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 and sexual activity involving 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.
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.
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.
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.
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 January, 30 April, 31 July or 31 October.
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, Northern Territory and Norfolk Island
(1) The Governor‑General may make arrangements with the Governor of a State, the Government of the Australian Capital Territory, the Administrator of the Northern Territory or the Administrator of Norfolk Island 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 section 20AB:
(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, the Northern Territory or Norfolk Island; 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; and
(iv) if an arrangement is in force under subsection (1) of this section in relation to Norfolk Island—includes a reference to Norfolk Island.
(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, the Administrator of the Northern Territory or the Administrator of Norfolk Island 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 admissable, 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 is guilty of 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 or 105 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 constituted by the New South Wales Crime Commission Act 1985 of New South Wales; or
(c) the Independent Commission Against Corruption constituted by the Independent Commission Against Corruption Act 1988 of New South Wales; or
(d) the Police Integrity Commission constituted by the Police Integrity Commission Act 1996 of New South Wales; or
(e) the Independent Broad‑based Anti‑corruption Commission established by the Independent Broad‑based Anti‑corruption Commission Act 2011 of Victoria; or
(f) the Crime and Misconduct Commission of Queensland; or
(g) the Corruption and Crime Commission established by the Corruption and Crime Commission Act 2003 of Western 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.
conditions for issue: see section 3ZZBA.
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 Police Integrity Commission constituted by the Police Integrity Commission Act 1996 (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 The conditions for issue of a delayed notification search warrant
A person is satisfied that the conditions for issue of a delayed notification search warrant are met in respect of particular premises if the person:
(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 the 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.
3ZZBB Authorisation to apply for a delayed notification search warrant
(1) The chief officer of an eligible agency may, in writing, authorise an eligible officer of the agency to apply for a delayed notification search warrant in respect of particular premises if the chief officer is satisfied that the conditions for issue are met.
(2) The chief officer of an eligible agency may orally (in person or by telephone or other means of voice communication) authorise an eligible officer of the agency to apply for a delayed notification search warrant in respect of particular premises if the chief officer is satisfied that:
(a) the conditions for issue are met; 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 the conditions for issue are met (see section 3ZZBA); 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 the conditions for issue are met;
the eligible issuing officer may issue a delayed notification search warrant in respect of the 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 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;
(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;
(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 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 the conditions for issue are met; 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 or 105 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 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 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; and
(d) the Administrator of Norfolk Island;
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 $170.
(1A) The Attorney‑General must cause a review of the amount of a penalty unit to be conducted as soon as possible after each third anniversary of the day an alteration of the amount of a penalty unit last came into force.
(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 other than the Territory of Norfolk Island; and
(b) has not become an enactment of the Australian Capital Territory;
and includes a regulation made under such an ordinance.
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 is guilty of 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.
(3) Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.
(4) If a person is convicted of 2 or more offences referred to in subsection (3), the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence.
4L Specified defences not to preclude other defences
Where a provision of a law of the Commonwealth provides a defence to a particular offence, the provision does not, unless the contrary intention appears, prevent the use of any defence that is otherwise available.
4M Children under 10
A child under 10 years old cannot be liable for an offence against a law of the Commonwealth.
4N Children over 10 but under 14
(1) A child aged 10 years or more but under 14 years old can only be liable for an offence against a law of the Commonwealth if the child knows that his or her conduct is wrong.
(2) The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.
6 Accessory after the fact
Any person who receives or assists another person, who is, to his or her knowledge, guilty of any offence against a law of the Commonwealth, in order to enable him or her to escape punishment or to dispose of the proceeds of the offence shall be guilty of an offence.
Penalty: Imprisonment for 2 years.
9 Seizure and condemnation of forfeitable goods
(1) Any constable may, without warrant, seize any articles which are forfeited or which he or she has reasonable ground to believe are forfeited under any law of the Commonwealth, and take them before a court of summary jurisdiction.
(2) Where articles are taken before a court of summary jurisdiction under subsection (1), the court shall inquire into the matter and:
(a) if the court is satisfied that the articles are forfeited—shall order that the articles be condemned; or
(b) if the court is not so satisfied—shall order that the articles be delivered to such person as the court is satisfied is entitled to the articles.
(2A) A court of summary jurisdiction may, before inquiring into a matter under subsection (2), require notice of the inquiry to be given to such persons as the court thinks fit.
(3) Where any prosecution is pending, an order for the condemnation or the delivery to any persons of any articles relating thereto shall not be made until the prosecution is determined.
(4) All articles that are condemned as forfeited must be transferred to the Official Trustee to be dealt with under section 9A.
9A Forfeited articles to be dealt with by Official Trustee
Where articles are transferred to the Official Trustee under subsection 9(4), the Official Trustee must, subject to any direction by the Attorney‑General given in a particular case:
(a) sell or otherwise dispose of the articles; and
(b) apply the proceeds of the sale or disposition in payment of the Official Trustee’s remuneration and other costs, charges and expenses of the kind referred to in section 9B payable to or incurred by it in connection with the sale or disposition; and
(c) credit the remainder of those proceeds to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act 2002.
9B Costs etc. payable to Official Trustee
(1) The regulations may make provision in relation to:
(a) the costs, charges and expenses incurred in connection with; and
(b) the Official Trustee’s remuneration in respect of;
the performance or exercise by the Official Trustee of functions, duties or powers under section 9A.
(2) An amount equal to each amount of remuneration that the Official Trustee receives under the regulations is to be paid to the Commonwealth.
(3) Where there are no regulations in relation to a matter referred to in subsection (1):
(a) the regulations referred to in section 288 of the Proceeds of Crime Act 2002 apply, so far as they are applicable, and with appropriate changes, in relation to the matter; and
(b) a reference in subsection (1) or (2) to regulations is taken to be a reference to the regulations referred to in section 288 of the Proceeds of Crime Act 2002.
13 Institution of proceedings in respect of offences
Unless the contrary intention appears in the Act or regulation creating the offence, any person may:
(a) institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or
(b) institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction.
15 Remand of defendant
Where a person is charged, before a court of summary jurisdiction, with an offence against the law of the Commonwealth, if, from the absence of witnesses or from any other reasonable cause, it becomes necessary or advisable to defer the hearing of the case, the court before whom the accused person appears or is brought, may:
(a) by warrant from time to time remand the defendant to some gaol, lock‑up, or other place of custody for such period as the court shall deem necessary to be there kept until the time appointed for continuing the hearing; or
(b) order the discharge of the defendant upon his or her entering into a recognizance conditioned for his or her appearance at the time and place appointed for continuing the hearing.
15AA Bail not to be granted in certain cases
(1) Despite any other law of the Commonwealth, a bail authority must not grant bail to a person (the defendant) charged with, or convicted of, an offence covered by subsection (2) unless the bail authority is satisfied that exceptional circumstances exist to justify bail.
(2) This subsection covers:
(a) a terrorism offence (other than an offence against section 102.8 of the Criminal Code); and
(b) an offence against a law of the Commonwealth, if:
(i) a physical element of the offence is that the defendant engaged in conduct that caused the death of a person; and
(ii) the fault element for that physical element is that the defendant intentionally engaged in that conduct (whether or not the defendant intended to cause the death, or knew or was reckless as to whether the conduct would result in the death); and
(c) an offence against a provision of Subdivision C of Division 80 or Division 91 of the Criminal Code, or against section 24AA of this Act, if:
(i) the death of a person is alleged to have been caused by conduct that is a physical element of the offence; or
(ii) conduct that is a physical element of the offence carried a substantial risk of causing the death of a person; and
(d) an ancillary offence against a provision of Subdivision C of Division 80 or Division 91 of the Criminal Code, or against section 24AA of this Act, if, had the defendant engaged in conduct that is a physical element of the primary offence to which the ancillary offence relates, there would have been a substantial risk that the conduct would have caused the death of a person.
(3) To avoid doubt, the express reference in paragraph (2)(d) to an ancillary offence does not imply that references in paragraphs (2)(a), (b) or (c) to an offence do not include references to ancillary offences.
(3A) Despite any law of the Commonwealth, the Director of Public Prosecutions or the defendant may appeal against a decision of a bail authority:
(a) to grant bail to a person charged with or convicted of an offence covered by subsection (2) on the basis that the bail authority is satisfied that exceptional circumstances exist; or
(b) to refuse to grant bail to a person charged with or convicted of an offence covered by subsection (2) on the basis that the bail authority is not satisfied that exceptional circumstances exist.
(3B) An appeal under subsection (3A):
(a) may be made to a court that would ordinarily have jurisdiction to hear and determine appeals (however described) from directions, orders or judgments of the bail authority referred to in subsection (3A), whether the jurisdiction is in respect of appeals relating to bail or appeals relating to other matters; and
(b) is to be made in accordance with the rules or procedures (if any) applicable under a law of the Commonwealth, a State or a Territory in relation to the exercise of such jurisdiction.
(3C) If:
(a) a bail authority decides to grant bail to a person charged with or convicted of an offence covered by subsection (2); and
(b) immediately after the decision is made, the Director of Public Prosecutions notifies the bail authority that he or she intends to appeal against the decision under subsection (3A);
the decision to grant bail is stayed with effect from the time of the notification.
(3D) A stay under subsection (3C) ends:
(a) when a decision on the appeal is made; or
(b) when the Director of Public Prosecutions notifies:
(i) the bail authority; or
(ii) if an appeal has already been instituted in a court—the court;
that he or she does not intend to proceed with the appeal; or
(c) 72 hours after the stay comes into effect;
whichever occurs first.
(4) To avoid doubt, except as provided by subsections (1), (3A), (3B), (3C) and (3D), this section does not affect the operation of a law of a State or a Territory.
Note: These provisions indirectly affect laws of the States and Territories because they affect section 68 of the Judiciary Act 1903.
(5) In this section:
ancillary offence has the meaning given in the Criminal Code.
primary offence has the meaning given in the Criminal Code.
15AB Matters to be considered in certain bail applications
(1) In determining whether to grant bail to a person charged with, or convicted of, an offence against a law of the Commonwealth or the Northern Territory, or in determining conditions to which bail granted to such a person should be subject, a bail authority:
(a) must take into consideration the potential impact of granting bail on:
(i) any person against whom the offence is, or was, alleged to have been committed; and
(ii) any witness, or potential witness, in proceedings relating to the alleged offence, or offence; and
(b) must not take into consideration any form of customary law or cultural practice as a reason for:
(i) excusing, justifying, authorising, requiring or lessening the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates; or
(ii) aggravating the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates.
(2) If a person referred to in subparagraph (1)(a)(i) or (ii) is living in, or otherwise located in, a remote community, the bail authority must also take into consideration that fact in considering the potential impact of granting bail on that person.
(3) In paragraph (1)(b):
criminal behaviour includes:
(a) any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and
(b) any fault element relating to such a physical element.
(3A) Paragraph (1)(b) does not apply in relation to an offence against the following:
(a) section 22 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984;
(b) sections 15A, 15C, 17B, 22A, 27A, 74AA, 142A, 142B, 207B, 354A, 355A and 470 of the Environment Protection and Biodiversity Conservation Act 1999;
(c) section 48 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986;
(d) sections 69 and 70 of the Aboriginal Land Rights (Northern Territory) Act 1976;
(e) section 30 of the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987;
(f) sections 33, 34 and 35 of the Northern Territory Aboriginal Sacred Sites Act of the Northern Territory;
(g) paragraph 33(a) of the Heritage Conservation Act of the Northern Territory;
(h) section 4 of the Aboriginal Land Act of the Northern Territory;
(i) sections 111, 112 and 113 of the Heritage Act of the Northern Territory;
(j) any other law prescribed by the regulations that relates to:
(i) entering, remaining on or damaging cultural heritage; or
(ii) damaging or removing a cultural heritage object.
(4) To avoid doubt, except as provided by subsections (1), (2) and (3A), this section does not affect:
(a) any other matters that a bail authority must, must not or may take into consideration in determining whether to grant bail or in determining conditions to which bail should be subject; or
(b) the operation of a law of a State or a Territory.
Note: Subsections (1) and (2) indirectly affect laws of the States and Territories because they affect section 68 of the Judiciary Act 1903.
15A Enforcement of fines etc.
(1) A law of a State or Territory relating to the enforcement or recovery of a fine imposed on an offender applies to a person convicted in the State or Territory of an offence against a law of the Commonwealth. The law applies:
(a) so far as it is not inconsistent with a law of the Commonwealth; and
(b) with the modifications (if any) made by or under this section.
(1AA) If a law of a State or Territory requires or permits a person or authority other than a court to take action to impose a penalty described in subsection (1AB) for failure to pay a fine, the law applies under subsection (1) as if the law did not require or permit the person or authority to take the action but instead:
(a) allowed any person to apply to a court of summary jurisdiction of the State or Territory for an order imposing the penalty; and
(b) allowed the court to make the order; and
(c) provided for the order to have the same effect that the taking of the action by the person or authority has under the law without the modifications made by or under this subsection; and
(d) were subject to any prescribed modifications consequential on the other modifications described in this subsection, or facilitating the operation of the law with those modifications.
(1AB) Subsection (1AA) applies in relation to any of the following penalties:
(e) community service by a person who failed to pay a fine;
(f) detention or imprisonment of a person who failed to pay a fine;
(g) a penalty that is similar to a penalty described in paragraph (e) or (f);
(h) a penalty prescribed by the regulations.
(1AC) Jurisdiction is conferred on a court of summary jurisdiction of a State or Territory to make orders described in subsection (1AA).
(1ACB) To avoid doubt, if a court makes an order imposing a penalty for failure to pay a fine, whether or not the penalty is described in subsection (1AB), a person or authority other than a court may take action to enforce the penalty without making an application under paragraph (1AA)(a), even if the penalty is imposed as an alternative penalty.
(1AD) If a law of a State or Territory requires or permits a court or a court officer to:
(a) refer a matter to a person or organisation; or
(b) notify a person or organisation; or
(c) provide information to a person or organisation;
in relation to the enforcement or recovery of a fine imposed by the court, the law applies under subsection (1) in relation to a federal court in the same way as it applies to a court of the State or Territory.
(1A) Where there is a law of a State or Territory with respect to the enforcement or recovery of fines ordered to be paid by offenders (including a law described in subsection (1AA)) that applies in relation to fines ordered to be paid by offenders convicted by courts of summary jurisdiction:
(a) subsection (1) operates to require that law to apply and be applied to persons who are convicted summarily of federal offences by a federal court in the same manner as that law would apply and be applied if the federal court were a court of summary jurisdiction; and
(b) that subsection does not operate in relation to any law of that State or Territory that applies in relation to fines ordered to be paid by offenders convicted by superior courts.
(1B) If a law of a State or Territory:
(a) is with respect to the enforcement or recovery of fines ordered to be paid by offenders (including a law described in subsection (1AA)); and
(b) applies in relation to fines ordered to be paid by offenders convicted on indictment;
subsection (1) operates to require that law to apply and be applied in the same manner to persons who are convicted on indictment of federal offences by a federal court.
(2) Without limiting the generality of subsection (1), in the application to a person convicted of a federal offence of any State or Territory laws with respect to the enforcement or recovery of fines, a requirement that the amount of a fine be paid to a State or Territory office or officer is to be treated as a requirement that the amount of the fine be paid in accordance with the law of the Commonwealth.
(3) Where a court imposes a sentence or sentences of imprisonment on a person in respect of a failure to pay a fine or fines imposed for a federal offence or offences, the court must direct that the sentence, or all the sentences, commence to be served from the earliest practicable day despite the fact that the person may, on that day, already be serving another sentence of imprisonment for a federal, State or Territory offence.
(4) Despite subsection (3), a court may, where it is of the opinion that, in all the circumstances of the case, it is more appropriate to do so, direct that a period of imprisonment imposed on a person in respect of a failure to pay a fine imposed in respect of a federal offence commence to be served during, or at the end of, a period of imprisonment imposed for a similar failure in respect of another federal offence.
(5) In this section:
federal offence means an offence against the law of the Commonwealth.
modifications includes additions, omissions and substitutions.
15B Time for commencement of prosecutions
(1) Subject to subsection (1B), a prosecution of an individual for an offence against any law of the Commonwealth may be commenced as follows:
(a) if the maximum penalty which may be imposed for the offence in respect of an individual is, or includes, a term of imprisonment of more than 6 months in the case of a first conviction—at any time;
(b) in any other case—at any time within one year after the commission of the offence.
(1A) A prosecution of a body corporate for an offence against any law of the Commonwealth may be commenced as follows:
(a) if the maximum penalty which may be imposed for the offence in respect of a body corporate is, or includes, a fine of more than 150 penalty units in the case of a first conviction—at any time;
(b) in any other case—at any time within one year after the commission of the offence.
(1B) A prosecution of an individual for an offence that is taken to have been committed because of section 11.2 or 11.2A of the Criminal Code, or against another law of the Commonwealth dealing with aiding and abetting, in relation to an offence committed by a body corporate may be commenced as follows:
(a) if the maximum penalty which may be imposed for the principal offence in respect of a body corporate is, or includes, a fine of more than 150 penalty units in the case of a first conviction—at any time;
(b) in any other case—at any time within one year after the commission of the offence by the individual.
(2) Notwithstanding any provision in any law of the Commonwealth passed before the commencement of this Act and providing any shorter time for the commencement of the prosecution, any prosecution for an offence against the law may be commenced at any time within one year after the commission of the offence.
(3) Where by any law of the Commonwealth any longer time than the time provided by this section is provided for the commencement of a prosecution in respect of an offence against that law, a prosecution in respect of the offence may be commenced at any time within that longer time.
15C Form of indictments, information and summonses
(1) At the hearing of any indictment, information or summons, the court may make such amendment in the indictment, information or summons as appears to it to be desirable or to be necessary to enable the real question in dispute to be determined.
(2) If in any such case the court considers that the defendant has been misled by the form in which the indictment, information or summons has been made out, it may adjourn the hearing of the case for such period as it thinks fit and may make such order as to the costs of the adjournment as it thinks proper.
(3) The power of the court under subsection (1) shall not be exercised in cases where the court considers that the required amendments cannot be made without injustice to the defendant.
15E Privilege of Parliament not affected
Nothing in this Act shall derogate from any power or privilege of either House of the Parliament or of the members or committees of either House of Parliament as existing at the commencement of this Act.
15F Civil rights not affected
Nothing in this Act shall affect the right of any person aggrieved by any act or omission which is punishable as an offence against this Act to institute civil proceedings in any court in respect of such act or omission.
Part IAB—Controlled operations
Division 1—Preliminary
15G Objects of Part
The main objects of this Part are:
(a) to provide for the authorisation, conduct and monitoring of controlled operations; and
(b) to exempt from criminal liability, and to indemnify from civil liability:
(i) law enforcement officers who, in the course of a controlled operation authorised under this Part, take an active part in, or are otherwise involved in, the commission of a Commonwealth offence or an offence against a law of a State or Territory or conduct that may result in a civil liability; and
(ii) certain other persons who, in accordance with the instructions of a law enforcement officer and in the course of a controlled operation authorised under this Part, take an active part in, or are otherwise involved in, the commission of a Commonwealth offence or an offence against a law of a State or Territory or conduct that may result in a civil liability.
15GA Relationship to other laws and matters
(1) Subject to subsection (2) and section 15HZ, this Part is not intended to limit a discretion that a court has:
(a) to admit or exclude evidence in any proceedings; or
(b) to stay criminal proceedings in the interests of justice.
(2) In determining whether evidence should be admitted or excluded in any proceedings, the fact that the evidence was obtained as a result of a person engaging in criminal activity is to be disregarded if:
(a) both:
(i) the person was a participant in a controlled operation authorised under this Part acting in the course of the controlled operation; and
(ii) the criminal activity was controlled conduct; or
(b) both:
(i) the person was a participant in an operation authorised under a corresponding State controlled operations law acting in the course of that operation; and
(ii) the criminal activity was conduct constituting an offence for which a person would, but for section 15HH, be criminally responsible.
15GB Concurrent operation of State and Territory laws
It is the intention of the Parliament that this Part is not to apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Part.
15GC Definitions
In this Part:
ACC authorising officer has the meaning given by subsection 15GF(3).
ACLEI authorising officer has the meaning given by subsection 15GF(4).
AFP authorising officer has the meaning given by subsection 15GF(2).
appropriate authorising officer, for a controlled operation authorised under this Part, means the following:
(a) if the authority to conduct the controlled operation was granted by an AFP authorising officer—any AFP authorising officer;
(b) if the authority to conduct the controlled operation was granted by an ACC authorising officer—any ACC authorising officer;
(c) if the authority to conduct the controlled operation was granted by an ACLEI authorising officer—any ACLEI authorising officer.
authorising agency, for a controlled operation authorised under this Part, means the following:
(a) if the authority to conduct the controlled operation was granted by an AFP authorising officer—the Australian Federal Police;
(b) if the authority to conduct the controlled operation was granted by an ACC authorising officer—the ACC;
(c) if the authority to conduct the controlled operation was granted by an ACLEI authorising officer—the Australian Commission for Law Enforcement Integrity.
authorising officer has the meaning given by subsection 15GF(1).
authority means an authority (whether formal or urgent) to conduct a controlled operation granted under section 15GI, and includes any such authority as varied.
chief officer means the following:
(a) in relation to the Australian Federal Police—the Commissioner;
(b) in relation to the police force of a State or Territory—the Commissioner of Police in that police force or the person holding equivalent rank;
(c) in relation to Customs—the Chief Executive Officer of Customs;
(d) in relation to the ACC—the Chief Executive Officer of the ACC;
(e) in relation to the Australian Commission for Law Enforcement Integrity—the Integrity Commissioner.
civilian participant in a controlled operation means a participant in the controlled operation who is not a law enforcement officer.
conduct has the same meaning as in the Criminal Code.
controlled conduct means conduct constituting an offence for which a person would, but for section 15HA, be criminally responsible.
controlled operation has the meaning given by subsection 15GD(1).
corresponding State controlled operations law means:
(a) a law of a State or Territory; or
(b) a provision or provisions of a law of a State or Territory;
prescribed by the regulations for the purposes of this definition.
disciplinary or legal action, in relation to a staff member of a target agency, means any of the following:
(a) action in respect of alleged misconduct of the staff member;
(b) termination of the employment or appointment of the staff member;
(c) a disciplinary proceeding in relation to the staff member, within the meaning of the Law Enforcement Integrity Commissioner Act 2006, or a report of such a proceeding;
(d) the investigation of an offence suspected to have been committed by the staff member;
(e) a legal proceeding in relation to the staff member, or a report of such a proceeding.
Disciplinary or legal action also includes the consideration of whether an action or proceeding covered by this definition should be taken or brought.
exercise a function includes perform a duty.
formal application has the meaning given by paragraph 15GH(2)(a).
formal authority has the meaning given by paragraph 15GJ(1)(a).
formal variation application:
(a) in relation to an application under subsection 15GP(1)—has the meaning given by paragraph 15GP(3)(a); and
(b) in relation to an application under subsection 15GU(1)—has the meaning given by paragraph 15GU(3)(a).
formal variation of authority:
(a) in relation to a variation made by an appropriate authorising officer—has the meaning given by paragraph 15GR(1)(a); and
(b) in relation to a variation made by a nominated Tribunal member—has the meaning given by paragraph 15GW(1)(a).
function includes a power, authority or duty.
integrity testing authority means an authority granted under Part IABA, and includes any such authority as varied.
integrity testing controlled operation authority means an authority granted under section 15GI on the basis that an integrity testing authority is in effect.
Note: See subparagraph 15GI(2)(a)(ii).
law enforcement agency means any of the following:
(a) the Australian Federal Police;
(b) the police force of a State or Territory;
(c) Customs;
(d) the ACC;
(e) the Australian Commission for Law Enforcement Integrity.
law enforcement participant in a controlled operation means a participant in the controlled operation who is a law enforcement officer.
major controlled operation has the meaning given by subsection 15GD(2).
nominated Tribunal member means a person in respect of whom a nomination under subsection 15GG(1) is in force.
participant in a controlled operation means a person who is authorised under this Part to engage in controlled conduct for the purposes of the controlled operation.
person targeted, in relation to a controlled operation, means the person about whom, as a result of the controlled operation:
(a) it is intended to obtain evidence; or
(b) evidence is being, or has been, obtained.
principal law enforcement officer, for a controlled operation authorised under this Part, means the Australian law enforcement officer specified in the authority to conduct the controlled operation as the officer who is responsible for the conduct of the controlled operation.
serious Commonwealth offence has the meaning given by subsections 15GE(1) and (3).
serious State offence that has a federal aspect has the meaning given by subsection 15GE(4).
staff member of a target agency has the same meaning in relation to that agency as in the Law Enforcement Integrity Commissioner Act 2006.
Note: The target agencies are the ACC, the Australian Federal Police and Customs. See subsections 10(1), (2) and (2A) of the Law Enforcement Integrity Commissioner Act 2006.
target agency means any of the following:
(a) the ACC;
(b) the Australian Federal Police;
(c) Customs.
urgent application has the meaning given by paragraph 15GH(2)(b).
urgent authority has the meaning given by paragraph 15GJ(1)(b).
urgent variation application:
(a) in relation to an application under subsection 15GP(1)—has the meaning given by paragraph 15GP(3)(b); and
(b) in relation to an application under subsection 15GU(1)—has the meaning given by paragraph 15GU(3)(b).
urgent variation of authority:
(a) in relation to a variation made by an appropriate authorising officer—has the meaning given by paragraph 15GR(1)(b); and
(b) in relation to a variation made by a nominated Tribunal member—has the meaning given by paragraph 15GW(1)(b).
15GD Meaning of controlled operation and major controlled operation
(1) A controlled operation is an operation that:
(a) involves the participation of law enforcement officers; and
(b) is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence or a serious State offence that has a federal aspect; and
(c) may involve a law enforcement officer or other person in conduct that would, apart from section 15HA, constitute a Commonwealth offence or an offence against a law of a State or Territory.
Note: Section 15GN specifies when a controlled operation begins and ends.
(2) A major controlled operation is a controlled operation that is likely to:
(a) involve the infiltration of an organised criminal group by one or more undercover law enforcement officers for a period of more than 7 days; or
(b) continue for more than 3 months; or
(c) be directed against suspected criminal activity that includes a threat to human life.
Note: Section 15GN specifies when a controlled operation begins and ends.
15GE Meaning of serious Commonwealth offence and serious State offence that has a federal aspect
Meaning of serious Commonwealth offence
(1) For the purposes of this Part, serious Commonwealth offence means a Commonwealth offence that:
(a) involves a matter mentioned in subsection (2); and
(b) is punishable on conviction by imprisonment for a period of 3 years or more.
(2) The matters are as follows:
(a) theft;
(b) fraud;
(c) tax evasion;
(d) currency violations;
(e) controlled substances;
(f) illegal gambling;
(g) obtaining financial benefit by vice engaged in by others;
(h) extortion;
(i) money laundering;
(j) perverting the course of justice;
(k) bribery or corruption of, or by, an officer of the Commonwealth, of a State or of a Territory;
(l) bankruptcy and company violations;
(m) harbouring of criminals;
(n) forgery (including forging of passports);
(o) armament dealings;
(p) illegal importation or exportation of fauna into or out of Australia;
(q) espionage, sabotage or threats to national security;
(r) misuse of a computer or electronic communications;
(s) people smuggling;
(t) slavery;
(u) piracy;
(v) the organisation, financing or perpetration of sexual servitude or a sexual offence against a person who is under 18 outside Australia;
(w) dealings in child pornography or material depicting child abuse;
(x) importation of prohibited imports;
(y) exportation of prohibited exports;
(z) violence;
(za) firearms;
(zb) a matter that is of the same general nature as a matter mentioned in one of the preceding paragraphs;
(zc) a matter that is prescribed by the regulations for the purposes of this paragraph.
(3) Without limiting subsections (1) and (2), an offence against one of the following provisions of the Criminal Code is a serious Commonwealth offence for the purposes of this Part:
(a) Part 5.3 (Terrorism);
(b) Subdivision B of Division 471 (Use of postal or similar service for child pornography material or child abuse material);
(c) Subdivision C of Division 471 (Use of postal or similar service involving sexual activity with person under 16);
(d) Subdivision D of Division 474 (Use of carriage service for child pornography material or child abuse material);
(e) Subdivision F of Division 474 (Use of carriage service involving sexual activity with person under 16).
Meaning of serious State offence that has a federal aspect
(4) For the purposes of this Part, serious State offence that has a federal aspect means a State offence that has a federal aspect and that would be a serious Commonwealth offence if it were a Commonwealth offence.
Note: For when a State offence has a federal aspect, see section 3AA.
15GF Meaning of authorising officer etc.
(1) Any of the following is an authorising officer for a controlled operation:
(a) if the operation is a major controlled operation and the investigation of the offence to which the controlled operation relates is within the functions of the Australian Federal Police—the Commissioner or a Deputy Commissioner;
(b) if the operation is not a major controlled operation, but the investigation of the offence to which the controlled operation relates is within the functions of the Australian Federal Police—any AFP authorising officer;
(c) if the investigation of the offence to which the controlled operation relates is within the functions of the ACC—any ACC authorising officer;
(d) if the controlled operation relates to the investigation of a corruption issue (within the meaning of the Law Enforcement Integrity Commissioner Act 2006)—any ACLEI authorising officer.
(2) The following are AFP authorising officers:
(a) the Commissioner;
(b) a Deputy Commissioner;
(c) 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.
(3) The following are ACC authorising officers:
(a) the Chief Executive Officer of the ACC;
(b) a member of the staff of the ACC who is an SES employee and who is authorised in writing by the Chief Executive Officer of the ACC for the purposes of this paragraph.
(4) The following are ACLEI authorising officers:
(a) the Integrity Commissioner;
(b) the Assistant Integrity Commissioner;
(c) a member of the staff of the ACLEI who is an SES employee and is authorised in writing by the Integrity Commissioner for the purposes of this paragraph.
15GG Minister may nominate AAT members
(1) The Minister may, by writing, nominate a person who holds one of the following appointments to the Administrative Appeals Tribunal to deal with applications under subsection 15GU(1) (which deals with extending authorities for controlled operations beyond 3 months):
(a) Deputy President;
(b) full‑time senior member;
(c) part‑time senior member;
(d) member.
(2) Despite subsection (1), the Minister must not nominate a person who holds an appointment as a part‑time senior member or a 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 have effect if:
(a) the nominated Tribunal member ceases to hold an appointment described in subsection (1); or
(b) the Minister, by writing, withdraws the nomination.
(4) A nominated Tribunal member has, in relation to the performance or exercise of a function or power conferred on a nominated Tribunal member by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
Division 2—Authorisation of controlled operations
Subdivision A—Authorities to conduct controlled operations
15GH Applications for authorities to conduct controlled operations
(1) An Australian law enforcement officer of a law enforcement agency may apply to an authorising officer for an authority to conduct a controlled operation on behalf of the law enforcement agency.
(2) An application for an authority may be made:
(a) by means of a written document signed by the applicant (such an application is a formal application); or
(b) if the applicant has reason to believe that the delay caused by making a formal application may affect the success of the controlled operation—orally in person, or by telephone or any other means of communication (such an application is an urgent application).
(3) Nothing in this Part prevents an application for an authority being made in respect of a controlled operation that has been the subject of a previous application, but in that case the subsequent application must be a formal application.
Note: An urgent authority can be varied, but not so as to extend its duration—see sections 15GO and 15GS.
(4) An application (whether formal or urgent) must:
(a) provide sufficient information to enable the authorising officer to decide whether or not to grant the application; and
(b) state whether or not the proposed controlled operation, or any other controlled operation with respect to the same criminal activity, has been the subject of an earlier application (whether formal or urgent) for an authority or variation of an authority and, if so, whether or not the authority was given or the variation granted; and
(c) state the proposed period of effect of the authority, which must not exceed:
(i) in the case of a formal application—3 months; and
(ii) in the case of an urgent application—7 days.
(5) An authorising officer may require an applicant to provide such additional information concerning the proposed controlled operation as is necessary for the proper consideration of the application.
(6) As soon as practicable after making an urgent application that was not made in writing, the applicant must make a written record of the application and give a copy of it to the authorising officer to whom the application was made.
15GI Determination of applications
(1) An authorising officer may, after considering an application for an authority to conduct a controlled operation, and any additional information provided under subsection 15GH(5):
(a) authorise the controlled operation by granting the authority, either unconditionally or subject to conditions; or
(b) refuse the application.
(2) An authorising officer must not grant an authority to conduct a controlled operation unless the authorising officer is satisfied on reasonable grounds:
(a) that either:
(i) a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or
(ii) an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency (see the notes at the foot of this subsection); and
(b) that the nature and extent of the suspected criminal activity are such as to justify the conduct of a controlled operation; and
(c) that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and
(d) that the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and
(e) that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and
(f) that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and
(g) that any conduct involved in the controlled operation will not:
(i) seriously endanger the health or safety of any person; or
(ii) cause the death of, or serious injury to, any person; or
(iii) involve the commission of a sexual offence against any person; or
(iv) result in significant loss of, or serious damage to, property (other than illicit goods); and
(h) that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer.
Note 1: Subparagraph (a)(ii) applies in relation to offences punishable on conviction by imprisonment for 12 months or more (see section 15JG).
Note 2: The target agencies mentioned in subparagraph (a)(ii) are the ACC, the Australian Federal Police and Customs (see section 15GC).
(3) To avoid doubt, an authorising officer may authorise a particular controlled operation only if he or she is an authorising officer for the controlled operation within the meaning of section 15GF.
(4) An authority granted under this section is not a legislative instrument.
15GJ Manner of granting authority
(1) An authority to conduct a controlled operation may be granted:
(a) in the case of a formal application (other than a formal application referred to in subparagraph (b)(ii))—by means of a written document, signed by the authorising officer (such an authority is a formal authority); or
(b) in the case of:
(i) an urgent application; or
(ii) a formal application, if the authorising officer is satisfied that the delay caused by granting a formal authority may affect the success of the controlled operation;
orally in person, or by telephone or any other means of communication (such an authority is an urgent authority).
(2) Nothing in this Part prevents an authority being granted in respect of a controlled operation that has been the subject of a previous authority, but in that case the subsequent authority must be a formal authority.
Note: An urgent authority can be varied, but not so as to extend its duration—see sections 15GO and 15GS.
15GK Form of authority
(1) A formal authority must:
(a) state the name and rank or position of the person granting the authority; and
(b) identify the principal law enforcement officer for the controlled operation and, if the principal law enforcement officer is not the applicant for the authority, the name of the applicant; and
(c) state that the application was a formal application; and
(d) identify the nature of the criminal activity (including the relevant suspected offences) in respect of which the controlled conduct is to be engaged in; and
(da) in the case of an integrity testing controlled operation authority—identify the integrity testing authority concerned; and
(e) state the identity of the persons authorised to engage in controlled conduct for the purposes of the controlled operation; and
(f) specify:
(i) with respect to the law enforcement participants, the nature of the controlled conduct that those participants may engage in; and
(ii) with respect to the civilian participants, the particular controlled conduct (if any) that each such participant may engage in; and
(g) identify (to the extent known) the person or persons targeted; and
(h) specify the period of effect of the authority, being a period not exceeding 3 months; and
(i) specify any conditions to which the conduct of the controlled operation is subject; and
(j) state the date and time when the authority is granted; and
(k) identify the following details (to the extent to which they are known and are relevant):
(i) the nature and quantity of any illicit goods that will be involved in the controlled operation;
(ii) the foreign countries through which those goods are likely to pass in the course of the controlled operation;
(iii) the place or places at which those goods are likely to be dealt with by Customs;
(iv) if subparagraph (iii) does not apply—the place or places where those goods are likely to enter into Australia;
(v) the time or times when, and the day or days on which, those goods are likely to be dealt with by Customs.
(2) An urgent authority must:
(a) state the name and rank or position of the person who granted the authority; and
(b) identify the principal law enforcement officer for the controlled operation and, if the principal law enforcement officer is not the applicant for the authority, the name of the applicant; and
(c) state whether the application was a formal application or an urgent application; and
(d) identify the nature of the criminal activity (including the relevant suspected offences) in respect of which the controlled conduct is to be engaged in; and
(da) in the case of an integrity testing controlled operation authority—identify the integrity testing authority concerned; and
(e) state the identity of the persons authorised to engage in controlled conduct for the purposes of the controlled operation; and
(f) specify:
(i) with respect to the law enforcement participants, the nature of the controlled conduct that those participants may engage in; and
(ii) with respect to the civilian participants, the particular controlled conduct (if any) that each such participant may engage in; and
(g) identify (to the extent known) the person or persons targeted; and
(h) specify the period of effect of the authority, being a period not exceeding 7 days beginning on the day on which the authority was granted; and
(i) specify any conditions to which the conduct of the operation is subject; and
(j) state the date and time when the authority was granted.
(3) A person is sufficiently identified for the purposes of paragraph (1)(e) or (2)(e) if the person is identified:
(a) by an assumed name under which the person is operating; or
(b) by a code name or code number;
as long as the chief officer of the authorising agency for the controlled operation can match the assumed name, code name or code number to the person’s identity.
(4) An authority must not identify persons for the purposes of paragraph (1)(e) or (2)(e) by identifying a class of persons.
15GL Written record of urgent authority must be issued
If an authorising officer grants an urgent authority, the authorising officer must, within 7 days, issue a written record of the urgent authority that complies with subsection 15GK(2) to the principal law enforcement officer for the controlled operation.
15GM Change of principal law enforcement officer
If an authorising officer in relation to a controlled operation becomes satisfied that the principal law enforcement officer for the controlled operation ceases for any reason to have responsibility for the controlled operation:
(a) the authorising officer may, by instrument in writing, nominate another person as the principal law enforcement officer for the controlled operation; and
(b) with effect from the execution of the instrument or such later time as is specified in the instrument, that other person becomes the principal law enforcement officer for the controlled operation.
15GN Commencement and duration of authorities
(1) An authority to conduct a controlled operation comes into force, and the controlled operation is taken to commence, at the time the authority is granted under section 15GI.
(2) To avoid doubt, an urgent authority is granted when the authorising officer tells the applicant that the urgent authority is granted.
Note: An authority is granted under subsection 15GI(1). Paragraph 15GJ(1)(b) enables an authority to be granted orally in specified circumstances.
(3) An authority (whether formal or urgent) has effect for the period of effect specified in it under paragraph 15GK(1)(h) or (2)(h) unless:
(a) it is cancelled before the end of the period of effect; or
(b) in the case of a formal authority—the period of effect is extended under Subdivision B or C; or
(c) in the case of an integrity testing controlled operation authority—the integrity testing authority concerned (the earlier ITA) stops being in effect under Part IABA (see section 15JJ).
Note: For integrity testing controlled operation authorities, see subparagraph 15GI(2)(a)(ii).
(4) Paragraph (3)(c) does not apply if a further integrity testing authority is granted under Part IABA that continues the effect of the earlier ITA.
Subdivision B—Variation of authorities by appropriate authorising officers
15GO Variation of authority by appropriate authorising officer
(1) An appropriate authorising officer may vary an authority:
(a) at any time on the authorising officer’s own initiative; or
(b) on application under subsection 15GP(1).
(2) A variation may:
(a) extend the period of effect of the authority (subject to subsections (3) and (4)); or
(b) authorise additional persons to engage in controlled conduct for the purposes of the controlled operation and specify:
(i) with respect to additional law enforcement participants—the nature of the controlled conduct that those participants may engage in; and
(ii) with respect to additional civilian participants—the particular controlled conduct (if any) that each such participant may engage in; or
(c) provide that specified persons are no longer authorised to engage in controlled conduct for the purposes of the controlled operation; or
(d) authorise participants in the controlled operation to engage in additional or alternative controlled conduct.
(3) A variation cannot be made that has the effect of extending the period of effect of an urgent authority.
(4) A formal authority must not be varied in such a way that the period of effect of the authority will, after the variation is made, exceed 3 months (including any previous extensions).
(5) An authority must not be varied unless the authorising officer is satisfied on reasonable grounds that the variation will not authorise a significant alteration of the nature of the controlled operation concerned.
(6) A variation is not a legislative instrument.
15GP Application to appropriate authorising officer
(1) The principal law enforcement officer for a controlled operation, or any other Australian law enforcement officer acting on behalf of the principal law enforcement officer, may apply under this section to an appropriate authorising officer for a variation of an authority in respect of a matter mentioned in subsection 15GO(2).
(2) An application cannot be made under subsection (1) for a variation that would extend the period of effect of a formal authority in such a way that the period of effect of the authority will, after the variation is made, exceed 3 months (including any previous extensions).
(3) An application for the variation may be made:
(a) by means of a written document that is signed by the applicant (such an application is a formal variation application); or
(b) if the applicant has reason to believe that the delay caused by making a formal variation application may affect the success of the controlled operation to which the authority relates—orally in person, or by telephone or any other means of communication (such an application is an urgent variation application).
(4) More than one application for a variation under this section may be made in respect of the same authority. However, if an urgent variation of authority was granted as a result of an application under this section, the next application must be a formal variation application.
(5) The application (whether a formal variation application or an urgent variation application) must state whether or not the controlled operation has been the subject of an earlier urgent variation application under this section and, if so:
(a) whether the urgent variation application was the last application under this section for a variation; and
(b) whether or not the variation was granted.
(6) If the variation would extend the period of effect of a formal authority, the application (whether a formal variation application or an urgent variation application) must state the proposed period of the extension, which must not exceed:
(a) in the case of a formal variation application—the period that would result in the period of effect of the authority exceeding 3 months (including any previous extensions); and
(b) in the case of an urgent variation application—the lesser of:
(i) 7 days; and
(ii) a period that would result in the period of effect of the authority exceeding 3 months (including any previous extensions).
(7) The authorising officer to whom the application is made may require the applicant to provide such information concerning the proposed variation as is necessary for the authorising officer’s proper consideration of the application.
(8) As soon as practicable after making an urgent variation application that was not made in writing, the applicant must make a written record of the application and give a copy of it to the authorising officer to whom the application was made.
15GQ Requirements for variation of authority
(1) After considering an application for a variation of an authority, and any additional information provided under subsection 15GP(7), an appropriate authorising officer:
(a) may vary the authority in accordance with the application, either unconditionally or subject to conditions; or
(b) may refuse the application.
(2) An appropriate authorising officer must not vary an authority, whether on application or on the authorising officer’s own initiative, unless the authorising officer is satisfied on reasonable grounds:
(a) that either:
(i) a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or
(ii) an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency (see the notes at the foot of this subsection); and
(b) that the nature and extent of the suspected criminal activity are such as to justify the variation; and
(c) that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and
(d) that the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and
(e) that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and
(f) that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and
(g) that any conduct involved in the controlled operation will not:
(i) seriously endanger the health or safety of any person; or
(ii) cause the death of, or serious injury to, any person; or
(iii) involve the commission of a sexual offence against any person; or
(iv) result in significant loss of, or serious damage to, property (other than illicit goods); and
(h) that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer.
Note 1: Subparagraph (a)(ii) applies in relation to offences punishable on conviction by imprisonment for 12 months or more (see section 15JG).
Note 2: The target agencies mentioned in subparagraph (a)(ii) are the ACC, the Australian Federal Police and Customs (see section 15GC).
15GR Manner of varying authority
(1) An authority may be varied by an appropriate authorising officer (whether on application or on the authorising officer’s own initiative) only:
(a) in the case of a variation on the authorising officer’s own initiative or on a formal variation application (other than a variation referred to in subparagraph (b)(ii))—by means of a written document, signed by the authorising officer (such a variation is a formal variation of authority); or
(b) in the case of a variation on:
(i) an urgent variation application; or
(ii) the authorising officer’s own initiative or a formal variation application, if the authorising officer is satisfied that the delay caused by granting a formal variation of authority may affect the success of the controlled operation;
orally in person, or by telephone or any other means of communication (such a variation is an urgent variation of authority).
(2) The authorising officer must, as soon as practicable, prepare and give a written document that complies with section 15GS to the applicant or, if the variation was on the initiative of the authorising officer, to the principal law enforcement officer for the controlled operation.
15GS Form of variation of authority
(1) A variation of an authority by an appropriate authorising officer (whether formal or urgent) must:
(a) identify the controlled operation to which the authority relates; and
(b) state the name and rank or position of the person varying the authority; and
(c) if the authority was varied on an application made under section 15GP, state:
(i) the name of the applicant; and
(ii) whether the application was a formal variation application or an urgent variation application; and
(d) state the date and time when the variation of authority is or was granted; and
(e) describe the variation having regard to the matters referred to in subsection 15GO(2); and
(f) if the variation extends the period of effect of a formal authority—state the period of the extension.
(2) For the purposes of paragraph (1)(f), the period of the extension must not exceed:
(a) in the case of a formal variation of authority—the period that would result in the period of effect of the authority exceeding 3 months (including any previous extensions); and
(b) in the case of an urgent variation of authority—the lesser of:
(i) 7 days; and
(ii) a period that would result in the period of effect of the authority exceeding 3 months (including any previous extensions).
Subdivision C—Variations of authorities by nominated Tribunal member: extensions beyond 3 months
15GT Variation of formal authority to extend period of effect beyond 3 months
(1) A nominated Tribunal member may vary a formal authority on application under subsection 15GU(1).
(2) Subject to subsection (3), a variation may extend the period of effect of the authority.
(3) For the purposes of subsection (2), the period of the extension must not exceed the lesser of:
(a) 3 months; and
(b) a period that would result in the period of effect of the authority exceeding 24 months (including any previous extensions under this Subdivision or Subdivision B).
(4) A nominated Tribunal member may only vary a formal authority during the period of 2 weeks before the end of the period of effect of the authority.
15GU Application to nominated Tribunal member
(1) The principal law enforcement officer for a controlled operation for which there is a formal authority, or any other Australian law enforcement officer acting on behalf of the principal law enforcement officer, may apply to a nominated Tribunal member for a variation of the authority that would extend its period of effect:
(a) if the period of effect of the authority is 3 months or more (including any previous extensions); or
(b) in such a way that the period of effect of the authority will, after the variation is made, be 3 months or more (including any previous extensions).
(2) An application cannot be made under subsection (1) for a variation that would extend the period of effect of a formal authority in such a way that the period of effect of the authority will, after the variation is made, exceed 24 months (including any previous extensions under this Subdivision or Subdivision B).
(3) An application for the variation may be made:
(a) by means of a written document that is signed by the applicant (such an application is a formal variation application); or
(b) if the applicant has reason to believe that the delay caused by making a formal application for the variation may affect the success of the controlled operation to which the authority relates—orally in person, or by telephone or any other means of communication (such an application is an urgent variation application).
(4) More than one application for a variation under this section may be made in respect of the same authority. However, if an urgent variation of authority was granted as a result of an application under this section, the next application must be a formal variation application.
(5) An application for a variation (whether a formal variation application or an urgent variation application) must state:
(a) whether or not the controlled operation has been the subject of an earlier urgent variation application under this section and, if so:
(i) whether the urgent variation application was the last application under this section for a variation; and
(ii) whether or not the variation was granted; and
(b) the proposed period of the extension, which must be such as to comply with subsection (2) and must not exceed:
(i) in the case of a formal variation application—3 months; and
(ii) in the case of an urgent variation application—7 days.
(6) The nominated Tribunal member may require the applicant to provide such information concerning the proposed variation as is necessary for the nominated Tribunal member’s proper consideration of the application.
(7) As soon as practicable after making an urgent variation application that was not made in writing, the applicant must make a written record of the application and give a copy of it to the nominated Tribunal member to whom the application was made.
15GV Determination of application
(1) After considering an application for a variation of a formal authority, and any additional information provided under subsection 15GU(6), the nominated Tribunal member concerned:
(a) may vary the authority in accordance with the application, either unconditionally or subject to conditions; or
(b) may refuse the application.
(2) The nominated Tribunal member must not grant the variation unless the nominated Tribunal member is satisfied on reasonable grounds:
(a) that either:
(i) a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or
(ii) an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency (see the notes at the foot of this subsection); and
(b) that the nature and extent of the suspected criminal activity are such as to justify the variation; and
(c) that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and
(d) that the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and
(e) that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and
(f) that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and
(g) that any conduct involved in the controlled operation will not:
(i) seriously endanger the health or safety of any person; or
(ii) cause the death of, or serious injury to, any person; or
(iii) involve the commission of a sexual offence against any person; or
(iv) result in significant loss of, or serious damage to, property (other than illicit goods); and
(h) that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer.
Note 1: Subparagraph (a)(ii) applies in relation to offences punishable on conviction by imprisonment for 12 months or more (see section 15JG).
Note 2: The target agencies mentioned in subparagraph (a)(ii) are the ACC, the Australian Federal Police and Customs (see section 15GC).
(3) A variation is not a legislative instrument.
15GW Manner of varying formal authority
(1) A formal authority may be varied by a nominated Tribunal member only:
(a) in the case of a formal variation application (other than a formal variation application referred to in subparagraph (b)(ii))—by means of a written document, signed by the nominated Tribunal member (such a variation is a formal variation of authority); or
(b) in the case of:
(i) an urgent variation application; or
(ii) a formal variation application, if the nominated Tribunal member is satisfied that the delay caused by granting a formal variation of authority may affect the success of the controlled operation;
orally in person, or by telephone or any other means of communication (such a variation is an urgent variation of authority).
(2) The nominated Tribunal member must, as soon as practicable, prepare and give a written document that complies with section 15GX to the applicant.
15GX Form of variation of formal authority
(1) A variation of a formal authority by a nominated Tribunal member (whether formal or urgent) must:
(a) identify the controlled operation to which the authority relates; and
(b) state the name and position of the person varying the authority; and
(c) state the name of the applicant; and
(d) state whether the application for the variation was a formal variation application or an urgent variation application; and
(e) state the date and time when the variation of authority is or was granted; and
(f) state the period of the extension.
(2) The period of the extension:
(a) must not exceed the period that would result in the period of effect of the authority exceeding 24 months (including any previous extensions under this Subdivision or Subdivision B); and
(b) must not exceed:
(i) in the case of a formal variation of authority—3 months; and
(ii) in the case of an urgent variation of authority—7 days.
Subdivision D—Other matters
15GY Cancellation of authorities
(1) An appropriate authorising officer may, by order in writing given to the principal law enforcement officer for a controlled operation, cancel the authority to conduct the controlled operation at any time and for any reason.
(2) Without limiting subsection (1), an appropriate authorising officer may cancel an authority at any time at the request of the principal law enforcement officer for the controlled operation concerned.
(3) Cancellation of an authority takes effect at the time the order is made or at the later time specified in the order.
15GZ Effect of authorities
(1) Subject to subsection (2), an authority:
(a) authorises each law enforcement participant in the controlled operation to which the authority relates who is identified in the authority to engage in the controlled conduct specified in the authority in respect of that participant; and
(b) authorises each civilian participant (if any) in the controlled operation to which the authority relates who is identified in the authority to engage in the particular controlled conduct (if any) specified in the authority in respect of that participant.
(2) A person identified in an authority as being authorised to engage in controlled conduct for the purposes of the controlled operation is authorised to do so for the period of effect of the authority, unless:
(a) the authority specifies a shorter period during which the person is so authorised; or
(b) the authority is varied to provide that the person is no longer so authorised; or
(c) the authority is cancelled before the end of that period.
(3) The authority to engage in controlled conduct given to a participant cannot be delegated to any other person.
15H Defect in authority
An application for an authority or variation of an authority, and any authority or variation of an authority granted on the basis of such an application, is not invalidated by any defect, other than a defect that affects the application, authority or variation in a material particular.
Division 3—Protection from criminal responsibility and related provisions
Subdivision A—Controlled operations under this Part
15HA Protection from criminal responsibility for controlled conduct during controlled operations
(1) This section applies if:
(a) a participant in a controlled operation engages in conduct in the course of, and for the purposes of, the controlled operation; and
(b) engaging in that conduct is a Commonwealth offence or an offence against a law of a State or Territory.
(2) Despite any other law of the Commonwealth, a State or a Territory, the participant is not criminally responsible for the offence, if:
(a) the participant engages in the conduct in accordance with the authority to conduct the controlled operation; and
(b) the participant is identified in the authority as a person authorised to engage in controlled conduct for the purposes of the controlled operation; and
(c) the conduct does not involve the participant intentionally inducing a person to commit a Commonwealth offence or an offence under a law of a State or Territory that the person would not otherwise have intended to commit; and
(d) the conduct does not involve the participant engaging in any conduct that is likely to:
(i) cause the death of, or serious injury to, any person; or
(ii) involve the commission of a sexual offence against any person; and
(e) if the participant is a civilian participant in the operation—he or she acts in accordance with the instructions of a law enforcement officer.
15HB Indemnification of participants against civil liability
The Commonwealth must indemnify a participant in a controlled operation against any civil liability (including reasonable costs) the participant incurs because of conduct the participant engages in if:
(a) the participant engages in the conduct in the course of, and for the purposes of, the controlled operation in accordance with the authority to conduct the controlled operation; and
(b) the participant is identified in the authority as a person authorised to engage in controlled conduct for the purposes of the controlled operation; and
(c) the conduct does not involve the participant intentionally inducing a person to commit a Commonwealth offence or an offence under a law of a State or Territory that the person would not otherwise have intended to commit; and
(d) the conduct does not involve the participant engaging in any conduct that is likely to:
(i) cause the death of, or serious injury to, any person; or
(ii) involve the commission of a sexual offence against any person; and
(e) if the participant is a civilian participant in the operation—he or she acts in accordance with the instructions of a law enforcement officer; and
(f) the requirements (if any) specified in the regulations have been met.
15HC Effect of sections 15HA and 15HB on other laws relating to criminal investigation
Sections 15HA and 15HB do not apply to a person’s conduct that is, or could have been, authorised under Commonwealth law or a law of a State or Territory relating to the following:
(a) arrest or detention of individuals;
(b) searches of individuals;
(c) entry onto, or searches or inspection of, premises;
(d) searches, inspections or seizures of other property;
(e) forensic procedure;
(f) electronic surveillance devices or telecommunications interception;
(g) identification procedures;
(h) the acquisition or use of assumed identities;
(i) any other matter concerning powers of criminal investigation.
15HD Effect of being unaware of variation or cancellation of authority
(1) If an authority to conduct a controlled operation is varied in a way that limits its scope, this Part continues to apply to a participant in the controlled operation as if the authority had not been varied in that way, for so long as the participant:
(a) is unaware of the variation; and
(b) is not reckless about the existence of the variation.
(2) If an authority to conduct a controlled operation is cancelled, this Part continues to apply to a person who was a participant in the controlled operation immediately before the cancellation as if the authority had not been cancelled in that way, for so long as the person:
(a) is unaware of the cancellation; and
(b) is not reckless about the existence of the cancellation.
(3) For the purposes of this section, a person is reckless about the existence of the variation or cancellation of an authority if:
(a) the person is aware of a substantial risk that the variation or cancellation has happened; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk that the authority has not been varied or cancelled.
(4) In this section, a reference to an authority that is cancelled includes, in the case of an integrity testing controlled operation authority, a reference to an authority that has stopped being in effect because the integrity testing authority concerned has stopped being in effect.
Note: See paragraph 15GN(3)(c).
15HE Protection from criminal responsibility for certain ancillary conduct
(1) This section applies if:
(a) a person engages in conduct (the ancillary conduct) that relates to controlled conduct (the related controlled conduct) engaged in by another person; and
(b) engaging in the ancillary conduct is an ancillary offence in relation to the offence constituted by the related controlled conduct.
(2) Despite any other law of the Commonwealth, a State or a Territory, the person who engaged in the ancillary conduct is not criminally responsible for the ancillary offence if, at the time the person engaged in the ancillary conduct, he or she believed the related controlled conduct was being engaged in, or would be engaged in, by a participant in a controlled operation authorised under this Part.
(3) In this section:
ancillary offence, in relation to an offence constituted by related controlled conduct, means a Commonwealth offence or an offence under a law of a State or Territory:
(a) of conspiring to commit the offence constituted by the related controlled conduct; or
(b) of aiding, abetting, counselling or procuring, inciting or being in any way knowingly concerned in, the commission of the offence constituted by the related controlled conduct.
15HF Compensation for property loss or serious damage
(1) If a person suffers loss of or serious damage to property, or personal injury, in the course of, or as a direct result of a controlled operation authorised under this Part, the Commonwealth is liable to pay to the person compensation as agreed between the Commonwealth and the person or, in default of agreement, as determined by action against the Commonwealth in a court of competent jurisdiction.
(2) Subsection (1) does not apply if:
(a) the person suffered the loss, damage or injury in the course of, or as a direct result of, engaging in any criminal activity (other than criminal activity that is controlled conduct); or
(b) the person was a law enforcement participant at the time of suffering the loss, damage or injury.
15HG Notification requirements
(1) If:
(a) any loss of or serious damage to property occurs in the course of, or as a direct result of, a controlled operation (other than property of the law enforcement agency on behalf of which the operation is conducted or a participant in the operation); or
(b) any personal injury occurs in the course of, or as a direct result of, such an operation;
the principal law enforcement officer for the controlled operation must report the loss, damage or injury to the chief officer of the law enforcement agency as soon as practicable.
(2) If loss or serious damage to property is reported to the chief officer under subsection (1), the chief officer must take all reasonable steps to notify the owner of the property of the loss or damage.
(3) If a personal injury is reported to the chief officer under subsection (1), the chief officer must take all reasonable steps to notify the person that the injury occurred in the course of, or as a direct result of, the controlled operation.
(4) The chief officer is not required to give a notification under subsection (2) or (3) until the chief officer is satisfied that the notification would not:
(a) compromise or hinder the controlled operation or any related investigation; or
(b) compromise the identity of a participant in the controlled operation; or
(c) endanger the life or safety of any person; or
(d) prejudice any legal proceeding; or
(e) otherwise be contrary to the public interest.
(5) A chief officer may, by written instrument, delegate any of the chief officer’s powers or functions under this section to:
(a) in relation to the Australian Federal Police—a Deputy Commissioner or a person of equivalent or higher rank; or
(b) in relation to Customs—a Deputy Chief Executive Officer of Customs or a person occupying an equivalent or higher position; or
(c) in relation to the ACC:
(i) an Executive Director or a person occupying an equivalent or higher position; or
(ii) a person occupying a position prescribed by the regulations; or
(d) in relation to ACLEI—the Assistant Integrity Commissioner; or
(e) in relation to the police force of a State or Territory—a Deputy Commissioner or a person of equivalent or higher rank.
Subdivision B—Controlled operations under a corresponding State controlled operations law
15HH Protection from criminal responsibility for conduct under a corresponding State controlled operations law
(1) This section applies to a participant in an operation authorised under a corresponding State controlled operations law if:
(a) the participant engages in conduct in the course of, and for the purposes of, the operation; and
(b) engaging in that conduct is a Commonwealth offence.
(2) Despite any other law of the Commonwealth, the participant is not criminally responsible for the Commonwealth offence, if:
(a) the conduct is authorised by, and is engaged in in accordance with, the authority to conduct the controlled operation; and
(b) the conduct does not involve the participant intentionally inducing a person to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and
(c) the conduct does not involve the participant engaging in any conduct that is likely to:
(i) cause the death of, or serious injury to, any person; or
(ii) involve the commission of a sexual offence against any person; and
(d) if the person is a civilian participant in the operation—he or she acts in accordance with the instructions of a law enforcement officer.
(3) Expressions used in this section have the same meanings as in the corresponding State controlled operations law under which the operation was authorised.
15HI Effect of section 15HH on other laws relating to criminal investigation
Section 15HH does not apply to a person’s conduct that is, or could have been, authorised under a Commonwealth law or a law of a State or Territory relating to the following:
(a) arrest or detention of individuals;
(b) searches of individuals;
(c) entry onto, or searches or inspection of, premises;
(d) searches, inspections or seizures of other property;
(e) forensic procedure;
(f) electronic surveillance devices or telecommunications interception;
(g) identification procedures;
(h) the acquisition or use of assumed identities;
(i) any other matter concerning powers of criminal investigation.
15HJ Protection from criminal responsibility for certain ancillary conduct
(1) This section applies if:
(a) a person engages in conduct (the ancillary conduct) that relates to conduct (the related conduct) that:
(i) was engaged in by another person; and
(ii) constitutes an offence for which a person would, but for section 15HH, be criminally responsible; and
(b) engaging in the ancillary conduct is an ancillary offence (within the meaning of the Criminal Code) in relation to the offence constituted by the related conduct.
(2) Despite any law of the Commonwealth, the person who engaged in the ancillary conduct is not criminally responsible for the ancillary offence if, at the time the person engaged in the ancillary conduct, he or she believed the related conduct was being engaged in, or would be engaged in, by a participant in an operation authorised under a corresponding State controlled operations law.
(3) Expressions used in this section have the same meanings as in the corresponding State controlled operations law under which the person believed the controlled conduct was being engaged in.
Division 4—Compliance and monitoring
15HK Unauthorised disclosure of information
(1) A person commits an offence if:
(a) the person discloses information; and
(b) the information relates to a controlled operation.
Penalty: Imprisonment for 2 years.
Exceptions—general
(2) Subsection (1) does not apply if the disclosure was:
(a) in connection with the administration or execution of this Part; or
(b) for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or
(c) for the purposes of obtaining legal advice in relation to the controlled operation; or
(d) in accordance with any requirement imposed by law; or
(e) in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency.
Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.
Exceptions—integrity testing controlled operation authority
(2A) Subsection (1) does not apply, in the case of a controlled operation authorised by an integrity testing controlled operation authority (granted on the basis that an integrity testing authority is in effect), if the disclosure was:
(a) in any of the circumstances mentioned in paragraphs (2)(a) to (e); or
(b) in connection with the administration or execution of Part IABA, or the Law Enforcement Integrity Commissioner Act 2006, in relation to the integrity testing authority; or
(c) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, the controlled operation; or
(d) in relation to the integrity testing authority:
(i) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, an integrity testing operation authorised by the authority; or
(ii) to an authority of the Commonwealth, a State or a Territory, if the disclosure relates to the misconduct of an employee or officer of the authority.
Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.
Exception—misconduct
(3) Subsection (1) does not apply if:
(a) the person (the discloser) discloses the information to the Ombudsman or the Integrity Commissioner; and
(b) the discloser informs the person to whom the disclosure is made of the discloser’s identity before making the disclosure; and
(c) the information concerns:
(i) a corruption issue within the meaning of the Law Enforcement Integrity Commissioner Act 2006 (see section 7 of that Act) in relation to a controlled operation; or
(ii) misconduct in relation to a controlled operation; and
(d) the discloser considers that the information may assist a person referred to in paragraph (a) to perform the person’s functions or duties; and
(e) the discloser makes the disclosure in good faith.
Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.
15HL Unauthorised disclosure of information—endangering safety, etc.
(1) A person commits an offence if:
(a) the person discloses information; and
(b) the information relates to a controlled operation; and
(c) either:
(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a controlled operation; or
(ii) the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.
Penalty: Imprisonment for 10 years.
Exceptions—general
(2) Subsection (1) does not apply if the disclosure was:
(a) in connection with the administration or execution of this Part; or
(b) for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or
(c) for the purposes of obtaining legal advice in relation to the controlled operation; or
(d) in accordance with any requirement imposed by law; or
(e) in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency.
Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.
Exceptions—integrity testing controlled operation authority
(2A) Subsection (1) does not apply, in the case of a controlled operation authorised by an integrity testing controlled operation authority (granted on the basis that an integrity testing authority is in effect), if the disclosure was:
(a) in any of the circumstances mentioned in paragraphs (2)(a) to (e); or
(b) in connection with the administration or execution of Part IABA, or the Law Enforcement Integrity Commissioner Act 2006, in relation to the integrity testing authority; or
(c) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, the controlled operation; or
(d) in relation to the integrity testing authority:
(i) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, an integrity testing operation authorised by the authority; or
(ii) to an authority of the Commonwealth, a State or a Territory, if the disclosure relates to the misconduct of an employee or officer of the authority.
Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.
Exception—misconduct
(3) Subsection (1) does not apply if:
(a) the person (the discloser) discloses the information to the Ombudsman or the Integrity Commissioner; and
(b) the discloser informs the person to whom the disclosure is made of the discloser’s identity before making the disclosure; and
(c) the information concerns:
(i) a corruption issue within the meaning of the Law Enforcement Integrity Commissioner Act 2006 (see section 7 of that Act) in relation to a controlled operation; or
(ii) misconduct in relation to a controlled operation; and
(d) the discloser considers that the information may assist a person referred to in paragraph (a) to perform the person’s functions or duties; and
(e) the discloser makes the disclosure in good faith.
Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.
(4) An offence against this section is an indictable offence.
15HM Chief officers’ 6 monthly reports to Ombudsman and Minister
(1) As soon as practicable after 30 June and 31 December in each year, the chief officer of each authorising agency must submit a report to the Ombudsman setting out the details required by subsection (2) in relation to controlled operations for which the agency was the authorising agency during the previous 6 months.
(2) The report must include the following details:
(a) the number of formal authorities that were granted or varied by an authorising officer of the agency during the period to which the report relates;
(b) the number of formal applications for the grant of formal authorities that were refused by an authorising officer of the agency during the period to which the report relates, the date of those applications and the date of the refusals;
(c) the number of formal variation applications and urgent variation applications for the variation of formal authorities that were refused by an authorising officer of the agency during the period to which the report relates, the date of those applications and the date of the refusals;
(d) the number of urgent authorities that were granted or varied by an authorising officer of the agency during the period to which the report relates;
(e) the number of formal applications and urgent applications for the granting of urgent authorities that were refused by an authorising officer of the agency during the period to which the report relates, the date of those applications and the date of the refusals;
(f) the number of formal variation applications and urgent variation applications for the variation of urgent authorities that were refused by an authorising officer of the agency during the period to which the report relates, the date of those applications and the date of the refusals;
(g) the number of formal authorities that were varied by a nominated Tribunal member during the period to which the report relates;
(h) the number of formal variation applications and urgent variation applications for the variation of formal authorities that were refused by a nominated Tribunal member during the period to which the report relates, the date of those applications and the date of the refusals;
(i) for each authority that was in force at any time during the period to which the report relates:
(i) the date the controlled operation commenced; and
(ii) if the controlled operation ceased during that period—the date of cessation and the outcomes of the controlled operation; and
(iii) if subparagraph (ii) does not apply—the last day of the period of effect of the authority (including any extensions);
(j) for each authority that was varied by an authorising officer of the agency during the period to which the report relates—the date of the application for the variation and the date of the variation;
(k) for each authority in relation to which an application for variation was refused by an authorising officer of the agency during the period to which the report relates—the date of the application and the date of the refusal;
(l) for each authority that was varied by a nominated Tribunal member during the period to which the report relates—the date of the application for the variation and the date of the variation;
(m) for each authority in relation to which an application for variation was refused by a nominated Tribunal member during the period to which the report relates—the date of the application and the date of the refusal;
(n) the nature of the criminal activities against which the controlled operations were directed;
(o) the identity of each person targeted under controlled operations;
(p) the nature of the controlled conduct engaged in for the purposes of the controlled operations;
(q) if any of the controlled operations involved illicit goods, a statement (to the extent known) of:
(i) the nature and quantity of the illicit goods; and
(ii) the route through which the illicit goods passed in the course of the operations; and
(iii) all foreign countries through which the illicit goods passed in the course of the operation;
(r) details of any loss of or serious damage to property (other than property of the law enforcement agency on behalf of which the operation is conducted or a participant in the operation) occurring in the course of or as a direct result of the controlled operations;
(s) details of any personal injuries occurring in the course of or as a direct result of the operations;
(t) the number of authorities for controlled operations that were cancelled by an authorising officer of the agency or that expired during the period to which the report relates.
(2A) If the controlled operation involved illicit goods that are narcotic goods, the report is to:
(a) identify each law enforcement agency an officer of which had possession of the narcotic goods in the course of the controlled operation; and
(b) identify to the extent known any other person who had possession of the narcotic goods in the course of the controlled operation; and
(c) state whether the narcotic goods have been destroyed; and
(d) if the narcotic goods have not been destroyed—contain the information specified in subsection (2B) relating to the possession of the narcotic goods, or state that it is not known who has possession of them.
(2B) If the controlled operation involved narcotic goods that have not been destroyed, and the identity of the person who has possession of the narcotic goods is known, the report is to:
(a) if the person is a law enforcement officer—identify the law enforcement agency of which the person is an officer; or
(b) otherwise—identify the person.
(2C) If the chief officer of the authorising agency is of the view that disclosing the identity of a person may:
(a) endanger the safety of the person; or
(b) prejudice an investigation or prosecution;
then the person is sufficiently identified for the purposes of paragraphs (2A)(b) and (2B)(b) if the person is identified:
(c) by an assumed name under which the person is operating; or
(d) by a code name or code number;
as long as the chief officer can match the assumed name, code name or code number to the person’s identity.
(3) The Ombudsman may require the chief officer of an authorising agency to give additional information covering any controlled operation to which a report relates.
(4) Nothing in paragraphs (2)(o) to (t) requires particulars of a controlled operation to be included in a report for a period of 6 months if the operation had not been completed during that period, but the particulars must instead be included in the report for the period of 6 months in which the operation is completed.
(5) A copy of a report given to the Ombudsman under this section must be given to the Minister at the same time as it is given to the Ombudsman.
15HN Chief officers’ annual reports to Minister and Ombudsman
(1) As soon as practicable after 30 June in each year, the chief officer of each authorising agency must submit a report to the Minister setting out the details required by subsections 15HM(2), (2A), (2B) and (2C) in relation to controlled operations for which the agency was the authorising agency during the previous 12 months.
(2) Each chief officer must advise the Minister of any information in a report that, in the chief officer’s opinion, should be excluded from the report before the report is laid before the Parliament because:
(a) the information, if made public, could reasonably be expected to:
(i) endanger a person’s safety; or
(ii) prejudice an investigation or prosecution; or
(iii) compromise any law enforcement agency’s operational activities or methodologies; or
(b) making the information public would be contrary to the public interest for any other reason.
(3) The Minister must exclude information from a report if the Minister is satisfied on the advice of the chief officer of any of the grounds set out in subsection (2) and must then 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.
(4) A report must not disclose any information that identifies any person involved in an operation or that is likely to lead to such a person being identified.
(5) Nothing in this section requires particulars of a controlled operation to be included in a report for a year if the operation had not been completed as at 30 June in that year, but the particulars must instead be included in the report for the year in which the operation is completed.
(6) If a report relates, in whole or in part, to the work or activities of the ACC under a corresponding State controlled operations law, the Minister must, as soon as practicable after the report is laid before each House of the Parliament, send a copy of the report to the State or Territory Minister with responsibility for the corresponding State controlled operations law.
(7) A copy of a report given to the Minister under this section must be given to the Ombudsman at the same time as it is given to the Minister.
15HO Annual report by Ombudsman
(1) The Ombudsman must, as soon as practicable after 30 June in each year:
(a) prepare a report of the work and activities under this Part of the Ombudsman for the preceding 12 months and give a copy of the report to the Minister and to the chief officer of the law enforcement agency to which the report relates; and
(b) prepare a report of the work and activities of the Ombudsman for the preceding 12 months, being work or activities under a corresponding State controlled operations law, and give a copy of the report to the Minister and to the chief officer of the ACC.
(2) 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; or
(c) compromise any law enforcement agency’s operational activities or methodologies.
(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.
(4) A report must include, for each authorising agency concerned, comments on the comprehensiveness and adequacy of the reports which were provided to the Ombudsman by the chief officer of the authorising agency under sections 15HM and 15HN.
(5) A report must not disclose any information that identifies any person involved in an operation or that is likely to lead to such a person being identified.
(6) Nothing in this section requires particulars of a controlled operation to be included in a report for a year if the operation had not been completed as at 30 June in that year, but the particulars must instead be included in the report for the year in which the operation is completed.
(7) If a report relates, in whole or in part, to the work or activities of the ACC under a corresponding State controlled operations law, the Minister must, as soon as practicable after the report is laid before each House of the Parliament, send a copy of the report to the State or Territory Minister with responsibility for the corresponding State controlled operations law.
15HP Keeping documents connected with controlled operations
The chief officer of an authorising agency must cause the following to be kept:
(a) each formal application made to an authorising officer of the agency;
(b) each written record of an urgent application made to such an authorising officer;
(c) each formal authority granted by such an authorising officer;
(d) each written record of an urgent authority issued under section 15GL;
(e) each formal variation application made to such an authorising officer or to a nominated Tribunal member;
(f) each written record of an urgent variation application made to such an authorising officer or to a nominated Tribunal member;
(g) each formal variation of authority by such an authorising officer or by a nominated Tribunal member;
(h) each written document given under subsection 15GR(2) in relation to a variation of an authority by such an authorising officer;
(i) each written document given under subsection 15GW(2) in relation to a variation of a formal authority by a nominated Tribunal member;
(j) each order cancelling an authority granted by such an authorising officer.
15HQ General register
(1) The chief officer of each authorising agency must cause a general register to be kept.
(2) The general register is to specify:
(a) for each application under this Part made to an authorising officer of the agency (including an application for a variation of an authority):
(i) the date of the application; and
(ii) whether the application was formal or urgent; and
(iii) whether the application was granted, refused or withdrawn; and
(iv) if the application was refused or withdrawn—the date and time of the refusal or withdrawal; and
(b) for each authority under this Part granted by an authorising officer of the agency:
(i) the date and time the authority was granted; and
(ii) whether the authority was formal or urgent; and
(iii) the name and rank or position of the person who granted the authority; and
(iv) each serious Commonwealth offence or serious State offence that has a federal aspect in respect of which controlled conduct under the authority was to be engaged in; and
(v) the period of effect of the authority; and
(vi) the identity of each person authorised to engage in controlled conduct for the purposes of the controlled operation; and
(vii) with respect to the law enforcement participants, the nature of the controlled conduct that those participants were authorised to engage in; and
(viii) with respect to the civilian participants, the particular controlled conduct (if any) that each such participant was authorised to engage in; and
(viiia) the nature of the controlled conduct that was engaged in by law enforcement participants and civilian participants (if any); and
(ix) if the authority was cancelled, the date and time of cancellation; and
(x) the date and time the controlled operation began, the date on which the operation ceased, and the outcomes of the operation; and
(xi) if the controlled operation involved illicit goods (to the extent known), the nature and quantity of the illicit goods and the route and all foreign countries through which the illicit goods passed in the course of the operation; and
(xii) details of any loss of or serious damage to property (other than property of the law enforcement agency on behalf of which the operation is conducted or a participant in the operation) occurring in the course of or as a direct result of the controlled operation; and
(xiii) details of any personal injuries occurring in the course of or as a direct result of the operation; and
(c) for each variation of an authority under this Part made by an authorising officer of the agency:
(i) the date and time the variation was made; and
(ii) whether the variation was formal or urgent; and
(iii) the name and rank or position of the person who made the variation.
(2A) If the controlled operation involved illicit goods that are narcotic goods, the general register is to:
(a) identify each law enforcement agency an officer of which had possession of the narcotic goods in the course of the controlled operation; and
(b) identify to the extent known any other person who had possession of the narcotic goods in the course of the controlled operation; and
(c) state whether the narcotic goods have been destroyed; and
(d) if the narcotic goods have not been destroyed—contain the information specified in subsection (2B) relating to the possession of the narcotic goods, or state that it is not known who has possession of them.
(2B) If the controlled operation involved narcotic goods that have not been destroyed, and the identity of the person who has possession of the narcotic goods is known, the general register is to:
(a) if the person is a law enforcement officer—identify the law enforcement agency of which the person is an officer; or
(b) otherwise—identify the person.
(2C) If the chief officer of the authorising agency is of the view that disclosing the identity of a person may:
(a) endanger the safety of the person; or
(b) prejudice an investigation or prosecution;
then the person is sufficiently identified for the purposes of paragraphs (2A)(b) and (2B)(b) if the person is identified:
(c) by an assumed name under which the person is operating; or
(d) by a code name or code number;
as long as the chief officer can match the assumed name, code name or code number to the person’s identity.
(3) A register kept under this section is not a legislative instrument.
15HR Appointment of inspecting officers
(1) The Ombudsman may appoint members of the Ombudsman’s staff to be inspecting officers for the purposes of this Part.
(2) An appointment under subsection (1) must be in writing.
15HS Inspection of records by the Ombudsman
(1) The Ombudsman must, from time to time and at least once every 12 months, inspect the records of each authorising agency to determine the extent of compliance with this Part by the agency and by law enforcement officers.
(2) The Ombudsman must also, from time to time and at least once every 12 months, inspect the records of the ACC to determine the extent of compliance with corresponding State controlled operations laws, in relation to any authorities (within the meaning of each such law):
(a) for which a law enforcement officer of the ACC applied; or
(b) that were granted to a law enforcement officer of the ACC;
unless the corresponding State controlled operations law provides for the inspection of records of the ACC to determine the extent of compliance with that law.
(3) For the purpose of an inspection under this section, the Ombudsman:
(a) may, after notifying the chief officer of the 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 member of staff 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; and
(d) may, despite any other law, make copies of, and take extracts from, records of the agency.
(4) The chief officer must ensure that members of staff of the agency give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.
(5) Nothing in this section requires the Ombudsman to inspect records relating to operations that have not been completed at the time of the inspection.
15HT Power to obtain relevant information
(1) If the Ombudsman has reasonable grounds to believe that a law enforcement officer of a particular law enforcement agency (whether or not the agency is an authorising agency) is able to give information relevant to an inspection under this Division of an authorising agency’s records, subsections (2) and (3) have effect.
(2) The Ombudsman may, by writing given to the law enforcement officer, require the officer to give the information to the Ombudsman:
(a) by writing signed by the officer; and
(b) at a specified place and within a specified period.
(3) The Ombudsman may, by writing given to the law enforcement officer, require the officer 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 law enforcement officer of a particular law enforcement agency (whether or not the agency is an authorising agency) is able to give information relevant to an inspection under this Division of an authorising agency’s records; and
(b) does not know the officer’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.
15HU Offence
A person commits an offence if:
(a) the person is required under section 15HT to attend before an inspecting officer, to give information or to answer questions; and
(b) the person refuses or fails to do so.
Penalty: Imprisonment for 6 months.
15HV Ombudsman to be given information and access 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, a Department or a prescribed authority;
(ii) a communication between an officer of a Department or of a prescribed authority 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;
is not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against section 15HK or 15HL of this Act or Part 7.4 or 7.7 of the Criminal Code.
(3) Nothing in section 15HK or 15HL or in any other law prevents an officer of an agency from:
(a) giving information to 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 an inspecting officer;
for the purposes of an inspection under this Division of the agency’s records.
(4) Nothing in section 15HK or 15HL or in any other law prevents an officer of an 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 giving access to a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, answer or document.
(6) In this section:
prescribed authority has the same meaning as in the Ombudsman Act 1976.
15HW Exchange of information between Ombudsman and State inspecting authorities
(1) In this section:
State or Territory agency means a law enforcement agency of a State or Territory within the meaning of a corresponding State controlled operations law.
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 15HS when the State or Territory agency is exercising powers under a corresponding State controlled operations law.
(2) 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.
(3) The Ombudsman may only give information to an authority under subsection (2) 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.
(4) The Ombudsman may receive from a State or Territory inspecting authority information relevant to the performance of the Ombudsman’s functions under this Division.
15HX Delegation by Ombudsman
(1) The Ombudsman may, by written instrument, delegate to an APS employee responsible to the Ombudsman all or any of the Ombudsman’s powers under this Division, other than a power to report to the Minister.
(2) 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.
15HY Ombudsman not to be sued
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.
Division 5—Miscellaneous
15HZ Evidence of authorities
A document purporting to be an authority granted under section 15GI or under a corresponding State controlled operations law:
(a) is admissible in any legal proceedings; and
(b) in the absence of evidence to the contrary, is proof in any proceedings (not being criminal or disciplinary proceedings against a law enforcement officer) that the person granting the authority was satisfied of the facts he or she was required to be satisfied of to grant the authority.
15J Chief Executive Officer of Customs to be notified of certain authorities
(1) This section applies if:
(a) an authority is granted under section 15GI by an AFP authorising officer, an ACC authorising officer or an ACLEI authorising officer; and
(b) the applicant for the authority believes that illicit goods involved in the conduct of the operation may be dealt with by Customs.
(2) The applicant must, as soon as practicable after the authority is granted, notify the Chief Executive Officer of Customs, or a person (the nominated person) nominated by him or her for the purposes of this section, in writing of:
(a) the applicant’s name; and
(b) the date on which the authority was granted; and
(c) to the extent to which it is known:
(i) the place or places at which the illicit goods will pass into the control of Customs; and
(ii) the time or times when, and the day or days on which, the illicit goods are expected to pass into the control of Customs.
(3) A failure to comply with this section does not affect the validity of an authority.
Part IABA—Integrity testing
Division 1—Introduction
15JA Integrity testing—simplified outline
The following is a simplified outline of this Part:
This Part provides for the authorisation of operations (called integrity testing operations) that are designed to test the integrity of staff members of the Australian Crime Commission, the Australian Federal Police and the Australian Customs and Border Protection Service, using controlled or simulated situations.
Operations can be authorised only if there is a reasonable suspicion that a staff member has committed, is committing or is likely to commit an offence punishable on conviction by imprisonment for 12 months or more.
Authorisations for integrity testing operations may form the basis for the authorisation of controlled operations under Part IAB.
Integrity testing operations may be authorised by the agency concerned, or (if a corruption issue is involved) the Australian Commission for Law Enforcement Integrity. Law enforcement officers and others may take part.
Participants in integrity testing operations are indemnified against civil liability in relation to the conduct of the operations in accordance with the authorisations concerned.
Information relating to an integrity testing operation may only be disclosed for the purposes of disciplinary or legal action in relation to the staff member concerned, or a number of related purposes.
15JB Integrity testing—concurrent operation of State and Territory laws
It is the intention of the Parliament that this Part is not to apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Part.
15JC Integrity testing—definitions
In this Part:
appropriate authorising officer, for an integrity testing operation, has the meaning given by the table in subsection 15JE(1).
authorising officer means any of the appropriate authorising officers.
Note: These officers are listed in the table in subsection 15JE(1).
civilian participant, in an integrity testing operation, means a participant in the operation who is not a law enforcement participant (as defined in this section).
corruption issue has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006.
Note: See section 7 of the Law Enforcement Integrity Commissioner Act 2006.
disciplinary or legal action, in relation to a staff member of a target agency, means any of the following:
(a) action in respect of alleged misconduct of the staff member;
(b) termination of the employment or appointment of the staff member;
(c) a disciplinary proceeding in relation to the staff member, within the meaning of the Law Enforcement Integrity Commissioner Act 2006, or a report of such a proceeding;
(d) the investigation of an offence suspected to have been committed by the staff member;
(e) a legal proceeding in relation to the staff member, or a report of such a proceeding.
Disciplinary or legal action also includes the consideration of whether an action or proceeding covered by this definition should be taken or brought.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
integrity testing agency means any of the following:
(a) the ACC;
(b) the Australian Commission for Law Enforcement Integrity;
(c) the Australian Federal Police;
(d) Customs.
integrity testing authority means an authority granted under section 15JG to conduct an integrity testing operation.
integrity testing operation: see section 15JD.
law enforcement participant, in an integrity testing operation, means a participant in the operation who is:
(a) a law enforcement officer; or
(b) an employee or officer of an integrity agency for a State or Territory, within the meaning of the Law Enforcement Integrity Commissioner Act 2006.
Note: Staff members of integrity testing agencies (as defined in this section) are law enforcement officers. Law enforcement officers also include members of State and Territory police forces, and police forces of foreign countries (see section 3).
participant, in an integrity testing operation authorised by an integrity testing authority, means a person who is authorised under this Part to participate in the operation.
responsible staff member, for an integrity testing operation authorised by an integrity testing authority, means the staff member of an integrity testing agency identified in the authority as the staff member responsible for the conduct of the operation.
staff member of an integrity testing agency has the same meaning in relation to that agency as in the Law Enforcement Integrity Commissioner Act 2006.
Note: See subsections 10(1), (2) and (2A), and section 11, of the Law Enforcement Integrity Commissioner Act 2006.
target agency means any of the following:
(a) the ACC;
(b) the Australian Federal Police;
(c) Customs.
15JD Integrity testing—meaning of integrity testing operation
(1) An integrity testing operation is an operation conducted in relation to a target agency using controlled or simulated situations to test the integrity of a staff member of the agency.
(2) An integrity testing operation includes an operation that offers the staff member an opportunity to engage in conduct, whether lawful or unlawful, so as to contravene principles of behaviour required (by law or otherwise) of persons occupying the position of such a staff member.
Note 1: The target agencies are the ACC, the Australian Federal Police and Customs (see section 15JC).
Note 2: References to a staff member include references to more than one staff member (see section 23 of the Acts Interpretation Act 1901).
Division 2—Integrity testing operations: authority
15JE Integrity testing authorities—circumstances in which applications may be made
(1) The following table has effect:
| Integrity testing—circumstances in which applications may be made |
| Item | If a proposed integrity testing operation is concerned with … | a staff member of the following agency may apply for authority for the operation … | from the following officer (an appropriate authorising officer) … |
| 1 | the integrity of a staff member of the ACC | the ACC | (a) the Chief Executive Officer of the ACC; or (b) an SES employee in the ACC. |
| 2 | the integrity of a staff member of the Australian Federal Police | the Australian Federal Police | (a) the Commissioner; or (b) a Deputy Commissioner; or (c) an SES employee in the Australian Federal Police. |
| 3 | the integrity of a staff member of Customs | Customs | (a) the Chief Executive Officer of Customs; or (b) an SES employee in Customs. |
| 4 | a corruption issue in relation to a staff member of a target agency | |