An Act relating to Offences against the Commonwealth
Part I—Preliminary
1 Short title
This Act may be cited as the Crimes Act 1914.
3 Interpretation
(1) In this Act, unless the contrary intention appears:
Aboriginal person means a person of the Aboriginal race of Australia.
ACC means the Australian Crime Commission.
associated offence means:
(a) in relation to an offence against section 233B of the Customs Act 1901—an ancillary offence (within the meaning of the Criminal Code) that relates to the offence; or
(b) in relation to an offence against section 10, 11, 12, 13 or 14 of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990—an ancillary offence (within the meaning of the Criminal Code) that relates to the offence; or
(c) in relation to an offence against a law of a State or Territory—an offence:
(i) under a provision of a law of that State or Territory that corresponds to a provision of Part 2.4 of the Criminal Code; and
(ii) that relates to the offence.
Australian law enforcement officer means a law enforcement officer other than a member of a police force, or other law enforcement agency, of a foreign country.
bail authority means a court or person authorised to grant bail under a law of the Commonwealth, a State or a Territory.
child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.
child abuse material has the same meaning as in Part 10.6 of the Criminal Code.
child pornography material has the same meaning as in Part 10.6 of the Criminal Code.
Commissioner means the Commissioner of the Australian Federal Police.
Commonwealth child sex offence means:
(a) an offence against any of the following provisions of the Criminal Code:
(i) Division 272 (Child sex offences outside Australia);
(ii) Division 273 (Offences involving child pornography material or child abuse material outside Australia);
(iii) Subdivisions B and C of Division 471 (which create offences relating to use of postal or similar services in connection with child pornography material, child abuse material and sexual activity involving children);
(iv) Subdivisions D and F of Division 474 (which create offences relating to use of telecommunications in connection with child pornography material, child abuse material, sexual activity involving children and harm to children); or
(b) an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence described in paragraph (a) of this definition; or
(c) an offence against a provision described in paragraph (a) of this definition that is taken to have been committed because of section 11.2, 11.2A or 11.3 of the Criminal Code.
Note: Part IE also applies as if offences against certain other provisions in force before the commencement of that Part were Commonwealth child sex offences: see Schedule 2 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010.
Commonwealth offence, except in Part IC, means an offence against a law of the Commonwealth.
Commonwealth officer means a person holding office under, or employed by, the Commonwealth, and includes:
(a) a person appointed or engaged under the Public Service Act 1999;
(aa) a person permanently or temporarily employed in the Public Service of a Territory or in, or in connection with, the Defence Force, or in the Service of a public authority under the Commonwealth;
(b) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979); and
(c) for the purposes of section 70, a person who, although not holding office under, or employed by, the Commonwealth, a Territory or a public authority under the Commonwealth, performs services for or on behalf of the Commonwealth, a Territory or a public authority under the Commonwealth; and
(d) for the purposes of section 70:
(i) a person who is an employee of the Australian Postal Corporation;
(ii) a person who performs services for or on behalf of the Australian Postal Corporation; and
(iii) an employee of a person who performs services for or on behalf of the Australian Postal Corporation.
confiscation proceedings has a meaning affected by subsection 16AC(5).
constable means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory.
controlled substance means:
(a) a controlled drug or border controlled drug within the meaning of Part 9.1 of the Criminal Code; or
(b) a controlled plant or border controlled plant within the meaning of Part 9.1 of the Criminal Code; or
(c) a controlled precursor or border controlled precursor within the meaning of Part 9.1 of the Criminal Code.
conveyance includes an aircraft, vehicle or vessel.
criminal detention has the meaning given by section 45A.
cultural heritage has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999, and includes sacred sites.
cultural heritage object means an object that is important for cultural, religious, ethnological, archaeological, historical, literary, artistic, scientific or technological reasons.
data includes:
(a) information in any form; and
(b) any program (or part of a program).
data storage device means a thing containing, or designed to contain, data for use by a computer.
de facto partner has the meaning given by the Acts Interpretation Act 1901.
Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.
dentist means a dental practitioner within the meaning of the Health Insurance Act 1973.
Deputy Commissioner means a Deputy Commissioner of the Australian Federal Police.
federal aspect, in relation to an offence against a law of a State or of the Australian Capital Territory, has the meaning given by subsection 3AA(1).
Note: This subsection defines State to include the Northern Territory.
federal court means the High Court or a court created by the Parliament, other than a court of a Territory.
federal criminal detention has the meaning given by section 45A.
federal judicial proceeding has the meaning given by section 31.
Foreign Affairs Department means the Department administered by the Minister administering the Diplomatic Privileges and Immunities Act 1967.
Foreign Affairs Minister means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
have in possession includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.
illicit goods means goods the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.
Immigration and Border Protection Department means the Department administered by the Minister administering the Australian Border Force Act 2015.
Integrity Commissioner has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006.
judicial proceeding has the meaning given by section 31 (other than in section 3L).
judicial tribunal has the meaning given by section 31.
law enforcement officer means any of the following:
(a) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979);
(b) a member of the police force of a State or Territory;
(ba) a staff member of ACLEI;
(c) a member of the staff of the ACC;
(d) an officer of Customs;
(e) a member of a police force, or other law enforcement agency, of a foreign country.
medical practitioner has the same meaning as in the Health Insurance Act 1973.
member of the staff of the ACC has the same meaning as in the Australian Crime Commission Act 2002.
narcotic goods has the same meaning as in the Customs Act 1901.
nurse means a registered nurse within the meaning of the Health Insurance Act 1973.
officer of Customs has the meaning given by subsection 4(1) of the Customs Act 1901.
Official Trustee means the Official Trustee in Bankruptcy.
parent: without limiting who is a parent of a person for the purposes of this Act, someone (the adult) is the parent of a person if:
(a) the adult is legally entitled to, and has, custody of the person; or
(b) the adult is legally responsible for the day‑to‑day care, welfare and development of the person and has the person in his or her care.
participating State has the meaning given by subsection 3B(2).
participating Territory has the meaning given by subsection 3B(2).
property includes money and every thing, animate or inanimate, capable of being the subject of ownership.
public authority under the Commonwealth means any authority or body constituted by or under a law of the Commonwealth or of a Territory.
quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.
Queen’s dominions includes a British protectorate and a British protected State.
relative has a meaning affected by subsection (3).
senior executive AFP employee has the same meaning as in the Australian Federal Police Act 1979.
staff member of ACLEI has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006.
State includes the Northern Territory.
State offence means an offence against a law of a State or the Australian Capital Territory.
Territory does not include the Northern Territory.
terrorism offence means:
(a) an offence against Subdivision A of Division 72 of the Criminal Code; or
(aa) an offence against Subdivision B of Division 80 of the Criminal Code; or
(b) an offence against Part 5.3 or 5.5 of the Criminal Code; or
(c) an offence against either of the following provisions of the Charter of the United Nations Act 1945:
(i) Part 4 of that Act;
(ii) Part 5 of that Act, to the extent that it relates to the Charter of the United Nations (Sanctions—Al‑Qaida) Regulations 2008.
terrorist act has the same meaning as in subsection 100.1(1) of the Criminal Code.
thing relevant to an indictable offence means:
(a) either of the following:
(i) anything with respect to which an indictable offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed;
(ii) anything with respect to which a State offence that has a federal aspect, and that is an indictable offence against the law of that State, has been committed or is suspected, on reasonable grounds, to have been committed; or
(b) anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or
(c) anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence.
thing relevant to a summary offence means:
(a) either of the following:
(i) anything with respect to which a summary offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed;
(ii) anything with respect to which a State offence that has a federal aspect, and that is a summary or simple offence against the law of that State, has been committed or is suspected, on reasonable grounds, to have been committed; or
(b) anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or
(c) anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence.
Torres Strait Islander means a descendent of an indigenous inhabitant of the Torres Strait Islands.
(2) In this Act, a reference to a fine includes a reference:
(a) to a pecuniary penalty other than a pecuniary penalty imposed:
(i) under Division 3 of Part XIII of the Customs Act 1901; or
(ii) by a pecuniary penalty order, a literary proceeds order or an unexplained wealth order made under the Proceeds of Crime Act 2002; or
(iia) by a pecuniary penalty order made under the Proceeds of Crime Act 1987; or
(iii) by a superannuation order made under the Australian Federal Police Act 1979; or
(iv) by a superannuation order made under the Crimes (Superannuation Benefits) Act 1989; or
(b) to costs or other amounts ordered to be paid by offenders.
(3) For the purposes of this Act, the relatives of a person are taken to include the following (without limitation):
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in this section;
(c) anyone else who would be a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a relative of the person.
3AA State offences that have a federal aspect
Object
(1A) The object of this section is to identify State offences that have a federal aspect because:
(a) they potentially fall within Commonwealth legislative power because of the elements of the State offence; or
(b) they potentially fall within Commonwealth legislative power because of the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be acts or omissions involved in committing the offence); or
(c) the Australian Federal Police investigating them is incidental to the Australian Federal Police investigating an offence against a law of the Commonwealth or a Territory.
State offences that have a federal aspect
(1) For the purposes of this Act, a State offence has a federal aspect if, and only if:
(a) both:
(i) the State offence is not an ancillary offence; and
(ii) assuming that the provision creating the State 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
(b) both:
(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
(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
(d) both:
(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).
Specificity of acts or omissions
(2) For the purposes of paragraph (1)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence).
State offences covered by paragraph (1)(c)
(3) A State offence is taken to be covered by paragraph (1)(c) if the conduct constituting the State offence:
(a) affects the interests of:
(i) the Commonwealth; or
(ii) an authority of the Commonwealth; or
(iii) a constitutional corporation; or
(b) was engaged in by a constitutional corporation; or
(c) was engaged in in a Commonwealth place; or
(d) involved the use of a postal service or other like service; or
(e) involved an electronic communication; or
(f) involved trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2 Territories; or
(g) involved:
(i) banking (other than State banking not extending beyond the limits of the State concerned); or
(ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or
(h) relates to a matter outside Australia; or
(i) relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement; or
(j) relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern.
(4) Subsection (3) does not limit paragraph (1)(c).
Definitions
(5) In this section:
ancillary offence, in relation to an offence (the primary offence), means:
(a) an offence of conspiring to commit the primary offence; or
(b) an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or
(c) an offence of attempting to commit the primary offence.
Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.
conduct has the same meaning as in the Criminal Code.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
electronic communication means a communication of information:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms;
by means of guided and/or unguided electromagnetic energy.
engage in conduct has the same meaning as in the Criminal Code.
State includes the Australian Capital Territory and the Northern Territory.
State offence means an offence against a law of a State.
Note: Subsection 3(1) defines State to include the Northern Territory.
3A Operation of Act
This Act applies throughout the whole of the Commonwealth and the Territories and also applies beyond the Commonwealth and the Territories.
3B Arrangements with States, Australian Capital Territory and Northern Territory
(1) The Governor‑General may make arrangements with the Governor of a State, the Government of the Australian Capital Territory or the Administrator of the Northern Territory for:
(a) officers of the State or Territory to exercise powers and perform functions; and
(b) facilities and procedures of the State or Territory to be made available;
in relation to the carrying out or enforcement under this Act of orders made under this Act or another Act.
(2) In this Act:
(a) a reference to a participating State is a reference to a State in relation to which an arrangement is in force under subsection (1) of this section; and
(b) a reference to a participating Territory:
(i) is a reference to a Territory other than the Australian Capital Territory or the Northern Territory; and
(ii) if an arrangement is in force under subsection (1) of this section in relation to the Australian Capital Territory—includes a reference to the Australian Capital Territory; and
(iii) if an arrangement is in force under subsection (1) of this section in relation to the Northern Territory—includes a reference to the Northern Territory.
(3) In this section:
order includes a sentence.
State does not include the Australian Capital Territory or the Northern Territory.
3BA Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Part IAA—Search, information gathering, arrest and related powers (other than powers under delayed notification search warrants)
Division 1—Preliminary
3C Interpretation
(1) In this Part, unless the contrary intention appears:
constable assisting, in relation to a warrant, means:
(a) a person who is a constable and who is assisting in executing the warrant; or
(b) a person who is not a constable and who has been authorised by the relevant executing officer to assist in executing the warrant.
data held in a computer includes:
(a) data held in any removable data storage device for the time being held in a computer; or
(b) data held in a data storage device on a computer network of which the computer forms a part.
emergency situation, in relation to the execution of a warrant in relation to premises, means a situation that the executing officer or a constable assisting believes, on reasonable grounds, involves a serious and imminent threat to a person’s life, health or safety that requires the executing officer and constables assisting to leave the premises.
evidential material means a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form.
executing officer, in relation to a warrant, means:
(a) the constable named in the warrant by the issuing officer as being responsible for executing the warrant; or
(b) if that constable does not intend to be present at the execution of the warrant—another constable whose name has been written in the warrant by the constable so named; or
(c) another constable whose name has been written in the warrant by the constable last named in the warrant.
frisk search means:
(a) a search of a person conducted by quickly running the hands over the person’s outer garments; and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
issuing officer, in relation to a warrant to search premises or a person or a warrant for arrest under this Part, means:
(a) a magistrate; or
(b) a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants or warrants for arrest, as the case may be.
Note: Under section 3ZZBJ, an eligible issuing officer (within the meaning of Part IAAA) may, as specified in that section, consider and deal with an application for a warrant as if the eligible issuing officer were an issuing officer within the meaning of this Part.
magistrate, in sections 3ZI, 3ZJ, 3ZK, 3ZN and 3ZQZB, has a meaning affected by section 3CA.
offence means:
(a) an offence against a law of the Commonwealth (other than the Defence Force Discipline Act 1982); or
(b) an offence against a law of a Territory; or
(c) a State offence that has a federal aspect.
ordinary search means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and
(b) an examination of those items.
police station includes:
(a) a police station of a State or Territory; and
(b) a building occupied by the Australian Federal Police.
premises includes a place and a conveyance.
recently used conveyance, in relation to a search of a person, means a conveyance that the person had operated or occupied at any time within 24 hours before the search commenced.
seizable item means anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.
serious offence means an offence:
(a) that is punishable by imprisonment for 2 years or more; and
(b) that is one of the following:
(i) a Commonwealth offence;
(ii) an offence against a law of a State that has a federal aspect;
(iii) an offence against a law of a Territory; and
(c) that is not a serious terrorism offence.
serious terrorism offence means:
(a) a terrorism offence (other than offence against section 102.8, Division 104 or Division 105 of the Criminal Code); or
(b) an offence against a law of a State:
(i) that has a federal aspect; and
(ii) that has the characteristics of a terrorism offence (other than such an offence that has the characteristics of an offence against section 102.8, Division 104 or Division 105 of the Criminal Code); or
(c) an offence against a law of a Territory that has the characteristics of a terrorism offence (other than such an offence that has the characteristics of an offence against section 102.8, Division 104 or Division 105 of the Criminal Code).
strip search means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove all of his or her garments; and
(b) an examination of the person’s body (but not of the person’s body cavities) and of those garments.
warrant means a warrant under this Part.
warrant premises means premises in relation to which a warrant is in force.
(2) A person referred to in paragraph (b) of the definition of constable assisting in subsection (1) must not take part in searching or arresting a person.
3CA Nature of functions of magistrate
(1) A function of making an order conferred on a magistrate by section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZQZB is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
(2) Without limiting the generality of subsection (1), an order made by a magistrate under section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZQZB has effect only by virtue of this Act and is not to be taken by implication to be made by a court.
(3) A magistrate performing a function of, or connected with, making an order under section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZQZB has the same protection and immunity as if he or she were performing that function as, or as a member of, a court (being the court of which the magistrate is a member).
(4) The Governor‑General may make arrangements with the Governor of a State, the Chief Minister of the Australian Capital Territory or the Administrator of the Northern Territory for the performance, by all or any of the persons who from time to time hold office as magistrates in that State or Territory, of the function of making orders under sections 3ZI, 3ZJ, 3ZK, 3ZN and 3ZQZB.
3D Application of Part
(1) This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to:
(a) the search of premises; or
(b) arrest and related matters; or
(c) the stopping, detaining or searching of conveyances or persons; or
(d) the seizure of things; or
(e) the requesting of information or documents from persons.
(2) To avoid any doubt, it is declared that even though another law of the Commonwealth (including other provisions of this Act) provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
(4) This Part is not intended to limit or exclude the operation of a law of a Territory relating to:
(a) the search of premises; or
(b) arrest and related matters; or
(c) the stopping, detaining or searching of conveyances or persons; or
(d) the seizure of things; or
(e) the requesting of information or documents from persons;
in relation to offences against a law of that Territory.
(5) This Part does not apply to the exercise by a constable of powers under the Defence Force Discipline Act 1982.
(6) The application of this Part in relation to State offences that have a federal aspect is not intended to limit or exclude the concurrent operation of any law of a State or of the Australian Capital Territory.
Note 1: Subsection 3(1) defines State to include the Northern Territory.
Note 2: Section 3AA has the effect that an offence against the law of the Australian Capital Territory is a State offence that has a federal aspect.
Division 2—Search warrants
3E When search warrants can be issued
(1) An issuing officer may issue a warrant to search premises if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.
Note: For the issue of delayed notification search warrants, see Part IAAA.
(2) An issuing officer may issue a warrant authorising an ordinary search or a frisk search of a person if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material.
(3) If the person applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the person must state that suspicion, and the grounds for that suspicion, in the information.
(4) If the person applying for the warrant is a member or special member of the Australian Federal Police and has, at any time previously, applied for a warrant relating to the same person or premises the person must state particulars of those applications and their outcome in the information.
(5) If an issuing officer issues a warrant, the officer is to state in the warrant:
(a) the offence to which the warrant relates; and
(b) a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and
(c) the kinds of evidential material that are to be searched for under the warrant; and
(d) the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and
(e) the time at which the warrant expires (see subsection (5A)); and
(f) whether the warrant may be executed at any time or only during particular hours.
(5A) The time stated in the warrant under paragraph 3E(5)(e) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.
(6) The issuing officer is also to state, in a warrant in relation to premises:
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to another offence that is an indictable offence; or
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and
(b) whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
(7) The issuing officer is also to state, in a warrant in relation to a person:
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found, in the course of the search, on or in the possession of the person or in a recently used conveyance, being a thing that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to another offence that is an indictable offence; or
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and
(b) the kind of search of a person that the warrant authorises.
(8) Paragraph (5)(e) and subsection (5A) do not prevent the issue of successive warrants in relation to the same premises or person.
(9) If the application for the warrant is made under section 3R, this section (other than subsection (5A)) applies as if:
(a) subsections (1) and (2) referred to 48 hours rather than 72 hours; and
(b) paragraph (5)(e) required the issuing officer to state in the warrant the period for which the warrant is to remain in force, which must not be more than 48 hours.
(10) An issuing officer in New South Wales or the Australian Capital Territory may issue a warrant in relation to premises or a person in the Jervis Bay Territory.
(11) An issuing officer in a State or internal Territory may:
(a) issue a warrant in relation to premises or a person in that State or Territory; or
(b) issue a warrant in relation to premises or a person in an external Territory; or
(c) issue a warrant in relation to premises or a person in another State or internal Territory (including the Jervis Bay Territory) if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate; or
(d) issue a warrant in relation to a person wherever the person is in Australia or in an external Territory if he or she is satisfied that it is not possible to predict where the person may be.
3F The things that are authorised by a search warrant
(1) A warrant that is in force in relation to premises authorises the executing officer or a constable assisting:
(a) to enter the warrant premises and, if the premises are a conveyance, to enter the conveyance, wherever it is; and
(b) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; and
(c) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and
(d) to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) evidential material in relation to another offence that is an indictable offence; or
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and
(e) to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be seizable items; and
(f) if the warrant so allows—to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
(2) A warrant that is in force in relation to a person authorises the executing officer or a constable assisting:
(a) to search the person as specified in the warrant and things found in the possession of the person and any recently used conveyance for things of the kind specified in the warrant; and
(b) to:
(i) seize things of that kind; or
(ii) record fingerprints from things; or
(iii) to take forensic samples from things;
found in the course of the search; and
(c) to seize other things found on or in the possession of the person or in the conveyance in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to another offence that is an indictable offence; or
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and
(d) to seize other things found in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be seizable items.
(3) If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.
(4) If the warrant authorises an ordinary search or a frisk search of a person, a search of the person different to that so authorised must not be done under the warrant.
3G Availability of assistance and use of force in executing a warrant
In executing a warrant:
(a) the executing officer may obtain such assistance; and
(b) the executing officer, or a person who is a constable and who is assisting in executing the warrant may use such force against persons and things; and
(c) a person who is not a constable and who has been authorised to assist in executing the warrant may use such force against things;
as is necessary and reasonable in the circumstances.
3H Details of warrant to be given to occupier etc.
(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the executing officer or a constable assisting must make available to that person a copy of the warrant.
(2) If a warrant in relation to a person is being executed, the executing officer or a constable assisting must make available to that person a copy of the warrant.
(3) If a person is searched under a warrant in relation to premises, the executing officer or a constable assisting must show the person a copy of the warrant.
(4) The executing officer must identify himself or herself to the person at the premises or the person being searched, as the case may be.
(5) The copy of the warrant referred to in subsections (1) and (2) need not include the signature of the issuing officer or the seal of the relevant court.
3J Specific powers available to constables executing warrant
(1) In executing a warrant in relation to premises, the executing officer or a constable assisting may:
(a) for a purpose incidental to the execution of the warrant; or
(b) if the occupier of the premises consents in writing;
take photographs (including video recordings) of the premises or of things at the premises.
(2) If a warrant in relation to premises is being executed, the executing officer and the constables assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:
(a) for not more than one hour; or
(aa) if there is an emergency situation, for not more than 12 hours or such longer period as allowed by an issuing officer under section 3JA; or
(b) for a longer period if the occupier of the premises consents in writing.
(3) If:
(a) the execution of a warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(c) the warrant is still in force;
the execution of the warrant may be completed.
3JA Extension of time to re‑enter premises in emergency situations
(1) If:
(a) a warrant in relation to premises is being executed; and
(b) there is an emergency situation; and
(c) the executing officer or a constable assisting believes on reasonable grounds that the executing officer and the constables assisting will not be able to return to the premises within the 12 hour period mentioned in paragraph 3J(2)(aa);
he or she may apply to an issuing officer for an extension of that period.
(2) Before making the application, the executing officer or a constable assisting must, if it is practicable to do so, give notice to the occupier of the premises of his or her intention to apply for an extension.
(3) If an application mentioned in subsection (1) has been made, an issuing officer may extend the period during which the executing officer and constables assisting may be away from the premises if:
(a) the issuing officer is satisfied, by information on oath or affirmation, that there are exceptional circumstances that justify the extension; and
(b) the extension would not result in the period ending after the expiry of the warrant.
3K Use of equipment to examine or process things
Equipment may be brought to warrant premises
(1) The executing officer of a warrant in relation to premises, or constable assisting, may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant.
Thing may be moved for examination or processing
(2) A thing found at warrant premises, or a thing found during a search under a warrant that is in force in relation to a person, may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if:
(a) both of the following apply:
(i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;
(ii) the executing officer or constable assisting suspects on reasonable grounds that the thing contains or constitutes evidential material; or
(b) for a thing found at warrant premises—the occupier of the premises consents in writing; or
(c) for a thing found during a search under a warrant that is in force in relation to a person—the person consents in writing.
Notification of examination or processing and right to be present
(3) If a thing is moved to another place for the purpose of examination or processing under subsection (2), the executing officer must, if it is practicable to do so:
(a) inform the person referred to in paragraph (2)(b) or (c) (as the case requires) of the address of the place and the time at which the examination or processing will be carried out; and
(b) allow that person or his or her representative to be present during the examination or processing.
(3AA) The executing officer need not comply with paragraph (3)(a) or (b) if he or she believes on reasonable grounds that to do so might:
(a) endanger the safety of a person; or
(b) prejudice an investigation or prosecution.
Time limit on moving a thing
(3A) The thing may be moved to another place for examination or processing for no longer than 14 days.
(3B) An executing officer may apply to an issuing officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 14 days or that time as previously extended.
(3C) The executing officer must give notice of the application to the person referred to in paragraph (2)(b) or (c) (as the case requires), and that person is entitled to be heard in relation to the application.
(3D) A single extension cannot exceed 7 days.
Equipment at warrant premises may be operated
(4) The executing officer of a warrant in relation to premises, or a constable assisting, may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant if the executing officer or constable believes on reasonable grounds that:
(a) the equipment is suitable for the examination or processing; and
(b) the examination or processing can be carried out without damage to the equipment or the thing.
3L Use of electronic equipment at premises
(1) 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) if he or she suspects on reasonable grounds that the data constitutes evidential material.
Note: A constable can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 3LA.
(1A) If the executing officer or constable assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may:
(a) copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device brought to the premises; or
(b) if the occupier of the premises agrees in writing—copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device at the premises;
and take the device from the premises.
(1B) If:
(a) the executing officer or constable assisting takes the device from the premises; and
(b) the Commissioner is satisfied that the data is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings;
the Commissioner must arrange for:
(c) the removal of the data from any device in the control of the Australian Federal Police; and
(d) the destruction of any other reproduction of the data in the control of the Australian Federal Police.
(2) If the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents so produced.
(3) A constable may seize equipment under paragraph (2)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (1A) or to put the material in documentary form as mentioned in paragraph (2)(b); or
(b) possession by the occupier of the equipment could constitute an offence.
(4) If the executing officer or a constable assisting suspects on reasonable grounds that:
(a) evidential material may be accessible by operating electronic equipment at the premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
(5) The executing officer or a constable assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.
(6) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
(7) If the executing officer or a constable assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to an issuing officer for an extension of that period.
(8) The executing officer or a constable assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.
(9) The provisions of this Division relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension.
3LAA Use of electronic equipment at other place
(1) If electronic equipment is moved to another place under subsection 3K(2), the executing officer or a constable assisting may operate the equipment to access data (including data held at another place).
(2) If the executing officer or constable assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.
(3) If the Commissioner is satisfied that the data is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the Commissioner must arrange for:
(a) the removal of the data from any device in the control of the Australian Federal Police; and
(b) the destruction of any other reproduction of the data in the control of the Australian Federal Police.
(4) If the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can be put in documentary form—put the material in that form and seize the documents so produced.
(5) A constable may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the material in documentary form as mentioned in paragraph (4)(b); or
(b) possession of the equipment, by the person referred to in paragraph 3K(2)(a) or (b) (as the case requires), could constitute an offence.
3LA Person with knowledge of a computer or a computer system to assist access etc.
(1) A constable may apply to a magistrate for 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 following:
(a) access data held in, or accessible from, a computer or data storage device that:
(i) is on warrant premises; or
(ii) has been moved under subsection 3K(2) and is at a place for examination or processing; or
(iii) has been seized under this Division;
(b) copy data held in, or accessible from, a computer, or data storage device, described in paragraph (a) to another data storage device;
(c) convert into documentary form or another form intelligible to a constable:
(i) data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or
(ii) data held in a data storage device to which the data was copied as described in paragraph (b); or
(iii) data held in a data storage device removed from warrant premises under subsection 3L(1A).
(2) The magistrate may grant the order if the magistrate is satisfied that:
(a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device; and
(b) the specified person is:
(i) reasonably suspected of having committed the offence stated in the relevant warrant; or
(ii) the owner or lessee of the computer or device; or
(iii) an employee of the owner or lessee of the computer or device; or
(iv) a person engaged under a contract for services by the owner or lessee of the computer or device; or
(v) a person who uses or has used the computer or device; or
(vi) a person who is or was a system administrator for the system including the computer or device; and
(c) the specified person has relevant knowledge of:
(i) the computer or device or a computer network of which the computer or device forms or formed a part; or
(ii) measures applied to protect data held in, or accessible from, the computer or device.
(3) If:
(a) the computer or data storage device that is the subject of the order is seized under this Division; and
(b) the order was granted on the basis of an application made before the seizure;
the order does not have effect on or after the seizure.
Note: An application for another order under this section relating to the computer or data storage device may be made after the seizure.
(4) If the computer or data storage device is not on warrant premises, the order must:
(a) specify the period within which the person must provide the information or assistance; and
(b) specify the place at which the person must provide the information or assistance; and
(c) specify the conditions (if any) determined by the magistrate as the conditions to which the requirement on the person to provide the information or assistance is subject.
(5) A person commits an offence if the person fails to comply with the order.
Penalty for contravention of this subsection: Imprisonment for 2 years.
3LB Accessing data held on certain premises—notification to occupier of that premises
(1) If:
(a) data is accessed, in relation to a warrant, under subsection 3L(1) or 3LAA(1); and
(aa) either:
(i) if the warrant is in relation to premises—the data is held on premises other than the warrant premises; or
(ii) if the warrant is in relation to a person—the data is held on any premises; and
(b) it is practicable to notify the occupier of the premises on which the data is held that the data has been accessed under a warrant;
the executing officer must:
(c) do so as soon as practicable; and
(d) if the executing officer has arranged, or intends to arrange, for continued access to the data under subsection 3L(1A) or (2) or 3LAA(2) or (4)—include that information in the notification.
(2) A notification under subsection (1) must include sufficient information to allow the occupier of the premises on which the data is held to contact the executing officer.
3M Compensation for damage to equipment
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in section 3K, 3L or 3LAA:
(i) damage is caused to the equipment; or
(ii) damage is caused to data recorded on the equipment or data access to which was obtained from the operation of the equipment; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether any of the following persons, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment:
(a) if the equipment was operated under a warrant issued in relation to premises—the occupier of the premises, or the occupier’s employees or agents;
(b) if the equipment was operated under a warrant issued in relation to a person—that person, or that person’s agents.
(5) Compensation is payable out of money appropriated by the Parliament.
(6) For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure of data or addition of other data.
3N Copies of seized things to be provided
(1) Subject to subsection (2), if a constable seizes, under a warrant relating to premises:
(a) a document, film, computer file or other thing that can be readily copied; or
(b) a storage device the information in which can be readily copied;
the constable must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.
(2) Subsection (1) does not apply if:
(a) the thing that has been seized was seized under subsection 3L(1A) or paragraph 3L(2)(b) or 3LAA(4)(b); or
(b) possession by the occupier of the document, film, computer file, thing or information could constitute an offence.
3P Occupier entitled to be present during search
(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is, subject to Part IC, entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
3Q Receipts for things seized under warrant or moved
(1) If a thing is seized under a warrant or moved under subsection 3K(2), the executing officer or a constable assisting must provide a receipt for the thing.
(2) If 2 or more things are seized or moved, they may be covered in the one receipt.
3R Warrants by telephone or other electronic means
(1) A constable may make an application to an issuing officer for a warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2) The issuing officer:
(a) may require communication by voice to the extent that it is practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such communication by voice.
(3) An application under this section must include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn.
(4) If an application is made to an issuing officer under this section and the issuing officer, after considering the information and having received and considered such further information (if any) as the issuing officer required, is satisfied that:
(a) a warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the issuing officer may complete and sign the same form of warrant that would be issued under section 3E.
(5) If the issuing officer decides to issue the warrant, the issuing officer is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.
(6) The applicant must then complete a form of warrant in terms substantially corresponding to those given by the issuing officer, stating on the form the name of the issuing officer and the day on which and the time at which the warrant was signed.
(7) The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the issuing officer the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn.
(8) The issuing officer is to attach to the documents provided under subsection (7) the form of warrant completed by the issuing officer.
(9) If:
(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and
(b) the form of warrant signed by the issuing officer is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
3S Restrictions on personal searches
A warrant cannot authorise a strip search or a search of a person’s body cavities.
Division 3—Stopping and searching conveyances
3T Searches without warrant in emergency situations
(1) This section applies if a constable suspects, on reasonable grounds, that:
(a) a thing relevant to an indictable offence is in or on a conveyance; and
(b) it is necessary to exercise a power under subsection (2) in order to prevent the thing from being concealed, lost or destroyed; and
(c) it is necessary to exercise the power without the authority of a search warrant because the circumstances are serious and urgent.
(2) The constable may:
(a) stop and detain the conveyance; and
(b) search the conveyance and any container in or on the conveyance, for the thing; and
(c) seize the thing if he or she finds it there.
(3) If, in the course of searching for the thing, the constable finds another thing relevant to an indictable offence or a thing relevant to a summary offence, the constable may seize that thing if he or she suspects, on reasonable grounds, that:
(a) it is necessary to seize it in order to prevent its concealment, loss or destruction; and
(b) it is necessary to seize it without the authority of a search warrant because the circumstances are serious and urgent.
(4) The constable must exercise his or her powers subject to section 3U.
3U How a constable exercises a power under section 3T
When a constable exercises a power under section 3T in relation to a conveyance, he or she:
(a) may use such assistance as is necessary; and
(b) must search the conveyance in a public place or in some other place to which members of the public have ready access; and
(c) must not detain the conveyance for longer than is necessary and reasonable to search it and any container found in or on the conveyance; and
(d) may use such force as is necessary and reasonable in the circumstances, but must not damage the conveyance or any container found in or on the conveyance by forcing open a part of the conveyance or container unless:
(i) the person (if any) apparently in charge of the conveyance has been given a reasonable opportunity to open that part or container; or
(ii) it is not possible to give that person such an opportunity.
Division 3A—Powers in relation to terrorist acts and terrorism offences
Subdivision A—Definitions
3UA Definitions
In this Division:
Commonwealth place means a Commonwealth place within the meaning of the Commonwealth Places (Application of Laws) Act 1970.
police officer means:
(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or
(b) a special member (within the meaning of that Act); or
(c) a member, however described, of a police force of a State or Territory.
prescribed security zone means a zone in respect of which a declaration under section 3UJ is in force.
serious offence related item means a thing that a police officer conducting a search under section 3UD reasonably suspects:
(a) may be used in a serious offence; or
(b) is connected with the preparation for, or the engagement of a person in, a serious offence; or
(c) is evidence of, or relating to, a serious offence.
terrorism related item means a thing that a police officer conducting a search under section 3UD reasonably suspects:
(a) may be used in a terrorist act; or
(b) is connected with the preparation for, or the engagement of a person in, a terrorist act; or
(c) is evidence of, or relating to, a terrorist act.
vehicle includes any means of transport (and, without limitation, includes a vessel and an aircraft).
Subdivision B—Powers
3UB Application of Subdivision
(1) A police officer may exercise the powers under this Subdivision in relation to a person if:
(a) the person is in a Commonwealth place (other than a prescribed security zone) and the officer suspects on reasonable grounds that the person might have just committed, might be committing or might be about to commit, a terrorist act; or
(b) the person is in a Commonwealth place in a prescribed security zone.
(2) This section does not limit the operation of section 3UEA.
3UC Requirement to provide name etc.
(1) A police officer may request the person to provide the officer with the following details:
(a) the person’s name;
(b) the person’s residential address;
(c) the person’s reason for being in that particular Commonwealth place;
(d) evidence of the person’s identity.
(2) If a police officer:
(a) makes a request under subsection (1); and
(b) informs the person:
(i) of the officer’s authority to make the request; and
(ii) that it may be an offence not to comply with the request;
the person commits an offence if:
(c) the person fails to comply with the request; or
(d) the person gives a name or address that is false in a material particular.
Penalty: 20 penalty units.
Note: A more serious offence of obstructing a Commonwealth public official may also apply (see section 149.1 of the Criminal Code).
(3) Subsection (2) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
3UD Stopping and searching
(1) A police officer may:
(a) stop and detain the person for the purpose of conducting a search under paragraph (b); and
(b) conduct one of the following searches for a terrorism related item:
(i) an ordinary search or a frisk search of the person;
(ii) a search of any thing that is, or that the officer suspects on reasonable grounds to be, under the person’s immediate control;
(iii) a search of any vehicle that is operated or occupied by the person;
(iv) a search of any thing that the person has, or that the officer suspects on reasonable grounds that the person has, brought into the Commonwealth place.
Conditions relating to conduct of search of person
(2) A police officer who conducts a search of a person under this section must not use more force, or subject the person to greater indignity, than is reasonable and necessary in order to conduct the search.
(3) A person must not be detained under this section for longer than is reasonably necessary for a search to be conducted under this section.
Other conditions relating to conduct of search of person or thing
(4) In searching a thing (including a vehicle) under subsection (1), a police officer may use such force as is reasonable and necessary in the circumstances, but must not damage the thing by forcing it, or a part of it, open unless:
(a) the person has been given a reasonable opportunity to open the thing or part of it; or
(b) it is not possible to give that opportunity.
3UE Seizure of terrorism related items and serious offence related items
If a police officer:
(a) conducts a search under section 3UD; and
(b) finds, in the course of the search, a thing that is:
(i) a terrorism related item; or
(ii) a serious offence related item;
the officer may seize the thing.
3UEA Emergency entry to premises without warrant
(1) A police officer may enter premises in accordance with this section if the police officer suspects, on reasonable grounds, that:
(a) it is necessary to exercise a power under subsection (2) in order to prevent a thing that is on the premises from being used in connection with a terrorism offence; and
(b) it is necessary to exercise the power without the authority of a search warrant because there is a serious and imminent threat to a person’s life, health or safety.
(2) The police officer may:
(a) search the premises for the thing; and
(b) seize the thing if he or she finds it there.
(3) If, in the course of searching for the thing, the police officer finds another thing that the police officer suspects, on reasonable grounds, to be relevant to an indictable offence or a summary offence, the police officer may secure the premises pending the obtaining of a warrant under Part IAA in relation to the premises.
(4) Premises must not be secured under subsection (3) for longer than is reasonably necessary to obtain the warrant.
(5) In the course of searching for the thing, the police officer may also seize any other thing, or do anything to make the premises safe, if the police officer suspects, on reasonable grounds, that it is necessary to do so:
(a) in order to protect a person’s life, health or safety; and
(b) without the authority of a search warrant because the circumstances are serious and urgent.
(6) In exercising powers under this section:
(a) the police officer may use such assistance; and
(b) the police officer, or a person who is also a police officer and who is assisting the police officer, may use such force against persons and things; and
(c) a person (other than a police officer) who is authorised by the police officer to assist the police officer may use such force against things;
as is necessary and reasonable in the circumstances.
Notification
(7) If one or more police officers have entered premises in accordance with this section, a police officer must, within 24 hours after the entry:
(a) notify the occupier of the premises that the entry has taken place; or
(b) if it is not practicable so to notify the occupier—leave a written notice of the entry at the premises.
3UF Seizure notices
Seizure notice to be served
(1) A police officer who is for the time being responsible for a thing seized under section 3UE or 3UEA must, within 7 days after the day on which the thing was seized, serve a seizure notice on:
(a) the owner of the thing; or
(b) if the owner of the thing cannot be identified after reasonable inquiries—the person from whom the thing was seized.
(2) Subsection (1) does not apply if:
(a) both:
(i) the owner of the thing cannot be identified after reasonable inquiries; and
(ii) the thing was not seized from a person; or
(b) it is not possible to serve the person required to be served under subsection (1).
(3) A seizure notice must:
(a) identify the thing; and
(b) state the date on which the thing was seized; and
(c) state the ground or grounds on which the thing was seized; and
(d) state that, if the owner does not request the return of the thing within 90 days after the date of the notice, the thing is forfeited to the Commonwealth.
Forfeiture of thing seized
(8) A thing is forfeited to the Commonwealth if the owner of the thing does not request its return:
(a) before the end of the 90th day after the date of the seizure notice in relation to the thing; or
(b) if subsection (2) applied in relation to the thing so that a seizure notice was not served—before the end of the 90th day after the day on which the thing was seized.
3UH Relationship of Subdivision to other laws
(1) The powers conferred, and duties imposed, by this Subdivision on police officers are in addition to, and not in derogation of, any other powers conferred, or duties imposed, by any other law of the Commonwealth or the law of a State or Territory.
(2) This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or the law of a State or Territory in so far as it is capable of operating concurrently with this Subdivision.
Subdivision C—Prescribed security zones
3UI Applications for declarations
A police officer may apply to the Minister for a declaration that a Commonwealth place be declared as a prescribed security zone.
3UJ Minister may make declarations
Declaration
(1) The Minister may declare, in writing, a Commonwealth place to be a prescribed security zone if he or she considers that a declaration would assist:
(a) in preventing a terrorist act occurring; or
(b) in responding to a terrorist act that has occurred.
Declaration has effect
(2) A declaration under this section has effect accordingly.
Duration of declaration
(3) A declaration ceases to have effect at the end of 28 days after it is made, unless the declaration is revoked by the Minister before then.
Revocation of declaration
(4) The Minister must revoke a declaration, in writing, if he or she is satisfied that:
(a) in the case of a declaration made on the ground mentioned in paragraph (1)(a)—there is no longer a terrorism threat that justifies the declaration being continued; or
(b) in the case of a declaration made on the ground mentioned in paragraph (1)(b)—the declaration is no longer required.
Gazettal and publication of declaration
(5) If a declaration of a Commonwealth place as a prescribed security zone under this section is made or revoked, the Minister must arrange for:
(a) a statement to be prepared that:
(i) states that the declaration has been made or revoked, as the case may be; and
(ii) identifies the prescribed security zone; and
(b) the statement to be:
(i) broadcast by a television or radio station so as to be capable of being received within the place; and
(ii) published in the Gazette; and
(iii) published on the internet.
Effect of failure to publish
(6) A failure to comply with subsection (5) does not make the declaration or its revocation ineffective to any extent.
Declaration or revocation not legislative instruments
(7) A declaration or revocation made under this section is not a legislative instrument.
Subdivision D—Sunset provision
3UK Sunset provision
(1) A police officer must not exercise powers or perform duties under this Division (other than under section 3UF) after 7 September 2018.
(2) A declaration under section 3UJ that is in force at the end of 7 September 2018 ceases to be in force at that time.
(3) A police officer cannot apply for, and the Minister cannot make, a declaration under section 3UJ after 7 September 2018.
Division 3B—Powers to require identity information at airports
3UL Definitions—Division 3B
In this Division:
constitutional airport means:
(a) a Commonwealth aerodrome within the meaning of the Crimes (Aviation) Act 1991 (see section 3 of that Act); or
(b) another airport, if the airport is in a Territory.
government photographic identity document means an identity document providing photographic identification of a person that is issued by:
(a) the government of the Commonwealth or a State or Territory; or
(b) the government of a foreign country or part of a foreign country.
identity document:
(a) means a document (such as a driver’s licence, birth certificate, credit card or identity card) that evidences or indicates, or can be used to evidence or indicate, a person’s identity or any aspect of a person’s identity; but
(b) does not include a document prescribed by regulation for the purposes of this definition.
3UM Identity information at airports—requirements
Scope of section
(1) A constable may make a request under this section of a person (a suspect) if:
(a) the request is made at a constitutional airport; and
(b) the constable reasonably suspects that the suspect has committed, is committing or intends to commit an offence against a law of the Commonwealth, or a law of a State or Territory, punishable by imprisonment for 12 months or more.
(2) A constable may also make a request under this section of a person (a suspect) if:
(a) the request is made at an airport other than a constitutional airport; and
(b) the constable reasonably suspects that the suspect has committed, is committing or intends to commit an offence against a law of the Commonwealth punishable by imprisonment for 12 months or more.
Evidence of identity
(3) The constable may request the suspect to give the constable evidence of the suspect’s identity by:
(a) producing a government photographic identity document issued in relation to the suspect, if held by the suspect; and
(b) if the suspect does not produce a government photographic identity document as requested under paragraph (a)—producing another identity document in relation to the suspect, if held by the suspect; and
(c) if the suspect does not produce an identity document as requested under paragraph (a) or (b)—giving the constable the suspect’s name and address.
Constable’s duties
(4) The constable must, before making a request under subsection (3):
(a) if the constable is not in uniform:
(i) show the suspect evidence that the constable is a constable; and
(ii) if the suspect requests—comply with subsection (5); and
(b) in any case—inform the suspect that it may be an offence not to comply with the request, or to give the constable a false or misleading document, or false or misleading information, in response to the request.
(5) If the constable is not in uniform, the constable must give the suspect any of the following information if requested by the suspect:
(a) the constable’s name;
(b) the address of the constable’s place of duty;
(c) the constable’s identification number (if any);
(d) if the constable has no identification number—the constable’s rank.
3UN Identity information at airports—offences relating to section 3UM
Offence by suspect
(1) A person commits an offence if:
(a) a constable makes a request of the person under subsection 3UM(3); and
(b) the person fails to comply with the request; and
(c) the constable complies with subsection 3UM(4).
Penalty: 20 penalty units.
Note: The following more serious offences may also apply:
(a) giving false or misleading information (see section 137.1 of the Criminal Code);
(b) producing a false or misleading document (see section 137.2 of the Criminal Code);
(c) obstructing a Commonwealth public official (see section 149.1 of the Criminal Code).
(2) Strict liability applies to paragraphs (1)(a) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
Offence by constable
(3) A person commits an offence if:
(a) the person is subject to a requirement under subsection 3UM(4); and
(b) the person engages in conduct; and
(c) the conduct breaches the requirement.
Penalty: 5 penalty units.
(4) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
Division 4—Arrest and related matters
3V Requirement to furnish name etc.
(1) If a constable believes on reasonable grounds that a person whose name or address is, or whose name and address are, unknown to the constable may be able to assist the constable in inquiries in relation to an indictable offence that the constable has reason to believe has been or may have been committed, the constable may request the person to provide his or her name or address, or name and address, to the constable.
(2) If a constable:
(a) makes a request of a person under subsection (1); and
(b) informs the person of the reason for the request; and
(c) complies with subsection (3) if the person makes a request under that subsection;
the person must not:
(d) refuse or fail to comply with the request; or
(e) give a name or address that is false in a material particular.
(2A) Subsection (2) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).
(3) If a constable who makes a request of a person under subsection (1) is requested by the person to provide to the person:
(a) his or her name or the address of his or her place of duty; or
(b) his or her name and that address; or
(c) if he or she is not in uniform and it is practicable for the constable to provide the evidence—evidence that he or she is a constable;
the constable must not:
(d) refuse or fail to comply with the request; or
(e) give a name or address that is false in a material particular.
Penalty: 5 penalty units.
3W Power of arrest without warrant by constables
(1) A constable may, without warrant, arrest a person for an offence (other than a terrorism offence and an offence against section 80.2C of the Criminal Code) if the constable believes on reasonable grounds that:
(a) the person has committed or is committing the offence; and
(b) proceedings by summons against the person would not achieve one or more of the following purposes:
(i) ensuring the appearance of the person before a court in respect of the offence;
(ii) preventing a repetition or continuation of the offence or the commission of another offence;
(iii) preventing the concealment, loss or destruction of evidence relating to the offence;
(iv) preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
(v) preventing the fabrication of evidence in respect of the offence;
(vi) preserving the safety or welfare of the person.
(2) If:
(a) a person has been arrested for an offence under subsection (1); and
(b) before the person is charged with the offence, the constable in charge of the investigation ceases to believe on reasonable grounds:
(i) that the person committed the offence; or
(ii) that holding the person in custody is necessary to achieve a purpose referred to in paragraph (1)(b);
the person must be released.
(3) A constable may, without warrant, arrest a person whom he or she believes on reasonable grounds has escaped from lawful custody to which the person is still liable in respect of an offence.
3WA Constables’ power of arrest without warrant for a terrorism offence or offence of advocating terrorism
(1) A constable may, without warrant, arrest a person for a terrorism offence or an offence against section 80.2C of the Criminal Code if the constable suspects on reasonable grounds that:
(a) the person has committed or is committing the offence; and
(b) proceedings by summons against the person would not achieve one or more of the following purposes:
(i) ensuring the appearance of the person before a court in respect of the offence;
(ii) preventing a repetition or continuation of the offence or the commission of another offence;
(iii) preventing the concealment, loss or destruction of evidence relating to the offence;
(iv) preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
(v) preventing the fabrication of evidence in respect of the offence;
(vi) preserving the safety or welfare of the person.
(2) If:
(a) a person has been arrested for an offence under subsection (1); and
(b) before the person is charged with the offence, the constable in charge of the investigation ceases to suspect on reasonable grounds:
(i) that the person committed the offence; or
(ii) that holding the person in custody is necessary to achieve a purpose referred to in paragraph (1)(b);
the person must be released.
3X Arrest of prisoner unlawfully at large
(1) A constable may, without warrant, arrest a person whom the constable believes on reasonable grounds to be a prisoner unlawfully at large.
(2) The constable must, as soon as practicable, take the person before a Magistrate.
(3) If the Magistrate is satisfied that the person is a prisoner unlawfully at large, the Magistrate may issue a warrant:
(a) authorising any constable to convey the person to a prison or other place of detention specified in the warrant; and
(b) directing that the person, having been conveyed to that place in accordance with the warrant, be detained there to undergo the term of imprisonment or other detention that the person is required by law to undergo.
(4) In this section:
prisoner unlawfully at large means a person who is at large (otherwise than because the person has escaped from lawful custody) at a time when the person is required by law to be detained under a provision of a law of the Commonwealth, including Divisions 6 to 9, inclusive, of Part IB.
3Y Power of arrest without warrant of person on bail
(1) A constable may, without warrant, arrest a person who has been released on bail if the constable believes on reasonable grounds that the person has contravened or is about to contravene a condition of a recognisance on which bail was granted to the person in respect of an offence, even though the condition was imposed in a State or Territory other than the one in which the person is.
(2) Subject to subsection (3), if a constable arrests a person under subsection (1), the constable must cause the person to be brought before a magistrate as soon as is practicable.
(3) If a constable arrests a person under subsection (1) in the State or Territory in which the condition was imposed, the person is to be dealt with according to relevant laws of that State or Territory applied by section 68 of the Judiciary Act 1903.
(4) When a person arrested under subsection (1) in a State or Territory other than the one in which the condition was imposed is brought before a magistrate in the State or Territory in which the arrest took place, the court may:
(a) release the person unconditionally; or
(b) admit the person to bail on such recognisances as the court thinks fit to appear again before the same court at such time as the court orders; or
(c) if the condition was not imposed by the Federal Court of Australia—remand the person in custody for a reasonable time pending the obtaining of a warrant for the apprehension of the person from the State or Territory in which the condition was imposed; or
(d) if the condition was imposed by the Federal Court of Australia—remand the person in custody for a reasonable time pending the obtaining of a warrant for the apprehension of the person from that Court.
(5) A release referred to in paragraph (4)(a) does not affect the operation of the bail order or the conditions of the bail imposed in the other State or Territory.
3Z Power of arrest without warrant by other persons
(1) A person who is not a constable may, without warrant, arrest another person if he or she believes on reasonable grounds that:
(a) the other person is committing or has just committed an indictable offence; and
(b) proceedings by summons against the other person would not achieve one or more of the purposes referred to in paragraph 3W(1)(b).
(2) A person who arrests another person under subsection (1) must, as soon as practicable after the arrest, arrange for the other person, and any property found on the other person, to be delivered into the custody of a constable.
3ZA Warrants for arrest
(1) An issuing officer must not, under a law of a State or Territory applied by section 68 of the Judiciary Act 1903, issue a warrant for the arrest of a person for an offence as a result of an information laid before the officer unless:
(a) the information is on oath; and
(b) except where the issuing officer is informed that the warrant is sought for the purpose of making a request for the extradition of a person from a foreign country—the informant has given the issuing officer an affidavit setting out the reasons why the warrant is sought, including:
(i) the reasons why it is believed that the person committed the offence; and
(ii) the reasons why it is claimed that proceedings by summons would not achieve one or more of the purposes set out in paragraph 3W(1)(b); and
(c) if the issuing officer has requested further information concerning the reasons for which the issue of the warrant is sought—that information has been provided to the officer; and
(d) the issuing officer is satisfied that there are reasonable grounds for the issue of the warrant.
(2) If an issuing officer issues such a warrant, the officer must write on the affidavit which of the reasons specified in the affidavit, and any other reasons, he or she has relied on as justifying the issue of the warrant.
3ZB Power to enter premises to arrest offender
(1) Subject to subsection (3), if:
(a) a constable has, under a warrant, power to arrest a person for an offence; and
(b) the constable believes on reasonable grounds that the person is on any premises;
the constable may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(2) Subject to subsection (3), if:
(a) a constable may, under section 3W or 3WA, arrest a person without warrant for an offence; and
(b) the offence is an indictable offence; and
(c) the constable believes on reasonable grounds that the person is on any premises;
the constable may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(3) A constable must not enter a dwelling house under subsection (1) or (2) at any time during the period commencing at 9 p.m. on a day and ending at 6 a.m. on the following day unless the constable believes on reasonable grounds that:
(a) it would not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time; or
(b) it is necessary to do so in order to prevent the concealment, loss or destruction of evidence relating to the offence.
(4) In subsection (3):
dwelling house includes a conveyance, and a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.
3ZC Use of force in making arrest
(1) A person must not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.
(2) Without limiting the operation of subsection (1), a constable must not, in the course of arresting a person for an offence:
(a) do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the constable believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the constable); or
(b) if the person is attempting to escape arrest by fleeing—do such a thing unless:
(i) the constable believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the constable); and
(ii) the person has, if practicable, been called on to surrender and the constable believes on reasonable grounds that the person cannot be apprehended in any other manner.
3ZD Persons to be informed of grounds of arrest
(1) A person who arrests another person for an offence must inform the other person, at the time of the arrest, of the offence for which the other person is being arrested.
(2) It is sufficient if the other person is informed of the substance of the offence, and it is not necessary that this be done in language of a precise or technical nature.
(3) Subsection (1) does not apply to the arrest of the other person if:
(a) the other person should, in the circumstances, know the substance of the offence for which he or she is being arrested; or
(b) the other person’s actions make it impracticable for the person making the arrest to inform the other person of the offence for which he or she is being arrested.
3ZE Power to conduct a frisk search of an arrested person
A constable who arrests a person for an offence, or who is present at such an arrest, may, if the constable suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items:
(a) conduct a frisk search of the person at or soon after the time of arrest; and
(b) seize any seizable items found as a result of the search.
3ZF Power to conduct an ordinary search of an arrested person
A constable who arrests a person for an offence, or who is present at such an arrest, may, if the constable suspects on reasonable grounds that the person is carrying:
(a) evidential material in relation to that or another offence; or
(b) a seizable item;
conduct an ordinary search of the person at or soon after the time of arrest, and seize any such thing found as a result of the search.
3ZG Power to conduct search of arrested person’s premises
A constable who arrests a person at premises for an offence, or who is present at such an arrest, may seize things in plain view at those premises that the constable believes on reasonable grounds to be:
(a) evidential material in relation to that or another offence; or
(b) seizable items.
3ZH Power to conduct an ordinary search or a strip search
(1) If a person who has been arrested for an offence is brought to a police station, a constable may:
(a) if an ordinary search of the person has not been conducted—conduct an ordinary search of the person; or
(b) subject to this section, conduct a strip search of the person.
(2) A strip search may be conducted if:
(a) a constable suspects on reasonable grounds that the person has in his or her possession:
(i) a seizable item; or
(ii) evidential material (other than forensic material as defined in Part ID) in relation to that or another offence; and
(b) the constable suspects on reasonable grounds that it is necessary to conduct a strip search of the person in order to recover that item or evidential material; and
(c) a constable of the rank of superintendent or higher has approved the conduct of the search.
(2A) If:
(a) in the course of carrying out a strip search, the constable comes to believe on reasonable grounds that the carrying out of a forensic procedure would be likely to produce evidence relating to the offence for which the person has been arrested or any other offence; and
(b) Part ID provides for the carrying out of such a forensic procedure;
the forensic procedure must not be carried out except in accordance with Part ID.
(2B) The conducting of a strip search may include taking photographs of evidential material found on the person, whether or not taking photographs is a forensic procedure provided for by Part ID.
(3) Subject to section 3ZI, a strip search may also be conducted if the person consents in writing.
(3A) Subsection (3) does not authorise the conduct of a strip search for the purpose of obtaining forensic material as defined in Part ID. Such a search must not be conducted except in accordance with Part ID.
(4) Subject to section 3ZI, a strip search may be conducted in the presence of a medical practitioner who may assist in the search.
(5) The approval may be obtained by telephone, telex, fax or other electronic means.
(6) A constable who gives or refuses to give an approval for the purposes of paragraph (2)(c) must make a record of the decision and of the reasons for the decision.
(7) Such force as is necessary and reasonable in the circumstances may be used to conduct a strip search under subsection (2).
(8) Any item of a kind referred to in paragraph (2)(a) that is found during a strip search may be seized.
3ZI Rules for conduct of strip search
(1) A strip search:
(a) must be conducted in a private area; and
(b) must be conducted by a constable who is of the same sex as the person being searched; and
(c) subject to subsections (3) and (4), must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched; and
(d) must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search; and
(e) must not be conducted on a person who is under 10; and
(f) if the person being searched is at least 10 but under 18, or is incapable of managing his or her affairs:
(i) may only be conducted if the person has been arrested and charged or if a magistrate orders that it be conducted; and
(ii) must be conducted in the presence of a parent or guardian of the person being searched or, if that is not acceptable to the person, in the presence of another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person; and
(g) must not involve a search of a person’s body cavities; and
(h) must not involve the removal of more garments than the constable conducting the search believes on reasonable grounds to be necessary to determine whether the person has in his or her possession the item searched for or to establish the person’s involvement in the offence; and
(i) must not involve more visual inspection than the constable believes on reasonable grounds to be necessary to establish the person’s involvement in the offence.
(2) In deciding whether to make an order referred to in paragraph (1)(f), the magistrate must have regard to:
(a) the seriousness of the offence; and
(b) the age or any disability of the person; and
(c) such other matters as the magistrate thinks fit.
(3) A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if a medical practitioner of the same sex as the person being searched is not available within a reasonable time.
(4) Paragraph (1)(c) does not apply to a parent, guardian or personal representative of the person being searched if the person being searched has no objection to the person being present.
(5) If any of a person’s garments are seized as a result of a strip search, the person must be provided with adequate clothing.
3ZJ Taking fingerprints, recordings, samples of handwriting or photographs
(1) In this section and in sections 3ZK and 3ZL:
identification material, in relation to a person, means prints of the person’s hands, fingers, feet or toes, recordings of the person’s voice, samples of the person’s handwriting or photographs (including video recordings) of the person, but does not include tape recordings made for the purposes of section 23U or 23V.
(2) A constable must not:
(a) take identification material from a person who is in lawful custody in respect of an offence except in accordance with this section; or
(b) require any other person to submit to the taking of identification material, but nothing in this paragraph prevents such a person consenting to the taking of identification material.
(3) If a person is in lawful custody in respect of an offence, a constable who is of the rank of sergeant or higher or who is for the time being in charge of a police station may take identification material from the person, or cause identification material from the person to be taken, if:
(a) the person consents in writing; or
(b) the constable believes on reasonable grounds that it is necessary to do so to:
(i) establish who the person is; or
(ii) identify the person as the person who committed the offence; or
(iii) provide evidence of, or relating to, the offence; or
(ba) both of the following apply:
(i) the identification material taken, or caused to be taken, is fingerprints or photographs (including video recordings) of the person;
(ii) the offence is punishable by imprisonment for a period of 12 months or more; or
(c) the constable suspects on reasonable grounds that the person has committed another offence and the identification material is to be taken for the purpose of identifying the person as the person who committed the other offence or of providing evidence of, or relating to, the other offence.
(4) A constable may use such force as is necessary and reasonable in the circumstances to take identification material from a person under this section.
(5) Subject to subsection (9), a constable must not take identification material from a person who is under 10.
(6) Subject to this section, a constable must not take identification material (other than hand prints, finger prints, foot prints or toe prints) from a suspect who:
(a) is at least 10 but under 18, or is incapable of managing his or her affairs; and
(b) has not been arrested and charged;
unless a magistrate orders that the material be taken.
(6A) A constable must not take hand prints, finger prints, foot prints or toe prints from a suspect who:
(a) is at least 10 but under 18, or is incapable of managing his or her affairs; and
(b) has not been arrested and charged;
except in accordance with Part ID.
(7) In deciding whether to make such an order, the magistrate must have regard to:
(a) the seriousness of the offence; and
(b) the age or any disability of the person; and
(c) such other matters as the magistrate thinks fit.
(8) The taking of identification material from a person who:
(a) is under 18; or
(b) is incapable of managing his or her affairs;
must be done in the presence of:
(c) a parent or guardian of the person; or
(d) if the parent or guardian of the person is not acceptable to the person, another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person.
(9) Despite this section, identification material may be taken from a person who:
(a) is not a suspect; and
(b) is under 10 or is incapable of managing his or her affairs;
if a magistrate orders that the material be taken.
(10) Despite this section, identification material may be taken from a person who:
(a) is not a suspect; and
(b) is at least 10 but under 18; and
(c) is capable of managing his or her affairs;
if one of the following paragraphs applies:
(d) the person agrees in writing to the taking of the material and a parent or guardian of the person also agrees in writing or, if a parent or guardian is not acceptable to the person, another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person also agrees in writing;
(e) if:
(i) one of those persons agrees in writing to the taking of the material but the other does not; and
(ii) a magistrate orders that the material be taken.
(11) In deciding whether to make such an order, the magistrate must have regard to the matters set out in subsection (7).
(12) Despite this section, identification material may be taken from a person who:
(a) is at least 18; and
(b) is capable of managing his or her affairs; and
(c) is not a suspect;
if the person consents in writing.
3ZK Destruction of identification material
(1) If:
(a) identification material has been taken from a person under section 3ZJ; and
(b) a period of 12 months has elapsed since the identification material was taken; and
(c) proceedings in respect of an offence to which the investigation material relates have not been instituted or have been discontinued;
the identification material must be destroyed as soon as practicable.
(2) If identification material has been taken from a person under section 3ZJ and:
(a) the person is found to have committed an offence to which the identification material relates but no conviction is recorded; or
(b) the person is acquitted of such an offence and:
(i) no appeal is lodged against the acquittal; or
(ii) an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn;
the identification material must be destroyed as soon as practicable unless an investigation into, or a proceeding against the person for, another offence to which the identification material relates is pending.
(3) A magistrate may, on application by a constable, extend the period of 12 months referred to in subsection (1) or that period as previously extended under this subsection in relation to particular identification material if the magistrate is satisfied that there are special reasons for doing so.
3ZL Offence of refusing to allow identification material to be taken
(1) If a person is convicted of an offence, the judge or magistrate presiding at the proceedings at which the person was convicted may order:
(a) the person to attend a police station; or
(b) that a constable be permitted to attend on the person in a place of detention;
within one month after the conviction to allow impressions of the person’s fingerprints and/or or a photograph of the person to be taken in accordance with the order.
(2) A person must not refuse or fail to allow those impressions or a photograph of the person to be taken.
Penalty: Imprisonment for 12 months.
(3) Subsection (2) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(3A) The judge or magistrate may also make any other orders that are reasonably necessary for ensuring that the impressions of the person’s fingerprints and/or a photograph of the person are taken in accordance with the order under subsection (1). For example, the judge or magistrate may order the person to attend a specified police station at a specified time.
(3B) A person commits an offence if:
(a) the person is subject to an order under subsection (3A); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the order.
Penalty: Imprisonment for 12 months.
(3C) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
(4) Nothing in this section derogates from the right to use the provisions of Part ID as authority for the taking of fingerprints from a prescribed offender or a serious offender.
(5) In subsection (4), prescribed offender and serious offender have the meanings given in subsection 23WA(1).
3ZM Identification parades
(1) This section applies to identification parades held in relation to offences.
(2) Subject to subsection (3) and to section 3ZN, an identification parade:
(a) may be held if the suspect agrees; or
(b) must be held if:
(i) the suspect has requested that an identification parade be held; and
(ii) it is reasonable in the circumstances to do so.
(2A) Without limiting the matters that may be taken into account in determining whether it is reasonable in the circumstances to hold an identification parade, the following must be taken into account:
(a) the kind of offence, and the gravity of the offence, concerned;
(b) the likely importance in the circumstances of the evidence of identification;
(c) the practicality of holding an identification parade, having regard, among other things:
(i) if the suspect fails to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure; and
(ii) in any case—to whether an identification was made at or about the time of the commission of the offence; and
(d) the appropriateness of holding an identification parade, having regard, among other things, to the relationship (if any) between the suspect and the person who may make an identification at the identification parade.
(3) An identification parade must not be held unless the suspect has been informed that:
(a) he or she is entitled to refuse to take part in the parade; and
(b) if he or she refuses to take part in the parade:
(i) evidence of the refusal may be given in later proceedings relating to an offence, for the purpose of explaining why an identification parade was not held; and
(ii) evidence may be given in such proceedings of any identification of the suspect by a witness as a result of having seen a photograph or having seen the suspect otherwise than during an identification parade; and
(c) in addition to any requirement under section 3ZN, a legal representative or other person of the suspect’s choice may be present while the person is deciding whether to take part in the parade, and during the holding of the parade, if arrangements for that person to be present can be made within a reasonable time.
(4) The giving of the information referred to in subsection (3) must be recorded by a video recording or an audio recording.
(5) An identification parade must be arranged and conducted in a manner that will not unfairly prejudice the suspect.
(6) Without limiting the intent of subsection (5), an identification parade must be arranged and conducted in accordance with the following rules:
(a) the parade must consist of at least 9 persons;
(b) each of the persons who is not the suspect must:
(i) resemble the suspect in age, height and general appearance; and
(ii) not have features that will be visible during the parade that are markedly different from those of the suspect as described by the witness before viewing the parade;
(c) unless it is impracticable for another constable to arrange or conduct the parade, no constable who has taken part in the investigation relating to the offence may take part in the arrangements for, or the conduct of, the parade;
(d) no person in the parade is to be dressed in a way that would obviously distinguish him or her from the other participants;
(e) if it is practicable to do so, numbers should be placed next to each participant in order to allow the witness to make an identification by indicating the number of the person identified;
(f) the parade may take place so that the witness can view the parade without being seen if the witness requests that it take place in such a manner and:
(i) a legal representative or other person of the suspect’s choice is present with the witness; or
(ii) the parade is recorded by a video recording;
(g) nothing is to be done that suggests or is likely to suggest to a witness which member of the parade is the suspect;
(h) if the witness so requests, members of the parade may be required to speak, move or adopt a specified posture but, if this happens, the witness must be reminded that the members of the parade have been chosen on the basis of physical appearance only;
(i) the suspect may select where he or she wishes to stand in the parade;
(j) if more than one witness is to view the parade:
(i) each witness must view the parade alone; and
(ii) the witnesses are not to communicate with each other at a time after arrangements for the parade have commenced and before each of them has viewed the parade; and
(iii) the suspect may change places in the parade after each viewing;
(k) each witness must be told that:
(i) the suspect may not be in the parade; and
(ii) if he or she is unable to identify the suspect with reasonable certainty he or she must say so;
(l) the parade must be recorded by a video recording if it is practicable to do so and, if that is done, a copy of the video recording must be made available to the suspect or his or her legal representative as soon as it is practicable to do so;
(m) if the parade is not recorded by a video recording:
(i) the parade must be photographed in colour; and
(ii) a print of a photograph of the parade that is at least 250mm 200mm in size must be made available to the suspect or his or her legal representative; and
(iii) the constable in charge of the parade must take all reasonable steps to record everything said and done at the parade and must make a copy of the record available to the suspect or his or her legal representative;
(n) the suspect may have present during the holding of the parade a legal representative or other person of his or her choice if arrangements for that person to be present can be made within a reasonable time.
(7) Nothing in this Act affects the determination of the following questions:
(a) whether or not evidence of a suspect having refused to take part in an identification parade is admissible;
(b) if evidence of such a refusal is admissible, what inferences (if any) may be drawn by a court or jury from the refusal;
(c) whether, after such a refusal, evidence of alternative methods of identification is admissible.
(8) If a witness is, under the supervision of a constable, to attempt to identify a suspect otherwise than during an identification parade, the constable must ensure that the attempted identification is done in a manner that is fair to the suspect.
3ZN Identification parades for suspects under 18 etc.
(1) An identification parade must not be held for a suspect who is under 10.
(2) An identification parade must not be held for a suspect who is incapable of managing his or her affairs unless a magistrate orders that it be held.
(3) An identification parade must not be held for a suspect who:
(a) is at least 10 but under 18; and
(b) is capable of managing his or her affairs;
unless one of the following paragraphs applies:
(c) the suspect agrees to or requests in writing the holding of the parade and a parent or guardian of the suspect agrees in writing to the holding of the parade or, if the parent or guardian is not acceptable to the suspect, another person (other than a constable) who is capable of representing the interests of the suspect and who, as far as is practicable in the circumstances, is acceptable to the suspect agrees in writing to the holding of the parade;
(d) if:
(i) one of those persons agrees in writing to the holding of the parade but the other does not; and
(ii) a magistrate orders that the parade be held.
(4) In deciding whether to make such an order, the magistrate must have regard to:
(a) the seriousness of the offence; and
(b) the age or any disability of the person; and
(c) such other matters as the magistrate thinks fit.
(5) An identification parade for a suspect who is under 18 or is incapable of managing his or her affairs must be held in the presence of:
(a) a parent or guardian of the suspect; or
(b) if the parent or guardian is not acceptable to the suspect, another person (other than a constable) who is capable of representing the interests of the suspect and who, as far as is practicable in the circumstances, is acceptable to the suspect.
3ZO Identification by means of photographs
(1) If a suspect is in custody in respect of an offence or is otherwise available to take part in an identification parade, a constable investigating the offence must not show photographs, or composite pictures or pictures of a similar kind, to a witness for the purpose of establishing, or obtaining evidence of, the identity of the suspect unless:
(a) the suspect has refused to take part in an identification parade; or
(aa) the suspect’s appearance has changed significantly since the offence was committed; or
(b) the holding of an identification parade would be:
(i) unfair to the suspect; or
(ii) unreasonable in the circumstances.
(1A) Without limiting the matters that may be taken into account in determining whether it would be unreasonable in the circumstances to hold an identification parade, the following must be taken into account:
(a) the kind of offence, and the gravity of the offence, concerned;
(b) the likely importance in the circumstances of the evidence of identification;
(c) the practicality of holding an identification parade, having regard, among other things:
(i) if the suspect fails to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure; and
(ii) in any case—to whether an identification was made at or about the time of the commission of the offence; and
(d) the appropriateness of holding an identification parade, having regard, among other things, to the relationship (if any) between the suspect and the person who may make an identification at the identification parade.
(2) If a constable investigating an offence shows photographs or pictures to a witness for the purpose of establishing, or obtaining evidence of, the identity of a suspect, whether or not the suspect is in custody, the following rules apply:
(a) the constable must show to the witness photographs or pictures of at least 9 different persons;
(b) each photograph or picture of a person who is not the suspect must be of a person who:
(i) resembles the suspect in age and general appearance; and
(ii) does not have features visible in the photograph or picture that are markedly different from those of the suspect as described by the witness before viewing the photographs or pictures;
(ba) the photographs or pictures shown to the witness must not suggest that they are photographs or pictures of persons in police custody;
(c) the constable must not, in doing so, act unfairly towards the suspect or suggest to the witness that a particular photograph or picture is the photograph or picture of the suspect or of a person who is being sought by the police in respect of an offence;
(d) if practicable, the photograph or picture of the suspect must have been taken or made after he or she was arrested or was considered as a suspect;
(e) the witness must be told that a photograph or picture of the suspect may not be amongst those being seen by the witness;
(f) the constable must keep, or cause to be kept, a record identifying each photograph or picture that is shown to the witness;
(g) the constable must notify the suspect or his or her legal representative in writing that a copy of the record is available for the suspect;
(h) the constable must retain the photographs or pictures shown, and must allow the suspect or his or her legal representative, upon application, an opportunity to inspect the photographs or pictures.
(3) If:
(a) a photograph or picture of a person who is suspected in relation to the commission of an offence is shown to a witness; and
(b) the photograph was taken or the picture made after the suspect was arrested or was considered to be a suspect; and
(c) proceedings in relation to the offence referred to in paragraph (a) or another offence arising out of the same course of conduct for which the photograph was taken or picture made are brought against the suspect before a jury; and
(d) the photograph or picture is admitted into evidence;
the jury must be informed that the photograph was taken or the picture made after the suspect was arrested or was considered as a suspect.
(4) If a suspect is in custody in respect of an offence, a constable investigating the offence must not show a composite picture or a picture of a similar kind to a witness for the purpose of assisting the witness to describe the features of the suspect.
(5) If, after a constable investigating an offence has shown to a witness a composite picture or a picture of a similar kind for the purpose referred to in subsection (4):
(a) a suspect comes into custody in respect of the offence; and
(b) an identification parade is to be held in relation to the suspect;
the constable in charge of the investigation of the offence may, unless doing so would be unfair to the suspect or be unreasonable in the circumstances, request the witness to attend the identification parade and make the necessary arrangements for the witness to attend.
(6) If, after the witness has been shown a composite picture or a picture of a similar kind for the purpose referred to in subsection (4), a person is charged with the offence, the constable in charge of investigating the offence must, upon application by that person or his or her legal representative, provide him or her with particulars of any such picture shown to the witness and the comments (if any) of the witness concerning the picture.
(7) If a suspect is in custody in respect of an offence and a constable investigating the offence wishes to investigate the possibility that a person other than the suspect committed the offence, subsection (4) does not prevent a constable from taking action referred to in that subsection for the purpose of assisting a witness to describe the features of a person other than the suspect.
3ZP Identification procedures where there is more than one suspect
If:
(a) a constable is attempting to ascertain:
(i) which of 2 or more suspects committed an offence; or
(ii) the identities of 2 or more suspects who may have been jointly involved in an offence; and
(b) for that purpose, the constable intends to conduct an identification parade or to identify a person by showing a photograph or a picture of a suspect to a person;
the constable must undertake a separate identification process for each of the suspects.
3ZQ Descriptions
(1) If a description of a suspect is given to a constable in relation to an offence, the constable must ensure that a record of the description is made and that the record is retained until any proceedings in respect of the offence are completed.
(2) Subject to subsection (4), a constable must, if requested to do so by a person who has been charged with an offence, provide the person with the name of every person who, to the knowledge of the constable, claims to have seen, at or about the time of the commission of the offence, a person who is suspected of being involved in its commission.
(3) If:
(a) a record of a description of a person is made under subsection (1); and
(b) the person is charged with an offence to which the description relates;
a constable must notify the person or his or her legal representative in writing that a copy of the record, and of any other record of a description that the constable knows about of a person who is suspected of being involved in the commission of the offence, is available for the person.
(4) If the constable suspects on reasonable grounds that providing the name of a person under subsection (2) could:
(a) place the person in danger; or
(b) expose the person to harassment or unreasonable interference;
the constable is not required to provide the name of the person.
Division 4A—Determining a person’s age
Subdivision A—Preliminary
3ZQA Definitions
(1) In this Division:
age determination information means a record, or information, relating to a person that is obtained by carrying out a prescribed procedure.
appropriately qualified, in relation to the carrying out of a prescribed procedure, means:
(a) having suitable professional qualifications or experience to carry out the prescribed procedure; or
(b) qualified under the regulations to carry out the prescribed procedure.
Commonwealth offence means:
(a) an offence against a law of the Commonwealth, other than an offence that is a service offence for the purposes of the Defence Force Discipline Act 1982; or
(b) a State offence that has a federal aspect.
investigating official means:
(a) a member or special member of the Australian Federal Police; or
(b) a member of the police force of a State or Territory; or
(c) a person who holds an office the functions of which include the investigation of Commonwealth offences and who is empowered by a law of the Commonwealth because of the holding of that office to make arrests in respect of such offences.
prescribed procedure means a procedure specified by regulations made for the purposes of subsection (2) to be a prescribed procedure for determining a person’s age.
(2) The regulations may specify a particular procedure to be a prescribed procedure for determining a person’s age.
(3) A procedure prescribed for the purposes of subsection (2):
(a) may involve the operation of particular equipment that is specified for the purpose; and
(b) must require that equipment to be operated by an appropriately qualified person.
(4) Before the Governor‑General makes a regulation for the purposes of subsection (2), the Minister must consult with the Minister responsible for the administration of the Therapeutic Goods Act 1989.
Subdivision B—Determination of age during investigation
3ZQB Circumstances where investigating official may seek authority to carry out a prescribed procedure
(1) If:
(a) an investigating official suspects, on reasonable grounds, that a person may have committed a Commonwealth offence; and
(b) it is necessary to determine whether or not the person is, or was, at the time of the alleged commission of the offence, under 18 because that question is relevant to the rules governing the person’s detention, the investigation of the offence or the institution of criminal proceedings;
the investigating official may, whether or not the person is in custody at the time, arrange for the carrying out of a prescribed procedure in respect of the person only if:
(c) the investigating official obtains, in accordance with section 3ZQC, the requisite consents to the carrying out of the procedure in respect of the person; or
(d) a magistrate orders, on application by the investigating official, the carrying out of the procedure in respect of the person.
(2) An application to a magistrate by an investigating official for the purposes of paragraph (1)(d) may be made:
(a) in person; or
(b) by telephone, telex, fax or other electronic means.
(3) In deciding whether to make such an order on application by an investigating official, the magistrate must be satisfied that:
(a) there are reasonable grounds for the suspicion that the person has committed a Commonwealth offence; and
(b) there is uncertainty as to whether or not the person is, or was, at the time of the alleged commission of the offence, under 18; and
(c) the uncertainty will need to be resolved in order to determine the application of the rules governing the person’s detention, the investigation of the offence or the institution of criminal proceedings.
3ZQC Obtaining of consents for the carrying out of a prescribed procedure
(1) For the purposes of paragraph 3ZQB(1)(c), an investigating official is taken to have obtained the requisite consents to the carrying out of a prescribed procedure in respect of a person if the following persons agree in writing to the carrying out of the procedure:
(a) the person in respect of whom it is sought to carry out the procedure;
(b) either:
(i) a parent or guardian of the person; or
(ii) if a parent or guardian is not available or is not acceptable to the person—an independent adult person (other than an investigating official involved in the investigation of the person) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person.
(2) Before seeking the consents referred to in subsection (1), an investigating official must first inform each of the persons from whom such a consent is being sought, in a language in which the person is able to communicate with reasonable fluency:
(a) the purpose and reasons for which the prescribed procedure is to be carried out; and
(b) the nature of the procedure; and
(c) if the procedure involves the operation of particular equipment—the nature of that equipment; and
(d) that the information obtained from the carrying out of the procedure could affect the manner of dealing with the person on whom the procedure is to be carried out; and
(e) the known risks (if any) that would be posed to the health of the person on whom the procedure is to be carried out; and
(ea) that the persons giving the requisite consent may withdraw that consent at any time; and
(f) that the seeking of the requisite consent and any giving of such consent was being, or would be, recorded; and
(g) that the persons giving the requisite consent are each entitled to a copy of that record; and
(h) that the person on whom the procedure is to be carried out may have, so far as is reasonably practicable, a person of his or her choice present while the procedure is carried out.
(3) The requisite consents may be given:
(a) in person; or
(b) by telephone, telex, fax or other electronic means.
(4) Nothing in this section affects the rights of a person under Part IC, in particular a person’s rights under:
(a) section 23G (Right to communicate with friend, relative and legal practitioner); or
(b) section 23P (Right of foreign national to communicate with consular office).
3ZQD Withdrawal of consent
If a person who has given consent to the carrying out of a prescribed procedure expressly withdraws consent to the carrying out of that procedure (or if the withdrawal of such consent can reasonably be inferred from the person’s conduct) before or during the carrying out of the procedure, the carrying out of the procedure is not to proceed otherwise than by order of a magistrate on the application of an investigating official.
3ZQE Recording of giving of information about carrying out a prescribed procedure and relevant responses
(1) An investigating official must, if practicable, ensure that:
(a) the giving of information about a prescribed procedure and the responses (if any) of the persons to whom the information is given are recorded by audio tape, video tape or other electronic means; and
(b) a copy of the record is made available to the person on whom it is sought to carry out the procedure.
(2) If recording the giving of information and the responses (if any) of the persons to whom the information is given in the manner referred to in subsection (1) is not practicable, the investigating official must ensure that:
(a) a written record of the giving of the information and of the responses (if any) is made; and
(b) a copy of the record is made available to the person on whom it is sought to carry out the procedure.
Subdivision C—Determination of age during proceedings
3ZQF Circumstances where judge or magistrate may order carrying out of a prescribed procedure on own initiative
If:
(a) a person is being prosecuted for a Commonwealth offence; and
(b) the judge or magistrate presiding over the proceedings related to that offence is satisfied that it is necessary to ascertain whether or not the person is, or was, at the time of the alleged commission of that offence, under 18;
the judge or magistrate presiding may make an order requiring the carrying out of a prescribed procedure in respect of the person.
Subdivision D—Communication of orders by judges or magistrates
3ZQG Orders made by judges or magistrates concerning carrying out of a prescribed procedure
(1) If a judge or a magistrate orders the carrying out of a prescribed procedure (whether as a result of a request by an investigating official or not), the judge or magistrate must:
(a) ensure that a written record of the order, and of the reasons for the making of the order, is kept; and
(b) ensure that the person on whom the procedure is to be carried out is told by an investigating official in a language in which the person is able to communicate with reasonable fluency:
(i) that an order for the carrying out of the procedure has been made and of the reasons for the making of the order; and
(ii) of the arrangements for the carrying out of the procedure; and
(iii) of the fact that reasonable force may be used to secure the compliance of the person to whom the order relates.
(2) The judge or magistrate may give directions as to the time, place and manner in which the procedure is to be carried out.
Subdivision E—Matters relating to the carrying out of prescribed procedures
3ZQH Appropriate medical or other standards to be applied
A prescribed procedure must be carried out in a manner consistent with either or both of the following:
(a) appropriate medical standards;
(b) appropriate other relevant professional standards.
3ZQI Reasonable and necessary force
Except where the carrying out of a prescribed procedure to determine a person’s age is undertaken with the consent of that person and of an additional adult person in accordance with section 3ZQC, the person carrying out the procedure, and any person assisting that person, is entitled to use such force as is reasonable and necessary in the circumstances.
Subdivision F—Disclosure and destruction of age determination information
3ZQJ Disclosure of age determination information
(1) A person commits an offence if:
(a) the person’s conduct causes the disclosure of age determination information other than as provided by this section; and
(b) the person is reckless as to any such disclosure.
Penalty: Imprisonment for 2 years.
(2) A person may only disclose age determination information:
(a) for a purpose related to establishing and complying with the rules governing:
(i) the detention of the person to whom the age determination information relates; or
(ii) the investigation of a Commonwealth offence by that person; or
(iii) the institution of criminal proceedings against that person for a Commonwealth offence; or
(b) for a purpose related to the conduct of:
(i) the investigation of the person to whom the age determination information relates for a Commonwealth offence; or
(ii) proceedings for a Commonwealth offence against that person; or
(c) for the purpose of an investigation by the Information Commissioner of the Commonwealth or the Commonwealth Ombudsman; or
(d) if the person to whom the age determination information relates consents in writing to the disclosure.
Note: A defendant bears an evidential burden in relation to the matters referred to in subsection (2)—see subsection 13.3(3) of the Criminal Code.
3ZQK Destruction of age determination information
(1) If, in relation to a Commonwealth offence:
(a) age determination information relating to a person has been obtained by carrying out a prescribed procedure; and
(b) 12 months have passed since the carrying out of the procedure; and
(c) proceedings in respect of the offence have not been instituted against the person from whom the information was taken or have discontinued;
the information must be destroyed as soon as practicable.
(2) If, in relation to a Commonwealth offence, age determination information relating to a person has been obtained by carrying out a prescribed procedure and:
(a) the person is found to have committed the offence but no conviction is recorded; or
(b) the person is acquitted of the offence and:
(i) no appeal is lodged against the acquittal; or
(ii) an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn;
the information must be destroyed as soon as practicable unless an investigation into, or a proceeding against, the person for another Commonwealth offence is pending.
(3) A magistrate may, on application by an investigating official, extend the period of 12 months referred to in subsection (1), or that period as previously extended under this subsection in relation to the information, if the magistrate is satisfied that there are special reasons for doing so.
Division 4B—Power to obtain information and documents
Subdivision A—Definitions
3ZQL Definition
In this Division:
authorised AFP officer means:
(a) the Commissioner; or
(b) a Deputy Commissioner; or
(c) a senior executive AFP employee who:
(i) is a member of the Australian Federal Police; and
(ii) is authorised in writing by the Commissioner for the purposes of this paragraph.
Subdivision B—Power to request information or documents about terrorist acts from operators of aircraft or ships
3ZQM Power to request information or documents about terrorist acts from operators of aircraft or ships
(1) This section applies if an authorised AFP officer believes on reasonable grounds that an operator of an aircraft or ship has information or documents (including in electronic form) that are relevant to a matter that relates to the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).
(2) The officer may:
(a) ask the operator questions relating to the aircraft or ship, or its cargo, crew, passengers, stores or voyage, that are relevant to the matter; or
(b) request the operator to produce documents relating to the aircraft or ship, or its cargo, crew, passengers, stores or voyage:
(i) that are relevant to the matter; and
(ii) that are in the possession or under the control of the operator.
(3) A person who is asked a question or requested to produce a document under subsection (2) must answer the question or produce the document as soon as practicable.
Offence
(4) A person commits an offence if:
(a) the person is an operator of an aircraft or ship; and
(b) the person is asked a question or requested to produce a document under subsection (2); and
(c) the person fails to answer the question or produce the document.
Penalty: 60 penalty units.
(5) Subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) It is a defence to a prosecution for an offence against subsection (4) if the person charged had a reasonable excuse for:
(a) failing to answer the question; or
(b) failing to produce the document.
Definitions
(7) In this section:
operator has the meaning given by section 4 of the Customs Act 1901.
Subdivision C—Power to obtain documents relating to serious terrorism and non‑terrorism offences
3ZQN Power to obtain documents relating to serious terrorism offences
(1) This section applies if an authorised AFP officer considers on reasonable grounds that a person has documents (including in electronic form) that are relevant to, and will assist, the investigation of a serious terrorism offence.
(2) The officer may give the person a written notice requiring the person to produce documents that:
(a) relate to one or more of the matters set out in section 3ZQP, as specified in the notice; and
(b) are in the possession or under the control of the person.
(3) The notice must:
(a) specify the name of the person to whom the notice is given; and
(b) specify the matters to which the documents to be produced relate; and
(c) specify the manner in which the documents are to be produced; and
(d) specify the place at which the documents are to be produced; and
(e) specify the day by which the person must comply with the notice, being a day that is at least:
(i) 14 days after the giving of the notice; or
(ii) if the officer believes that it is appropriate, having regard to the urgency of the situation, to specify an earlier day—3 days after the giving of the notice; and
(f) set out the effect of section 3ZQS (offence for failure to comply); and
(g) if the notice specifies that information about the notice must not be disclosed—set out the effect of section 3ZQT (offence for disclosing existence or nature of a notice).
3ZQO Power to obtain documents relating to serious offences
(1) An authorised AFP officer may apply to a Judge of the Federal Circuit Court of Australia for a notice under this section in respect of a person if the AFP officer considers on reasonable grounds that the person has documents (including in electronic form) that are relevant to, and will assist, the investigation of a serious offence.
(2) If the Judge is satisfied on the balance of probabilities, by information on oath or by affirmation, that:
(a) the person has documents (including in electronic form) that are relevant to, and will assist, the investigation of a serious offence; and
(b) giving the person a notice under this section is reasonably necessary, and reasonably appropriate and adapted, for the purpose of investigating the offence;
the Judge may give the person a written notice requiring the person to produce documents that:
(c) relate to one or more of the matters set out in section 3ZQP, as specified in the notice; and
(d) are in the possession or under the control of the person.
(3) The Judge must not give the notice unless the authorised AFP officer or some other person has given to the Judge, either orally or by affidavit, such further information (if any) as the Judge requires concerning the grounds on which the issue of the notice is being sought.
(4) The notice must:
(a) specify the name of the person to whom the notice is given; and
(b) specify the matters to which the documents to be produced relate; and
(c) specify the manner in which the documents are to be produced; and
(d) specify the place at which the documents are to be produced; and
(e) state that the person must comply with the notice within 14 days after the day on which the notice is given; and
(f) set out the effect of section 3ZQS (offence for failure to comply); and
(g) if the notice specifies that information about the notice must not be disclosed—set out the effect of section 3ZQT (offence for disclosing existence or nature of a notice).
3ZQP Matters to which documents must relate
A document to be produced under a notice under section 3ZQN or 3ZQO must relate to one or more of the following matters:
(a) determining whether an account is held by a specified person with a specified financial institution, and details relating to the account (including details of any related accounts);
(b) determining whether a specified person is a signatory to an account with a specified financial institution, and details relating to the account (including details of any related accounts);
(c) determining whether a transaction has been conducted by a specified financial institution on behalf of a specified person, and details relating to the transaction (including details relating to other parties to the transaction);
(d) determining whether a specified person travelled or will travel between specified dates or specified locations, and details relating to the travel (including details relating to other persons travelling with the specified person);
(e) determining whether assets have been transferred to or from a specified person between specified dates, and details relating to the transfers (including details relating to the names of any other persons to or from whom the assets were transferred);
(f) determining whether an account is held by a specified person in respect of a specified utility (such as gas, water or electricity), and details relating to the account (including the names of any other persons who also hold the account);
(g) determining who holds an account in respect of a specified utility (such as gas, water or electricity) at a specified place, and details relating to the account;
(h) determining whether a telephone account is held by a specified person, and details relating to the account (including:
(i) details in respect of calls made to or from the relevant telephone number; or
(ii) the times at which such calls were made or received; or
(iii) the lengths of such calls; or
(iv) the telephone numbers to which such calls were made and from which such calls were received);
(i) determining who holds a specified telephone account, and details relating to the account (including details mentioned in paragraph (h));
(j) determining whether a specified person resides at a specified place;
(k) determining who resides at a specified place.
3ZQQ Powers conferred on Federal Circuit Court Judges in their personal capacity
(1) A power conferred on a Judge of the Federal Circuit Court of Australia by section 3ZQO is conferred on the Judge in a personal capacity and not as a court or a member of a court.
(2) A Judge of the Federal Circuit Court of Australia need not accept the power conferred.
(3) A Judge of the Federal Circuit Court of Australia exercising a power conferred by section 3ZQO has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the Judge is a member.
3ZQR Documents must be produced
(1) A person is not excused from producing a document under section 3ZQN or 3ZQO on the ground that to do so:
(a) would contravene any other law; or
(b) might tend to incriminate the person or otherwise expose the person to a penalty or other liability; or
(c) would disclose material that is protected against disclosure by legal professional privilege or any other duty of confidence; or
(d) would be otherwise contrary to the public interest.
(2) However, neither:
(a) the production of the document; nor
(b) any information, document or thing obtained as a direct or indirect consequence of producing the document;
is admissible in evidence against the person in proceedings other than proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Act.
(3) A person is not liable to any penalty by reason of his or her producing a document when required to do so under section 3ZQN or 3ZQO.
(4) The fact that a person is not excused under subsection (1) from producing a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that document.
3ZQS Offence for failure to comply with notice under section 3ZQN or 3ZQO
A person commits an offence if:
(a) the person is given a notice under section 3ZQN or 3ZQO; and
(b) the person fails to comply with the notice.
Penalty: 30 penalty units.
3ZQT Offence for disclosing existence or nature of notice
(1) A person commits an offence if:
(a) the person is given a notice under section 3ZQN or 3ZQO; and
(b) the notice specifies that information about the notice must not be disclosed; and
(c) the person discloses the existence or nature of the notice.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(2) Subsection (1) does not apply if:
(a) the person discloses the information to another person in order to obtain a document that is required by the notice in order to comply with it, and that other person is directed not to inform the person to whom the document relates about the matter; or
(b) the disclosure is made to obtain legal advice or legal representation in relation to the notice; or
(c) the disclosure is made for the purposes of, or in the course of, legal proceedings.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Division 4C—Using, sharing and returning things seized and documents produced
Subdivision A—Using and sharing things seized and documents produced
3ZQU Purposes for which things and documents may be used and shared
Use and sharing of thing or document by constable or Commonwealth officer
(1) A constable or Commonwealth officer may use, or make available to another constable or Commonwealth officer to use, a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for the purpose of any or all of the following if it is necessary to do so for that purpose:
(a) preventing, investigating or prosecuting an offence;
(b) proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002;
(c) proceedings under a corresponding law (within the meaning of either of the Acts mentioned in paragraph (b)) that relate to a State offence that has a federal aspect;
(d) proceedings for the forfeiture of the thing under a law of the Commonwealth;
(e) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104, 105 or 105A of the Criminal Code;
(f) investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part;
(g) investigating or resolving an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979) under Part V of that Act;
(h) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988;
(i) investigating or inquiring into a corruption issue under the Law Enforcement Integrity Commissioner Act 2006;
(j) proceedings in relation to a complaint, allegation or issue mentioned in paragraph (f), (g), (h) or (i);
(k) deciding whether to institute proceedings, to make an application or request, or to take any other action, mentioned in any of the preceding paragraphs of this subsection;
(l) the performance of the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979.
(2) A constable or Commonwealth officer may use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any other use that is required or authorised by or under a law of a State or a Territory.
(3) A constable or Commonwealth officer may make available to another constable or Commonwealth officer to use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any purpose for which the making available of the thing or document is required or authorised by a law of a State or Territory.
(4) To avoid doubt, this section does not limit any other law of the Commonwealth that:
(a) requires or authorises the use of a document or other thing; or
(b) requires or authorises the making available (however described) of a document or other thing.
Sharing thing or document for use by State, Territory or foreign agency
(5) A constable or Commonwealth officer may make a thing seized under this Part, or the original or a copy of a document produced under Division 4B, available to:
(a) a State or Territory law enforcement agency; or
(b) an agency that has responsibility for:
(i) law enforcement in a foreign country; or
(ii) intelligence gathering for a foreign country; or
(iii) the security of a foreign country;
to be used by that agency for a purpose mentioned in subsection (1), (2) or (3) and the purpose of any or all of the following (but not for any other purpose):
(c) preventing, investigating or prosecuting an offence against a law of a State or Territory;
(d) proceedings under a corresponding law (within the meaning of the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002);
(e) proceedings for the forfeiture of the thing under a law of a State or Territory;
(f) deciding whether to institute proceedings or to take any other action mentioned in any of paragraphs (1)(a) to (l) (inclusive), subsection (2) or (3) or paragraph (c), (d) or (e) of this subsection.
Ministerial arrangements for sharing
(6) This Division does not prevent the Minister from making an arrangement with a Minister of a State or Territory for:
(a) the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (3) and (5), of things seized under this Part and originals and copies of documents produced under Division 4B; and
(b) the disposal by the agency of such things, originals and copies when they are no longer of use to that agency for those purposes.
Note: This subsection does not empower the Minister to make such an arrangement.
Definition
(7) In this section:
State or Territory law enforcement agency means:
(a) the police force or police service of a State or Territory; or
(b) the New South Wales Crime Commission; or
(c) the Independent Commission Against Corruption of New South Wales; or
(d) the Law Enforcement Conduct Commission of New South Wales; or
(e) the Independent Broad‑based Anti‑corruption Commission of Victoria; or
(f) the Crime and Corruption Commission of Queensland; or
(g) the Corruption and Crime Commission of Western Australia; or
(h) the Independent Commissioner Against Corruption of South Australia.
3ZQV Operating seized electronic equipment
(1) This section applies to electronic equipment seized under this Part or moved under section 3K.
(2) The electronic equipment may be operated at any location after it has been seized or moved, for the purpose of determining whether data that is evidential material is held on or accessible from the electronic equipment, and obtaining access to such data.
(3) The data referred to in subsection (2) includes, but is not limited to, the following:
(a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized;
(b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.
(4) If the electronic equipment was seized under a warrant or moved under section 3K, the electronic equipment may be operated before or after the expiry of the warrant.
(5) This section does not limit the operation of other provisions of this Part that relate to dealing with items seized under this Part or moved under section 3K.
Note: For example, this section does not affect the operation of the time limits in section 3K on examination or processing of a thing moved under that section.
3ZQW Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in section 3ZQV:
(i) damage is caused to the equipment; or
(ii) damage is caused to data recorded on the equipment or data access to which was obtained from the operation of the equipment; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether any appropriate warning or guidance was provided, before the equipment was operated, on the operation of the equipment.
(5) Compensation is payable out of money appropriated by the Parliament.
(6) For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure of data or addition of other data.
Subdivision B—Returning things seized and documents produced
3ZQX When things seized or documents produced under Division 2, 4 or 4B must be returned
When things seized under Division 2 or 4 must be returned
(1) If the Commissioner is satisfied that a thing seized under Division 2 or 4 is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the Commissioner must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.
(2) However, the Commissioner does not have to take those steps if:
(aa) either:
(i) the thing may be retained because of an order under subsection 3ZQZB(3), or any other order under that subsection has been made in relation to the thing; or
(ii) the Commissioner has applied for such an order and the application has not been determined; or
(a) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(b) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
When documents produced under Division 4B must be returned
(3) If the Commissioner is satisfied that a document produced under Division 4B is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the Commissioner must take reasonable steps to return the document to the person who produced the document or to the owner if that person is not entitled to possess it.
(4) However, the Commissioner does not have to take those steps if:
(a) either:
(i) the document may be retained because of an order under subsection 3ZQZB(3), or any other order under that subsection has been made in relation to the document; or
(ii) the Commissioner has applied for such an order and the application has not been determined; or
(b) the document may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(c) the document is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
3ZQY When things seized under Division 3 must be returned
(1) If:
(a) the Commissioner is satisfied that a thing seized under Division 3 is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings; or
(b) the period of 60 days after the thing’s seizure ends;
the Commissioner must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.
(2) However, the Commissioner does not have to take those steps if:
(a) proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or
(b) either:
(i) the thing may be retained because of an order under subsection 3ZQZB(2) or (3), or any other order under subsection 3ZQZB(3) has been made in relation to the thing; or
(ii) the Commissioner has applied for such an order and the application has not been determined; or
(c) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(d) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
3ZQZA When things seized under Division 3A must be returned
(1) The Commissioner must take reasonable steps to return a thing seized under Division 3A if the owner requests the return of the thing.
(2) However, the Commissioner does not have to take those steps if:
(a) the Commissioner suspects on reasonable grounds that if the thing is returned to the owner, the thing is likely to be used by the owner or another person in the commission of a terrorist act, a terrorism offence or a serious offence; or
(b) the Commissioner is satisfied that the thing is being used, or is required to be used, for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings; or
(c) either:
(i) the thing may be retained because of an order under subsection 3ZQZB(2) or (3), or any other order under subsection 3ZQZB(3) has been made in relation to the thing; or
(ii) the Commissioner has applied for such an order and the application has not been determined; or
(d) the thing may otherwise be retained, destroyed or disposed of under a law, or order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(e) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
(3) Despite subsection (2), if:
(a) the owner of a thing requests the return of the thing:
(i) within 90 days after the date of the seizure notice served under section 3UF in relation to the thing; or
(ii) if subsection 3UF(2) applied in relation to the thing so that a seizure notice was not served—within 90 days after the day on which the thing was seized; and
(b) the thing has not been returned to the owner by the end of the 90th day;
the Commissioner must, before the end of the 95th day:
(c) take reasonable steps to return the thing to the owner; or
(d) apply to a magistrate for an order under section 3ZQZB.
3ZQZB Magistrate may permit a thing seized or document produced under this Part to be retained, forfeited etc.
(1) A magistrate may, on application by the Commissioner, make an order under subsection (2) or (3) in relation to a thing seized or a document produced under this Part.
Use for purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings
(2) The magistrate may order that a thing seized under Division 3 or 3A be retained for the period specified in the order if the magistrate is satisfied that the thing is being used, or is required to be used, for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings.
Preventing use in committing terrorist act, terrorism offence or serious offence
(3) The magistrate may make any of the orders referred to in subsection (4) if the magistrate is satisfied that there are reasonable grounds to suspect that, if a thing seized or document produced under this Part is returned to any of the following persons, it is likely to be used by that person or another person in the commission of a terrorist act, a terrorism offence or a serious offence:
(a) the owner of the thing or document;
(b) in the case of a thing—the person from whom the thing was seized;
(c) in the case of a document—the person who produced the document.
(4) The orders are as follows:
(a) an order that the thing or document may be retained for the period specified in the order;
(b) an order that the thing or document is forfeited to the Commonwealth;
(c) for a thing that is not a document—an order that:
(i) the thing be sold and the proceeds given to the owner of the thing; or
(ii) the thing be sold in some other way;
(d) an order that the thing or document is to be destroyed or otherwise disposed of.
Thing or document must be returned if magistrate not satisfied
(5) The magistrate must order that a thing or document be returned to the following person if the magistrate is not satisfied as mentioned in subsection (2) or (3):
(a) in the case of a thing—the person from whom the thing was seized;
(b) in the case of a document—the person who produced the document;
(c) if the person referred to in paragraph (a) or (b) is not entitled to possess the thing or document—the owner of the thing or document.
Persons with an interest in thing or document
(6) Before making an application under this section in relation to a thing or document, the Commissioner must:
(a) take reasonable steps to discover who has an interest in the thing or document; and
(b) if it is practicable to do so, notify each person who the Commissioner believes to have such an interest of the proposed application.
(7) The magistrate must allow a person who has an interest in the thing or document to appear and be heard in determining the application.
Special rule for things seized under Division 3
(8) The Commissioner may only make an application under this section in relation to a thing seized under Division 3 if the application is made:
(a) before the end of 60 days after the seizure; or
(b) before the end of a period previously specified in an order in relation to the thing under this section.
Division 5—General
3ZR Conduct of ordinary searches and frisk searches
An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched.
3ZS Announcement before entry
(1) A constable must, before any person enters premises under a warrant or to arrest a person:
(a) announce that he or she is authorised to enter the premises; and
(b) give any person at the premises an opportunity to allow entry to the premises.
(2) A constable is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:
(a) the safety of a person (including a constable); or
(b) that the effective execution of the warrant or the arrest is not frustrated.
3ZT Offence for making false statements in warrants
A person must not make, in an application for a warrant, a statement that the person knows to be false or misleading in a material particular.
Penalty: Imprisonment for 2 years.
3ZU Offences relating to telephone warrants
A person must not:
(a) state in a document that purports to be a form of warrant under section 3R the name of an issuing officer unless that officer issued the warrant; or
(b) state on a form of warrant under that section a matter that, to the person’s knowledge, departs in a material particular from the form authorised by the issuing officer; or
(c) purport to execute, or present to a person, a document that purports to be a form of warrant under that section that the person knows:
(i) has not been approved by an issuing officer under that section; or
(ii) to depart in a material particular from the terms authorised by an issuing officer under that section; or
(d) give to an issuing officer a form of warrant under that section that is not the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
3ZW Delegation by Commissioner
(1) The Commissioner may delegate to a constable any or all of the Commissioner’s powers, functions or duties under this Part.
(2) The Commissioner may delegate to a Commonwealth officer any or all of the Commissioner’s powers, functions or duties under Division 4C of this Part if the Commissioner is satisfied on reasonable grounds that the officer is able to properly exercise those powers, functions or duties.
3ZX Law relating to legal professional privilege not affected
This Part does not affect the law relating to legal professional privilege.
Part IAAA—Delayed notification search warrants
Division 1—Preliminary
3ZZAA Object of this Part
(1) The object of this Part is to provide for eligible agencies to obtain search warrants:
(a) that relate to eligible offences; and
(b) that authorise the entry and search of premises without having to produce the warrant at the time of entry and search.
(2) A warrant issued under this Part is a delayed notification search warrant.
(3) An eligible agency is the Australian Federal Police.
(4) An eligible offence is a terrorism offence that is punishable on conviction by imprisonment for 7 years or more.
3ZZAB Application of Part
(1) This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to:
(a) the search of premises; or
(b) the seizure of things; or
(c) the use of an assumed identity; or
(d) the installation of surveillance devices (within the meaning of the Surveillance Devices Act 2004).
(2) To avoid doubt, it is declared that even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
3ZZAC Definitions
In this Part:
adjoining premises, in relation to particular premises, means premises adjoining, or providing access, to the premises.
adjoining premises occupier’s notice: see section 3ZZDB.
applicable normal search warrant regime: see subsection 3ZZBJ(2).
authorised agency means the Australian Federal Police.
chief officer, in relation to an authorised agency or eligible agency, means the Commissioner.
damage, in relation to data, includes damage by erasure of data or addition of other data.
day of execution of a delayed notification search warrant means the day on which the warrant premises were first entered under the warrant.
delayed notification search warrant: see subsection 3ZZAA(2).
eligible agency: see subsection 3ZZAA(3).
eligible issuing officer: see subsection 3ZZAD(1).
eligible offence: see subsection 3ZZAA(4).
eligible officer of an authorised agency or eligible agency means a member or special member of the Australian Federal Police.
emergency situation, in relation to the execution of a delayed notification search warrant in relation to premises, means a situation that the executing officer or a person assisting believes, on reasonable grounds, involves a serious and imminent threat to a person’s life, health or safety that requires the executing officer and persons assisting to leave the premises.
evidential material means a thing relevant to an eligible offence, or an indictable offence, that has been, is being, is about to be or is likely to be committed.
executing officer, in relation to a delayed notification search warrant, means:
(a) the eligible officer of the authorised agency who is named in the warrant by the eligible issuing officer as being responsible for executing the warrant; or
(b) if that eligible officer does not intend to be present at the execution of the warrant—another eligible officer of the authorised agency whose name has been written in the warrant by the eligible officer so named; or
(c) another eligible officer of the authorised agency whose name has been written in the warrant by the eligible officer of the authorised agency last named in the warrant.
inspecting officer means a person appointed under subsection 3ZZGA(1).
nominated AAT member means a person in relation to whom a nomination is in force under section 3ZZAF.
person assisting, in relation to a delayed notification search warrant, means:
(a) a person who is an eligible officer of the authorised agency and who is assisting in the execution of the warrant; or
(b) another person who has been authorised by the executing officer to assist in executing the warrant.
premises includes a place and a conveyance.
relevant eligible agency, in relation to a thing seized under this Part, is the eligible agency whose chief officer authorised the application for the delayed notification search warrant under which the thing was seized.
staff member of an authorised agency or eligible agency means a person referred to in paragraph (a) of the definition of law enforcement officer in subsection 3(1).
State or Territory agency: see section 3ZZGF.
State or Territory inspecting authority: see section 3ZZGF.
State or Territory law enforcement agency means:
(a) the police force or police service of a State or Territory; or
(b) the New South Wales Crime Commission constituted by the Crime Commission Act 2012 (NSW); or
(c) the Independent Commission Against Corruption constituted by the Independent Commission Against Corruption Act 1988 (NSW); or
(d) the Law Enforcement Conduct Commission constituted by the Law Enforcement Conduct Commission Act 2016 (NSW); or
(e) the Independent Broad‑based Anti‑corruption Commission established by the Independent Broad‑based Anti‑corruption Commission Act 2011 (Vic.); or
(f) the Crime and Corruption Commission established by the Crime and Corruption Act 2001 (Qld); or
(g) the Corruption and Crime Commission established by the Corruption and Crime Commission Act 2003 (WA); or
(h) the Independent Commissioner Against Corruption established by the Independent Commissioner Against Corruption Act 2012 (SA); or
(i) the Integrity Commission established by the Integrity Commission Act 2009 (Tas.).
thing includes a thing in electronic form.
warrant premises means premises in relation to which a delayed notification search warrant is in force, but does not include any adjoining premises that are also authorised to be entered under the warrant.
warrant premises occupier’s notice: see section 3ZZDA.
3ZZAD Eligible issuing officers
(1) An eligible issuing officer is:
(a) a person:
(i) who is a Judge of the Federal Court of Australia, or a Judge of the Supreme Court of a State or Territory; and
(ii) in relation to whom a consent under subsection 3ZZAE(1), and a declaration under subsection 3ZZAE(2), are in force; or
(b) a nominated AAT member.
(2) A function or power conferred on a Judge by this Part is conferred on the Judge in a personal capacity and not as a court or a member of a court.
(3) A Judge has, in relation to the performance or exercise of a function or power conferred on an eligible issuing officer by this Part, the same protection and immunity as if he or she were performing that function, or exercising that power, as, or as a member of, a court (being the court of which the Judge is a member).
Note: A member of the Administrative Appeals Tribunal has the same protection and immunity as a Justice of the High Court (see subsection 60(1) of the Administrative Appeals Tribunal Act 1975).
3ZZAE Consent of Judges
(1) A Judge of the Federal Court of Australia, or of the Supreme Court of a State or Territory, may, by writing, consent to be declared an eligible issuing officer by the Minister under subsection (2).
(2) The Minister may, by writing, declare a Judge in relation to whom a consent under subsection (1) is in force to be an eligible issuing officer for the purposes of this Part.
(3) A consent or declaration under this section is not a legislative instrument.
3ZZAF Nominated AAT members
(1) The Minister may, by writing, nominate a person who holds one of the following appointments to the Administrative Appeals Tribunal to issue delayed notification search warrants and perform related functions under this Act:
(a) Deputy President;
(b) full‑time senior member.
(2) Despite subsection (1), the Minister must not nominate a person who holds an appointment as a full‑time senior member of the Tribunal unless the person:
(a) is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or of the Australian Capital Territory; and
(b) has been so enrolled for not less than 5 years.
(3) A nomination ceases to be in force if:
(a) the nominated AAT member ceases to hold an appointment described in subsection (1); or
(b) the Minister, by writing, withdraws the nomination.
Division 2—Issue of delayed notification search warrants
Subdivision A—The normal process for applying for and issuing delayed notification search warrants
3ZZBA Eligible officer may seek authorisation to apply for a delayed notification search warrant
If an eligible officer of an eligible agency:
(a) suspects, on reasonable grounds, that one or more eligible offences have been, are being, are about to be or are likely to be committed; and
(b) suspects, on reasonable grounds, that entry and search of particular premises will substantially assist in the prevention or investigation of one or more of those offences; and
(c) believes, on reasonable grounds, that it is necessary for the entry and search of the premises to be conducted without the knowledge of the occupier of the premises or any other person present at the premises;
the eligible officer may seek the authorisation of the chief officer of the agency to apply for a delayed notification search warrant in respect of the premises.
3ZZBB Authorisation to apply for a delayed notification search warrant
Scope
(1A) This section applies if an eligible officer of an eligible agency seeks the authorisation of the chief officer of the agency to apply for a delayed notification search warrant in respect of particular premises.
Authorisation
(1) The chief officer may, in writing, authorise the eligible officer to apply for the delayed notification search warrant if the chief officer is satisfied that there are reasonable grounds for the eligible officer to have:
(a) the suspicions mentioned in paragraphs 3ZZBA(a) and (b); and
(b) the belief mentioned in paragraph 3ZZBA(c).
(2) The chief officer may orally (in person or by telephone or other means of voice communication) authorise the eligible officer to apply for the delayed notification search warrant if the chief officer is satisfied that:
(a) there are reasonable grounds for the eligible officer to have:
(i) the suspicions mentioned in paragraphs 3ZZBA(a) and (b); and
(ii) the belief mentioned in paragraph 3ZZBA(c); and
(b) either:
(i) it is an urgent case; or
(ii) the delay that would occur if the authorisation were in writing would frustrate the effective execution of the delayed notification search warrant.
(3) If the chief officer of an eligible agency gives an authorisation under subsection (2), he or she must make a written record of the authorisation within 7 days.
3ZZBC Applying for a delayed notification search warrant
(1) An eligible officer of an eligible agency may apply to an eligible issuing officer for a delayed notification search warrant in respect of particular premises if the officer is authorised under section 3ZZBB to apply for the warrant.
Note 1: The application will need to address:
(a) why there are reasonable grounds for suspecting that one or more eligible offences have been, are being, are about to be or are likely to be committed (see paragraph 3ZZBA(a)); and
(aa) why there are reasonable grounds for suspecting that entry and search of the premises will substantially assist in the prevention or investigation of one or more of those offences (see paragraph 3ZZBA(b)); and
(ab) why there are reasonable grounds for believing that it is necessary for the entry and search of the premises to be conducted without the knowledge of the occupier of the premises or any other person present at the premises (see paragraph 3ZZBA(c)); and
(b) other matters the eligible issuing officer must have regard to (see subsection 3ZZBD(2)); and
(c) matters that must be specified in the warrant (see subsection 3ZZBE(1)).
Note 2: In urgent cases or certain other cases, an application may be made by telephone, fax or other electronic means: see section 3ZZBF.
(2) The eligible officer must provide the eligible issuing officer with:
(a) a copy of, or details of, the authorisation under section 3ZZBB; and
(b) particulars of any applications, and the outcomes, so far as known to the eligible officer, of any previous applications, in respect of the premises, for a warrant under this Part or Division 2 of Part IAA.
(3) The application must be supported by an affidavit setting out the grounds on which the warrant is sought.
(4) The eligible issuing officer may request further information relating to the application, and may require that the information be provided on oath or affirmation.
3ZZBD Issuing a delayed notification search warrant
(1) If:
(a) an eligible officer applies to an eligible issuing officer, in accordance with section 3ZZBC, for a delayed notification search warrant in respect of particular premises (the main premises); and
(b) the eligible issuing officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for the eligible officer to have:
(i) the suspicions mentioned in paragraphs 3ZZBA(a) and (b); and
(ii) the belief mentioned in paragraph 3ZZBA(c);
the eligible issuing officer may issue a delayed notification search warrant in respect of the main premises.
(2) In determining whether the delayed notification search warrant should be issued, the eligible issuing officer must have regard to the following:
(a) the extent to which the exercise of the powers under the warrant would assist the prevention or investigation of the eligible offence or offences to which the application for the warrant relates;
(b) the existence of alternative means of obtaining the evidence or information sought to be obtained;
(c) the extent to which the privacy of any person is likely to be affected;
(d) the nature and seriousness of that offence or those offences;
(e) if it is proposed that adjoining premises be entered for the purpose of entering the main premises—whether allowing entry to the adjoining premises is reasonably necessary:
(i) to enable entry to the main premises; and
(ii) to avoid compromising the prevention or investigation of that offence or those offences;
(f) any conditions to which the warrant should be subject;
(g) the outcome, so far as known to the eligible issuing officer, of any previous application, in respect of the main premises, for a warrant under this Part or Division 2 of Part IAA.
(3) An eligible issuing officer of the Federal Court of Australia or the Administrative Appeals Tribunal may issue a delayed notification search warrant in relation to premises located anywhere in the Commonwealth or an external Territory.
(4) An eligible issuing officer of the Supreme Court of a State or Territory may issue a delayed notification search warrant only in relation to premises located in that State or Territory.
3ZZBE Contents of a delayed notification search warrant
(1) A delayed notification search warrant must specify the following:
(a) the name of the applicant;
(b) the name of the authorised agency;
(c) the name of the eligible officer of that agency who, unless he or she inserts the name of another such eligible officer in the warrant, is to be responsible for executing the warrant;
(d) the address, location or other description of the warrant premises;
(e) the eligible offence or offences to which the warrant relates;
(f) whether the warrant authorises the entry of adjoining premises, and if it does, the address, location or other description of the adjoining premises;
(g) the day on which, and the time at which, the warrant is issued;
(h) the day on which, and the time at which, the warrant expires (which must be a time on a day that is not more than 30 days after the day on which the warrant is issued);
(i) the time by which notice of entry of premises under the warrant is to be given (expressed as a time on a specified day that is not more than 6 months after the day on which the warrant is issued);
(j) a description of the kinds of things that may be searched for, seized, copied, photographed, recorded, marked, tagged, operated, printed, tested or sampled;
(k) whether the warrant authorises a thing to be placed in substitution for a thing seized under the warrant or moved under subsection 3ZZCE(2);
(l) whether the warrant authorises the re‑entry of the warrant premises, and any adjoining premises authorised to be entered, to:
(i) return to the warrant premises any thing seized under the warrant or moved under subsection 3ZZCE(2); or
(ii) retrieve any thing substituted at the warrant premises for a thing seized under the warrant or moved under subsection 3ZZCE(2);
(m) if the warrant authorises such re‑entry—that the re‑entry must be within:
(i) 14 days of the day of execution of the warrant; or
(ii) if a thing is moved under subsection 3ZZCE(2) and the time for which it may be examined or processed is more than 14 days because of an extension under section 3ZZCE—that time as extended under that section;
(n) any conditions to which the warrant is subject;
(o) that the eligible issuing officer is satisfied as mentioned in paragraph 3ZZBD(1)(b), and has had regard to the matters specified in subsection 3ZZBD(2).
Note 1: Regarding paragraph (i):
(a) the specified time is the time by which a warrant premises occupier’s notice, and any adjoining premises occupier’s notice, must be given (subject to subsections 3ZZDA(4), 3ZZDB(4) and 3ZZDC(3)); and
(b) the specified time can be extended (see subsection 3ZZDC(5)).
Note 2: Regarding the period described in paragraph (m), see also subsection 3ZZCA(3).
(2) The warrant must be signed by the eligible issuing officer who issued it and include his or her name.
Subdivision B—Delayed notification search warrants by telephone, fax etc.
3ZZBF Delayed notification search warrants by telephone, fax etc.
When this section applies
(1) This section applies if the requirements specified in subsection 3ZZBC(1) for when an eligible officer of an eligible agency may apply for a delayed notification search warrant in respect of particular premises are satisfied.
Note: This section sets out an alternative method of applying for and issuing delayed notification search warrants.
Application for delayed notification search warrant
(2) The eligible officer may apply to an eligible issuing officer by telephone, fax or other electronic means for a delayed notification search warrant in respect of the premises:
(a) if it is an urgent case; or
(b) if the delay that would occur if the application were made in person would frustrate the effective execution of the delayed notification search warrant.
(3) The eligible issuing officer:
(a) may require communication by voice to the extent that it is practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such communication by voice.
(4) The application must:
(a) include all information required to be provided in an ordinary application for a delayed notification search warrant, but the application may, if necessary, be made before the information is sworn or affirmed; and
(b) include details of, or be accompanied by a copy of, the authorisation under section 3ZZBB.
Eligible issuing officer may complete and sign warrant
(5) The eligible issuing officer may complete and sign the same delayed notification search warrant that would have been issued under section 3ZZBD if, after:
(a) considering the information and having received and considered such further information (if any) as the eligible issuing officer required; and
(b) having regard to the matters specified in subsection 3ZZBD(2);
the eligible issuing officer is satisfied:
(c) that there are reasonable grounds for the eligible officer to have:
(i) the suspicions mentioned in paragraphs 3ZZBA(a) and (b); and
(ii) the belief mentioned in paragraph 3ZZBA(c); and
(d) that:
(i) a delayed notification search warrant in the terms of the application should be issued urgently; or
(ii) the delay that would occur if an application were made in person would frustrate the effective execution of the delayed notification search warrant.
(6) After completing and signing the delayed notification search warrant, the eligible issuing officer must inform the applicant, by telephone, fax or other electronic means, of:
(a) the terms of the warrant; and
(b) the day on which, and the time at which, the warrant was signed.
Obligations on applicant
(7) The applicant must then do the following:
(a) complete a form of delayed notification search warrant in the same terms as the warrant completed and signed by the eligible issuing officer;
(b) state on the form the following:
(i) the name of the eligible issuing officer;
(ii) the day and time of signing of the warrant;
(c) send the following to the eligible issuing officer:
(i) the form of warrant completed by the applicant;
(ii) the information referred to in subsection (4), which must have been duly sworn or affirmed.
(8) The applicant must comply with paragraph (7)(c) by the end of the day after the earlier of the following:
(a) the day on which the delayed notification search warrant expires;
(b) the day of execution of the warrant.
Eligible issuing officer to attach documents together
(9) The eligible issuing officer must attach the documents provided under paragraph (7)(c) to the delayed notification search warrant signed by the eligible issuing officer.
3ZZBG Authority of delayed notification search warrant by telephone, fax etc.
(1) A form of delayed notification search warrant duly completed under subsection 3ZZBF(7) is authority for the same powers as are authorised by the warrant signed by the eligible issuing officer under subsection 3ZZBF(5).
(2) In any proceedings, a court is to assume (unless the contrary is proved) that an exercise of power was not authorised by a delayed notification search warrant under section 3ZZBF if:
(a) it is material, in those proceedings, for the court to be satisfied that the exercise of power was duly authorised by the warrant; and
(b) the delayed notification search warrant signed by the eligible issuing officer authorising the exercise of the power is not produced in evidence.
Subdivision C—Offences relating to applying for warrants etc.
3ZZBH Offence for making false statement in application for delayed notification search warrant
A person must not make, in an application for a delayed notification search warrant, a statement that the person knows to be false or misleading in a material particular.
Penalty: Imprisonment for 2 years.
3ZZBI Offence relating to delayed notification search warrant by telephone, fax etc.
A person must not:
(a) state in a document that purports to be a form of delayed notification search warrant under section 3ZZBF the name of an eligible issuing officer unless that eligible issuing officer issued the warrant; or
(b) state on a form of delayed notification search warrant under that section a matter that, to the person’s knowledge, departs in a material particular from the form authorised by the eligible issuing officer; or
(c) purport to execute, or present to a person, a document that purports to be a form of delayed notification search warrant under that section that the person knows:
(i) has not been approved by an eligible issuing officer under that section; or
(ii) departs in a material particular from the terms authorised by an eligible issuing officer under that section; or
(d) give to an eligible issuing officer a form of delayed notification search warrant under that section that is not the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
Subdivision D—Interaction with other provisions under which search warrants may be issued
3ZZBJ Issue of warrants under other provisions as well as or instead of delayed notification search warrants
When this section applies
(1) This section applies if an eligible officer of an eligible agency, under an authorisation under section 3ZZBB from the chief officer of the agency, makes an application (the delayed notification search warrant application) to an eligible issuing officer for a delayed notification search warrant:
(a) in respect of particular premises; and
(b) in relation to a particular eligible offence.
(2) The applicable normal search warrant regime is Division 2 of Part IAA.
Application may be made to eligible issuing officer for normal search warrant
(3) The eligible officer may, at the same time or subsequently, make an application to the eligible issuing officer for the issue of a warrant, under the applicable normal search warrant regime, to search the premises or other premises for evidential material relevant to the eligible offence or to another offence connected to the eligible offence.
(4) If the eligible issuing officer is not a person who is authorised to issue warrants under the applicable normal search warrant regime, the eligible issuing officer may consider and deal with an application made as mentioned in subsection (3) as if the eligible issuing officer were such a person.
Eligible issuing officer may instead treat application as if it were made under applicable normal search warrant regime
(5) If the eligible issuing officer is not satisfied that a delayed notification search warrant in respect of the premises should be issued, the eligible issuing officer may:
(a) treat the delayed notification search warrant application as if it were an application for a warrant under the applicable normal search warrant regime (even if such an application has not been made); and
(b) consider and deal with the application under that regime:
(i) as if the application had been validly made under that regime; and
(ii) if the eligible issuing officer is not a person who is authorised to issue warrants under the applicable normal search warrant regime—as if the eligible issuing officer were such a person.
Division 3—Exercise of powers under delayed notification search warrants
3ZZCA What is authorised by a delayed notification search warrant
(1) A delayed notification search warrant authorises the executing officer or a person assisting to do any of the following:
(a) to enter the warrant premises;
(b) if the warrant authorises the entry of adjoining premises—to enter the adjoining premises solely for the purpose of entering or leaving the warrant premises;
(c) to impersonate another person to the extent reasonably necessary for executing the warrant;
(d) to search the warrant premises for the kinds of things (if any) specified in the warrant as the kinds of things that may be searched for;
(e) to seize any thing of a kind specified in the warrant as a kind of thing that may be seized;
(f) to seize other things found in the course of executing the warrant at the warrant premises that the executing officer or a person assisting believes on reasonable grounds to be evidential material, if the executing officer or a person assisting believes on reasonable grounds that the seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing any offence;
(g) to seize any thing found in the course of executing the warrant at the warrant premises that the executing officer or a person assisting believes on reasonable grounds:
(i) would present a danger to a person; or
(ii) could be used to assist a person to escape from lawful custody;
(h) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes;
(i) if specified in the warrant—to place a thing in substitution for a thing seized or moved under subsection 3ZZCE(2);
(j) to do any of the following acts to a thing found in the course of executing the warrant at the warrant premises that is of a kind specified in the warrant as the kind of thing to which the act may be done, or that the executing officer or a person assisting believes on reasonable grounds to be evidential material:
(i) copy the thing;
(ii) photograph or otherwise record the thing;
(iii) mark or tag the thing (whether or not the mark or tag can be detected only with the use of a device);
(iv) operate the thing;
(v) print the thing;
(vi) test the thing;
(vii) sample the thing;
(k) to do anything reasonably necessary to conceal the fact that any thing has been done under the warrant;
(l) if specified in the warrant—to re‑enter:
(i) the warrant premises; and
(ii) if the warrant authorises the entry of adjoining premises—the adjoining premises solely for the purpose of entering or leaving the warrant premises;
within the period described in paragraph 3ZZBE(1)(m), for the purpose of returning any thing seized from the warrant premises or moved under subsection 3ZZCE(2), or retrieving any thing substituted at the premises for a thing seized or moved under that subsection;
(m) to exercise the other powers conferred on the executing officer, or a person assisting, by the other provisions of this Division.
Note: Paragraph (c) does not authorise the acquisition or use of an assumed identity (see Part IAC). The protection provided by Part IAC only applies if the requirements of that Part have been complied with.
(2) The entry of premises under a paragraph of subsection (1) may be effected without the knowledge of the occupier of the premises or any other person present at the premises.
(3) If the period referred to in paragraph (1)(l) ends after the delayed notification search warrant expires, the powers referred to in that paragraph may be exercised during that period as if the warrant were still in force.
3ZZCB Specific powers available to person executing warrant
Photography
(1) In executing a delayed notification search warrant, the executing officer or a person assisting may, for a purpose incidental to the execution of the warrant, take photographs (including video recordings) of the warrant premises or of things at the warrant premises.
Completion of execution of warrant after brief interruption
(2) If a delayed notification search warrant in relation to premises is being executed, the executing officer and the persons assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:
(a) for not more than one hour; or
(b) for not more than 24 hours, or such longer period as allowed by an eligible issuing officer under section 3ZZCC, if they leave the premises:
(i) because of an emergency situation; or
(ii) to reduce the risk of discovery of the fact that a law enforcement officer has been on the premises.
Completion of execution of warrant after court proceedings
(3) If:
(a) the execution of a delayed notification search warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(c) the warrant is still in force;
the execution of the warrant may be completed.
3ZZCC Extension of time to re‑enter premises left in emergency situation or to avoid discovery of law enforcement officer
(1) If:
(a) a delayed notification search warrant in relation to premises is being executed; and
(b) the executing officer and the persons assisting (if any) leave the premises for a reason described in subparagraph 3ZZCB(2)(b)(i) or (ii); and
(c) the executing officer or a person assisting believes on reasonable grounds that the executing officer and the persons assisting will not be able to return to the premises within the 24‑hour period mentioned in paragraph 3ZZCB(2)(b);
he or she may apply to an eligible issuing officer for an extension of that period.
(2) If an application mentioned in subsection (1) has been made, an eligible issuing officer may extend the period during which the executing officer and persons assisting may be away from the premises if:
(a) the eligible issuing officer is satisfied, by information on oath or affirmation, that there are circumstances that justify the extension; and
(b) the extension would not result in the period ending after the expiry of the warrant.
3ZZCD Executing a warrant—assistance, use of force and related matters
(1) In executing a delayed notification search warrant:
(a) the executing officer may obtain such assistance; and
(b) the executing officer, or an eligible officer who is a person assisting, may use such force against persons and things; and
(c) a person assisting who is not an eligible officer may use such force against things;
as is necessary and reasonable in the circumstances.
(2) At any time when the executing officer is at warrant premises, or adjoining premises, under a delayed notification search warrant, the executing officer must have in his or her possession, or be in a position to produce without delay:
(a) a copy of the warrant; or
(b) if the warrant was issued under section 3ZZBF—a copy of the form of warrant completed under subsection 3ZZBF(7).
(3) To avoid doubt, subsection (2) does not require the executing officer to produce a copy of the warrant or the form of warrant.
3ZZCE Use of equipment to examine or process things
Equipment may be brought onto warrant premises
(1) In executing a delayed notification search warrant, the executing officer or a person assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant.
Thing may be moved for examination or processing
(2) A thing found at the warrant premises may be moved to another place for examination or processing in order to determine whether it may be seized under the delayed notification search warrant if:
(a) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; and
(b) the executing officer or a person assisting suspects on reasonable grounds that the thing contains or constitutes a thing that may be seized under the warrant.
Note: Sections 3ZZCG and 3ZZCH authorise operation of electronic equipment moved under this section.
Time limit on moving a thing
(3) The thing may be moved to another place for examination or processing for no longer than 14 days.
(4) An executing officer may apply to an eligible issuing officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 14 days or that time as previously extended.
(5) A single extension cannot exceed 7 days.
Equipment at warrant premises may be operated
(6) The executing officer or a person assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises, if the executing officer or person believes on reasonable grounds that:
(a) the equipment is suitable for the examination or processing; and
(b) the examination or processing can be carried out without damage to the equipment or the thing.
3ZZCF Use of electronic equipment at warrant premises
Use of electronic equipment to access data
(1) In executing a delayed notification search warrant, the executing officer or a person assisting may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes a thing that may be seized under the warrant.
Copy of data onto disk, tape or other device
(2) If the executing officer or person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes a thing that may be seized under the warrant, he or she may copy the data to a disk, tape or other associated device and take the disk tape or device from the warrant premises.
(3) If:
(a) under subsection (2), the executing officer or person assisting copies data to a disk, tape or device; and
(b) the chief officer of the authorised agency is satisfied that the data is not required, is no longer required, or is not likely to be required, for a purpose mentioned in section 3ZZEA;
the chief officer must arrange for:
(c) the removal of the data from any device in the control of the authorised agency; and
(d) the destruction of any other reproduction of the data in the control of the authorised agency.
Powers if thing that may be seized is accessible by operating equipment
(4) If the executing officer or a person assisting, after operating the electronic equipment, finds that a thing that may be seized under the warrant is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the thing can, by using facilities at the warrant premises, be put in documentary form—operate the facilities to put the thing in that form and seize the documents so produced.
(5) The executing officer or a person assisting may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the thing that may be seized in documentary form as mentioned in paragraph (4)(b); or
(b) possession of the equipment, by the occupier of the warrant premises, could constitute an offence.
3ZZCG Use of moved electronic equipment at other place
(1) If electronic equipment is moved to another place under subsection 3ZZCE(2), the executing officer or a person assisting may operate the equipment to access data (including data held at another place).
(2) If the executing officer or person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes a thing that may be seized under the warrant, he or she may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.
(3) If the chief officer of the authorised agency is satisfied that the data is not required, is no longer required, or is not likely to be required, for a purpose mentioned in section 3ZZEA, the chief officer must arrange for:
(a) the removal of the data from any device in the control of the authorised agency; and
(b) the destruction of any other reproduction of the data in the control of the authorised agency.
(4) If the executing officer or a person assisting, after operating the equipment, finds that a thing that may be seized under the warrant is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the thing can be put in documentary form—put the thing in that form and seize the documents so produced.
(5) The executing officer or a person assisting may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the thing that may be seized in documentary form as mentioned in paragraph (4)(b); or
(b) possession of the equipment, by the occupier of the warrant premises, could constitute an offence.
3ZZCH Operating seized or moved electronic equipment
(1) This section applies to electronic equipment seized under this Part or moved under section 3ZZCE.
(2) The electronic equipment may be operated at any location after it has been seized or moved, for the purpose of determining whether data that is a thing that may be seized under the relevant delayed notification search warrant is held on or accessible from the electronic equipment, and obtaining access to such data.
(3) The data referred to in subsection (2) includes, but is not limited to, the following:
(a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized;
(b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.
(4) The electronic equipment may be operated before or after the expiry of the relevant delayed notification search warrant.
(5) This section does not limit the operation of other provisions of this Part that relate to dealing with items seized under this Part or moved under section 3ZZCE.
Note: For example, this section does not affect the operation of the time limits in section 3ZZCE on examination or processing of a thing moved under that section.
3ZZCI Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in section 3ZZCE, 3ZZCF, 3ZZCG or 3ZZCH:
(i) damage is caused to the equipment; or
(ii) damage is caused to data recorded on the equipment or data access to which was obtained from the operation of the equipment; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the court determines.
Division 4—Notice to occupiers
3ZZDA Warrant premises occupier’s notice must be prepared and given
(1) As soon as practicable after the exercise of powers under a delayed notification search warrant has been completed, the executing officer must prepare a written notice (the warrant premises occupier’s notice) that complies with subsection (2).
(2) The warrant premises occupier’s notice must:
(a) specify the name of the authorised agency; and
(b) specify the day on which, and the time at which, the warrant was issued; and
(c) specify the day of execution of the warrant; and
(d) specify the address, location or other description of the warrant premises; and
(e) specify the number of persons who entered the warrant premises for the purposes of executing, or assisting in the execution of, the warrant; and
(f) include a summary of:
(i) the purpose of delayed notification search warrants (including a statement to the effect that they are to authorise entry and search of premises to be conducted without the knowledge of the occupier of the premises or any other person present at the premises); and
(ii) the things done under the warrant; and
(g) describe any thing seized from the warrant premises and state whether a thing was placed in substitution for the seized thing; and
(h) state whether any thing was returned to, or retrieved from, the warrant premises and the date on which this occurred.
(3) Subject to subsection (4), a staff member of the authorised agency must give the warrant premises occupier’s notice, and a copy of the warrant (or the form of warrant completed under subsection 3ZZBF(7)), to the person (the occupier) who was the occupier of the warrant premises when they were entered under the warrant. The notice, and the copy of the warrant (or form of warrant), must be given to the occupier by the time applicable under section 3ZZDC.
(4) If the occupier cannot be identified or located, a staff member of the authorised agency must report back to an eligible issuing officer, and the eligible issuing officer may give such directions as the eligible issuing officer thinks fit.
(5) A notice and a direction under this section are not legislative instruments.
3ZZDB Adjoining premises occupier’s notice must be prepared and given
(1) As soon as practicable after adjoining premises are entered under a delayed notification search warrant, the executing officer must prepare a written notice (the adjoining premises occupier’s notice) that complies with subsection (2).
(2) The adjoining premises occupier’s notice must specify:
(a) the name of the authorised agency; and
(b) the day on which, and the time at which, the warrant was issued; and
(c) the day of execution of the warrant; and
(d) the address, location or other description of:
(i) the warrant premises; and
(ii) the adjoining premises; and
(e) the purpose of delayed notification search warrants, including:
(i) a statement to the effect that they are to authorise entry and search of warrant premises to be conducted without the knowledge of the occupier of those premises or any other person present at those premises; and
(ii) a statement that adjoining premises may be entered solely for the purpose of entering or leaving the warrant premises.
(3) Subject to subsection (4), a staff member of the authorised agency must give the adjoining premises occupier’s notice, and a copy of the warrant (or the form of warrant completed under subsection 3ZZBF(7)), to the person (the occupier) who was the occupier of the adjoining premises when they were entered under the warrant. The notice, and the copy of the warrant, must be given to the occupier by the time applicable under section 3ZZDC.
(4) If the occupier cannot be identified or located, a staff member of the authorised agency must report back to an eligible issuing officer, and the eligible issuing officer may give such directions as the eligible issuing officer thinks fit.
(5) A notice and a direction under this section are not legislative instruments.
3ZZDC Time for giving warrant premises occupier’s notice or adjoining premises occupier’s notice
Section determines time by which notice must be given
(1) This section:
(a) applies if a warrant premises occupier’s notice, or an adjoining premises occupier’s notice, is prepared in relation to a delayed notification search warrant; and
(b) determines the time by which the notice (and a copy of the warrant, or the form of warrant) must be given in accordance with subsection 3ZZDA(3) or 3ZZDB(3).
Note: This section has effect subject to any directions given under subsection 3ZZDA(4) or 3ZZDB(4).
General rule
(2) Subject to subsection (3), the notice (and the copy of the warrant or form of warrant) must be given by:
(a) the time specified under paragraph 3ZZBE(1)(i); or
(b) if that time has been extended under subsection (5), that time as so extended.
Rule if person is charged with an offence relying on evidence obtained under the warrant
(3) If:
(a) a person is charged with an offence; and
(b) the prosecution proposes to rely on evidence obtained under the warrant;
the notice (and the copy of the warrant or of the form of the warrant completed under subsection 3ZZBF(7)) must be given as soon as practicable after the person is charged with the offence, but no later than the earlier of the following times:
(c) the time applicable under subsection (2);
(d) the time of service of the brief of evidence by the prosecution.
Extending the time specified in the warrant for giving notice
(4) The chief officer of the authorised agency may, in writing, authorise an eligible officer of the agency to apply to an eligible issuing officer for an extension of the time specified under paragraph 3ZZBE(1)(i) by which notice of entry of premises under a delayed notification search warrant is to be given.
(5) An eligible issuing officer may, on application by an eligible officer authorised under subsection (4), extend the time specified under paragraph 3ZZBE(1)(i) by which notice of entry of premises under a delayed notification search warrant is to be given if the eligible issuing officer is satisfied that there are reasonable grounds for continuing to delay notice of entry of the premises.
(6) An eligible issuing officer may, under subsection (5), extend the time specified under paragraph 3ZZBE(1)(i) on more than one occasion, but:
(a) must not extend the time by more than 6 months on any one occasion; and
(b) must not extend the time to more than 12 months after the day on which the delayed notification search warrant was issued unless:
(i) the Minister is satisfied on reasonable grounds that there are exceptional circumstances justifying the extension, and that it is in the public interest to do so; and
(ii) the Minister has issued a certificate approving the application for the extension; and
(iii) the eligible issuing officer is satisfied that there are exceptional circumstances justifying such an extension.
(7) A certificate issued under subsection (6) is not a legislative instrument.
Division 5—Using, sharing and returning things seized
Subdivision A—Using and sharing things seized
3ZZEA Purposes for which things may be used and shared
Use and sharing of thing by eligible officer or Commonwealth officer
(1) An eligible officer of an eligible agency or a Commonwealth officer may use, or make available to another eligible officer or Commonwealth officer to use, a thing seized under this Part for the purpose of any or all of the following if it is necessary to do so for that purpose:
(a) preventing, investigating or prosecuting an offence;
(b) proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002;
(c) proceedings for the forfeiture of the thing under a law of the Commonwealth;
(d) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104, 105 or 105A of the Criminal Code;
(e) investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part;
(f) investigating or resolving an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979) under Part V of that Act;
(g) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988;
(h) investigating or inquiring into a corruption issue under the Law Enforcement Integrity Commissioner Act 2006;
(i) proceedings in relation to a complaint, allegation or issue mentioned in paragraph (e), (f), (g) or (h);
(j) deciding whether to institute proceedings, to make an application or request, or to take any other action, mentioned in any of the preceding paragraphs of this subsection;
(k) the performance of the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979.
(2) An eligible officer of an eligible agency or a Commonwealth officer may use a thing seized under this Part for any other use that is required or authorised by or under a law of a State or a Territory.
(3) An eligible officer of an eligible agency may make available to another eligible officer of an eligible agency or a Commonwealth officer to use a thing seized under this Part for any purpose for which the making available of the thing or document is required or authorised by a law of a State or Territory.
(4) To avoid doubt, this section does not limit any other law of the Commonwealth that:
(a) requires or authorises the use of a thing; or
(b) requires or authorises the making available (however described) of a thing.
Sharing thing for use by State, Territory or foreign agency
(5) An eligible officer of an eligible agency or a Commonwealth officer may make a thing seized under this Part available to:
(a) a State or Territory law enforcement agency; or
(b) an agency that has responsibility for:
(i) law enforcement in a foreign country; or
(ii) intelligence gathering for a foreign country; or
(iii) the security of a foreign country;
to be used by that agency for a purpose mentioned in subsection (1), (2) or (3) and the purpose of any or all of the following (but not for any other purpose):
(c) preventing, investigating or prosecuting an offence against a law of a State or Territory;
(d) proceedings under a corresponding law (within the meaning of the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002);
(e) proceedings for the forfeiture of the thing under a law of a State or Territory;
(f) deciding whether to institute proceedings or to take any other action mentioned in any of paragraphs (1)(a) to (k) (inclusive), subsection (2) or (3) or paragraph (c), (d) or (e) of this subsection.
Ministerial arrangements for sharing
(6) This Division does not prevent the Minister from making an arrangement with a Minister of a State or Territory for:
(a) the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (3) and (5), of things seized under this Part; and
(b) the disposal by the agency of such things when they are no longer of use to that agency for those purposes.
Note: This subsection does not empower the Minister to make such an arrangement.
Subdivision B—Returning things seized
3ZZEB When things seized must be returned
(1) If the chief officer of the relevant eligible agency is satisfied that a thing seized under this Part is not required (or is no longer required) for a purpose mentioned in section 3ZZEA or for other judicial or administrative review proceedings, the chief officer must take reasonable steps to return the thing to the person from whom it was seized, or to the owner if that person is not entitled to possess it.
(2) However, the chief officer does not have to take those steps if:
(a) either:
(i) the thing may be retained because of an order under subsection 3ZZEC(1), or any other order under that subsection has been made in relation to the thing; or
(ii) the chief officer has applied for such an order and the application has not been determined; or
(b) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(c) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership; or
(d) a warrant premises occupier’s notice has not been given in relation to the occupier of the warrant premises.
3ZZEC Eligible issuing officer may permit a thing seized to be retained, forfeited etc.
(1) An eligible issuing officer may, on application by an eligible officer of an eligible agency, make any of the orders referred to in subsection (2) in relation to a thing seized under this Part if the eligible issuing officer is satisfied that there are reasonable grounds to suspect that, if the thing is returned to the owner of the thing, or the person from whom the thing was seized, it is likely to be used by that person or another person in the commission of:
(a) a terrorist act or a terrorism offence; or
(b) a serious offence (within the meaning of Part IAA).
(2) The orders are as follows:
(a) an order that the thing may be retained for the period specified in the order;
(b) an order that the thing is forfeited to the Commonwealth;
(c) an order that:
(i) the thing be sold and the proceeds given to the owner of the thing; or
(ii) the thing be sold in some other way;
(d) an order that the thing is to be destroyed or otherwise disposed of.
(3) If the eligible issuing officer is not satisfied as mentioned in subsection (1), the eligible issuing officer must order that the thing be returned to:
(a) the person from whom the thing was seized; or
(b) if that person is not entitled to possess the thing—the owner of the thing.
Division 6—Reporting and record‑keeping
3ZZFA Reporting on delayed notification search warrants
(1) The executing officer in relation to a delayed notification search warrant, or the applicant for the warrant, must give a written report on the warrant to the chief officer of the authorised agency.
(2) The report must be given to the chief officer of the authorised agency as soon as practicable after:
(a) the day of execution of the warrant; or
(b) if the warrant was not executed—the expiry of the warrant.
(3) The report must:
(a) specify the address, location or other description of the warrant premises; and
(b) state whether or not the warrant was executed; and
(c) state whether the application for the warrant was made in person or in accordance with section 3ZZBF.
(4) If the warrant was executed, the report must also include the following information:
(a) the day of execution of the warrant;
(b) the name of the executing officer;
(c) the name of any persons assisting and the kind of assistance provided;
(d) the name of the occupier of the warrant premises, if known to the executing officer;
(e) whether adjoining premises were entered under the warrant and, if they were, the name of the occupier of the adjoining premises, if known to the executing officer;
(f) the things that were done under the warrant;
(g) without limiting paragraph (f)—details of any thing at the warrant premises:
(i) seized; or
(ii) replaced with a substitute; or
(iii) copied, photographed or otherwise recorded; or
(iv) marked or tagged; or
(v) operated, printed, tested or sampled;
(h) whether or not the execution of the warrant assisted in the prevention or investigation of an eligible offence;
(i) details of compliance with any conditions to which the warrant was subject;
(j) details of any warrant premises occupier’s notice given in relation to the warrant;
(k) details of any adjoining premises occupier’s notice given in relation to the warrant;
(l) details of any directions given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the warrant.
(5) To avoid doubt, if, at the time a report was given, the details in any of paragraphs (4)(j), (k) and (l) were not included because notice or directions had not been given at that time, but are given later, the person who gave the original report under subsection (1) must give a further report under that subsection including those details.
(6) If the warrant was not executed, the report must state the reason why it was not executed.
(7) If the warrant premises were entered after the warrant was executed for the purpose of returning a thing to, or retrieving a thing left at, the premises, a written report in relation to that entry must be provided to the chief officer of the authorised agency. The report must include the following information:
(a) the address, location or other description of the warrant premises;
(b) the date on which the warrant premises were entered for that purpose;
(c) the name of each person who so entered the warrant premises;
(d) details of the thing returned or retrieved;
(e) if the thing was not returned or retrieved—the reason why the thing was not returned or removed.
(8) A report under subsection (7) must be given as soon as practicable after the warrant premises were entered as mentioned in that subsection.
(9) A report under this section is not a legislative instrument.
3ZZFB Annual reports to Minister
(1) The chief officer of an eligible agency must give a written report to the Minister that includes the following information in respect of each financial year:
(a) the number of applications for delayed notification search warrants made in person by eligible officers of the agency;
(b) the number of applications for delayed notification search warrants made under section 3ZZBF by eligible officers of the agency;
(c) the number of delayed notification search warrants issued as a result of applications referred to in paragraphs (a) and (b) and the eligible offences to which they related;
(d) the number of delayed notification search warrants that were executed by an eligible officer of the agency;
(e) the number of delayed notification search warrants that were executed by an eligible officer of the agency under which:
(i) one or more things were seized from the warrant premises; or
(ii) one or more things were placed in substitution at the warrant premises for a seized thing; or
(iii) one or more things were returned to, or retrieved from, the warrant premises; or
(iv) one or more things were copied, photographed, recorded, marked, tagged, operated, printed, tested or sampled at the warrant premises;
(f) any other information relating to delayed notification search warrants and the administration of this Part that the Minister considers appropriate.
(2) The report for a financial year must be given to the Minister as soon as practicable, and in any event not more than 3 months, after the end of the financial year.
(3) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.
3ZZFC Regular reports to Ombudsman
As soon as practicable after each 6‑month period starting on 1 January or 1 July the chief officer of an eligible agency must give a written report to the Ombudsman that includes the following information in respect of the period:
(a) the number of applications for delayed notification search warrants made in person by eligible officers of the agency;
(b) the number of applications for delayed notification search warrants made under section 3ZZBF by eligible officers of the agency;
(c) the number of delayed notification search warrants issued as a result of applications referred to in paragraphs (a) and (b) and the eligible offences to which they related;
(d) the number of delayed notification search warrants that were executed by an eligible officer of the agency.
3ZZFD Keeping documents connected with delayed notification search warrants
The chief officer of an eligible agency must cause the following to be kept:
(a) a copy of each authorisation given in writing by the chief officer under section 3ZZBB;
(b) a copy of the written record made under section 3ZZBB of each authorisation given orally by the chief officer under that section;
(c) a copy of each application for a delayed notification search warrant made by an eligible officer of the agency, and a statement of whether the application was granted or refused;
(d) each delayed notification search warrant issued to an eligible officer of the agency;
(e) a copy of each form of delayed notification search warrant completed under subsection 3ZZBF(7) by an eligible officer of the agency;
(f) a copy of the following:
(i) each warrant premises occupier’s notice given in relation to a delayed notification search warrant issued to an eligible officer of the agency;
(ii) each adjoining premises occupier’s notice given in relation to such a warrant;
(iii) each application made by an eligible officer of the agency under section 3ZZCC;
(iv) any directions given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to such a warrant;
(v) each authorisation given by the chief officer of the agency under subsection 3ZZDC(4);
(vi) each application made by an eligible officer of the agency as mentioned in subsection 3ZZDC(5);
(vii) each extension of time granted under subsection 3ZZDC(5) in response to such an application;
(g) each report given to the chief officer of the agency under section 3ZZFA.
3ZZFE Register of delayed notification search warrants
(1) The chief officer of an eligible agency must cause a register of delayed notification search warrants to be kept.
(2) The register is to specify, for each delayed notification search warrant sought by an eligible officer of the eligible agency:
(a) the date the warrant was issued or refused; and
(b) the name of the eligible issuing officer who issued or refused to issue the warrant; and
(c) if the warrant was issued:
(i) the name of the applicant for the warrant and the executing officer; and
(ii) the eligible offence or offences to which the warrant relates; and
(iii) if the warrant was executed—the day of execution of the warrant; and
(iv) the day and time of issue of the warrant, and the time of expiry of the warrant; and
(v) the time by which notice of entry of premises under the warrant is to be given; and
(vi) whether a warrant premises occupier’s notice has been given in relation to the warrant and, if such a notice has been given, the date on which it was given; and
(vii) whether an adjoining premises occupier’s notice has been given in relation to the warrant and, if such a notice has been given, the date on which it was given; and
(viii) details of any extension of time granted under subsection 3ZZDC(5) in relation to the warrant; and
(ix) details of any directions given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the warrant.
(3) The register is not a legislative instrument.
Division 7—Inspections by Ombudsman
3ZZGA Appointment of inspecting officers
(1) The Ombudsman may appoint members of the Ombudsman’s staff to be inspecting officers for the purposes of this Division.
(2) An appointment under subsection (1) must be in writing.
3ZZGB Inspection of records by the Ombudsman
(1) The Ombudsman must, from time to time and at least once in each 6‑month period starting on 1 January or 1 July, inspect the records of each eligible agency to determine the extent of compliance with this Part by the agency, and eligible officers of the agency, in relation to delayed notification search warrants.
(2) For the purpose of an inspection under this section, the Ombudsman:
(a) may, after notifying the chief officer of the eligible agency, enter at any reasonable time premises occupied by the agency; and
(b) is entitled to have full and free access at all reasonable times to all records of the agency that are relevant to the inspection; and
(c) may require a staff member of the agency to give the Ombudsman any information that the Ombudsman considers necessary, being information that is in the member’s possession, or to which the member has access, and that is relevant to the inspection.
(3) The chief officer must ensure that staff members of the agency give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.
(4) Nothing in this section requires the Ombudsman to inspect records that are relevant to the obtaining or execution of a delayed notification search warrant if a warrant premises occupier’s notice has not yet been given in relation to the warrant, unless directions have been made under subsection 3ZZDA(4) or 3ZZDB(4) not requiring such notice to be given.
3ZZGC Power to obtain relevant information
(1) If the Ombudsman has reasonable grounds to believe that a staff member of an eligible agency is able to give information relevant to an inspection under this Division of the agency’s records, subsections (2) and (3) have effect.
(2) The Ombudsman may, by writing given to the staff member, require the staff member to give the information to the Ombudsman:
(a) by writing signed by the staff member; and
(b) at a specified place and within a specified period.
(3) The Ombudsman may, by writing given to the staff member, require the staff member to attend:
(a) before a specified inspecting officer; and
(b) at a specified place; and
(c) within a specified period or at a specified time on a specified day;
to answer questions relevant to the inspection.
(4) If the Ombudsman:
(a) has reasonable grounds to believe that a staff member of an eligible agency is able to give information relevant to an inspection under this Division of the agency’s records; and
(b) does not know the staff member’s identity;
the Ombudsman may, by writing given to the chief officer of the agency, require the chief officer, or a person nominated by the chief officer, to attend:
(c) before a specified inspecting officer; and
(d) at a specified place; and
(e) within a specified period or at a specified time on a specified day;
to answer questions relevant to the inspection.
(5) The place, and the period or the time and day, specified in a requirement under this section, must be reasonable having regard to the circumstances in which the requirement is made.
3ZZGD Offence
A person commits an offence if:
(a) the person is required under section 3ZZGC to attend before another person, to give information or to answer questions; and
(b) the person refuses or fails to do so.
Penalty: Imprisonment for 6 months.
3ZZGE Ombudsman to be given information etc. despite other laws
(1) Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be:
(a) would contravene a law; or
(b) would be contrary to the public interest; or
(c) might tend to incriminate the person or make the person liable to a penalty; or
(d) would disclose one of the following:
(i) a legal advice given to a Minister or a Department, or a prescribed authority (within the meaning of the Ombudsman Act 1976);
(ii) a communication between an officer of a Department or of a prescribed authority (within the meaning of the Ombudsman Act 1976) and another person or body, being a communication protected against disclosure by legal professional privilege.
(2) However, if the person is a natural person:
(a) the information, the answer, or the fact that the person has given access to the document, as the case may be; and
(b) any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;
are not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against section 3ZZHA or against Part 7.4 or 7.7 of the Criminal Code.
(3) Nothing in section 3ZZHA or any other law prevents a staff member of an eligible agency from:
(a) giving information to the Ombudsman or an inspecting officer (whether orally or in writing and whether or not in answer to a question); or
(b) giving access to a record of the agency to the Ombudsman or an inspecting officer;
for the purposes of an inspection under this Division of the agency’s records.
(4) Nothing in section 3ZZHA or any other law prevents a staff member of an eligible agency from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (3).
(5) The fact that a person is not excused under subsection (1) from giving information, answering a question or producing a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, answer or document.
3ZZGF Exchange of information between Ombudsman and State or Territory inspecting authorities
(1) The Ombudsman may give information that:
(a) relates to a State or Territory agency; and
(b) was obtained by the Ombudsman under this Division;
to the State or Territory inspecting authority in relation to the agency.
(2) The Ombudsman may only give information to an authority under subsection (1) if the Ombudsman is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to the State or Territory agency.
(3) The Ombudsman may receive from a State or Territory inspecting authority information relevant to the performance of the Ombudsman’s functions under this Division.
(4) In this section:
State or Territory agency means the police force or police service of a State or Territory.
State or Territory inspecting authority, in relation to a State or Territory agency, means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 3ZZGB.
3ZZGG Ombudsman not to be sued
(1) The Ombudsman, an inspecting officer, or a person acting under an inspecting officer’s direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Division.
(2) A reference in this section to the Ombudsman includes a reference to a Deputy Ombudsman or a delegate of the Ombudsman.
3ZZGH Report on inspection
(1) As soon as practicable after each 6‑month period starting on 1 January or 1 July the Ombudsman must give a written report to the Minister on the results of each inspection under section 3ZZGB in the period.
(2) If, having regard to information obtained in the course of the inspection or a previous inspection, the Ombudsman considers that the requirements of section 3ZZFB or 3ZZFC have not been properly complied with in relation to an eligible agency, the Ombudsman may include a comment to that effect in the report.
(3) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.
Division 8—Unauthorised disclosure of information
3ZZHA Unauthorised disclosure of information
(1) A person commits an offence if:
(a) the person discloses information; and
(b) the information relates to:
(i) an application for a delayed notification search warrant; or
(ii) the execution of a delayed notification search warrant; or
(iii) a report under section 3ZZFA in relation to a delayed notification search warrant; or
(iv) a warrant premises occupier’s notice or an adjoining premises occupier’s notice prepared in relation to a delayed notification search warrant.
Penalty: Imprisonment for 2 years.
(2) Each of the following is an exception to the offence created by subsection (1):
(a) the disclosure is in connection with the administration or execution of this Part;
(aa) the disclosure is for the purposes of obtaining or providing legal advice related to this Part;
(b) the disclosure is for the purposes of any legal proceeding arising out of or otherwise related to this Part or of any report of any such proceedings;
(c) the disclosure is in accordance with any requirement imposed by law;
(d) the disclosure is for the purposes of:
(i) the performance of duties or functions or the exercise of powers under or in relation to this Part; or
(ii) the performance of duties or functions or the exercise of powers by a law enforcement officer, an officer of the Australian Security Intelligence Organisation, a staff member of the Australian Secret Intelligence Service or a person seconded to either of those bodies;
(da) the disclosure is made by anyone to the Ombudsman, a Deputy Commonwealth Ombudsman or a member of the Ombudsman’s staff (whether in connection with the exercise of powers or performance of functions under Division 7, in connection with a complaint made to the Ombudsman or in any other circumstances);
(e) the disclosure is made after a warrant premises occupier’s notice or an adjoining premises occupier’s notice has been given in relation to the warrant;
(f) the disclosure is made after a direction has been given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the warrant.
Note: A defendant bears an evidential burden in relation to a matter in subsection (2)—see subsection 13.3(3) of the Criminal Code.
Division 9—Other matters
3ZZIA Delegation
Delegation by chief officer
(1) The chief officer of an authorised agency or eligible agency may, in writing, delegate all or any of the chief officer’s powers, functions or duties under this Part to:
(a) a Deputy Commissioner of the Australian Federal Police; or
(b) a senior executive AFP employee who is a member of the Australian Federal Police and who is authorised in writing by the Commissioner for the purposes of this paragraph.
(2) The chief officer of an authorised agency or eligible agency may, in writing, delegate all or any of the chief officer’s powers, functions or duties under Division 5 to the chief executive officer (however described) of a State or Territory law enforcement agency.
(3) The chief officer of an authorised agency or eligible agency may, in writing, delegate all or any of the chief officer’s powers, functions or duties under Division 5 to a Commonwealth officer if the chief officer is satisfied on reasonable grounds that the Commonwealth officer is able to properly exercise those powers, functions or duties.
Delegation by Ombudsman
(4) The Ombudsman may, in writing, delegate all or any of the Ombudsman’s powers under this Part, other than a power to report to the Minister, to an APS employee responsible to the Ombudsman.
Delegate must produce delegation on request
(5) A delegate must, upon request by a person affected by the exercise of any power delegated to the delegate, produce the instrument of delegation, or a copy of the instrument, for inspection by the person.
3ZZIB Law relating to legal professional privilege not affected
Except as expressly provided, this Part does not affect the law relating to legal professional privilege.
Note: Section 3ZZGE expressly overrides legal professional privilege.
Part IAAB—Monitoring of compliance with control orders etc.
Division 1—Introduction
3ZZJA Simplified outline of this Part
• If a control order is in force in relation to a person, and the person has a prescribed connection with premises, a constable may enter and search the premises if:
(a) the person is the occupier of the premises and consents to the entry; or
(b) the entry is made under a monitoring warrant.
• If a control order is in force in relation to a person, a constable may conduct an ordinary search or a frisk search of the person if:
(a) the person consents to the search; or
(b) the search is conducted under a monitoring warrant.
• A search must be for any of the following purposes:
(a) the protection of the public from a terrorist act;
(b) preventing the provision of support for, or the facilitation of, a terrorist act;
(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;
(d) determining whether the control order has been, or is being, complied with.
3ZZJB Definitions
In this Part:
confirmed control order has the same meaning as in Part 5.3 of the Criminal Code.
control order has the same meaning as in Part 5.3 of the Criminal Code.
damage, in relation to data, includes damage by erasure of data or addition of other data.
engage in a hostile activity has the same meaning as in Part 5.3 of the Criminal Code.
evidential material has the same meaning as in Part IAA.
foreign country, when used in the expression hostile activity in a foreign country, has the same meaning as in the Criminal Code.
frisk search has the same meaning as in Part IAA.
inspecting officer means a person appointed under subsection 3ZZUA(1).
interim control order has the same meaning as in Part 5.3 of the Criminal Code.
issuing officer means a magistrate.
monitoring powers:
(a) in relation to premises—has the meaning given by sections 3ZZKB, 3ZZKC and 3ZZKD; or
(b) in relation to a person—has the meaning given by section 3ZZLB.
monitoring warrant means a warrant under section 3ZZOA or 3ZZOB.
ordinary search has the same meaning as in Part IAA.
premises includes the following:
(a) a structure, building or conveyance;
(b) a place (whether or not enclosed or built on);
(c) a part of a thing referred to in paragraph (a) or (b).
prescribed connection with premises has the meaning given by section 3ZZJC.
recently used conveyance, in relation to a search of a person, means a conveyance that the person had operated or occupied at any time within 24 hours before the search commenced.
relevant data has the meaning given by subsection 3ZZKC(3).
seizable item has the same meaning as in Part IAA.
staff member of the Australian Federal Police means a person referred to in paragraph (a) of the definition of law enforcement officer in subsection 3(1).
State or Territory agency: see section 3ZZUF.
State or Territory inspecting authority: see section 3ZZUF.
strip search has the same meaning as in Part IAA.
3ZZJC Prescribed connection with premises
For the purposes of this Part, a person has a prescribed connection with premises if:
(a) the person:
(i) is the legal or beneficial owner of the premises (whether alone or together with one or more other persons); or
(ii) has any other legal or equitable estate or interest in the premises; or
(b) the person occupies, or resides on, the premises; or
(c) the person has possession or control of the premises (whether alone or together with one or more other persons); or
(d) the person performs any of the duties of his or her employment on the premises; or
(e) the person carries on a business on the premises (whether alone or together with one or more other persons); or
(f) the person performs voluntary work on the premises; or
(g) both:
(i) the premises are used by a school, college, university or other educational institution; and
(ii) the person attends the premises in his or her capacity as a student at the school, college, university or other educational institution.
3ZZJD Privileges not abrogated
Self‑incrimination
(1) This Part (other than section 3ZZUE) does not affect the right of a person to refuse to answer a question, give information, or produce a document, on the ground that the answer to the question, the information, or the production of the document, might tend to incriminate him or her or make him or her liable to a penalty.
Legal professional privilege
(2) This Part (other than section 3ZZUE) does not affect the right of a person to refuse to answer a question, give information, or produce a document, on the ground that:
(a) the answer to the question or the information would be privileged from being given on the ground of legal professional privilege; or
(b) the document would be privileged from being produced on the ground of legal professional privilege.
Other legislation not affected
(3) The fact that this section is included in this Part does not imply that the privilege against self‑incrimination or legal professional privilege is abrogated in any other law of the Commonwealth.
3ZZJE Application of Part
(1) This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to:
(a) the search of premises; or
(b) the searching of persons or conveyances; or
(c) the seizure of things; or
(d) the requesting of information or documents from persons.
(2) To avoid any doubt, it is declared that even though another law of the Commonwealth (including other provisions of this Act) provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
Division 2—Powers of constables in relation to premises
Subdivision A—Monitoring powers
3ZZKA Entering premises by consent or under a warrant
(1) If:
(a) a control order is in force in relation to a person; and
(b) the person has a prescribed connection with particular premises;
a constable may enter the premises, and exercise the monitoring powers, for any of the following purposes:
(c) the protection of the public from a terrorist act;
(d) preventing the provision of support for, or the facilitation of, a terrorist act;
(e) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;
(f) determining whether the control order has been, or is being, complied with.
Note: The monitoring powers are set out in sections 3ZZKB, 3ZZKC and 3ZZKD.
(2) However, a constable is not authorised to enter the premises unless:
(a) the person:
(i) is the occupier of the premises; and
(ii) has consented to the entry; or
(b) the entry is made under a monitoring warrant.
Note: If entry to the premises is with the occupier’s consent, the constable must leave the premises if the consent ceases to have effect (see section 3ZZNA).
3ZZKB General monitoring powers
The following are the monitoring powers that a constable may exercise in relation to premises under section 3ZZKA:
(a) the power to search the premises and any thing on the premises;
(b) the power to search for and record fingerprints found at the premises;
(c) the power to take samples of things found at the premises;
(d) the power to examine or observe any activity conducted on the premises;
(e) the power to inspect, examine, take measurements of or conduct tests on any thing on the premises;
(f) the power to make any still or moving image or any recording of the premises or any thing on the premises;
(g) the power to inspect any document on the premises;
(h) the power to take extracts from, or make copies of, any such document;
(i) the power to take onto the premises such equipment and materials as the constable requires for the purpose of exercising powers in relation to the premises;
(j) the powers set out in subsections 3ZZKC(1) and (4) and 3ZZKD(2).
3ZZKC Operating electronic equipment
(1) The monitoring powers include the power to:
(a) operate electronic equipment on the premises; and
(b) use a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with the equipment or is associated with it.
(2) The monitoring powers include the powers mentioned in subsection (4) if relevant data is found in the exercise of the power under subsection (1).
(3) Relevant data means information relevant to:
(a) the protection of the public from a terrorist act; or
(b) preventing the provision of support for, or the facilitation of, a terrorist act; or
(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or
(d) determining whether the relevant control order has been, or is being, complied with.
(4) The powers are as follows:
(a) the power to operate electronic equipment on the premises to put the relevant data in documentary form and remove the documents so produced from the premises;
(b) the power to operate electronic equipment on the premises to transfer the relevant data to a disk, tape or other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the premises.
(5) A constable may operate electronic equipment as mentioned in subsection (1) or (4) only if the constable believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
Note: For compensation for damage to electronic equipment, see section 3ZZNF.
3ZZKD Securing electronic equipment to obtain expert assistance
Scope
(1) This section applies if a constable enters premises under a monitoring warrant.
Securing equipment
(2) The monitoring powers include the power to secure any electronic equipment that is on the premises if the constable suspects on reasonable grounds that:
(a) there is relevant data on the premises; and
(b) the relevant data may be accessible by operating the equipment; and
(c) expert assistance is required to operate the equipment; and
(d) the relevant data may be destroyed, altered or otherwise interfered with, if the constable does not take action under this subsection.
The equipment may be secured by locking it up, placing a guard or any other means.
(3) The constable must give notice to the occupier of the premises, or another person who apparently represents the occupier, of:
(a) the constable’s intention to secure the equipment; and
(b) the fact that the equipment may be secured for up to 24 hours.
Period equipment may be secured
(4) The equipment may be secured until the earlier of the following happens:
(a) the 24‑hour period ends;
(b) the equipment has been operated by the expert.
Note: For compensation for damage to electronic equipment, see section 3ZZNF.
Extensions
(5) The constable may apply to an issuing officer for an extension of the 24‑hour period if the constable believes on reasonable grounds that the equipment needs to be secured for longer than that period.
(6) Before making the application, the constable must give notice to the occupier of the premises, or another person who apparently represents the occupier, of his or her intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application.
(7) The 24‑hour period may be extended more than once.
Note: For the process by which an issuing officer may extend the period, see section 3ZZQA.
Subdivision B—Powers to ask questions and seek production of documents
3ZZKE Asking questions and seeking production of documents
Scope
(1) This section applies if a constable enters premises under section 3ZZKA.
Entry with consent
(2) If the entry is authorised because the occupier of the premises consented to the entry, the constable may ask the occupier to answer any questions, and produce any document, that is likely to assist in:
(a) the protection of the public from a terrorist act; or
(b) preventing the provision of support for, or the facilitation of, a terrorist act; or
(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or
(d) determining whether the relevant control order has been, or is being, complied with.
Note 1: A person is not required to answer a question, or produce a document, in response to a request under this subsection.
Note 2: See also sections 3ZZRC and 3ZZRD.
Entry under a monitoring warrant
(3) If:
(a) the entry is authorised by a monitoring warrant; and
(b) the warrant authorises the constable to exercise powers under this subsection;
the constable may (subject to subsections (4) to (7)) require any person on the premises to answer any questions, and produce any document, that is likely to assist in:
(c) the protection of the public from a terrorist act; or
(d) preventing the provision of support for, or the facilitation of, a terrorist act; or
(e) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or
(f) determining whether the relevant control order has been, or is being, complied with.
Note: See also sections 3ZZRC and 3ZZRD.
Legal professional privilege and privilege against self‑incrimination
(4) Before a constable requires a person to answer a question or produce a document under subsection (3), the constable must explain the effect of section 3ZZJD to the person.
(5) An answer to a question or a document produced under subsection (3) by a person is not admissible in evidence against him or her in criminal proceedings if a constable fails to explain the effect of section 3ZZJD to the person in accordance with subsection (4). The failure does not otherwise affect the use of the answer or document.
Note: For the uses that may be made of the answer or document, see sections 3ZZRC and 3ZZRD.
Exceptions to subsection (3)
(6) A person is not subject to a requirement under subsection (3) if:
(a) the person does not possess the information or document required; and
(b) the person has taken all reasonable steps available to the person to obtain the information or document required and has been unable to obtain it.
(7) A person is not subject to a requirement under subsection (3) to produce a document if the document is not at the premises.
Offence
(8) A person commits an offence if:
(a) the person is subject to a requirement under subsection (3); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement.
Penalty for contravention of this subsection: 30 penalty units.
Subdivision C—Other powers
3ZZKF Other powers
Scope
(1) This section applies if:
(a) a constable enters premises under section 3ZZKA; and
(b) the entry is authorised by a monitoring warrant.
Powers
(2) The constable has the following powers in relation to the premises:
(a) the power to seize things found during the exercise of monitoring powers on the premises that the constable suspects on reasonable grounds to be:
(i) evidential material; or
(ii) evidential material (within the meaning of the Proceeds of Crime Act 2002); or
(iii) tainted property (within the meaning of that Act); or
(iv) seizable items;
(b) the power to conduct an ordinary search or a frisk search of a person at or near the premises if the constable suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession;
(c) the power to seize other things found while conducting an ordinary search or a frisk search of a person at or near the premises that the constable suspects on reasonable grounds to be:
(i) evidential material; or
(ii) evidential material (within the meaning of the Proceeds of Crime Act 2003); or
(iii) tainted property (within the meaning of that Act); or
(iv) seizable items.
3ZZKG Availability of assistance and use of force in executing a warrant
Scope
(1) This section applies if:
(a) a constable enters premises under section 3ZZKA; and
(b) the entry is authorised by a monitoring warrant.
Availability of assistance and use of force
(2) In:
(a) executing the warrant; or
(b) exercising the powers set out in section 3ZZKF in relation to the premises;
the constable may use such force against persons and things as is necessary and reasonable in the circumstances.
(3) In executing the warrant, the constable may obtain such assistance as is necessary and reasonable in the circumstances.
(4) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person may:
(a) enter the premises; and
(b) exercise the monitoring powers in relation to the premises; and
(c) in:
(i) entering the premises; or
(ii) exercising the monitoring powers;
use such force against things as is necessary and reasonable in the circumstances.
(5) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant:
(a) the person may only exercise the monitoring powers set out in subsection 3ZZKD(2) if the constable forms the suspicion mentioned in that subsection; and
(b) the person must not exercise a power set out in subsection 3ZZKD(5) or section 3ZZKE or 3ZZKF.
(6) A power exercised by a person assisting the constable as mentioned in subsection (4) is taken to have been exercised by the constable.
Division 3—Powers of constables in relation to persons subject to control orders
3ZZLA Searching a person by consent or under a warrant
(1) If a control order is in force in relation to a person, a constable may conduct an ordinary search or a frisk search of the person, and exercise the monitoring powers, for any of the following purposes:
(a) the protection of the public from a terrorist act;
(b) preventing the provision of support for, or the facilitation of, a terrorist act;
(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;
(d) determining whether the control order has been, or is being, complied with.
Note: The monitoring powers are set out in section 3ZZLB.
(2) However, a constable is not authorised to conduct an ordinary search or a frisk search of the person unless:
(a) the person has consented to the search; or
(b) the search is conducted under a monitoring warrant.
3ZZLB Monitoring powers
The following are the monitoring powers that a constable may exercise in relation to a person under section 3ZZLA:
(a) the power to search things found in the possession of the person;
(b) the power to search any recently used conveyance;
(c) the power to record fingerprints from things found in the course of:
(i) a search under section 3ZZLA; or
(ii) a search under paragraph (a) or (b) of this section;
(d) the power to take samples from things found in the course of:
(i) a search under section 3ZZLA; or
(ii) a search under paragraph (a) or (b) of this section.
3ZZLC Seizure powers
Scope
(1) This section applies if:
(a) a constable conducts a search of a person, or of a recently used conveyance, under section 3ZZLA; and
(b) the search is authorised by a monitoring warrant.
Powers
(2) The constable has the following powers:
(a) the power to seize things found in the course of the search that the constable suspects on reasonable grounds to be:
(i) evidential material; or
(ii) seizable items;
(b) the power to seize other things found on or in the possession of the person, or in the recently used conveyance, in the course of the search that the constable suspects on reasonable grounds to be:
(i) evidential material (within the meaning of the Proceeds of Crime Act 2002); or
(ii) tainted property (within the meaning of that Act).
3ZZLD Availability of assistance and use of force in executing a warrant
Scope
(1) This section applies if:
(a) a constable conducts a search of a person, or of a recently used conveyance, under section 3ZZLA; and
(b) the search is authorised by a monitoring warrant.
Availability of assistance and use of force
(2) In:
(a) executing the warrant; or
(b) exercising the powers set out in section 3ZZLC in relation to the person or conveyance;
the constable may use such force against persons and things as is necessary and reasonable in the circumstances.
(3) In executing the warrant, the constable may obtain such assistance as is necessary and reasonable in the circumstances.
(4) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person may:
(a) exercise the monitoring powers in relation to the person mentioned in paragraph (1)(a); and
(b) in exercising the monitoring powers, use such force against things as is necessary and reasonable in the circumstances.
(5) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person must not exercise a power set out in section 3ZZLC.
(6) A power exercised by a person assisting the constable as mentioned in subsection (4) is taken to have been exercised by the constable.
Division 4—Obligations and incidental powers of constables
3ZZNA Consent of occupier of premises
(1) Before obtaining the consent of an occupier of premises for the purposes of paragraph 3ZZKA(2)(a), a constable must inform the occupier that the occupier may refuse consent.
(2) A consent has no effect unless the consent is voluntary.
(3) A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.
(5) If a constable entered premises because of the consent of the occupier of the premises, the constable, and any person assisting the constable, must leave the premises if the consent ceases to have effect.
(6) If:
(a) a constable enters premises because of the consent of the occupier of the premises; and
(b) the constable has not shown the occupier his or her identity card before entering the premises;
the constable must do so on, or as soon as is reasonably practicable after, entering the premises.
3ZZNB Consent to search of a person
(1) Before obtaining the consent of a person for the purposes of paragraph 3ZZLA(2)(a), a constable must inform the person that the person may refuse consent.
(2) A consent has no effect unless the consent is voluntary.
(3) A consent may be expressed to be limited to a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.
3ZZNC Announcement before entry under warrant
Before entering premises under a monitoring warrant, a constable must:
(a) announce that he or she is authorised to enter the premises; and
(b) show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and
(c) give any person at the premises an opportunity to allow entry to the premises.
3ZZND Constable to be in possession of warrant
A constable executing a monitoring warrant must be in possession of the warrant or a copy of the warrant.
3ZZNE Details of warrant etc. to be given to occupier
If:
(a) a monitoring warrant is being executed by a constable in relation to premises; and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
the constable must, as soon as practicable, make a copy of the warrant available to the occupier or other person.
3ZZNF Compensation for damage to electronic equipment
Scope
(1) This section applies if:
(a) as a result of electronic equipment being operated as mentioned in this Part:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
Compensation
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in:
(a) the Federal Court of Australia or the Federal Circuit Court of Australia; or
(b) a court of a State or Territory that has jurisdiction in relation to the matter;
for such reasonable amount of compensation as the court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
3ZZNG Occupier entitled to be present during search
(1) If:
(a) a monitoring warrant in relation to premises is being executed; and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
the person is entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
3ZZNH Person subject to a control order is entitled to be present during search
(1) If:
(a) a monitoring warrant in relation to premises is being executed; and
(b) the warrant was issued on the basis that a control order is in force in relation to a person; and
(c) the person is present at the premises;
the person is entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
Division 5—Monitoring warrants
3ZZOA Monitoring warrant in relation to premises
Application for warrant
(1) A constable may apply to an issuing officer for a warrant under this section in relation to premises.
Issue of warrant
(2) The issuing officer may issue the warrant if the issuing officer is satisfied, by information on oath or affirmation, that:
(a) a control order is in force in relation to a person; and
(b) the person has a prescribed connection with the premises; and
(c) having regard to:
(i) the nature of the person’s prescribed connection with the premises; and
(ii) one or more of the matters set out in paragraphs (4)(a) to (f), and the matter set out in paragraph (4)(g); and
(iii) such other matters (if any) as the issuing officer considers relevant;
it is reasonably necessary that one or more constables should have access to the premises for the purposes of:
(iv) the protection of the public from a terrorist act; or
(v) preventing the provision of support for, or the facilitation of, a terrorist act; or
(vi) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or
(vii) determining whether the control order has been, or is being, complied with.
(3) The issuing officer must not issue the warrant unless the applicant or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought.
(4) The matters referred to in subparagraph (2)(c)(ii) are the following:
(a) the possibility that the person has engaged, is engaging, or will engage, in a terrorist act;
(b) the possibility that the person has provided, is providing, or will provide, support for a terrorist act;
(c) the possibility that the person has facilitated, is facilitating, or will facilitate, a terrorist act;
(d) the possibility that the person has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country;
(e) the possibility that the person has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country;
(f) the possibility that the person has contravened, is contravening, or will contravene, the control order;
(g) whether allowing one or more constables to have access to the premises, and exercise the monitoring powers in relation to the premises and the powers set out in section 3ZZKF in relation to the premises, would be likely to have the least interference with any person’s liberty and privacy that is necessary in the circumstances.
Content of warrant
(5) The warrant must:
(a) describe the premises to which the warrant relates; and
(b) state that the warrant is issued under this section; and
(c) state the purpose or purposes for which the warrant is issued; and
(d) authorise one or more constables (whether or not named in the warrant) from time to time while the warrant remains in force:
(i) to enter the premises; and
(ii) to exercise the monitoring powers in relation to the premises; and
(iii) to exercise the powers set out in section 3ZZKF in relation to the premises; and
(e) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and
(f) specify the time at which the warrant expires (see subsection (7)); and
(g) state whether the warrant authorises a constable to exercise powers under subsection 3ZZKE(3) in relation to the entry; and
(h) state that a person who is not a constable may be authorised under section 3ZZKG to assist in executing the warrant; and
(i) state the name of the person to whom the relevant control order relates; and
(j) describe the nature of the person’s prescribed connection with the premises; and
(k) state that the control order is in force; and
(l) state whether the control order is an interim control order or a confirmed control order; and
(m) specify the date the control order was made; and
(n) specify the court that made the control order; and
(o) if the control order is an interim control order—specify the date the order was served on the person; and
(p) if the control order is a confirmed control order—specify the end of the period during which the order is in force; and
(q) if the warrant is issued for the purposes of determining whether the control order has been, or is being, complied with—specify the obligations, prohibitions and restrictions that are imposed by the order.
(6) To avoid doubt, paragraph (5)(c) does not require the purpose or purposes for which the warrant is issued to be specified in the warrant if disclosure of that purpose, or those purposes, is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).
(7) The time stated in the warrant under paragraph (5)(f) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.
(8) Paragraph (5)(f) and subsection (7) do not prevent the issue of successive monitoring warrants in relation to the same premises.
3ZZOB Monitoring warrant in relation to a person
Application for warrant
(1) A constable may apply to an issuing officer for a warrant under this section in relation to a person.
Issue of warrant
(2) The issuing officer may issue the warrant if the issuing officer is satisfied, by information on oath or affirmation, that:
(a) a control order is in force in relation to the person; and
(b) having regard to:
(i) one or more of the matters set out in paragraphs (4)(a) to (f), and the matter set out in paragraph (4)(g); and
(ii) such other matters (if any) as the issuing officer considers relevant;
it is reasonably necessary that a constable should conduct an ordinary search or a frisk search of the person for the purposes of:
(iii) the protection of the public from a terrorist act; or
(iv) preventing the provision of support for, or the facilitation of, a terrorist act; or
(v) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or
(vi) determining whether the control order has been, or is being, complied with.
(3) The issuing officer must not issue the warrant unless the applicant or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought.
(4) The matters referred to in subparagraph (2)(b)(i) are the following:
(a) the possibility that the person has engaged, is engaging, or will engage, in a terrorist act;
(b) the possibility that the person has provided, is providing, or will provide, support for a terrorist act;
(c) the possibility that the person has facilitated, is facilitating, or will facilitate, a terrorist act;
(d) the possibility that the person has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country;
(e) the possibility that the person has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country;
(f) the possibility that the person has contravened, is contravening, or will contravene, the control order;
(g) whether allowing one or more constables to conduct an ordinary search or a frisk search of the person, and exercise the monitoring powers in relation to the person and the powers set out in section 3ZZLC in relation to the person or a recently used conveyance, would be likely to have the least interference with any person’s liberty and privacy that is necessary in the circumstances.
Content of warrant
(5) The warrant must:
(a) state the name of the person; and
(b) state that the warrant is issued under this section; and
(c) state the purpose or purposes for which the warrant is issued; and
(d) authorise a constable (whether or not named in the warrant) from time to time while the warrant remains in force:
(i) to conduct an ordinary search or a frisk search of the person; and
(ii) to exercise the monitoring powers in relation to the person; and
(iii) to exercise the powers set out in section 3ZZLC in relation to the person or a recently used conveyance; and
(e) state whether the search is authorised to be carried out at any time of the day or during specified hours of the day; and
(f) specify the time at which the warrant expires (see subsection (7)); and
(g) state that a person who is not a constable may be authorised under section 3ZZLD to assist in executing the warrant; and
(h) state the name of the person to whom the relevant control order relates; and
(i) state that the control order is in force; and
(j) state whether the control order is an interim control order or a confirmed control order; and
(k) specify the date the control order was made; and
(l) specify the court that made the control order; and
(m) if the control order is an interim control order—specify the date on which the order was served on the person; and
(n) if the control order is a confirmed control order—specify the end of the period during which the order is in force; and
(o) if the warrant is issued for the purposes of determining whether the control order has been, or is being, complied with—specify the obligations, prohibitions and restrictions that are imposed by the order.
(6) To avoid doubt, paragraph (5)(c) does not require the purpose or purposes for which the warrant is issued to be specified in the warrant if disclosure of that purpose, or those purposes, is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).
(7) The time stated in the warrant under paragraph (5)(f) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.
(8) Paragraph (5)(f) and subsection (7) do not prevent the issue of successive monitoring warrants in relation to the same person.
3ZZOC Restrictions on personal searches
A monitoring warrant cannot authorise a strip search or a search of a person’s body cavities.
3ZZOD Monitoring warrant must not be executed if the relevant control order is revoked etc.
(1) If:
(a) a monitoring warrant was issued on the basis that a control order was in force in relation to a person; and
(b) any of the following happens:
(i) the control order is revoked;
(ii) a court declares the control order to be void;
(iii) a court varies the control order by removing one or more obligations, prohibitions or restrictions imposed on the person by the control order;
a constable must not:
(c) execute the warrant; or
(d) exercise a power under Division 2 or 3, if the exercise of the power is consequential on the warrant.
Evidence
(2) A thing seized in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).
(3) Information obtained in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).
(4) A document obtained in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).
Division 6—Monitoring warrants by telephone or other electronic means
3ZZPA Monitoring warrants by telephone or other electronic means
(1) A constable may make an application to an issuing officer for a monitoring warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2) The issuing officer:
(a) may require communication by voice to the extent that it is practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such communication by voice.
(3) An application under this section must include all information required to be provided in an ordinary application for a monitoring warrant, but the application may, if necessary, be made before the information is sworn.
(4) If an application is made to an issuing officer under this section and the issuing officer, after considering the information and having received and considered such further information (if any) as the issuing officer required, is satisfied that:
(a) a monitoring warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the issuing officer may complete and sign the same form of warrant that would be issued under section 3ZZOA or 3ZZOB, as the case requires.
(5) If the issuing officer decides to issue the monitoring warrant, the issuing officer is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which, and the time at which, it was signed.
(6) The applicant must then complete a form of monitoring warrant in terms substantially corresponding to those given by the issuing officer, stating on the form the name of the issuing officer and the day on which, and the time at which, the warrant was signed.
(7) The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the issuing officer the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn.
(8) The issuing officer is to attach to the documents provided under subsection (7) the form of warrant completed by the issuing officer.
(9) If:
(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a monitoring warrant issued under this section was duly authorised; and
(b) the form of warrant signed by the issuing officer is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
3ZZPB Offences relating to telephone warrants
A person commits an offence if:
(a) the person states in a document that purports to be a form of warrant under section 3ZZPA the name of an issuing officer unless that officer issued the warrant; or
(b) the person states on a form of warrant under that section a matter that, to the person’s knowledge, departs in a material particular from the form authorised by the issuing officer; or
(c) the person purports to execute, or present to a person, a document that purports to be a form of warrant under that section that the person knows:
(i) has not been approved by an issuing officer under that section; or
(ii) to depart in a material particular from the terms authorised by an issuing officer under that section; or
(d) the person gives to an issuing officer a form of warrant under that section that is not the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
Division 7—Extension of periods in which things secured
3ZZQA Extension of periods in which things secured
Application
(1) This section applies if a constable applies to an issuing officer under subsection 3ZZKD(5) for an extension of the period during which a thing may be secured.
Granting extension
(2) The issuing officer may, by order, grant an extension of the period if the issuing officer is satisfied, by information on oath or affirmation, that it is necessary to secure the thing to ensure that relevant data is not destroyed, altered or otherwise interfered with.
(3) The issuing officer must not grant the extension unless the constable or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the extension is being sought.
Content of order
(4) The order extending the period must:
(a) describe the thing to which the order relates; and
(b) state the period for which the extension is granted; and
(c) state that the order is made under this section; and
(d) state that the constable is authorised to secure the thing for that period.
Division 8—Things seized, documents produced, and answers given, under this Part
3ZZRA Receipts for things seized under this Part
(1) If a thing is seized by a constable under this Part, the constable must provide a receipt for the thing.
(2) If 2 or more things are seized, they may be covered in the one receipt.
3ZZRB Using, sharing and returning things seized under this Part
Division 4C of Part IAA applies to a thing seized under this Part in a corresponding way to the way in which it applies to a thing seized under Division 2 of Part IAA.
3ZZRC Using, sharing and returning documents produced under section 3ZZKE
(1) Subject to subsection (2), Division 4C of Part IAA applies to a document produced under section 3ZZKE in a corresponding way to the way in which it applies to a document produced under Division 4B of Part IAA.
(2) Section 3ZQU has effect, in relation to a document produced under section 3ZZKE, as if the following additional purposes were set out in subsection 3ZQU(1):
(a) the protection of the public from a terrorist act;
(b) preventing the provision of support for, or the facilitation of, a terrorist act;
(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;
(d) determining whether the relevant control order has been, or is being, complied with.
3ZZRD Answers to questions asked under section 3ZZKE
An answer given to a question asked under subsection 3ZZKE(2) or (3) may only be used for one or more of the following purposes:
(a) the protection of the public from a terrorist act;
(b) preventing the provision of support for, or the facilitation of, a terrorist act;
(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;
(d) determining whether the relevant control order has been, or is being, complied with;
(e) preventing, investigating or prosecuting an offence.
Division 9—Powers of issuing officers
3ZZSA Powers of issuing officers
Powers conferred personally
(1) A power conferred on an issuing officer by this Part is conferred on the issuing officer:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
Powers need not be accepted
(2) The issuing officer need not accept the power conferred.
Protection and immunity
(3) An issuing officer exercising a power conferred by this Part has the same protection and immunity as if the issuing officer were exercising the power:
(a) as the court of which the issuing officer is a member; or
(b) as a member of the court of which the issuing officer is a member.
Division 10—General
3ZZTA Conduct of ordinary searches and frisk searches
An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched.
3ZZTB Protection of persons—control order declared to be void
(1) If:
(a) a monitoring warrant was issued on the basis that an interim control order was in force; and
(b) a court subsequently declares the interim control order to be void;
a criminal proceeding does not lie against a person in respect of anything done, or omitted to be done, in good faith by the person:
(c) in the purported execution of the warrant; or
(d) in the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the warrant.
(2) Subsection (1) does not apply to a thing done, or omitted to be done, at a particular time if, at that time, the person knew, or ought reasonably to have known, of the declaration.
3ZZTC Dealing with things, information or documents obtained under a monitoring warrant—control order declared to be void
Scope
(1) This section applies if:
(a) a monitoring warrant was issued on the basis that an interim control order was in force; and
(b) a court subsequently declares the interim control order to be void; and
(c) before the declaration was made, a thing was seized, information was obtained, or a document was produced, as a result of:
(i) the purported execution of the warrant; or
(ii) the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the warrant.
Dealing
(2) A person may:
(a) adduce the thing, information or document as evidence in a proceeding; or
(b) use or communicate the information; or
(c) use, or communicate the contents of, the document;
if:
(d) the person reasonably believes that doing so is necessary to assist in preventing, or reducing the risk of:
(i) the commission of a terrorist act; or
(ii) serious harm to a person; or
(iii) serious damage to property; or
(e) the person does so for one or more purposes set out in subsection (3).
Purposes
(3) The purposes are purposes connected with:
(a) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Division 105 of the Criminal Code, so far as the function, duty or power relates to a preventative detention order (within the meaning of Part 5.3 of the Criminal Code); or
(b) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2A of the Terrorism (Police Powers) Act 2002 (NSW), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or
(c) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2A of the Terrorism (Community Protection) Act 2003 (Vic.), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or
(d) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2005 (Qld), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or
(e) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2006 (WA), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or
(f) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2005 (SA), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or
(g) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2005 (Tas.), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or
(h) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2 of the Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or
(i) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2B of the Terrorism (Emergency Powers) Act (NT), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part).
Definition
(4) In this section:
serious harm has the same meaning as in the Criminal Code.
3ZZTD Commissioner to keep documents connected with issue of monitoring warrants
The Commissioner must cause to be kept in the Australian Federal Police’s records:
(a) each monitoring warrant issued to the Australian Federal Police; and
(b) each instrument revoking a monitoring warrant; and
(c) each order under section 3ZZQA granting an extension of a period.
3ZZTE Commissioner to notify Ombudsman in relation to monitoring warrants
(1) Within 6 months after a monitoring warrant is issued in response to an application by the Australian Federal Police, the Commissioner must:
(a) notify the Ombudsman that the warrant has been issued; and
(b) give to the Ombudsman a copy of the warrant.
(2) As soon as practicable after a member or special member of the Australian Federal Police has contravened a provision of this Part or of a monitoring warrant, the Commissioner must notify the Ombudsman of the contravention.
(3) A failure to comply with subsection (1) or (2) does not affect the validity of a monitoring warrant.
Division 11—Inspections by Ombudsman
3ZZUA Appointment of inspecting officers
(1) The Ombudsman may appoint members of the Ombudsman’s staff to be inspecting officers for the purposes of this Division.
(2) An appointment under subsection (1) must be in writing.
3ZZUB Inspection of records by the Ombudsman
(1) The Ombudsman may inspect the records of the Australian Federal Police to determine the extent of compliance by the Australian Federal Police and members and special members of the Australian Federal Police with the provisions of:
(a) this Part; or
(b) monitoring warrants.
(2) For the purpose of an inspection under this section, the Ombudsman:
(a) may, after notifying the Commissioner, enter at any reasonable time premises occupied by the Australian Federal Police; and
(b) is entitled to have full and free access at all reasonable times to all records of the Australian Federal Police that are relevant to the inspection; and
(c) may require a staff member of the Australian Federal Police to give the Ombudsman any information that the Ombudsman considers necessary, being information that is in the staff member’s possession, or to which the staff member has access, and that is relevant to the inspection.
(3) The Commissioner must ensure that staff members of the Australian Federal Police give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.
3ZZUC Power to obtain relevant information
(1) If the Ombudsman has reasonable grounds to believe that a staff member of the Australian Federal Police is able to give information relevant to an inspection under this Division, subsections (2) and (3) have effect.
(2) The Ombudsman may, by writing given to the staff member, require the staff member to give the information to the Ombudsman:
(a) by writing signed by the staff member; and
(b) at a specified place and within a specified period.
(3) The Ombudsman may, by writing given to the staff member, require the staff member to attend:
(a) before a specified inspecting officer; and
(b) at a specified place; and
(c) within a specified period or at a specified time on a specified day;
to answer questions relevant to the inspection.
(4) If the Ombudsman:
(a) has reasonable grounds to believe that a staff member of the Australian Federal Police is able to give information relevant to an inspection under this Division; and
(b) does not know the staff member’s identity;
the Ombudsman may, by writing given to the Commissioner, require the Commissioner, or a person nominated by the Commissioner, to attend:
(c) before a specified inspecting officer; and
(d) at a specified place; and
(e) within a specified period or at a specified time on a specified day;
to answer questions relevant to the inspection.
(5) The place, and the period or the time and day, specified in a requirement under this section, must be reasonable having regard to the circumstances in which the requirement is made.
3ZZUD Offence
A person commits an offence if:
(a) the person is required under section 3ZZUC to attend before another person, to give information or to answer questions; and
(b) the person refuses or fails to do so.
Penalty: Imprisonment for 6 months.
3ZZUE Ombudsman to be given information etc. despite other laws
(1) Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be:
(a) would contravene a law; or
(b) would be contrary to the public interest; or
(c) might tend to incriminate the person or make the person liable to a penalty; or
(d) would disclose one of the following:
(i) a legal advice given to a Minister or a Department, or a prescribed authority (within the meaning of the Ombudsman Act 1976);
(ii) a communication between an officer of a Department or of a prescribed authority (within the meaning of the Ombudsman Act 1976) and another person or body, being a communication protected against disclosure by legal professional privilege.
(2) However, if the person is a natural person:
(a) the information, the answer, or the fact that the person has given access to the document, as the case may be; and
(b) any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;
are not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against Part 7.4 or 7.7 of the Criminal Code.
(3) Nothing in any other law prevents a staff member of the Australian Federal Police from:
(a) giving information to the Ombudsman or an inspecting officer (whether orally or in writing and whether or not in answer to a question); or
(b) giving access to a record of the Australian Federal Police to the Ombudsman or an inspecting officer;
for the purposes of an inspection under this Division.
(4) Nothing in any other law prevents a staff member of the Australian Federal Police from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (3).
(5) The fact that a person is not excused under subsection (1) from giving information, answering a question or producing a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, answer or document.
3ZZUF Exchange of information between Ombudsman and State or Territory inspecting authorities
(1) The Ombudsman may give information that:
(a) relates to a State or Territory agency; and
(b) was obtained by the Ombudsman under this Division;
to the State or Territory inspecting authority in relation to the agency.
(2) The Ombudsman may only give information to an authority under subsection (1) if the Ombudsman is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to the State or Territory agency.
(3) The Ombudsman may receive from a State or Territory inspecting authority information relevant to the performance of the Ombudsman’s functions under this Division.
(4) In this Part:
State or Territory agency means the police force or police service of a State or Territory.
State or Territory inspecting authority, in relation to a State or Territory agency, means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 3ZZUB.
3ZZUG Ombudsman not to be sued
(1) The Ombudsman, an inspecting officer, or a person acting under an inspecting officer’s direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Division.
(2) A reference in this section to the Ombudsman includes a reference to a Deputy Ombudsman or a delegate of the Ombudsman.
3ZZUH Annual report
(1) The Ombudsman must, as soon as practicable after the end of each financial year, prepare and give to the Minister a report on the results of any inspections under section 3ZZUB in the year.
Note: The report is included in a report under section 104.29 of the Criminal Code.
(2) The report must include the number of contraventions by the Australian Federal Police and members and special members of the Australian Federal Police of the provisions of:
(a) this Part; or
(b) monitoring warrants;
identified by the Ombudsman in the year.
(3) The Ombudsman must give a copy of a report under this section to the Commissioner.
(4) A report under this section must not include information which, if made public, could reasonably be expected to:
(a) endanger a person’s safety; or
(b) prejudice an investigation, or prosecution, of an offence; or
(c) compromise the operational activities or methodologies of:
(i) the Australian Federal Police; or
(ii) any other Commonwealth, State, Territory or foreign law enforcement, intelligence or security agency.
Part IA—General
4AAA Commonwealth laws conferring non‑judicial functions and powers on officers
Application
(1) This section sets out the rules that apply if, under a law of the Commonwealth relating to criminal matters, a function or power that is neither judicial nor incidental to a judicial function or power, is conferred on one or more of the following persons:
(aa) a Judge of the Federal Court of Australia;
(ab) a Judge of the Federal Circuit Court of Australia;
(a) a State or Territory judge;
(b) a magistrate;
(c) a Justice of the Peace or other person:
(i) employed in a State or Territory court; and
(ii) authorised to issue search warrants, or warrants of arrest.
Note 1: Magistrate is defined in section 16C of the Acts Interpretation Act 1901.
Note 2: Justice of the Peace is defined in section 2B of the Acts Interpretation Act 1901.
Functions and powers conferred personally
(2) The function or power is conferred on the person only in a personal capacity and not, in the case of a Judge of the Federal Court of Australia, Judge of the Federal Circuit Court of Australia, State or Territory judge or magistrate, as a court or a member of a court.
Function or power need not be accepted
(3) The person need not accept the function or power conferred.
Protection and immunity provided
(3A) A Judge of the Federal Court of Australia or a Judge of the Federal Circuit Court of Australia performing a conferred function, or exercising a conferred power, has the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
(4) A State or Territory judge or magistrate performing a conferred function, or exercising a conferred power, has the same protection and immunity as if he or she were performing that function, or exercising that power, as, or as a member of, a court (being the court of which the judge or magistrate is a member).
(5) A person referred to in paragraph (1)(c) performing a conferred function, or exercising a conferred power, has the same protection and immunity as he or she would have in performing functions and powers as part of the person’s employment with a State or Territory court, as the case may be.
This section applies regardless of when Commonwealth law made
(6) This section applies whether the law conferring a function or power was made before, on or after, the commencement of this section.
Contrary intention
(6A) Despite subsection (1), a rule set out in this section does not apply if the contrary intention appears.
A law of the Commonwealth relating to criminal matters
(7) In this section, a reference to a law of the Commonwealth relating to criminal matters includes a reference to this Act.
4AAB Arrangements for conferral of non‑judicial functions and powers
Governor‑General may make arrangements
(1) The Governor‑General may make arrangements with:
(a) the Governor of a State (excluding the Northern Territory); and
(b) the Chief Minister for the Australian Capital Territory; and
(c) the Administrator of the Northern Territory;
for the performance of functions, and the exercise of powers, that are neither judicial nor incidental to a judicial function or power, conferred by a law of the Commonwealth relating to criminal matters on:
(e) a State or Territory judge; or
(f) a magistrate; or
(g) a Justice of the Peace or other person:
(i) employed in a State or Territory court; and
(ii) authorised to issue search warrants, or warrants of arrest.
Note 1: Magistrate is defined in section 16C of the Acts Interpretation Act 1901.
Note 2: Justice of the Peace is defined in section 2B of the Acts Interpretation Act 1901.
Lack of arrangement does not affect validity of exercise of power or performance of function
(2) The validity of the performance of a function, or the exercise of a power, is not affected by the absence of an arrangement under this section covering the performance of the function or exercise of the power.
This section applies regardless of when Commonwealth law made
(3) This section applies to functions or powers conferred by laws made before, on or after the commencement of this section.
A law of the Commonwealth relating to criminal matters
(4) In this section, a reference to a law of the Commonwealth relating to criminal matters includes a reference to this Act.
4A Meaning of certain words
In a law of the Commonwealth, unless the contrary intention appears:
committed for trial, in relation to a person, means committed to prison with a view to the person being tried before a judge and jury, or admitted to bail upon a recognizance to appear and be so tried.
indictment includes an information and a presentment.
4AA Penalty units
(1) In a law of the Commonwealth or a Territory Ordinance, unless the contrary intention appears:
penalty unit means the amount of $210 (subject to indexation under subsection (3)).
(1A) If the amount of a penalty unit is indexed under subsection (3), the Minister must, by notifiable instrument, publish the amount of a penalty unit. However, a failure by the Minister to do so does not invalidate the indexation.
(2) In this section:
Territory Ordinance means an ordinance that:
(a) was made under an Act providing for the acceptance, administration or government of a Territory; and
(b) has not become an enactment of the Australian Capital Territory;
and includes a regulation made under such an ordinance.
Indexation of penalty unit
(3) On 1 July 2020 and each third 1 July following that day (an indexation day), the dollar amount mentioned in subsection (1) is replaced by the amount worked out using the following formula:
(4) The indexation factor for an indexation day is the number worked out using the following formula:
where:
base quarter means the March quarter 3 years before the reference quarter.
index number, for a quarter, means the All Groups Consumer Price Index number (being the weighted average of the 8 capital cities) published by the Australian Statistician for that quarter.
March quarter means a quarter ending on 31 March.
reference quarter means the March quarter immediately before the indexation day.
(5) An indexation factor is to be calculated to 3 decimal places (rounding up if the fourth decimal place is 5 or more).
(6) Amounts worked out under subsection (3) are to be rounded to the nearest whole dollar (rounding 50 cents upwards).
(7) Calculations under subsection (4):
(a) are to be made using only the index numbers published in terms of the most recently published index reference period; and
(b) are to be made disregarding index numbers that are published in substitution for previously published index numbers (except where the substituted numbers are published to take account of changes in the index reference period).
Application of indexed penalty unit
(8) If the dollar amount mentioned in subsection (1) is increased in accordance with subsection (3), the increased amount only applies to offences committed on or after the indexation day.
4AB Conversion of pecuniary penalties expressed in dollar amounts to penalty units
(1) A reference in a law of the Commonwealth or in a Territory Ordinance to a pecuniary penalty of D dollars, where D is a number, is taken to be a reference to a pecuniary penalty of P penalty units, where P is:
(a) if D 100 is a whole number—that whole number; or
(b) if D 100 is not a whole number—the next highest whole number.
(2) Subsection (1) does not apply to a reference to the maximum amount of a penalty that is not imposed by a court, or by a service tribunal under the Defence Force Discipline Act 1982.
(3) Subsection (1) does not apply to:
(a) section 76 of the Competition and Consumer Act 2010; or
(c) a provision of a law of the Commonwealth prescribed for the purposes of this subsection.
(4) In this section:
penalty includes a fine.
Territory Ordinance has the same meaning as in section 4AA.
4B Pecuniary penalties—natural persons and bodies corporate
(1) A provision of a law of the Commonwealth relating to indictable offences or summary offences shall, unless the contrary intention appears, be deemed to refer to bodies corporate as well as to natural persons.
(2) Where a natural person is convicted of an offence against a law of the Commonwealth punishable by imprisonment only, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding the number of penalty units calculated using the formula:
where:
Term of Imprisonment is the maximum term of imprisonment, expressed in months, by which the offence is punishable.
(2A) Where a natural person is convicted of an offence against a law of the Commonwealth in respect of which a court may impose a penalty of imprisonment for life, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding 2,000 penalty units.
(3) Where a body corporate is convicted of an offence against a law of the Commonwealth, the court may, if the contrary intention does not appear and the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times the amount of the maximum pecuniary penalty that could be imposed by the court on a natural person convicted of the same offence.
(3A) Where an Act (whether enacted before or after the commencement of this subsection) confers power to make an instrument (including rules, regulations or by‑laws but not including a law of a Territory) and specifies the maximum pecuniary penalty that can be imposed for offences created by such an instrument, then:
(a) unless the contrary intention appears, the specified penalty is taken to be the maximum penalty that the instrument can prescribe for such offences by natural persons; and
(b) where a body corporate is convicted of such an offence—the specifying of that penalty is not to be treated as an indication of a contrary intention for the purposes of applying subsection (3).
(4) Where under a law of the Commonwealth any forfeiture, penalty or reparation is paid to a person aggrieved, it is payable to a body corporate where the body corporate is the person aggrieved.
4C Offences under 2 or more laws
(1) Where an act or omission constitutes an offence:
(a) under 2 or more laws of the Commonwealth; or
(b) both under a law of the Commonwealth and at common law;
the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those laws of the Commonwealth or at common law, but shall not be liable to be punished twice for the same act or omission.
(2) Where an act or omission constitutes an offence under both:
(a) a law of the Commonwealth and a law of a State; or
(b) a law of the Commonwealth and a law of a Territory;
and the offender has been punished for that offence under the law of the State or the law of the Territory, as the case may be, the offender shall not be liable to be punished for the offence under the law of the Commonwealth.
(3) Where an act or omission constitutes an offence against a law of a Territory, the validity of that law is not affected merely because the act or omission also constitutes an offence against a law of the Commonwealth.
4D Penalties
(1) Except so far as the contrary intention appears, a penalty, whether pecuniary or otherwise, set out at the foot of any provision of an Act as described in a paragraph of subsection (1A) indicates:
(a) if the provision expressly creates an offence—that the offence is punishable on conviction by a penalty not exceeding the penalty so set out; or
(b) in any other case—that contravention of the provision is an offence against the provision, punishable on conviction by a penalty not exceeding the penalty so set out.
(1A) Subsection (1) applies to a penalty set out:
(a) at the foot of a section of an Act; or
(b) at the foot of a subsection of an Act, but not at the foot of the section containing the subsection; or
(c) at the foot of a clause of any Schedule to an Act; or
(d) at the foot of a subclause of any Schedule to an Act, but not at the foot of the clause containing the subclause.
(1B) Subsection (1) does not affect the operation of subsection 4B(2), (2A) or (3).
(2) Subsection (1) applies to any instrument made under an Act (including rules, regulations or by‑laws but not including a law of a Territory) as if the instrument were an Act and as if each such rule, regulation or by‑law were a section of an Act.
4E Pecuniary penalties
A pecuniary penalty for an offence against a law of the Commonwealth may, unless the contrary intention appears, be recovered in any court of summary jurisdiction.
4F Effect of alterations in penalties
(1) Where a provision of a law of the Commonwealth increases the penalty or maximum penalty for an offence, the penalty or maximum penalty as increased applies only to offences committed after the commencement of that provision.
(2) Where a provision of a law of the Commonwealth reduces the penalty or maximum penalty for an offence, the penalty or maximum penalty as reduced extends to offences committed before the commencement of that provision, but the reduction does not affect any penalty imposed before that commencement.
4G Indictable offences
Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.
4H Summary offences
Offences against a law of the Commonwealth, being offences which:
(a) are punishable by imprisonment for a period not exceeding 12 months; or
(b) are not punishable by imprisonment;
are summary offences, unless the contrary intention appears.
4J Certain indictable offences may be dealt with summarily
(1) Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction.
(2) Subsection (1) does not apply in relation to an indictable offence where, under a law of the Commonwealth other than this Act, that offence may be heard and determined by a court of summary jurisdiction.
(3) Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (1), the court may impose:
(a) where the offence is punishable by imprisonment for a period not exceeding 5 years—a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both; or
(b) where the offence is punishable by imprisonment for a period exceeding 5 years but not exceeding 10 years—a sentence of imprisonment for a period not exceeding 2 years or a fine not exceeding 120 penalty units, or both.
(4) A court of summary jurisdiction may, if it thinks fit, upon the request of the prosecutor, hear and determine any proceeding in respect of an indictable offence against a law of the Commonwealth if the offence relates to property whose value does not exceed $5,000.
(5) Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (4), the court may impose a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both.
(6) A court of summary jurisdiction shall not impose under subsection (3) or (5):
(a) a sentence of imprisonment for a period exceeding the maximum period that could have been imposed had the offence been tried on indictment;
(b) a fine exceeding the maximum fine that could have been imposed had the offence been so tried; or
(c) both a sentence of imprisonment and a fine if the offence is punishable on trial on indictment by a sentence of imprisonment or a fine, but not both.
(7) This section does not apply to an offence against:
(a) section 24AA or 24AB or subsection 79(2) or (5) of this Act; or
(b) Division 80 or section 91.1 of the Criminal Code.
4JA Some indictable offences punishable by fine only may be dealt with summarily
(1) A court of summary jurisdiction may hear and determine an indictable offence if:
(a) the offence is not punishable by imprisonment; and
(b) the pecuniary penalty for the offence is not more than 600 penalty units for an individual or 3,000 penalty units for a body corporate; and
(c) the defendant and prosecution consent.
(2) If the defendant is convicted, the court may impose a pecuniary penalty of:
(a) not more than 60 penalty units for an individual or 300 penalty units for a body corporate if the offence would be punishable on indictment by a pecuniary penalty of not more than 300 penalty units for an individual or 1,500 penalty units for a body corporate; or
(b) not more than 120 penalty units for an individual or 600 penalty units for a body corporate if the offence would be punishable on indictment by a pecuniary penalty of not more than 600 penalty units for an individual or 3,000 penalty units for a body corporate.
However, the court may not impose a pecuniary penalty greater than the penalty that could have been imposed if the offence had been prosecuted on indictment.
(3) This section has effect subject to any contrary intention indicated by the law creating the offence.
(4) Without limiting subsection (3), this section does not apply to an indictable offence:
(a) created by a law that provides that the offence may be heard and determined by a court of summary jurisdiction; or
(b) described in subsection 4J(4) (about offences relating to property valued at $5,000 or less).
4K Continuing and multiple offences
(1) Where, under a law of the Commonwealth, an act or thing is required to be done within a particular period or before a particular time, then, unless the contrary intention appears, the obligation to do that act or thing continues, notwithstanding that the period has expired or the time has passed, until the act or thing is done.
(2) Where a refusal or failure to comply with a requirement referred to in subsection (1) is an offence against a law of the Commonwealth, a person commits an offence in respect of each day during which the person refuses or fails to comply with that requirement, including the day of a conviction for any such offence or any later day.
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