46Issue of telecommunications service warrant

#### 46 Issue of telecommunications service warrant Warrant relating to the investigation of one or more serious offences (1) Where an agency applies to an eligible Judge or nominated ART member for a warrant in respect of a telecommunications service and the Judge or nominated ART member is satisfied, on the basis of the information given to the Judge or nominated ART member under this Part in connection with the application, that: (a) Division 3 has been complied with in relation to the application; and (b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and (c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and (d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a serious offence, or serious offences, in which: (i) the particular person is involved; or (ii) another person is involved with whom the particular person is likely to communicate using the service; and (e) having regard to the matters referred to in subsection (2), and to no other matters, the Judge or nominated ART member should issue a warrant authorising such communications to be intercepted; the Judge or nominated ART member may, in his or her discretion, issue such a warrant. > Note: Subparagraph (d)(ii)—subsection (3) restricts the issuing of warrants if subparagraph (d)(ii) applies. (2) For the purposes of subsection (1), the matters to which the Judge or nominated ART member shall have regard are: (a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (1); and (b) the gravity of the conduct constituting the offence or offences being investigated; and (c) how much the information referred to in paragraph (1)(d) would be likely to assist in connection with the investigation by the agency of the offence or offences; and (d) to what extent methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency; and (e) how much the use of such methods would be likely to assist in connection with the investigation by the agency of the offence or offences; and (f) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of delay or for any other reason; and (fa) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated ART member; and (g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated ART member. (3) The Judge or nominated ART member must not issue a warrant under subsection (1) in a case in which subparagraph (1)(d)(ii) applies unless he or she is satisfied that: (a) the agency has exhausted all other practicable methods of identifying the telecommunications services used, or likely to be used, by the person involved in the offence or offences referred to in paragraph (1)(d); or (b) interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible. Warrant sought for Part 5.3 supervisory order (4) If a Part 5.3 warrant agency applies to an eligible Judge or nominated ART member for a warrant in respect of a telecommunications service and the Judge or nominated ART member is satisfied, on the basis of the information given to the Judge or nominated ART member under this Part in connection with the application, that: (a) Division 3 has been complied with in relation to the application; and (b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and (c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and (d) either: (i) a Part 5.3 supervisory order is in force in relation to the particular person; or (ii) a Part 5.3 supervisory order is in force in relation to another person, and the particular person is likely to communicate with the other person using the service; and (e) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to substantially assist in connection with: (i) achieving a Part 5.3 object; or (ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and (f) having regard to the matters referred to in subsection (5), and to no other matters, the Judge or nominated ART member should issue a warrant authorising such communications to be intercepted; the Judge or nominated ART member may, in his or her discretion, issue such a warrant. > Note 1: Subsection (6) restricts the issuing of warrants if subparagraph (d)(ii) applies. > Note 2: For Part 5.3 supervisory orders that have been made but not come into force, see section 6T. (5) For the purposes of subsection (4), the matters to which the Judge or nominated ART member must have regard are: (a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (4); and (b) how much the information referred to in paragraph (4)(e) would be likely to assist in connection with: (i) achieving a Part 5.3 object; or (ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and (c) to what extent methods for: (i) achieving a Part 5.3 object; or (ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; that do not involve so intercepting communications have been used by, or are available to, the agency; and (d) how much the use of such methods would be likely to assist in connection with: (i) achieving a Part 5.3 object; or (ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and (e) how much the use of such methods would be likely to prejudice: (i) achieving a Part 5.3 object; or (ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; whether because of delay or for any other reason; and (f) whether intercepting under a warrant communications made to or from the service referred to in subsection (4) would be the method that is likely to have the least interference with any person’s privacy; and (g) in relation to a Part 5.3 supervisory order that is a control order—the possibility that the person in relation to whom the control order is in force: (i) has engaged, is engaging, or will engage, in a terrorist act; or (ii) has provided, is providing, or will provide, support for a terrorist act; or (iii) has facilitated, is facilitating, or will facilitate, a terrorist act; or (iv) has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country; or (v) has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country; and (ga) in relation to a Part 5.3 supervisory order that is an extended supervision order or interim supervision order—the possibility that the person in relation to whom the order is in force has committed, is committing, or will commit a serious Part 5.3 or 5.3A offence; and (gb) in relation to any Part 5.3 supervisory order—the possibility that the person in relation to whom the order is in force: (i) has contravened, is contravening or will contravene the Part 5.3 supervisory order; or (ii) will contravene a succeeding Part 5.3 supervisory order; and (h) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated ART member; and (i) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated ART member. (6) The Judge or nominated ART member must not issue a warrant in a case in which subparagraph (4)(d)(ii) applies unless he or she is satisfied that: (a) the agency has exhausted all other practicable methods of identifying the telecommunications services used, or likely to be used, by the person to whom the Part 5.3 supervisory order referred to in subparagraph (4)(d)(ii) relates; or (b) interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible. Warrant sought for post‑sentence order application (7) If a Part 5.3 warrant agency applies to an eligible Judge or nominated ART member for a warrant in respect of a telecommunications service and the Judge or nominated ART member is satisfied, on the basis of the information given to the Judge or nominated ART member under this Part in connection with the application, that: (a) Division 3 has been complied with in relation to the application; and (b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and (c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and (d) the person is a terrorist offender in relation to whom an application for a post‑sentence order could be made; and (e) the person is detained in custody in a prison; and (f) there are reasonable grounds to suspect that there is an appreciable risk of the person committing a serious Part 5.3 or 5.3A offence; and (g) consideration is being given, will be given, or is likely to be given, by the AFP Minister (or a person on behalf of the AFP Minister), as to whether to apply for a post‑sentence order in relation to the person; and (h) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in determining whether to apply for the post‑sentence order; and (i) having regard to the matters referred to in subsection (8), and to no other matters, the Judge or nominated ART member should issue a warrant authorising such communications to be intercepted; the Judge or nominated ART member may, in the Judge’s or member’s discretion, issue such a warrant. (8) For the purposes of subsection (7), the matters to which the Judge or nominated ART member must have regard are: (a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (7); and (b) how much the information referred to in paragraph (7)(h) would be likely to assist in determining whether to apply for the post‑sentence order; and (c) to what extent methods of determining whether to apply for the post‑sentence order that do not involve so intercepting communications have been used by, or are available to, the AFP Minister (or a legal representative of the AFP Minister); and (d) how much the use of such methods would be likely to assist in determining whether to apply for the post‑sentence order; and (e) how much the use of such methods would be likely to prejudice determining whether to apply for the post‑sentence order, whether because of delay or for any other reason; and (f) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated ART member; and (g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated ART member. Warrant sought for community safety supervision order (9) If a Part 9.10 warrant agency applies to an eligible Judge or nominated ART member for a warrant in respect of a telecommunications service and the Judge or nominated ART member is satisfied, on the basis of the information given to the Judge or nominated ART member under this Part in connection with the application, that: (a) Division 3 has been complied with in relation to the application; and (b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and (c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and (d) either: (i) a community safety supervision order is in force in relation to the particular person; or (ii) a community safety supervision order is in force in relation to another person, and the particular person is likely to communicate with the other person using the service; and (e) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to substantially assist in connection with: (i) achieving a Part 9.10 object; or (ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and (f) having regard to the matters referred to in subsection (10), and to no other matters, the Judge or nominated ART member should issue a warrant authorising such communications to be intercepted; the Judge or nominated ART member may, in the Judge or member’s discretion, issue such a warrant. > Note 1: Subsection (11) restricts the issuing of warrants if subparagraph (d)(ii) applies. > Note 2: For community safety supervision orders that have been made but not come into force, see section 6UA. (10) For the purposes of subsection (9), the matters to which the Judge or nominated ART member must have regard are: (a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (9); and (b) how much the information referred to in paragraph (9)(e) would be likely to assist in connection with: (i) achieving a Part 9.10 object; or (ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and (c) to what extent methods for: (i) achieving a Part 9.10 object; or (ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; that do not involve so intercepting communications have been used by, or are available to, the agency; and (d) how much the use of such methods would be likely to assist in connection with: (i) achieving a Part 9.10 object; or (ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and (e) how much the use of such methods would be likely to prejudice: (i) achieving a Part 9.10 object; or (ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; whether because of delay or for any other reason; and (f) whether intercepting under a warrant communications made to or from the service referred to in subsection (9) would be the method that is likely to have the least interference with any person’s privacy; and (g) the possibility that the person in relation to whom the order is in force has committed, is committing, or will commit a serious violent or sexual offence; and (h) the possibility that the person in relation to whom the order is in force: (i) has contravened, is contravening or will contravene the community safety supervision order; or (ii) will contravene a succeeding community safety supervision order; and (i) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated ART member; and (j) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated ART member. (11) The Judge or nominated ART member must not issue a warrant in a case in which subparagraph (9)(d)(ii) applies unless the Judge or nominated ART member is satisfied that: (a) the agency has exhausted all other practicable methods of identifying the telecommunications services used, or likely to be used, by the person to whom the community safety supervision order referred to in subparagraph (9)(d)(ii) relates; or (b) interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible. Warrant sought for Part 9.10 order application (12) If a Part 9.10 warrant agency applies to an eligible Judge or nominated ART member for a warrant in respect of a telecommunications service and the Judge or nominated ART member is satisfied, on the basis of the information given to the Judge or nominated ART member under this Part in connection with the application, that: (a) Division 3 has been complied with in relation to the application; and (b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and (c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and (d) the person is a serious offender in relation to whom an application for a Part 9.10 order could be made; and (e) there are reasonable grounds to suspect that there is an appreciable risk of the person committing a serious violent or sexual offence; and (f) consideration is being given, will be given, or is likely to be given, by the Immigration Minister (or a person on behalf of the Immigration Minister), as to whether to apply for a Part 9.10 order in relation to the person; and (g) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in determining whether to apply for the Part 9.10 order; and (h) having regard to the matters referred to in subsection (13), and to no other matters, the Judge or nominated ART member should issue a warrant authorising such communications to be intercepted; the Judge or nominated ART member may, in the Judge’s or member’s discretion, issue such a warrant. (13) For the purposes of subsection (12), the matters to which the Judge or nominated ART member must have regard are: (a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (12); and (b) how much the information referred to in paragraph (12)(g) would be likely to assist in determining whether to apply for the Part 9.10 order; and (c) to what extent methods of determining whether to apply for the Part 9.10 order that do not involve so intercepting communications have been used by, or are available to, the Immigration Minister (or a legal representative of the Immigration Minister); and (d) how much the use of such methods would be likely to assist in determining whether to apply for the Part 9.10 order; and (e) how much the use of such methods would be likely to prejudice determining whether to apply for the Part 9.10 order, whether because of delay or for any other reason; and (f) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated ART member; and (g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated ART member.