Note: For the purposes of paragraph (a), the digital asset need not be found in the person’s possession. Data accessed using powers under this Part may suggest the existence of the digital asset. For example, a thing suggesting the existence of the digital asset could be found by accessing data using electronic equipment moved from the person’s possession: see section 3LAA.
Use of electronic equipment etc. to seize a digital asset etc.
(3) A warrant that is in force authorises the executing officer or a constable assisting:
(a) to use:
(i) a computer, or data storage device, found in the course of a search authorised under the warrant; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment; or
(iv) a data storage device;
for the purpose of seizing a digital asset under the warrant; and
(b) if necessary to achieve that purpose—to add, copy, delete or alter data in the computer or device mentioned in subparagraph (a)(i); and
(c) if it is reasonable in all the circumstances to do so for the purpose of seizing a digital asset under the warrant:
(i) to use any other computer or a communication in transit; and
(ii) if necessary to achieve that purpose—to add, copy, delete or alter data in the other computer or the communication in transit; and
(d) to do any other thing reasonably incidental to any of the above.
Use of electronic equipment etc. to access data to determine the existence of a digital asset that may be seized etc.
(4) A warrant that is in force authorises the executing officer or a constable assisting:
(a) to use:
(i) a computer, or data storage device, found in the course of a search authorised under the warrant; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment; or
(iv) a data storage device;
for the purpose of obtaining access to data (the relevant data) that is held in the computer or device mentioned in subparagraph (i) at any time when the warrant is in force, in order to determine whether the relevant data suggests the existence of a digital asset that may be seized under the warrant; and
(b) if necessary to achieve that purpose—to add, copy, delete or alter other data in the computer or device mentioned in subparagraph (a)(i); 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:
ZoeLaw is not a law firm. Picks are our opinion; we don't share your details.
(i) to use any other computer or a communication in transit to access the relevant data; and
(ii) if necessary to achieve that purpose—to add, copy, delete or alter other data in the other computer or the communication in transit; and
(d) to copy any data to which access has been obtained, and that:
(i) appears to be relevant for the purposes of determining whether the relevant data suggests the existence of a digital asset that may be seized under the warrant; or
(ii) suggests the existence of a digital asset that may be seized under the warrant; and
(e) to do any other thing reasonably incidental to any of the above.
Note: 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).
(5) A warrant that is in force authorises the executing officer or a constable assisting:
(a) to use:
(i) a computer found in the course of a search authorised under the warrant; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment;
for the purpose of obtaining access to data (the relevant account‑based data) that is account‑based data in relation to:
(iv) a person who is the owner or lessee of the computer mentioned in subparagraph (i); or
(v) a person who uses or has used the computer mentioned in subparagraph (i); or
(vi) a deceased person who, before the person’s death, was the owner or lessee of the computer mentioned in subparagraph (i); or
(vii) a deceased person who, before the person’s death, used the computer mentioned in subparagraph (i);
in order to determine whether the relevant account‑based data 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 computer mentioned in subparagraph (a)(i); 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:
(i) to use any other computer or a communication in transit to access the relevant account‑based data; and
(ii) if necessary to achieve that purpose—to add, copy, delete or alter other data in the other computer or the communication in transit; and
(d) to copy any data to which access has been obtained, and that:
(i) appears to be relevant for the purposes of determining whether the relevant account‑based data suggests the existence of a digital asset that may be seized under the warrant; or
(ii) suggests the existence of a digital asset that may be seized under the warrant; and
(e) to do any other thing reasonably incidental to any of the above.
Limitation
(6) Subsections (3), (4) and (5) do not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:
(a) materially interfere with, interrupt or obstruct:
(i) a communication in transit; or
(ii) the lawful use by other persons of a computer;
unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified in the warrant; or
(b) cause any other material loss or damage to other persons lawfully using a computer.
Operation of electronic equipment to seize a digital asset
(7) A warrant that is in force also authorises the executing officer or a constable assisting:
(a) for a warrant in relation to premises—to operate electronic equipment at the premises for the purpose of seizing a digital asset under the warrant; and
(b) if electronic equipment is moved to another place under subsection 3K(2)—to operate the equipment for the purpose of seizing a digital asset under the warrant.
Additional ways of seizing digital assets
(8) Seizing a digital asset under a warrant includes any of the following:
(a) transferring the digital asset from an existing digital wallet (or some other thing) to a digital wallet (or other thing) controlled by the Australian Federal Police or a police force or police service of a State or Territory;
(b) transferring the digital asset:
(i) from a digital wallet (or some other thing) recreated or recovered by the Australian Federal Police or a police force or police service of a State or Territory using things found in the course of the search authorised by the warrant; and
(ii) to a digital wallet (or other thing) controlled by the Australian Federal Police or a police force or police service of a State or Territory;
(c) transferring the digital asset in circumstances prescribed by regulations made for the purposes of this paragraph.
Note: The ordinary meaning of seizing a digital asset is extended by the additional ways mentioned in this subsection.
Time limit for seizing digital assets etc.
(9) The power to seize a digital asset under the warrant, or a power covered by subsection (3) or paragraph (7)(b) relating to seizing a digital asset under the warrant, may be exercised, to the extent that the exercise of the power relates to a thing referred to in paragraph (1)(a) or (2)(a) for the warrant, only during the period starting when the warrant is issued and ending at:
(a) if the thing is moved to another place under subsection 3K(2)—the time applicable under subsection 3K(3A) or that time as previously extended as described in subsection 3K(3B); or
(b) if the thing is seized under this Division—any time that the thing must be returned as described in Subdivision B of Division 4C of this Part; or
(c) if the thing is data that is copied under this Division—the time the Commissioner is satisfied that the data is not required (or is no longer required):
(i) for a purpose mentioned in section 3ZQU; or
(ii) for other judicial or administrative review proceedings; or
(d) otherwise—the end of the period of 30 days starting on the day the warrant is issued.
Note: This means the power to seize the digital asset may be exercised at different times if there is more than one thing referred to in paragraph (1)(a) or (2)(a) that suggests the existence of the digital asset.
For example, if 2 or more things referred to in paragraph (1)(a) or (2)(a) suggest the existence of the digital asset, seizure of the digital asset may occur during the longest period that applies to the digital asset as a result of the application of this subsection in relation to each of those things.
(10) If the period applicable under subsection (9) ends after the warrant expires, the powers referred to in that subsection may be exercised during that period as if the warrant were still in force.
Things done in relation to warrants may be done remotely etc.
(11) For a warrant related to premises, it is immaterial whether:
(a) a digital asset is seized, as described in this section, at the premises or at any other place; or
(b) a thing mentioned in subsection (3), (4) or (5) is done at the premises or at any other place.
(12) For a warrant related to a person, it is immaterial whether:
(a) a digital asset is seized, as described in this section, in the presence of the person or at any other place; or
(b) a thing mentioned in subsection (3), (4) or (5) is done in the presence of the person or at any other place.
3G Availability of assistance and use of force in executing a warrant
In executing a warrant:
(a) the executing officer may obtain such assistance; and
(b) the executing officer, or a person who is a constable and who is assisting in executing the warrant may use such force against persons and things; and
(c) a person who is not a constable and who has been authorised to assist in executing the warrant may use such force against things;
as is necessary and reasonable in the circumstances.
3H Details of warrant to be given to occupier etc.
(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the executing officer or a constable assisting must make available to that person a copy of the warrant.
(2) If a warrant in relation to a person is being executed, the executing officer or a constable assisting must make available to that person a copy of the warrant.
(3) If a person is searched under a warrant in relation to premises, the executing officer or a constable assisting must show the person a copy of the warrant.
(4) The executing officer must identify himself or herself to the person at the premises or the person being searched, as the case may be.
(5) The copy of the warrant referred to in subsections (1) and (2) need not include the signature of the issuing officer or the seal of the relevant court.
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.
(3) If:
(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
(1) If:
(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.