(a) if the warrant was issued in response to an application made by a law enforcement officer of the Australian Federal Police—the chief officer of the Australian Federal Police must, by instrument in writing, revoke the warrant; or
(b) if the warrant was issued in response to an application made by a law enforcement officer of the Australian Crime Commission—the chief officer of the Australian Crime Commission must, by instrument in writing, revoke the warrant.
(3) The instrument revoking a warrant must be signed by the magistrate or the chief officer, as the case requires.
(4) If a magistrate revokes an account takeover warrant, the magistrate must give a copy of the instrument of revocation to:
(a) if the warrant was issued in response to an application made by a law enforcement officer of the Australian Federal Police—the chief officer of the Australian Federal Police; or.
(b) if the warrant was issued in response to an application made by a law enforcement officer of the ACC—the chief officer of the ACC.
(5) If:
(a) a magistrate revokes an account takeover warrant; and
(b) at the time of the revocation, a law enforcement officer is executing the warrant;
the law enforcement officer is not subject to any civil or criminal liability for any act done in the proper execution of that warrant before the officer is made aware of the revocation.
3ZZUU Discontinuance of execution of account takeover warrant
Scope
(1) This section applies if an account takeover warrant is issued.
Discontinuance of execution of account takeover warrant
(2) If:
(a) the warrant was sought by a law enforcement officer of the Australian Federal Police or the Australian Crime Commission; and
(b) the chief officer is satisfied that taking control of the target account is no longer required for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or any of the alleged relevant offences, in respect of which the warrant is issued;
the chief officer must, in addition to revoking the warrant under section 3ZZUT, take the steps necessary to ensure that the execution of the warrant is discontinued.
(3) If:
(a) the warrant was sought by a law enforcement officer of the Australian Federal Police or the Australian Crime Commission; and
(b) the chief officer is notified that the warrant has been revoked by a magistrate under section 3ZZUT;
the chief officer must take the steps necessary to ensure that the execution of the warrant is discontinued as soon as practicable.
(4) If the executing officer believes that taking control of the target account is no longer required for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or any of the alleged relevant offences, in respect of which the warrant is issued, the executing officer must immediately inform the chief officer of the law enforcement agency to which the executing officer belongs or is seconded.
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3ZZUV Restoration of online account
If:
(a) an account takeover warrant ceases to be in force; and
(b) it is lawful for the holder of a target account to operate the account; and
(c) as a result of the execution of the warrant, the holder of the account cannot operate the account;
the executing officer must take all reasonable steps to ensure the holder of the account is able to operate the account.
3ZZUW Relationship of this Division to parliamentary privileges and immunities
To avoid doubt, this Division does not affect the law relating to the powers, privileges and immunities of any of the following:
(a) each House of the Parliament;
(b) the members of each House of the Parliament;
(c) the committees of each House of the Parliament and joint committees of both Houses of the Parliament.
Division 3—Emergency authorisations
3ZZUWA Sunsetting
This Division ceases to have effect 5 years after it commences.
3ZZUX Emergency authorisation—serious risks to person or property
(1) A law enforcement officer may apply to an appropriate authorising officer for an emergency authorisation for taking control of an online account if, in the course of an investigation of one or more relevant offences, the law enforcement officer reasonably suspects that:
(a) an imminent risk of serious violence to a person or substantial damage to property exists; and
(b) taking control of the account is immediately necessary for the purpose of dealing with that risk; and
(c) the circumstances are so serious and the matter is of such urgency that taking control of the account is warranted; and
(d) it is not practicable in the circumstances to apply for an account takeover warrant.
(2) The application may be made orally, in writing or by telephone, fax, email or any other means of communication.
(3) The appropriate authorising officer may give the emergency authorisation if satisfied that there are reasonable grounds for the suspicion founding the application.
Statutory conditions
(4) An emergency authorisation is subject to the following conditions:
(a) the authorisation must not be executed in a manner that results in damage to data unless the damage is justified and proportionate, having regard to the risk of serious violence or substantial damage referred to in paragraph (1)(a);
(b) the authorisation must not be executed in a manner that causes a person to suffer a permanent loss of:
(i) money; or
(ii) digital currency; or
(iii) property (other than data).
3ZZUY Record of emergency authorisations to be made
As soon as practicable after an appropriate authorising officer gives an emergency authorisation, the officer must make a written record of the giving of that authorisation, including in the record:
(a) the name of the applicant for the authorisation; and
(b) the date and time the authorisation was given; and
(c) the nature of the authorisation given.
3ZZUZ Attributes of emergency authorisations
(1) An emergency authorisation may authorise anything that an account takeover warrant may authorise.
(2) A law enforcement officer may take control of an online account under an emergency authorisation only if the officer is acting in the performance of the officer’s duty.
3ZZVA Application for approval of emergency authorisation
(1) Within 48 hours after giving an emergency authorisation to a law enforcement officer, the appropriate authorising officer who gave the authorisation (or another person on that appropriate authorising officer’s behalf) must apply to a magistrate for approval of the giving of the emergency authorisation.
(2) The application must:
(a) provide sufficient information to enable the magistrate to decide whether or not to approve the giving of the emergency authorisation; and
(b) be accompanied by a copy of the written record made under section 3ZZUY in relation to the emergency authorisation.
3ZZVB Consideration of application
Before deciding an application for approval of the giving of an emergency authorisation that relates to an online account, the magistrate considering the application must, in particular, and being mindful of the intrusive nature of taking control of the online account, consider the following:
(a) the nature of the risk of serious violence to a person or substantial damage to property;
(b) the extent to which issuing an account takeover warrant would have helped reduce or avoid the risk;
(c) the extent to which law enforcement officers could have used alternative methods of investigation to help reduce or avoid the risk;
(d) how much the use of alternative methods of investigation could have helped reduce or avoid the risk;
(e) how much the use of alternative methods of investigation would have prejudiced the safety of the person or property because of delay or for another reason;
(f) whether or not it was practicable in the circumstances to apply for an account takeover warrant.
3ZZVC Magistrate may approve giving of an emergency authorisation
(1) After considering an application for approval of the giving of an emergency authorisation that relates to an online account, the magistrate may give the approval if satisfied that there were reasonable grounds to suspect that:
(a) there was a risk of serious violence to a person or substantial damage to property; and
(b) taking control of the online account may have helped reduce the risk; and
(c) it was not practicable in the circumstances to apply for an account takeover warrant.
(2) If the magistrate approves the giving of an emergency authorisation, the magistrate may:
(a) unless paragraph (b) applies—issue an account takeover warrant relating to taking control of the online account as if the application for the approval were an application for an account takeover warrant under Division 2; or
(b) if the magistrate is satisfied that, since the application for the emergency authorisation, the activity that required taking control of an online account has ceased—order the cessation of taking control of the online account.
(3) If the magistrate does not approve the giving of an emergency authorisation, the magistrate may:
(a) order the cessation of taking control of the online account; or
(b) if the magistrate is of the view that, although the situation did not warrant the emergency authorisation at the time when the authorisation was given, the use of an account takeover warrant under Division 2 is currently justified—issue an account takeover warrant relating to the taking control of the online account as if the application for the approval were an application for an account takeover warrant under Division 2.
(4) In any case, the magistrate may order that any information obtained from or relating to the exercise of powers under the emergency authorisation, or any record of that information, be dealt with in a manner specified in the order, so long as the manner does not involve the destruction of that information.
3ZZVD Admissibility of evidence
If the giving of an emergency authorisation is approved under section 3ZZVC, any evidence obtained because of the exercise of powers under that authorisation is not inadmissible in any proceeding only because the evidence was obtained before the approval.
3ZZVE Restoration of online account
If:
(a) a magistrate orders the cessation of taking control of the online account to which an emergency authorisation relates; and
(b) as a result of the execution of the authorisation, the holder of the account cannot operate the account;
the law enforcement officer who applied for the authorisation must take all reasonable steps to ensure the holder of the account is able to operate the account.
3ZZVF Relationship of this Division to parliamentary privileges and immunities
To avoid doubt, this Division does not affect the law relating to the powers, privileges and immunities of any of the following:
(a) each House of the Parliament;
(b) the members of each House of the Parliament;
(c) the committees of each House of the Parliament and joint committees of both Houses of the Parliament.
Division 4—Assistance orders
3ZZVG Person with knowledge of an online account to provide assistance
(1) If an account takeover warrant or emergency authorisation is in force, a law enforcement officer may apply to a magistrate for an order (the assistance order) requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the law enforcement officer to take control of an online account that is the subject of the warrant or authorisation.
Grant of assistance order
(2) The magistrate may grant the assistance order if the magistrate is satisfied that:
(a) there are reasonable grounds for suspecting that taking control of the account is necessary, in the course of the investigation to which the account takeover warrant relates, for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or any of the alleged relevant offences, in respect of which the warrant is issued; and
(b) the specified person is:
(i) reasonably suspected of having committed the alleged relevant offence, or any of the alleged relevant offences, in respect of which the warrant is issued; or
(ii) the holder of the account; or
(iii) an employee of the holder of the account; or
(iv) a person engaged under a contract for services by the holder of the account; or
(v) a person who uses or has used the account; or
(vi) a person who is or was a system administrator for the electronic service to which the account relates; and
(c) the specified person has relevant knowledge of:
(i) the account; or
(ii) the electronic service to which the account relates; or
(iii) measures applied to protect account‑based data to which the account relates.
(2A) In determining whether the assistance order should be granted, the magistrate must have regard to whether the specified person is, or has been, subject to:
(a) another order under this section; or
(b) an order under section 3LA of this Act; or
(c) an order under section 64A or 64B of the Surveillance Devices Act 2004;
so far as that matter is known to the magistrate.
(2B) Subsection (2B) does not limit the matters to which the magistrate may have regard.
Duration of assistance order
(2C) If an assistance order is granted in relation to a computer that is the subject of an account takeover warrant, the order ceases to be in force when the warrant ceases to be in force.
(2D) If an assistance order is granted in relation to a computer that is the subject of an emergency authorisation, the order ceases to be in force when the emergency authorisation ceases to be in force.
Protection from civil liability
(2E) A person is not subject to any civil liability in respect of an act done by the person:
(a) in compliance with an assistance order; or
(b) in good faith in purported compliance with an assistance order.
Offence
(3) 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 10 years or 600 penalty units, or both.
Additional use of information etc.
(4) If information or assistance is provided under this section in connection with an investigation into one or more alleged relevant offences, this Act does not, by implication, prevent the information or assistance from being used in connection with the execution of a section 3E warrant that relates to that investigation.
Division 5—Restrictions on use and disclosure of information
3ZZVH Unauthorised use or disclosure of protected information
(1) A person commits an offence if:
(a) the person uses or discloses information; and
(b) the information is protected information.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person uses or discloses any information; and
(b) the information is protected information; and
(c) the use or disclosure of the information endangers the health or safety of any person or prejudices the effective conduct of an investigation into a relevant offence.
Penalty: Imprisonment for 10 years.
Exceptions
(3) Subsections (1) and (2) do not apply if the use or disclosure was:
(a) in connection with the administration or execution of this Part; or
(b) in connection with the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979; or
(c) in connection with the functions of the ACC under section 7A of the Australian Crime Commission Act 2002; or
(d) in connection with preventing, investigating or prosecuting an offence; or
(e) by a person who believes on reasonable grounds that the use or disclosure is necessary to help prevent or reduce the risk of serious violence to a person or substantial damage to property; or
(f) for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or
(g) for the purposes of obtaining legal advice in relation to this Part; or
(h) in accordance with any requirement imposed by law; or
(i) in connection with the performance of functions or duties, or the exercise of powers, under this Part; or
(j) in connection with the performance of functions or duties, or the exercise of powers, by:
(i) a law enforcement officer; or
(ii) the Director‑General (within the meaning of the Australian Security Intelligence Organisation Act 1979), an ASIO employee (within the meaning of that Act) or an ASIO affiliate (within the meaning of that Act); or
(iii) the agency head (within the meaning of the Intelligence Services Act 2001), or a staff member (within the meaning of that Act), of an agency (within the meaning of that Act); or
(k) for the purposes of the admission of evidence in a proceeding that is not a criminal proceeding.
Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.
(4) Subsections (1) and (2) do not apply if the disclosure was made by a person to an Ombudsman official (whether in connection with a complaint made to the Ombudsman or in any other circumstances).
Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.
(5) Subsections (1) and (2) do not apply if the disclosure was made by a person to an IGIS official for the purposes of the IGIS official exercising powers, or performing functions or duties, as an IGIS official.
Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.
3ZZVJ Dealing with records obtained under, or relating to, account takeover warrants etc.
The chief officer of the Australian Federal Police or the ACC: