This section is provided to illustrate how relevant offences are considered within the Act. It is designed to assist illuminate the relevant offences to which the various proposed powers apply as it was a considerable source of debate throughout the inquiry process.
For the purposes of Network Activity and Data Disruption Warrants
Network activity warrants (NAWs) and data disruption warrants (DDWs) apply to relevant offences which are defined in the Surveillance Devices Act 2004 (the SD Act). This includes:
An offence against the law of the Commonwealth that is punishable by a maximum term of imprisonment of three years or more or for life; or
An offence against a law of a State that has a federal aspect and that is punishable by a maximum term of imprisonment of three years or more or for life; or
An offence against section 15 of the Financial Transaction Reports Act 1988; or
An offence against section 53, 59, 139, 140 or 141 of the Anti-Money Laundering and Counter-Terrorirsm Financing Act 2006; or
An offence against section 100, 100A, 100B, 101, 101A or 101AA of the Fisheries Management Act 1991; or
An offence against section 46A, 46C, 46D, 49A or 51A of the Torres Strait Fisheries Act 1984; or
If a surveillance device warrant, or a tracking device authorisation, is issued or given (or is sought) for the purposes of an integrity operation in relation to a suspected offence against the law of the Commonwealth, or of a State or Territory, that is punishable by a maximum term of imprisonment of 12 months or more or for life – that offence; or
An offence that is prescribed by the regulations.
The first two categories listed about are substantially the same as the definition provided below for account takeover warrant (ATW) applicable offences.
For the purposes of Account Takeover Warrants
This warrant applies to relevant offences which are serious Commonwealth offences or serious State offences that have a federal aspect.
A serious Commonwealth offence and serious State offence has the same meaning under the proposed Bill as Part IAB of the Crimes Act which relates specifically to controlled operations. This is further defined at section 15GE of Division 1 of Part IAB of the Crimes Act. Specifically section 15GE of the Crimes Act provides:
Meaning of serious Commonwealth offence
1
For the purposes of this Part, serious Commonwealth offence means a Commonwealth offence that:
a.
Involves a matter mentioned in subsection (2); and
b.
Is punishable on conviction by imprisonment for a period of 3 years or more.
2
The matters are as follows
e.
Controlled substances;
g.
Obtaining financial benefit by vice engaged in by others;
j.
Perverting the course of justice;
k.
Bribery or corruption of, or by, an officer of the Commonwealth, of a State or of a Territory;
l.
Bankruptcy and company violations;
m.
Harbouring of criminals;
n.
Forgery (including forging of passports);
p.
Illegal important or exportation of fauna into or out of Australia;
q.
Espionage, sabotage or threats to national security;
r.
Misuse of a computer or electronic communications;
v.
The organisation, financing or perpetration of sexual servitude or a sexual offence against a person who is under 18 outside Australia;
w.
Dealings in child abuse material;
x.
Importation of prohibited imports;
y.
Exportation of prohibited exports;
bb.
A matter that is of the same general nature as a matter mentioned in one of the preceding paragraphs;
cc.
A matter that is prescribed by the regulations for the purposes of this paragraph.
3
Without limiting subsections (1) and (2), an offence against one of the following provisions of the Criminal Code is a serious Commonwealth offence for the purposes of this Part:
b.
Division 273A (Possession of child-like sex dolls etc.);
c.
Subdivision B of Division 471 (Use of postal or similar service involving sexual activity with person under 16);
d.
Subdivision D of Division 474 (Use of carriage service for child abuse material);
e.
Subdivision F of Division 474 (Use of carriage service involving sexual activity with person under 16).
Meaning of serious State offence that has a federal aspect
4
For the purposes of this Part, serious State offence that has a federal aspect means a State offence that has a federal aspect and that would be a serious Commonwealth offence if it were a Commonwealth offence.
Federal aspect is defined at section 3AA of the Crimes Act. This includes section 3AA(1):
1
For the purposes of this Act, a State offence has a federal aspect if, and only if:
i.
The State offence is an ancillary offence that relates to a particular primary offence; and
ii.
Assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State – the provision would have been a valid law of the Commonwealth; or
i.
The State offence is ancillary offence that relates to a particular primary offence; and
ii.
Assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State – the provision would have been a valid law of the Commonwealth; or
c.
Assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence – that provision would have been a valid law of the Commonwealth; or
i.
The Australian Federal Police is investigating an offence against a law of the Commonwealth or a Territory; and
ii.
If the Australian Federal Police is investigating, or were to investigate, the State offence – that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i).