Surveillance Devices Act 2004

An eligible Judge or a nominated ART member may issue a network activity warrant if satisfied:

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

that the issue of the warrant is justified and proportionate, having regard to the kinds of offences in relation to which information will be obtained under the warrant; 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 network activity warrant should be issued, the eligible Judge or nominated ART member must have regard to:

the nature and gravity of the conduct constituting the kinds of offences in relation to which information will be obtained under the warrant; and

the extent to which access to data under the warrant will assist in the collection of intelligence that:

relates to the group referred to in paragraph 27KK(1)(a) or to any of the individuals in the group; and

is relevant to the prevention, detection or frustration of one or more kinds of relevant offences; and

the likely intelligence value of any information sought to be obtained; and

whether the things authorised by the warrant are proportionate to the likely intelligence value of any information sought to be obtained; and

the existence of any alternative, or less intrusive, means of obtaining the information sought to be obtained; and

the extent to which the execution of the warrant is likely to result in access to data of persons who are lawfully using a computer, and any privacy implications (to the extent known to the eligible Judge or nominated ART member) resulting from that access; and

if:

the eligible Judge or nominated ART member believes on reasonable grounds that the data covered by the warrant (within the meaning of section 27KP) 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 27KK(1)(b) 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 group referred to in paragraph 27KK(1)(a).

For the purposes of having regard to the nature and gravity of the conduct constituting the kinds of offences in relation to which information will be obtained under the warrant, the eligible Judge or 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 (2A) 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 network activity warrant from being issued in a case where the conduct constituting the kinds of offences in relation to which information will be obtained under the warrant is not covered by subsection (2A).

If a network activity warrant is issued in response to an application made by the chief officer of the Australian Federal Police or the Australian Crime Commission, the chief officer must:

notify the issue of the warrant to the Inspector‑General of Intelligence and Security; and

do so within 7 days after the issue of the warrant.

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.