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​Anti-terror laws propose data retention and 'no-knock warrant' powers

The parliament is considering new counter-terrorism legislation that would extend law enforcement powers for data retention and allow police to search premises without presenting a warrant.

Australian Federal Police

The government is seeking to introduce new anti-terror legislation that would grant new powers to law enforcement, including remote access to digital data and searches using "delayed notification" search warrants.

The changes are part of a suite of reforms contained in the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 [PDF], introduced to parliament by Attorney-General George Brandis.

According to Brandis, the Bill is timely due to the "escalating security crisis in Iraq and Syria [which] poses an increasing threat to Australia" and has be introduced to "address the most pressing gaps in...[Australia's] counter-terrorism legislative framework".

The Bill introduces the concept of a "delayed notification search warrant" -- often referred to in the United States as a 'no-knock warrant' -- which would allow Australian Federal Police to search premises without prior warning and "without having to produce the warrant at the time of entry and search".

In addition to defining these new search powers, the Counter-Terrorism Bill sets out measures for accessing digital data held by potential terror suspects. Specifically, it stipulates that this may include "data not held at the premises" which can be accessed by police executing a warrant, as detailed in the Bill's Explanatory Memorandum [PDF]:

As computers and electronic devices are becoming increasingly interconnected, files physically held on one computer are often accessible from another computer. Accordingly, it is critical that law enforcement officers executing a search warrant are able to search not only material on computers located on the search premises but also material accessible from those computers but located elsewhere.

This provision would enable the tracing of a suspect's internet activity and viewing of material accessed by the suspect through the use of that equipment. The executing officer would not be required to notify operators of computers not on search premises if data held on those computers is accessed under the warrant.

Under the amendments, police are also authorised to "copy the data to a disk, tape or other associated device and take the disk tape or device from the warrant premises" if there are "reasonable grounds" to suspect that data can be seized under warrant. However, the legislation stipulates that copied data must be destroyed when it is no longer required by security or law enforcement agencies.

The extension of AFP powers follows similar moves by Attorney-General Brandis to expand powers held by ASIO with the introduction of the National Security Legislation Amendment Bill 2014.

This legislation, introduced to parliament in July, outlined changes to computer access warrants "enabling ASIO to use a third party's computer to access data in a target computer; and amending the definition of 'computer' to include multiple computers, systems and networks".