(6) If the warrant authorises an ordinary search or a frisk search of a person, a search of the person different to that so authorised must not be done under the warrant.
199A When search warrants relating to persons can be issued
(1) A judicial officer may issue a warrant authorising an ordinary search or a frisk search of a person if the judicial officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that the person has in the person’s possession, or will within the next 72 hours have in the person’s possession, any computer, or data storage device, that is evidential material.
(2) If the person applying for the warrant has, at any time previously, applied for a warrant under this section relating to the same person, the person applying for the warrant must state particulars of those applications, and their outcome, in the information.
(3) If a judicial officer issues a warrant, the judicial officer is to state in the warrant:
(a) the offence to which the warrant relates; and
(b) the name or description of the person to whom the warrant relates; and
(c) the name of the authorised person who, unless the authorised person inserts the name of another authorised person in the warrant, is to be responsible for executing the warrant; and
(d) the time at which the warrant expires (see subsection (4)); and
(e) whether the warrant may be executed at any time or only during particular hours.
(4) The time stated in the warrant under paragraph (3)(d) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.
(5) The judicial officer is also to state, in a warrant in relation to a person:
(a) that the warrant authorises the seizure of a computer or data storage device found, in the course of the search, on or in the possession of the person or in a recently used conveyance, if the executing officer or a person assisting believes on reasonable grounds that:
(i) the computer or device is evidential material in relation to an offence to which the warrant relates; and
(ii) the seizure of the computer or device is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and
(b) the kind of search of a person that the warrant authorises.
(6) Paragraph (3)(d) and subsection (4) do not prevent the issue of successive warrants in relation to the same person.
199B The things that are authorised by a search warrant relating to a person
(1) A warrant that is in force in relation to a person (the target person) authorises the executing officer or person assisting:
(a) to search:
(i) the target person as specified in the warrant; and
(ii) any recently used conveyance;
for computers or data storage devices of the kind specified in the warrant; and
(b) to:
(i) seize computers or data storage devices of that kind; or
(ii) record fingerprints from computers or data storage devices; or
(iii) to take samples for forensic purposes from computers or data storage devices;
found in the course of the search; and
(c) to seize other things found on or in the possession of the target person or in the conveyance in the course of the search that the executing officer or person assisting believes on reasonable grounds to be:
(i) prohibited goods that are unlawfully carried by the target person; or
(ii) seizable items.
(2) A warrant that is in force in relation to a person (the target person) authorises the executing officer or a person 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 is evidential material of a kind specified in 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 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:
(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:
(i) appears to be relevant for the purposes of determining whether the relevant data is evidential material of a kind specified in the warrant; or
(ii) is evidential material of a kind specified in 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).
(3) Subsection (2) does 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.
(4) It is immaterial whether a thing mentioned in subsection (2) is done:
(a) in the presence of the target person; or
(b) at any other place.
(5) If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.
(6) If the warrant authorises an ordinary search or a frisk search of the target person, a search of the target person different from that so authorised must not be done under the warrant.
200 Use of equipment to examine or process things
(1) The executing officer of a warrant in relation to premises, or a person assisting, may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found on or in the premises in order to determine whether it is a thing that may be seized under the warrant.
(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 it 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) there are reasonable grounds to believe that the thing contains or constitutes evidential material; 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.
(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.
(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—72 hours.
(3B) An executing officer may apply to a judicial 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) If the thing is a computer or data storage device, a single extension cannot exceed 14 days.
(4) The executing officer of a warrant in relation to premises, or a person assisting, may operate equipment already on or in the warrant premises to carry out the examination or processing of a thing found on or in the premises in order to determine whether it is a thing that may be seized under the warrant if the executing officer or person assisting 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.
201 Use of electronic equipment on or in premises
(1) The executing officer or a person assisting may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she believes on reasonable grounds that:
(a) the data might constitute evidential material; and
(b) the equipment can be operated without damaging it.
Note: An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 201A.
(1A) If the executing officer or person assisting believes on reasonable grounds that any data accessed by operating the electronic equipment might constitute evidential material, he or she may:
(a) copy the data to a disk, tape or other associated device brought to the premises; or
(b) if the occupier of the premises agrees in writing—copy the data 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 person assisting takes the device from the premises; and
(b) the Comptroller‑General of Customs is satisfied that the data is not required (or is no longer required) for:
(i) investigating an offence against the law of the Commonwealth, a State or a Territory; or
(ii) judicial proceedings or administrative review proceedings; or
(iii) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988;
the Comptroller‑General of Customs must arrange for:
(c) the removal of the data from any device subject to customs control; and
(d) the destruction of any other reproduction of the data subject to customs control.
(2) If the executing officer or a person assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can, by using facilities on or in the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents so produced.
(3) The executing officer or a person assisting may seize equipment under paragraph (2)(a) only if it is not practicable to copy the material as mentioned in subsection (1A) or to put the material in documentary form as mentioned in paragraph (2)(b).
(4) If the executing officer or a person assisting believes on reasonable grounds that:
(a) evidential material may be accessible by operating electronic equipment on or in 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 person 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 first occurs.
(7) If the executing officer or a person assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to a judicial officer for an extension of that period.
(8) The executing officer or a person 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 Subdivision relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension.
201AA Use of electronic equipment at other place
(1) If electronic equipment is moved to another place under subsection 200(2), the executing officer or a person assisting may operate the equipment to access data (including data held at another place).
(2) If the executing officer or person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, the executing officer or person assisting 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 Comptroller‑General of Customs is satisfied that the data is not required (or is no longer required) for:
(a) investigating an offence against a law of the Commonwealth, a State or a Territory; or
(b) judicial proceedings or administrative review proceedings; or
(c) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988;
the Comptroller‑General of Customs must arrange for:
(d) the removal of the data from any device subject to customs control; and
(e) the destruction of any other reproduction of the data subject to customs control.
(4) If the executing officer or a person assisting, after operating the equipment, finds that evidential material is accessible by doing so, the executing officer or person assisting may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can be put in documentary form—put the material in that form and seize the documents so produced.
(5) The executing officer or a person assisting 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 in documentary form as mentioned in paragraph (4)(b); or
(b) possession of the equipment by the person referred to in paragraph 200(2)(b) or (c) (as the case requires) could constitute an offence.
201A Person with knowledge of a computer or a computer system to assist access etc.
(1) An executing officer 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 the officer 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
(ii) has been seized under this Subdivision; or
(iii) is found in the course of an ordinary search of a person, or a frisk search of a person, authorised by a search warrant;
(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 an executing officer:
(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).
(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.
Offences
(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 5 years or 300 penalty units, or both.
(4) 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