragraph (9)(c).

A data disruption warrant is subject to the following conditions:

the warrant must not be executed in a manner that results in loss or damage to data unless the damage is reasonably necessary, and proportionate, to do one or more of the things specified in the warrant or authorised by subsection (9);

the warrant must not be executed in a manner that causes a person to suffer a permanent loss of:

money; or

digital currency; or

property (other than data).

Subsection (12) does not, by implication, limit the conditions to which a data disruption warrant may be subject.

The conditions set out in subsection (12) must be specified in a data disruption warrant.