Computer access orders under s.3LA of the Crimes Act

Section 3LA of the Crimes Act 1914 is a Commonwealth provision, separate from the state schemes covered on this site for New South Wales, Queensland and Victoria.

A constable may apply to a magistrate for an order under s.3LA requiring a specified person to provide the information or assistance that is reasonable and necessary to allow a constable to do one or more of the listed things, including accessing data held in, or accessible from, a computer or data storage device that is on warrant premises, is found in the course of an ordinary search or a frisk search of a person authorised by a warrant under section 3E, has been moved under subsection 3K(2) and is at a place for examination or processing, or has been seized under this Division of the Act.

Section 3LA(1) describes an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a constable to do one or more of the listed things. Section 3LA(5) makes it an offence where a person subject to the order, who is capable of complying with a requirement in it, omits to do an act and the omission contravenes the requirement.

The s.3LA(1) text refers to data on warrant premises and to an ordinary search or a frisk search of a person authorised by a warrant under section 3E. A warrant to search premises is issued under s.3E, and an issuing officer may issue that warrant if satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting evidential material is at the premises now, or will be within the next 72 hours.

Separately, the executing officer of a warrant in relation to premises, or a constable assisting, may operate electronic equipment at the warrant premises to access data (including data not held at the premises) under s.3L(1), if he or she suspects on reasonable grounds that the data constitutes evidential material or suggests the existence of a digital asset that may be seized under the warrant. If they suspect on reasonable grounds that data accessed that way constitutes evidential material or suggests the existence of such an asset, they may copy any or all of the data accessed to a disk, tape or other associated device brought to the premises, under s.3L(1A).

Under s.3LA(2) the magistrate may grant the order if the magistrate is satisfied that there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device; and the specified person is reasonably suspected of having committed the offence stated in the relevant warrant, or the owner or lessee of the computer or device, or an employee of the owner or lessee of the computer or device, or a person engaged under a contract for services by the owner or lessee of the computer or device, or a person who uses or has used the computer or device, or a person who is or was a system administrator for the system including the computer or device; and the specified person has relevant knowledge of the computer or device or a computer network of which the computer or device forms or formed a part, or measures applied to protect data held in, or accessible from, the computer or device.

The s.3LA(5) and (6) offences quoted on this page are framed around a person who “is subject to an order under this section”. This site has not quoted any Commonwealth offence for declining an informal request made before an order is in place.

Section 3LA(5) provides that a person commits an offence if they are subject to an order under the section, are capable of complying with a requirement in the order, omit to do an act, and the omission contravenes the requirement. The penalty is imprisonment for 5 years or 300 penalty units, or both. Section 3LA(6) provides that a person commits an offence if they are subject to an order under s.3LA, are capable of complying with a requirement in the order, omit to do an act, and the omission contravenes the requirement, and the offence to which the relevant warrant relates is a serious offence or a serious terrorism offence. The penalty is imprisonment for 10 years or 600 penalty units, or both.

See how this compares with New South Wales’ digital evidence access orders, Queensland’s device information orders, Victoria’s s.465AA orders, and when you must give police the code generally.