(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
(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 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:
(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 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
(e) to do any other thing reasonably incidental to any of the above.
(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
(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 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;
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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:
(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 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
(e) to do any other thing reasonably incidental to any of the above.
(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:
(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 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
(b) cause any other material loss or damage to other persons lawfully using a computer.
(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
(b) at any other place.
(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
(b) at any other place.
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:
(a) seize the equipment and any disk, tape or other associated device; or
(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:
(a) seize the equipment and any disk, tape or other associated device; or
(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.
(3) If:
(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:
(a) the person is subject to an order under this section; and
(b) the person is capable of complying with a requirement in the order; and
(c) the person omits to do an act; and
(d) the omission contravenes the requirement.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(6) A person commits an offence if:
(a) the person is subject to an order under this section; and
(b) the person is capable of complying with a requirement in the order; and
(c) the person omits to do an act; and
(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
(1) If:
(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.
3M Compensation for damage to equipment
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in subsection 3FA(7) or section 3K, 3L or 3LAA:
(i) damage is caused to the equipment; or
(ii) damage is caused to data recorded on the equipment or data access to which was obtained from the operation of the equipment; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether any of the following persons, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment:
(a) if the equipment was operated under a warrant issued in relation to premises—the occupier of the premises, or the occupier’s employees or agents;