3JSpecific powers available to constables executing warrant

3J  Specific powers available to constables executing warrant  (1) In executing a warrant in relation to premises, the executing officer or a constable assisting may:  (a) for a purpose incidental to the execution of the warrant; or  (b) if the occupier of the premises consents in writing; take photographs (including video recordings) of the premises or of things at the premises.  (2) If a warrant in relation to premises is being executed, the executing officer and the constables assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:  (a) for not more than one hour; or  (aa) if there is an emergency situation, for not more than 12 hours or such longer period as allowed by an issuing officer under section 3JA; or  (b) for a longer period if the occupier of the premises consents in writing.  (a) the execution of a warrant is stopped by an order of a court; and  (b) the order is later revoked or reversed on appeal; and  (c) the warrant is still in force; the execution of the warrant may be completed. 3JA  Extension of time to re‑enter premises in emergency situations  (a) a warrant in relation to premises is being executed; and  (b) there is an emergency situation; and  (c) the executing officer or a constable assisting believes on reasonable grounds that the executing officer and the constables assisting will not be able to return to the premises within the 12 hour period mentioned in paragraph 3J(2)(aa); he or she may apply to an issuing officer for an extension of that period.  (2) Before making the application, the executing officer or a constable assisting must, if it is practicable to do so, give notice to the occupier of the premises of his or her intention to apply for an extension.  (3) If an application mentioned in subsection (1) has been made, an issuing officer may extend the period during which the executing officer and constables assisting may be away from the premises if:  (a) the issuing officer is satisfied, by information on oath or affirmation, that there are exceptional circumstances that justify the extension; and  (b) the extension would not result in the period ending after the expiry of the warrant. 3K  Use of equipment to examine or process things Equipment may be brought to warrant premises  (1) The executing officer of a warrant in relation to premises, or constable assisting, may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant or a thing that suggests the existence of a digital asset that may be seized under the warrant. Thing may be moved for examination or processing  (2) A thing found at warrant premises, or a thing found during a search under a warrant that is in force in relation to a person, may be moved to another place for examination or processing in order to determine whether the thing may be seized under a warrant, or the thing suggests the existence of a digital asset that may be seized under a warrant, if:  (a) both of the following apply:  (i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;  (ii) the executing officer or constable assisting suspects on reasonable grounds that the thing contains or constitutes evidential material or the thing suggests the existence of a digital asset that may be seized under a warrant; or  (b) for a thing found at warrant premises—the occupier of the premises consents in writing; or  (c) for a thing found during a search under a warrant that is in force in relation to a person—the person consents in writing. Notification of examination or processing and right to be present  (3) If a thing is moved to another place for the purpose of examination or processing under subsection (2), the executing officer must, if it is practicable to do so:  (a) inform the person referred to in paragraph (2)(b) or (c) (as the case requires) of the address of the place and the time at which the examination or processing will be carried out; and  (b) allow that person or his or her representative to be present during the examination or processing.  (3AA) The executing officer need not comply with paragraph (3)(a) or (b) if he or she believes on reasonable grounds that to do so might:  (a) endanger the safety of a person; or  (b) prejudice an investigation or prosecution. Time limit on moving a thing  (3A) The thing may be moved to another place for examination or processing for no longer than whichever of the following is applicable:  (a) if the thing is a computer or data storage device—30 days;  (b) otherwise—14 days.  (3B) An executing officer may apply to an issuing officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within the time applicable under subsection (3A) or that time as previously extended.  (3C) The executing officer must give notice of the application to the person referred to in paragraph (2)(b) or (c) (as the case requires), and that person is entitled to be heard in relation to the application.  (3D) A single extension cannot exceed whichever of the following is applicable:  (a) if the thing is a computer or data storage device—14 days;  (b) otherwise—7 days. Equipment at warrant premises may be operated  (4) The executing officer of a warrant in relation to premises, or a constable assisting, may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant, or a thing that suggests the existence of a digital asset that may be seized under the warrant, if the executing officer or constable believes on reasonable grounds that:  (a) the equipment is suitable for the examination or processing; and  (b) the examination or processing can be carried out without damage to the equipment or the thing. Extended powers of examination and processing  (5) For the purposes of this section, if a computer or data storage device (the relevant computer or device) was found in the course of a search authorised under a warrant, the examination or processing of the relevant computer or device may include:  (a) using:  (i) the relevant computer or device; or   for the purpose of obtaining access to data (the relevant data) that is held in the relevant computer or device in order to determine whether the relevant computer or device is a thing that may be seized under the warrant or a thing that suggests the existence of a digital asset that may be seized under the warrant; and  (b) if necessary to achieve the purpose mentioned in paragraph (a)—to add, copy, delete or alter other data in the relevant computer or device; and  (c) 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:  (ii) if necessary to achieve that purpose—to add, copy, delete or alter other data in the computer or the communication in transit; and  (d) to copy any data to which access has been obtained, and that appears to be relevant for the purposes of determining whether the relevant computer or device is a thing that may be seized under the warrant or a thing that suggests the existence of a digital asset that may be seized under the warrant; and  (6) For the purposes of this section, if a computer (the relevant computer) was found in the course of a search authorised under a warrant, the examination or processing of the relevant computer may include:  (a) using:  (i) the relevant computer; or  (iv) a person who is the owner or lessee of the relevant computer; or  (v) a person who uses or has used the relevant computer; or  (vi) a deceased person who, before the person’s death, was the owner or lessee of the relevant computer; or  (vii) a deceased person who, before the person’s death, used the relevant computer;   in order to determine whether the relevant computer is a thing that may be seized under the warrant or a thing that suggests the existence of a digital asset that may be seized under the warrant; and  (b) if necessary to achieve the purpose mentioned in paragraph (a)—to add, copy, delete or alter other data in the relevant computer; and  (c) if, having regard to other methods (if any) of obtaining access to the relevant account‑based data which are likely to be as effective, it is reasonable in all the circumstances to do so:  (ii) if necessary to achieve that purpose—to add, copy, delete or alter other data in the computer or the communication in transit; and  (d) to copy any data to which access has been obtained, and that appears to be relevant for the purposes of determining whether the relevant computer is a thing that may be seized under the warrant or a thing that suggests the existence of a digital asset that may be seized under the warrant; and  (7) Subsections (5) and (6) do not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:   unless the addition, deletion or alteration, or the doing of the thing, is necessary to determine:  (iii) in the case of subsection (5)—whether the relevant computer or device is a thing that may be seized under the warrant, or a thing that suggests the existence of a digital asset that may be seized under the warrant, referred to in that subsection; or  (iv) in the case of subsection (6)—whether the relevant computer is a thing that may be seized under the warrant, or a thing that suggests the existence of a digital asset that may be seized under the warrant, referred to in that subsection; or  (8) In the case of a warrant that was in force in relation to premises, it is immaterial whether a thing mentioned in subsection (5) or (6) is done:  (a) at the premises; or  (9) In the case of a warrant that was in force in relation to a person, it is immaterial whether a thing mentioned in subsection (5) or (6) is done:  (a) in the presence of the person; or 3L  Use of electronic equipment at premises  (1) The executing officer of a warrant in relation to premises, or a constable assisting, may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes evidential material or suggests the existence of a digital asset that may be seized under the warrant. Note: A constable can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 3LA.  (1A) If the executing officer or constable assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material or suggests the existence of a digital asset that may be seized under the warrant, he or she may:  (a) copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device brought to the premises; or  (b) if the occupier of the premises agrees in writing—copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device at the premises; and take the device from the premises.  (1B) If:  (a) the executing officer or constable assisting takes the device from the premises; and  (b) the Commissioner is satisfied that the data is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings; the Commissioner must arrange for:  (c) the removal of the data from any device in the control of the Australian Federal Police; and  (d) the destruction of any other reproduction of the data in the control of the Australian Federal Police.  (2) If the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so or finds a thing (whether or not held on the equipment) that suggests the existence of a digital asset that may be seized under the warrant, he or she may:  (b) if the material or thing can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material or thing in that form and seize the documents so produced.  (3) A constable may seize equipment under paragraph (2)(a) only if:  (a) it is not practicable to copy the data as mentioned in subsection (1A) or to put the material or thing in documentary form as mentioned in paragraph (2)(b); or  (b) possession by the occupier of the equipment could constitute an offence.  (4) If the executing officer or a constable assisting suspects on reasonable grounds that:  (a) evidential material may be accessible by operating electronic equipment at the premises; and  (b) expert assistance is required to operate the equipment; and  (c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with; he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.  (5) The executing officer or a constable assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.  (6) The equipment may be secured:  (a) for a period not exceeding 24 hours; or  (b) until the equipment has been operated by the expert; whichever happens first.  (7) If the executing officer or a constable assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to an issuing officer for an extension of that period.  (8) The executing officer or a constable assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.  (9) The provisions of this Division relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension. 3LAA  Use of electronic equipment at other place  (1) If electronic equipment is moved to another place under subsection 3K(2), the executing officer or a constable assisting may operate the equipment to:  (a) access data (including data held at another place); or  (b) access account‑based data.  (2) If the executing officer or constable assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, or suggests the existence of a digital asset that may be seized under a warrant, he or she may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.  (3) If the Commissioner is satisfied that the data is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the Commissioner must arrange for:  (a) the removal of the data from any device in the control of the Australian Federal Police; and  (b) the destruction of any other reproduction of the data in the control of the Australian Federal Police.  (4) If the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so or finds a thing (whether or not held on the equipment) that suggests the existence of a digital asset that may be seized under a warrant, he or she may:  (b) if the material or thing can be put in documentary form—put the material or thing in that form and seize the documents so produced.  (5) A constable may seize equipment under paragraph (4)(a) only if:  (a) it is not practicable to copy the data as mentioned in subsection (2) or to put the material or thing in documentary form as mentioned in paragraph (4)(b); or  (b) possession of the equipment, by the person referred to in paragraph 3K(2)(b) or (c) (as the case requires), could constitute an offence. 3LA  Person with knowledge of a computer or a computer system to assist access etc.  (1) A constable may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a constable to do one or more of the following:  (a) access data held in, or accessible from, a computer or data storage device that:  (i) is on warrant premises; or  (ia) is found in the course of an ordinary search of a person, or a frisk search of a person, authorised by a warrant under section 3E; or  (ii) has been moved under subsection 3K(2) and is at a place for examination or processing; or  (iii) has been seized under this Division;  (b) copy data held in, or accessible from, a computer, or data storage device, described in paragraph (a) to another data storage device;  (c) convert into documentary form or another form intelligible to a constable:  (i) data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or  (ii) data held in a data storage device to which the data was copied as described in paragraph (b); or  (iii) data held in a data storage device removed from warrant premises under subsection 3L(1A).  (2) The magistrate may grant the order if the magistrate is satisfied that:  (a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device; and  (b) the specified person is:  (i) reasonably suspected of having committed the offence stated in the relevant warrant; or  (ii) the owner or lessee of the computer or device; or  (iii) an employee of the owner or lessee of the computer or device; or  (iv) a person engaged under a contract for services by the owner or lessee of the computer or device; or  (v) a person who uses or has used the computer or device; or  (vi) a person who is or was a system administrator for the system including the computer or device; and  (c) the specified person has relevant knowledge of:  (i) the computer or device or a computer network of which the computer or device forms or formed a part; or  (ii) measures applied to protect data held in, or accessible from, the computer or device.  (a) the computer or data storage device that is the subject of the order is seized under this Division; and  (b) the order was granted on the basis of an application made before the seizure; the order does not have effect on or after the seizure. Note: An application for another order under this section relating to the computer or data storage device may be made after the seizure.  (4) If the computer or data storage device is not on warrant premises, the order must:  (a) specify the period within which the person must provide the information or assistance; and  (b) specify the place at which the person must provide the information or assistance; and  (c) specify the conditions (if any) determined by the magistrate as the conditions to which the requirement on the person to provide the information or assistance is subject. Offences  (5) A person commits an offence if:  (d) the omission contravenes the requirement. Penalty: Imprisonment for 5 years or 300 penalty units, or both.  (6) A person commits an offence if:  (d) the omission contravenes the requirement; and  (e) the offence to which the relevant warrant relates is:  (i) a serious offence; or  (ii) a serious terrorism offence. Penalty: Imprisonment for 10 years or 600 penalty units, or both. Additional use of information etc.  (7) If information or assistance is provided under this section in connection with an investigation into one or more alleged offences, this Act does not, by implication, prevent the information or assistance from being used in connection with the execution of an account takeover warrant (within the meaning of Part IAAC) that relates to that investigation. 3LB  Accessing data held on certain premises—notification to occupier of that premises  (a) data is accessed, in relation to a warrant, under subsection 3L(1) or 3LAA(1); and  (aa) either:  (i) if the warrant is in relation to premises—the data is held on premises other than the warrant premises; or  (ii) if the warrant is in relation to a person—the data is held on any premises; and  (b) it is practicable to notify the occupier of the premises on which the data is held that the data has been accessed under a warrant; the executing officer must:  (c) do so as soon as practicable; and  (d) if the executing officer has arranged, or intends to arrange, for continued access to the data under subsection 3L(1A) or (2) or 3LAA(2) or (4)—include that information in the notification.  (2) A notification under subsection (1) must include sufficient information to allow the occupier of the premises on which the data is held to contact the executing officer.