Legislation
| The
Surveillance Devices Act 2004.
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Purpose
| To enable the collection of intelligence that relates to criminal networks operating online.
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Who can apply?
| The chief officer of the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC). The chief officer may delegate this power to an SES employee.
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Threshold for application
| The officer must suspect on reasonable grounds that:
- a group of individuals is a criminal network of individuals, and
- access to data held in a computer being used, or likely to be used from time to time by individuals in the group, will substantially assist in the collection of intelligence that:
- relates to the group or its members, and
- the data is relevant to the prevention, detection, or frustration of one or more kinds of relevant offences.
A criminal network of individuals is an electronically linked group that uses the same electronic service, or communicates electronically with one another, to engage in, facilitate or communicate about serious criminal activity.
The offence must be a Commonwealth offence, or a State/Territory offence with a federal aspect, carrying a term of imprisonment of 3 years or more. |
Issued by
| An eligible Judge or nominated Administrative Appeals Tribunal (AAT) Member.
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Considerations for issue
| The Judge or AAT member must be satisfied that there are reasonable grounds for the suspicion founding the application and that the issue of the warrant is justified and proportionate.
Among other things, the Judge or AAT member must have regard to:
- the nature and gravity of the conduct, including giving weight to whether the conduct constituting the offences targeted relates to the most serious types of criminal activity
- the likely intelligence value of any information obtained
- the privacy implications, to the extent this is known
- where an investigation of a secrecy provision is in relation to a person working in a professional capacity as a journalist, whether the public interest in issuing the warrant outweighs the public interest in protecting the identity of a journalist source and reporting matters in the public interest.
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What actions can be authorised?
| Network activity warrants authorise access to devices used by members of the criminal network over the life of the warrant, as well as adding, copying, deleting, or altering data to obtain access to data, for the purpose of collecting intelligence on criminal networks operating online. The AFP and ACIC are also permitted to intercept communications and use surveillance devices for the purposes of facilitating the execution of a network activity warrant, but will not be able to use any information collected through surveillance or interception as intelligence. Officers can also take actions to conceal the computer access, allowing the warrant to be conducted covertly. Network activity warrants can be used to collect intelligence offshore with the consent of an appropriate consenting foreign official (if the location of the data is known or can be reasonably determined). These warrants can also permit the officer to seek assistance that is reasonable and necessary from a person with knowledge of a computer or a computer system to help in carrying out the warrant. |
For example
| A network activity warrant could be used to collect intelligence on a transnational serious and organised crime syndicate operating online, who may be involved in a variety of criminal activities (including drug importations and firearms trafficking). Under the warrant, an agency could collect intelligence on the group in order to better understand who they are and how they operate. The agency could then obtain a targeted investigatory warrant (e.g. a computer access warrant or a search warrant) to gather evidence about the offending.
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What cannot be authorised?
| Network activity warrants must not involve conduct likely to materially interfere with, interrupt or obstruct a communication in transit or the lawful use by other persons of a computer unless necessary to execute the warrant. The warrant must not result in any other material loss or damage to other persons lawfully using a computer.
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Duration
| A maximum period of 90 days, with extensions of up to 90 days available.
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How is this different from other warrants?
| Existing warrants, such as computer access warrants in the Surveillance Devices Act, allow the collection of evidence, rather than intelligence. Network activity warrants allow agencies to target the devices used by criminal networks of individuals to uncover identities and discover the scope of the network and their offending. As this is an intelligence-gathering tool, the identities of these individuals, and the location or identity of their devices, do not need to be known at the time agencies apply for the warrant. Network activity warrants provide a discovery tool that can be used in conjunction with other investigatory powers to further investigations into serious criminal activity.
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How will information be used?
| Information obtained under a network activity warrant is for intelligence purposes and is not permitted to be used as evidence in a criminal proceeding. However, it can be used to support an application for other warrants, which can be used to collect evidence (e.g. a search warrant or computer access warrant).
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Oversight
| The Inspector-General of Intelligence and Security (IGIS) will have oversight of network activity warrants. The IGIS annual report must include the IGIS’ comments on any inspection conducted. The IGIS can request any relevant information from officers that will assist in determining the legality and propriety of the use of network activity warrants. Agencies must report to the IGIS within 7 days after a network activity warrant is issued.
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Record keeping
| The chief officer of the AFP or the ACIC must ensure that information obtained is kept in a secure place that is not accessible to people who are not entitled to deal with the record or report. Records must be destroyed as soon as practicable if the material is no longer required, and within 5 years.
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Reporting
| Agencies are required to report to the Minister for Home Affairs after each warrant has been executed. Annual reports about the use of these warrants will be tabled in Parliament.
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