Contents
Part I—Preliminary 1
1............................ Short title............................................................................ 1
3............................ Interpretation....................................................................... 1
3AA...................... State offences that have a federal aspect............................ 11
3A......................... Operation of Act............................................................... 15
3B.......................... Arrangements with States, Australian Capital Territory and Northern Territory 15
3BA....................... Application of the Criminal Code..................................... 16
Part IAA—Search, information gathering, arrest and related powers (other than powers under delayed notification search warrants) 17
Division 1—Preliminary 17
3C.......................... Interpretation..................................................................... 17
3CAA.................... Account‑based data........................................................... 21
3CA....................... Nature of functions of magistrate...................................... 21
3D......................... Application of Part............................................................ 22
Division 2—Search warrants 24
3E.......................... When search warrants can be issued................................. 24
3F.......................... The things that are authorised by a search warrant............ 27
3G......................... Availability of assistance and use of force in executing a warrant 32
3H......................... Details of warrant to be given to occupier etc................... 32
3J........................... Specific powers available to constables executing warrant 33
3JA........................ Extension of time to re‑enter premises in emergency situations 34
3K.......................... Use of equipment to examine or process things................ 34
3L.......................... Use of electronic equipment at premises........................... 39
3LAA.................... Use of electronic equipment at other place........................ 42
3LA....................... Person with knowledge of a computer or a computer system to assist access etc. 43
3LB....................... Accessing data held on certain premises—notification to occupier of that premises 46
3M......................... Compensation for damage to equipment........................... 46
3N......................... Copies of seized things to be provided............................. 47
3P.......................... Occupier entitled to be present during search.................... 48
3Q......................... Receipts for things seized under warrant or moved.......... 48
3R.......................... Warrants by telephone or other electronic means.............. 49
3S.......................... Restrictions on personal searches..................................... 50
3SA....................... Relationship of this Division to parliamentary privileges and immunities 50
Division 3—Stopping and searching conveyances 52
3T.......................... Searches without warrant in emergency situations............ 52
3U......................... How a constable exercises a power under section 3T....... 53
Division 3A—Powers in relation to terrorist acts and terrorism offences 54
Subdivision A—Definitions 54
3UA...................... Definitions........................................................................ 54
Subdivision B—Powers 55
3UB....................... Application of Subdivision............................................... 55
3UC....................... Requirement to provide name etc...................................... 55
3UD...................... Stopping and searching..................................................... 56
3UE....................... Seizure of terrorism related items and serious offence related items 57
3UEA.................... Emergency entry to premises without warrant.................. 57
3UF....................... Seizure notices.................................................................. 59
3UH...................... Relationship of Subdivision to other laws........................ 60
Subdivision C—Prescribed security zones 60
3UI........................ Applications for declarations............................................ 60
3UJ........................ Minister may make declarations........................................ 60
Subdivision CA—Reporting on exercise of powers under this Division 62
3UJA..................... Report after powers are exercised..................................... 62
3UJB..................... Annual report on exercise of powers................................ 63
Subdivision D—Sunset provision 63
3UK....................... Sunset provision............................................................... 63
Division 3B—Identity information requirements, and move‑on powers, at airports 65
3UL....................... Definitions—Division 3B................................................. 65
3UM...................... Meaning of major airport................................................ 66
3UN...................... Meaning of public order and safe operation.................... 66
3UO...................... Determination of airports.................................................. 67
3UP....................... Identity information at airports.......................................... 68
3UQ...................... Move‑on directions at airports.......................................... 68
3UR....................... Move‑on directions at airports—alternative constitutional scope 71
3US....................... Stop and directions powers at airports.............................. 71
3UT....................... Constables’ and protective service officers’ duties at airports 72
3UU...................... Directions at airports—offences....................................... 72
3UV...................... Review of Division........................................................... 74
Division 4—Arrest and related matters 75
3V......................... Requirement to furnish name etc....................................... 75
3W......................... Power of arrest without warrant by constables................. 76
3WA...................... Constables’ power of arrest without warrant for a terrorism offence or offence of advocating terrorism.......................................................................................... 77
3X......................... Arrest of prisoner unlawfully at large............................... 78
3Y......................... Power of arrest without warrant of person on bail............ 78
3Z.......................... Power of arrest without warrant by other persons............ 79
3ZA....................... Warrants for arrest............................................................ 80
3ZB....................... Power to enter premises to arrest offender........................ 80
3ZC....................... Use of force in making arrest............................................ 82
3ZD....................... Persons to be informed of grounds of arrest..................... 82
3ZE........................ Power to conduct a frisk search of an arrested person...... 83
3ZF........................ Power to conduct an ordinary search of an arrested person 83
3ZG....................... Power to conduct search of arrested person’s premises.... 83
3ZH....................... Power to conduct an ordinary search or a strip search...... 84
3ZI......................... Rules for conduct of strip search...................................... 85
3ZJ........................ Taking fingerprints, recordings, samples of handwriting or photographs 87
3ZK....................... Destruction of identification material................................ 90
3ZL........................ Offence of refusing to allow identification material to be taken 91
3ZM...................... Identification parades........................................................ 92
3ZN....................... Identification parades for suspects under 18 etc................ 96
3ZO....................... Identification by means of photographs............................ 97
3ZP........................ Identification procedures where there is more than one suspect 100
3ZQ....................... Descriptions.................................................................... 101
Division 4A—Determining a person’s age 102
Subdivision A—Preliminary 102
3ZQA.................... Definitions...................................................................... 102
Subdivision B—Determination of age during investigation 103
3ZQB.................... Circumstances where investigating official may seek authority to carry out a prescribed procedure 103
3ZQC.................... Obtaining of consents for the carrying out of a prescribed procedure 104
3ZQD.................... Withdrawal of consent.................................................... 106
3ZQE..................... Recording of giving of information about carrying out a prescribed procedure and relevant responses 106
Subdivision C—Determination of age during proceedings 106
3ZQF..................... Circumstances where judge or magistrate may order carrying out of a prescribed procedure on own initiative........................................................................................ 106
Subdivision D—Communication of orders by judges or magistrates 107
3ZQG.................... Orders made by judges or magistrates concerning carrying out of a prescribed procedure 107
Subdivision E—Matters relating to the carrying out of prescribed procedures 108
3ZQH.................... Appropriate medical or other standards to be applied..... 108
3ZQI...................... Reasonable and necessary force...................................... 108
Subdivision F—Disclosure and destruction of age determination information 108
3ZQJ..................... Disclosure of age determination information.................. 108
3ZQK.................... Destruction of age determination information................. 109
Division 4B—Power to obtain information and documents 111
Subdivision A—Definitions 111
3ZQL..................... Definition........................................................................ 111
Subdivision B—Power to request information or documents about terrorist acts from operators of aircraft or ships 111
3ZQM................... Power to request information or documents about terrorist acts from operators of aircraft or ships 111
Subdivision C—Power to obtain documents relating to serious terrorism and non‑terrorism offences 113
3ZQN.................... Power to obtain documents relating to serious terrorism offences 113
3ZQO.................... Power to obtain documents relating to serious offences. 114
3ZQP..................... Matters to which documents must relate......................... 115
3ZQQ.................... Powers conferred on Federal Circuit Court Judges in their personal capacity 116
3ZQR.................... Documents must be produced......................................... 117
3ZQS..................... Offence for failure to comply with notice under section 3ZQN or 3ZQO 117
3ZQT..................... Offence for disclosing existence or nature of notice....... 118
Division 4C—Using, sharing and returning things seized and documents produced 119
Subdivision A—Using and sharing things seized and documents produced 119
3ZQU.................... Purposes for which things and documents may be used and shared 119
3ZQV.................... Operating seized electronic equipment............................ 122
3ZQW................... Compensation for damage to electronic equipment......... 123
Subdivision B—Returning things seized and documents produced 124
3ZQX.................... When things seized or documents produced under Division 2, 4 or 4B must be returned 124
3ZQY.................... When things seized under Division 3 must be returned.. 125
3ZQZA.................. When things seized under Division 3A must be returned 126
3ZQZB.................. Magistrate may permit a thing seized or document produced under this Part to be retained, forfeited etc......................................................................................... 127
Division 5—General 130
3ZR....................... Conduct of ordinary searches and frisk searches............ 130
3ZS........................ Announcement before entry............................................ 130
3ZT........................ Offence for making false statements in warrants............ 130
3ZU....................... Offences relating to telephone warrants.......................... 130
3ZW...................... Delegation by Commissioner.......................................... 131
3ZX....................... Law relating to legal professional privilege not affected. 131
Part IAAA—Delayed notification search warrants 132
Division 1—Preliminary 132
3ZZAA.................. Object of this Part........................................................... 132
3ZZAB.................. Application of Part.......................................................... 132
3ZZAC.................. Definitions...................................................................... 133
3ZZAD.................. Eligible issuing officers.................................................. 136
3ZZAE.................. Consent of Judges.......................................................... 136
3ZZAF.................. Nominated AAT members.............................................. 137
Division 2—Issue of delayed notification search warrants 138
Subdivision A—The normal process for applying for and issuing delayed notification search warrants 138
3ZZBA.................. Eligible officer may seek authorisation to apply for a delayed notification search warrant 138
3ZZBB.................. Authorisation to apply for a delayed notification search warrant 138
3ZZBC.................. Applying for a delayed notification search warrant......... 139
3ZZBD.................. Issuing a delayed notification search warrant.................. 140
3ZZBE................... Contents of a delayed notification search warrant........... 142
Subdivision B—Delayed notification search warrants by telephone, fax etc. 143
3ZZBF................... Delayed notification search warrants by telephone, fax etc. 143
3ZZBG.................. Authority of delayed notification search warrant by telephone, fax etc. 146
Subdivision C—Offences relating to applying for warrants etc. 146
3ZZBH.................. Offence for making false statement in application for delayed notification search warrant 146
3ZZBI.................... Offence relating to delayed notification search warrant by telephone, fax etc. 147
Subdivision D—Interaction with other provisions under which search warrants may be issued 147
3ZZBJ................... Issue of warrants under other provisions as well as or instead of delayed notification search warrants 147
Division 3—Exercise of powers under delayed notification search warrants 150
3ZZCA.................. What is authorised by a delayed notification search warrant 150
3ZZCB.................. Specific powers available to person executing warrant... 152
3ZZCC.................. Extension of time to re‑enter premises left in emergency situation or to avoid discovery of law enforcement officer............................................................................. 153
3ZZCD.................. Executing a warrant—assistance, use of force and related matters 153
3ZZCE................... Use of equipment to examine or process things.............. 154
3ZZCF................... Use of electronic equipment at warrant premises............ 155
3ZZCG.................. Use of moved electronic equipment at other place.......... 157
3ZZCH.................. Operating seized or moved electronic equipment............ 158
3ZZCI.................... Compensation for damage to electronic equipment......... 158
Division 4—Notice to occupiers 160
3ZZDA.................. Warrant premises occupier’s notice must be prepared and given 160
3ZZDB.................. Adjoining premises occupier’s notice must be prepared and given 161
3ZZDC.................. Time for giving warrant premises occupier’s notice or adjoining premises occupier’s notice 162
Division 5—Using, sharing and returning things seized 165
Subdivision A—Using and sharing things seized 165
3ZZEA.................. Purposes for which things may be used and shared....... 165
Subdivision B—Returning things seized 167
3ZZEB................... When things seized must be returned.............................. 167
3ZZEC................... Eligible issuing officer may permit a thing seized to be retained, forfeited etc. 168
Division 6—Reporting and record‑keeping 170
3ZZFA.................. Reporting on delayed notification search warrants.......... 170
3ZZFB................... Annual reports to Minister.............................................. 172
3ZZFC................... Regular reports to Ombudsman...................................... 173
3ZZFD.................. Keeping documents connected with delayed notification search warrants 173
3ZZFE................... Register of delayed notification search warrants............. 174
Division 7—Inspections by Ombudsman 176
3ZZGA.................. Appointment of inspecting officers................................. 176
3ZZGB.................. Inspection of records by the Ombudsman...................... 176
3ZZGC.................. Power to obtain relevant information.............................. 177
3ZZGD.................. Offence........................................................................... 178
3ZZGE.................. Ombudsman to be given information etc. despite other laws 178
3ZZGF.................. Exchange of information between Ombudsman and State or Territory inspecting authorities 180
3ZZGG.................. Ombudsman not to be sued............................................ 180
3ZZGH.................. Report on inspection....................................................... 181
Division 8—Unauthorised disclosure of information 182
3ZZHA.................. Unauthorised disclosure of information.......................... 182
Division 9—Other matters 184
3ZZIA................... Delegation....................................................................... 184
3ZZIB.................... Law relating to legal professional privilege not affected. 185
Part IAAB—Monitoring of compliance with control orders etc. 186
Division 1—Introduction 186
3ZZJA................... Simplified outline of this Part......................................... 186
3ZZJB................... Definitions...................................................................... 186
3ZZJC................... Prescribed connection with premises.............................. 188
3ZZJD................... Privileges not abrogated.................................................. 189
3ZZJE.................... Application of Part.......................................................... 190
Division 2—Powers of constables in relation to premises 191
Subdivision A—Monitoring powers 191
3ZZKA.................. Entering premises by consent or under a warrant........... 191
3ZZKB.................. General monitoring powers............................................ 192
3ZZKC.................. Operating electronic equipment....................................... 192
3ZZKD.................. Securing electronic equipment to obtain expert assistance 193
Subdivision B—Powers to ask questions and seek production of documents 195
3ZZKE................... Asking questions and seeking production of documents 195
Subdivision C—Other powers 197
3ZZKF................... Other powers.................................................................. 197
3ZZKG.................. Availability of assistance and use of force in executing a warrant 198
Division 3—Powers of constables in relation to persons subject to control orders 200
3ZZLA.................. Searching a person by consent or under a warrant.......... 200
3ZZLB................... Monitoring powers......................................................... 200
3ZZLC................... Seizure powers............................................................... 201
3ZZLD.................. Availability of assistance and use of force in executing a warrant 201
Division 4—Obligations and incidental powers of constables 203
3ZZNA.................. Consent of occupier of premises..................................... 203
3ZZNB.................. Consent to search of a person......................................... 203
3ZZNC.................. Announcement before entry under warrant..................... 204
3ZZND.................. Constable to be in possession of warrant........................ 204
3ZZNE.................. Details of warrant etc. to be given to occupier................ 204
3ZZNF.................. Compensation for damage to electronic equipment......... 205
3ZZNG.................. Occupier entitled to be present during search.................. 206
3ZZNH.................. Person subject to a control order is entitled to be present during search 206
Division 5—Monitoring warrants 207
3ZZOA.................. Monitoring warrant in relation to premises..................... 207
3ZZOB.................. Monitoring warrant in relation to a person...................... 210
3ZZOC.................. Restrictions on personal searches................................... 213
3ZZOD.................. Monitoring warrant must not be executed if the relevant control order is revoked etc. 213
Division 6—Monitoring warrants by telephone or other electronic means 215
3ZZPA.................. Monitoring warrants by telephone or other electronic means 215
3ZZPB................... Offences relating to telephone warrants.......................... 216
Division 7—Extension of periods in which things secured 218
3ZZQA.................. Extension of periods in which things secured................. 218
Division 8—Things seized, documents produced, and answers given, under this Part 219
3ZZRA.................. Receipts for things seized under this Part....................... 219
3ZZRB.................. Using, sharing and returning things seized under this Part 219
3ZZRC.................. Using, sharing and returning documents produced under section 3ZZKE 219
3ZZRD.................. Answers to questions asked under section 3ZZKE......... 220
Division 9—Powers of issuing officers 221
3ZZSA.................. Powers of issuing officers.............................................. 221
Division 10—General 222
3ZZTA.................. Conduct of ordinary searches and frisk searches............ 222
3ZZTB................... Protection of persons—control order declared to be void 222
3ZZTC................... Dealing with things, information or documents obtained under a monitoring warrant—control order declared to be void........................................................................ 222
3ZZTD.................. Commissioner to keep documents connected with issue of monitoring warrants 225
3ZZTE................... Commissioner to notify Ombudsman in relation to monitoring warrants 225
Division 11—Inspections by Ombudsman 227
3ZZUA.................. Appointment of inspecting officers................................. 227
3ZZUB.................. Inspection of records by the Ombudsman...................... 227
3ZZUC.................. Power to obtain relevant information.............................. 228
3ZZUD.................. Offence........................................................................... 229
3ZZUE.................. Ombudsman to be given information etc. despite other laws 229
3ZZUF.................. Exchange of information between Ombudsman and State or Territory inspecting authorities 230
3ZZUG.................. Ombudsman not to be sued............................................ 231
3ZZUH.................. Annual report.................................................................. 231
Part IA—General 233
4AAA................... Commonwealth laws conferring non‑judicial functions and powers on officers 233
4AAB.................... Arrangements for conferral of non‑judicial functions and powers 235
4A......................... Meaning of certain words............................................... 236
4AA...................... Penalty units................................................................... 236
4AB....................... Conversion of pecuniary penalties expressed in dollar amounts to penalty units 238
4B.......................... Pecuniary penalties—natural persons and bodies corporate 238
4C.......................... Offences under 2 or more laws....................................... 240
4D......................... Penalties.......................................................................... 241
4E.......................... Pecuniary penalties......................................................... 241
4F.......................... Effect of alterations in penalties...................................... 241
4G......................... Indictable offences.......................................................... 242
4H......................... Summary offences.......................................................... 242
4J........................... Certain indictable offences may be dealt with summarily 242
4JA........................ Some indictable offences punishable by fine only may be dealt with summarily 244
4K.......................... Continuing and multiple offences................................... 245
4L.......................... Specified defences not to preclude other defences.......... 245
4M......................... Children under 10........................................................... 246
4N......................... Children over 10 but under 14........................................ 246
6............................ Accessory after the fact................................................... 246
9............................ Seizure and condemnation of forfeitable goods.............. 246
9A......................... Forfeited articles to be dealt with by Official Trustee...... 247
9B.......................... Costs etc. payable to Official Trustee.............................. 247
13.......................... Institution of proceedings in respect of offences............. 248
15.......................... Remand of defendant...................................................... 248
15AA.................... Bail not to be granted in certain cases............................. 249
15AAA................. Bail not to be granted to various persons charged with, or convicted of, certain Commonwealth child sex offences.......................................................................... 252
15AB..................... Matters to be considered in certain bail applications....... 255
15A....................... Enforcement of fines etc................................................. 257
15B........................ Time for commencement of prosecutions....................... 259
15C........................ Form of indictments, information and summonses......... 261
15E........................ Privilege of Parliament not affected................................ 261
15F........................ Civil rights not affected................................................... 261
Part IAB—Controlled operations 262
Division 1—Preliminary 262
15G....................... Objects of Part................................................................ 262
15GA.................... Relationship to other laws and matters............................ 262
15GB..................... Concurrent operation of State and Territory laws........... 263
15GC..................... Definitions...................................................................... 263
15GD.................... Meaning of controlled operation and major controlled operation 269
15GE..................... Meaning of serious Commonwealth offence and serious State offence that has a federal aspect 270
15GF..................... Meaning of authorising officer etc.................................. 272
15GG.................... AAT Minister may nominate AAT members................. 273
Division 2—Authorisation of controlled operations 274
Subdivision A—Authorities to conduct controlled operations 274
15GH.................... Applications for authorities to conduct controlled operations.. 274
15GI...................... Determination of applications......................................... 275
15GJ...................... Manner of granting authority.......................................... 277
15GK..................... Form of authority............................................................ 277
15GL..................... Written record of urgent authority must be issued.......... 280
15GM.................... Change of principal law enforcement officer.................. 280
15GN.................... Commencement and duration of authorities.................... 281
Subdivision B—Variation of authorities by appropriate authorising officers 281
15GO.................... Variation of authority by appropriate authorising officer 281
15GP..................... Application to appropriate authorising officer................. 282
15GQ.................... Requirements for variation of authority.......................... 284
15GR..................... Manner of varying authority........................................... 286
15GS..................... Form of variation of authority......................................... 287
Subdivision C—Variations of authorities by nominated Tribunal member: extensions beyond 3 months 288
15GT..................... Variation of formal authority to extend period of effect beyond 3 months 288
15GU.................... Application to nominated Tribunal member.................... 288
15GV.................... Determination of application........................................... 290
15GW.................... Manner of varying formal authority................................ 291
15GX.................... Form of variation of formal authority............................. 292
Subdivision D—Other matters 293
15GY.................... Cancellation of authorities............................................... 293
15GZ..................... Effect of authorities......................................................... 293
15H....................... Defect in authority.......................................................... 294
Division 3—Protection from criminal responsibility and related provisions 295
Subdivision A—Controlled operations under this Part 295
15HA.................... Protection from criminal responsibility for controlled conduct during controlled operations 295
15HB..................... Indemnification of participants against civil liability....... 296
15HC..................... Effect of sections 15HA and 15HB on other laws relating to criminal investigation 296
15HD.................... Effect of being unaware of variation or cancellation of authority 297
15HE..................... Protection from criminal responsibility for certain ancillary conduct 298
15HF..................... Compensation for property loss or serious damage........ 298
15HG.................... Notification requirements................................................ 299
Subdivision B—Controlled operations under a corresponding State controlled operations law 300
15HH.................... Protection from criminal responsibility for conduct under a corresponding State controlled operations law........................................................................................ 300
15HI...................... Effect of section 15HH on other laws relating to criminal investigation 301
15HJ...................... Protection from criminal responsibility for certain ancillary conduct 302
Division 4—Compliance and monitoring 303
15HK..................... Unauthorised disclosure of information.......................... 303
15HM.................... Chief officers’ 6 monthly reports to Ombudsman and Minister 307
15HN.................... Chief officers’ annual reports to Minister and Ombudsman 310
15HO.................... Annual report by Ombudsman....................................... 312
15HP..................... Keeping documents connected with controlled operations 313
15HQ.................... General register............................................................... 314
15HR..................... Appointment of inspecting officers................................. 316
15HS..................... Inspection of records by the Ombudsman...................... 317
15HT..................... Power to obtain relevant information.............................. 318
15HU.................... Offence........................................................................... 319
15HV.................... Ombudsman to be given information and access despite other laws 319
15HW.................... Exchange of information between Ombudsman and State inspecting authorities 321
15HX.................... Delegation by Ombudsman............................................ 321
15HY.................... Ombudsman not to be sued............................................ 322
Division 5—Miscellaneous 323
15HZ..................... Evidence of authorities.................................................... 323
15J......................... Secretary of Immigration and Border Protection Department to be notified of certain authorities 323
Part IABA—Integrity testing 325
Division 1—Introduction 325
15JA...................... Integrity testing—simplified outline................................ 325
15JB...................... Integrity testing—concurrent operation of State and Territory laws 326
15JC...................... Integrity testing—definitions.......................................... 326
15JD...................... Integrity testing—meaning of integrity testing operation 328
Division 2—Integrity testing operations: authority 329
15JE...................... Integrity testing authorities—circumstances in which applications may be made 329
15JF...................... Integrity testing authorities—application......................... 330
15JG...................... Integrity testing authorities—grant.................................. 331
15JH...................... Integrity testing authorities—form.................................. 332
15JI....................... Integrity testing authorities—notice to Integrity Commissioner 333
15JJ....................... Integrity testing authorities—duration............................. 333
15JK...................... Integrity testing authorities—variation............................ 334
15JL...................... Integrity testing authorities—cancellation....................... 335
15JM..................... Integrity testing authorities—defects............................... 335
Division 3—Integrity testing operations: protection of participants 336
15JN...................... Integrity testing operations—authorised conduct............ 336
15JO...................... Integrity testing operations—indemnity against civil liability 336
15JP...................... Integrity testing operations—participants unaware of variation or cancellation of authority 337
Division 4—Integrity testing operations: disclosure of information 339
15JQ...................... Integrity testing operations—disclosure.......................... 339
15JR...................... Integrity testing operations—disclosure endangering safety etc. 340
Division 5—Integrity testing operations: reporting 342
15JS...................... Integrity testing operations—annual reports................... 342
Division 6—Integrity testing operations: evidence 344
15JT...................... Evidence of integrity testing authorities.......................... 344
Part IAC—Assumed Identities 345
Division 1—Preliminary 345
15K........................ Definitions...................................................................... 345
Division 2—Authority for Assumed Identity 351
15KA..................... Application for authority to acquire or use assumed identity 351
15KB..................... Determination of applications......................................... 353
15KC..................... Form of authority............................................................ 355
15KD..................... Period of authority.......................................................... 356
15KE..................... Variation or cancellation of authority.............................. 357
15KF..................... Yearly review of authority.............................................. 358
15KG..................... Making entries in register of births, deaths or marriages 359
15KH..................... Effect of authority ceasing to be in force on register of births, deaths or marriages 359
Division 3—Evidence of Assumed Identity 360
15KI...................... Request for evidence of assumed identity....................... 360
15KJ...................... Government issuing agencies to comply with request.... 361
15KK..................... Non‑government issuing agencies may comply with request.. 361
15KL..................... Cancellation of evidence of assumed identity.................. 361
15KM.................... Return of evidence of assumed identity.......................... 362
15KN..................... Protection from criminal liability—officers of issuing agencies 362
15KO..................... Indemnity for issuing agencies and officers.................... 362
Division 4—Effect of Authority 364
15KP..................... Assumed identity may be acquired and used.................. 364
15KQ..................... Protection from criminal liability—authorised persons... 364
15KR..................... Protection from criminal liability—third parties.............. 365
15KS..................... Indemnity for authorised persons................................... 365
15KT..................... Particular qualifications................................................... 366
15KU..................... Effect of being unaware of variation or cancellation of authority 366
15KV..................... Transfer of control of authorities.................................... 367
15KW.................... Consequences of transfer of control of authorities.......... 368
Division 5—Mutual Recognition under Corresponding Laws 370
15KX..................... Requests to a participating jurisdiction for evidence of assumed identity 370
15KY..................... Requests from a participating jurisdiction for evidence of assumed identity 371
15KZ..................... Directions from a participating jurisdiction to cancel evidence of assumed identity 371
15L........................ Indemnity for issuing agencies and officers.................... 372
15LA..................... Application of this Part to authorities under corresponding laws 372
Division 6—Compliance and Monitoring 374
Subdivision A—Misuse of Assumed Identity and Information 374
15LB..................... Misuse of assumed identity............................................ 374
15LC..................... Disclosing information about assumed identity.............. 374
Subdivision B—Reporting and record‑keeping 376
15LD..................... Reports about authorities for assumed identities etc.—law enforcement agencies 376
15LE...................... Reports about authorities for assumed identities etc.—intelligence agencies 377
15LF...................... Record keeping............................................................... 378
15LG..................... Audit of records.............................................................. 379
Division 7—General 381
15LH..................... Delegation of chief officer’s functions............................ 381
Part IACA—Witness identity protection for operatives 383
Division 1—Preliminary 383
15M....................... Definitions...................................................................... 383
15MA.................... Meaning of criminal proceeding.................................... 385
15MB.................... Meaning of civil proceeding........................................... 386
15MC.................... When a charge is outstanding or pending....................... 386
Division 2—Witness Identity Protection Certificates for Operatives 388
15MD.................... Application of Part.......................................................... 388
15ME.................... Witness identity protection certificate.............................. 388
15MF.................... Statutory declaration by operative................................... 389
15MG.................... Form of witness identity protection certificate................ 390
15MH.................... Filing and notification..................................................... 391
15MI..................... Leave for non‑compliance............................................... 392
15MJ..................... Effect of witness identity protection certificate................ 392
15MK.................... Orders to protect operative’s identity etc......................... 393
15ML.................... Disclosure of operative’s identity to presiding officer.... 394
15MM................... Disclosure of operative’s identity etc. despite certificate. 394
15MN.................... Application for leave—joinder as respondent................. 396
15MO.................... Directions to jury............................................................ 397
15MP.................... Appeals and adjournments.............................................. 397
15MQ.................... Witness identity protection certificate—cancellation....... 399
15MR.................... Permission to give information disclosing operative’s identity etc. 399
15MS.................... Disclosure offences........................................................ 400
15MT.................... Evidentiary certificates.................................................... 401
15MU.................... Reports about witness identity protection certificates...... 402
Division 3—Mutual Recognition under Corresponding Laws 404
15MW................... Recognition of witness identity protection certificates under corresponding laws 404
Division 4—General 405
15MX.................... Delegation....................................................................... 405
Part IAD—Protecting vulnerable persons 406
Division 1—Introduction 406
15Y....................... Proceedings to which this Part applies............................ 406
15YA.................... Definitions...................................................................... 408
15YAA................. Vulnerable adult complainants....................................... 409
15YAB.................. Special witnesses............................................................ 409
Division 2—Admissibility of evidence 411
15YB..................... Evidence of sexual reputation......................................... 411
15YC..................... Evidence of sexual experience........................................ 411
15YD.................... Leave under this Division............................................... 412
Division 3—Cross‑examination 413
15YE..................... Disallowing inappropriate or aggressive cross‑examination 413
15YF..................... Unrepresented defendants—cross‑examination of child complainants 413
15YG.................... Unrepresented defendants—cross‑examination of vulnerable persons 413
15YH.................... Represented defendants—cross‑examination of vulnerable persons 415
15YHA................. Committal proceedings—cross‑examination of vulnerable persons 415
Division 4—Special facilities for vulnerable persons to give evidence 416
15YI...................... Closed‑circuit television.................................................. 416
15YJ...................... Giving evidence by closed‑circuit television................... 416
15YK..................... Viewing evidence given by closed‑circuit television....... 417
15YL..................... Alternative arrangements for giving evidence................. 417
Division 5—Use of video recordings 419
15YM.................... Use of video recordings.................................................. 419
15YN.................... Admissibility of evidence given using video recordings. 419
Division 5A—Special rules for later trials 421
15YNA................. When this Division applies............................................. 421
15YNB.................. Original evidence admissible in new proceeding............ 421
15YNC.................. Vulnerable person not to be made to give further evidence 422
15YND................. Defendants’ access to video recordings.......................... 423
15YNE.................. Warnings etc. not to be given about vulnerable persons’ evidence 423
15YNF.................. Division applies despite other rules of evidence............. 423
Division 6—Miscellaneous 424
15YO.................... Adults accompanying vulnerable persons....................... 424
15YP..................... Excluding people from the courtroom............................. 425
15YQ.................... Warnings etc. not to be given about vulnerable persons evidence 425
15YR..................... Publication identifying child witnesses, child complainants or vulnerable adult complainants 426
15YS..................... General powers of a court............................................... 428
15YT..................... Other video link evidence provisions are unaffected....... 428
Part IAE—Video link evidence in proceedings for terrorism and related offences etc. 429
15YU.................... Proceedings to which this Part applies............................ 429
15YV.................... When court may take evidence by video link.................. 431
15YW.................... Observers....................................................................... 432
15YX.................... Adjournment after a section 15YV direction or order etc. 434
15YY.................... Technical requirements for video link............................. 436
15YZ..................... Direction to jury.............................................................. 436
15YZA.................. Application of laws about witnesses............................... 437
15YZB.................. Administration of oaths and affirmations........................ 437
15YZC.................. Expenses......................................................................... 437
15YZD.................. Appeals against section 15YV directions or orders etc... 437
15YZE................... Other laws about evidence not affected........................... 438
15YZF................... Saving of other laws....................................................... 439
Part IB—Sentencing, imprisonment and release of federal offenders 440
Division 1—Interpretation 440
16.......................... Interpretation................................................................... 440
16AAAA.............. Victim impact statements................................................ 444
Division 2—General sentencing principles 446
16A....................... Matters to which court to have regard when passing sentence etc.—federal offences 446
16AA.................... Matters to which court to have regard when passing sentence etc.—Northern Territory offences 449
16AAA................. Minimum penalties for certain offences.......................... 450
16AAB.................. Second or subsequent offence........................................ 451
16AAC.................. Exclusions and reductions—minimum penalties............. 455
16AB..................... Matters relating to victim impact statements.................... 456
16AC..................... Reduction for cooperation with law enforcement agencies 456
16B........................ Court to have regard to other periods of imprisonment required to be served 458
16BA..................... Taking other offences into account................................. 459
16C........................ Fines............................................................................... 461
16D....................... No corporal punishment................................................. 462
Division 3—Sentences of imprisonment 463
16E........................ Commencement of sentences.......................................... 463
16F........................ Court to explain sentence................................................ 463
17A....................... Restriction on imposing sentences.................................. 464
17B........................ Restriction on imposing sentences for certain minor offences 465
18.......................... Sentence of imprisonment............................................... 466
19.......................... Cumulative, partly cumulative or concurrent sentences... 466
19A....................... Detention of person in State or Territory prisons............ 468
19AA.................... Remissions and reductions of sentences......................... 468
Division 4—The fixing of non‑parole periods and the making of recognizance release orders 470
19AB..................... When court must fix non‑parole period.......................... 470
19AC..................... When court must fix a recognizance release order.......... 471
19AD.................... Persons already subject to a non‑parole period............... 472
19AE..................... Persons already subject to recognizance release order.... 474
19AF..................... Non‑parole period or pre‑release periods not to exceed remitted sentence 475
19AG.................... Non‑parole periods for sentences for certain offences.... 475
19AH.................... Failure to fix non‑parole period or make recognizance release order 477
19AHA................. Rectification of errors etc. in sentences, non‑parole periods and recognizance release orders 478
19AJ...................... Court may only fix non‑parole periods or make recognizance release orders for federal sentences of imprisonment.................................................................. 479
19AK..................... Possible deportation no impediment to fixing non‑parole period 479
Division 5—Conditional release on parole or licence 480
Subdivision A—Release on parole or licence 480
19AKA.................. Purposes of parole.......................................................... 480
19AL..................... Release on parole—making of parole order.................... 480
19ALA.................. Matters that may be considered in decisions about parole orders 482
19ALB.................. Decisions about parole orders—terrorism and control orders 483
19AM.................... Release on parole—when is a person released................ 484
19AMA................. Release on parole—parole period................................... 485
19AN.................... Parole order is subject to conditions............................... 486
19AP..................... Release on licence........................................................... 486
19APA.................. Amendment of parole orders and licences...................... 488
19APB.................. Effect of parole order and licence on sentence................ 489
Subdivision B—Revocation of parole order or license 490
19AQ.................... Parole order or licence revoked following further offence 490
19AR..................... Fixing of non‑parole period etc. where parole or licence taken to be revoked under section 19AQ 491
19AS..................... Court to issue warrant of detention where person required to serve balance of sentence 493
19AT..................... What happens when later conviction is quashed?........... 494
19AU.................... Attorney‑General may revoke parole order or licence..... 496
19AV.................... Arrest of person whose parole order or licence revoked by Attorney‑General 497
19AW.................... Where person on parole or licence notified of revocation 497
19AX.................... Where person on parole or licence not notified of revocation.. 499
19AY.................... Appeals in respect of warrants issued under subsection 19AW(1) or that subsection as applied 500
19AZ..................... Evidence before prescribed authority.............................. 502
19AZA.................. Disobedience of summons etc........................................ 502
19AZB.................. Can person be released on parole or licence if earlier parole order or licence revoked? 503
Subdivision C—State and Territory laws providing for leave of absence, pre‑release etc. 503
19AZD.................. State and Territory laws providing for leave of absence, pre‑release etc. to apply to federal offenders 503
Subdivision D—Discharge without conviction, conditional release and sentencing alternatives 504
19B........................ Discharge of offenders without proceeding to conviction 504
20.......................... Conditional release of offenders after conviction............ 507
20A....................... Failure to comply with condition of discharge or release 510
20AA.................... Power to discharge or vary conditions of recognizance.. 514
20AB..................... Additional sentencing alternatives................................... 518
20AC..................... Failure to comply with sentence passed, or order made, under subsection 20AB(1) 521
Division 6—Unfitness to be tried 524
20B........................ Consequences of preliminary finding that person unfit to be tried 524
20BA..................... Upon determining prima facie case, court to dismiss charge or to determine fitness within 12 months 525
20BB..................... Persons found by a court to be likely to be fit within 12 months 526
20BC..................... Persons found by a court not to be likely to be fit within 12 months 529
20BD..................... Review by Attorney‑General.......................................... 530
20BE..................... Attorney‑General may order release............................... 531
20BF..................... Release order may be revoked........................................ 532
20BG..................... Attorney‑General to review detention of persons taken back into detention 534
20BH..................... State or Territory mental health authorities to be notified of certain releases 534
20BI...................... Appeals against some Victorian jury findings of unfitness to be tried 534
Division 7—Acquittal because of mental illness 537
20BJ...................... Acquittal where person mentally ill................................. 537
20BK..................... Review by Attorney‑General.......................................... 538
20BL..................... Attorney‑General may order release............................... 538
20BM.................... Release order may be revoked........................................ 539
20BN..................... Attorney‑General to review detention of persons taken back into detention 541
20BP..................... State or Territory authorities to be notified of certain releases 542
Division 8—Summary disposition of persons suffering from mental illness or intellectual disability 543
20BQ..................... Person suffering from mental illness or intellectual disability 543
20BR..................... Means by which court may be informed......................... 544
Division 9—Sentencing alternatives for persons suffering from mental illness or intellectual disability 545
20BS..................... Hospital orders............................................................... 545
20BT..................... Lesser periods of imprisonment fixed under hospital orders 546
20BU..................... Discharge of hospital orders........................................... 547
20BV..................... Psychiatric probation orders........................................... 548
20BW.................... Breach of psychiatric probation orders........................... 549
20BX..................... Enforcement of psychiatric probation orders.................. 551
20BY..................... Program probation orders............................................... 552
Division 9A—Sharing information relevant to federal offenders 553
20BZ..................... Definitions...................................................................... 553
20BZA.................. Authorised officers may request or require information relevant to federal offenders 555
20BZB................... Authorised officers may disclose federal offender information 556
20BZC................... Delegation....................................................................... 557
Division 10—Miscellaneous 558
20C........................ Offences by children and young persons........................ 558
21B........................ Reparation for offences................................................... 558
21D....................... Prerogative of mercy and other Commonwealth laws unaffected 559
21F........................ Prescribed authorities and parole officers....................... 559
22.......................... Conditions etc. that a court may impose on certain offenders.. 560
22A....................... State orders relating to Australian travel documents....... 562
Part IC—Investigation of Commonwealth offences 563
Division 1—Introduction 563
23.......................... Outline of this Part.......................................................... 563
23A....................... Application of Part.......................................................... 563
23AA.................... How this Part applies to the Antarctic Territories........... 564
23B........................ Definitions...................................................................... 565
Division 2—Powers of detention 570
Subdivision A—Non‑terrorism offences 570
23C........................ Period of investigation if arrested for a non‑terrorism offence 570
23D....................... Application may be made for extension of investigation period 573
23DA.................... Magistrate may extend investigation period.................... 574
Subdivision B—Terrorism offences 576
23DB..................... Period of investigation if arrested for a terrorism offence 576
23DC..................... Time during which suspension or delay of questioning may be disregarded—application 580
23DD.................... Time during which suspension or delay of questioning may be disregarded—time specified by magistrate........................................................................................ 582
23DE..................... Application may be made for extension of investigation period 584
23DF..................... Magistrate may extend investigation period.................... 585
Subdivision C—Miscellaneous 587
23E........................ Evidentiary provisions if application made by electronic means 587
Division 3—Obligations of investigating officials 589
23F........................ Cautioning persons who are under arrest or protected suspects 589
23G....................... Right to communicate with friend, relative and legal practitioner 589
23H....................... Aboriginal persons and Torres Strait Islanders............... 590
23K........................ Persons under 18............................................................ 593
23L........................ Exceptions...................................................................... 594
23M....................... Providing information relating to persons who are under arrest or protected suspects 595
23N....................... Right to interpreter.......................................................... 595
23P........................ Right of non‑Australian nationals to communicate with consular office 596
23Q....................... Treatment of persons under arrest................................... 597
23S........................ Right to remain silent etc. not affected............................ 597
23T........................ Acts authorised under other laws.................................... 597
23U....................... Tape recording of information required to be given to person under arrest 597
23V....................... Tape recording of confessions and admissions............... 598
23W....................... Proof of belief................................................................. 600
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 sexual abuse offence means:
(a) a Commonwealth child sex offence; or
(b) an offence against section 273.5, 471.16, 471.17, 474.19 or 474.20 of the Criminal Code as in force at any time before the commencement of Schedule 7 to the Combatting Child Sexual Exploitation Legislation Amendment Act 2019; or
(c) an offence against Part IIIA of this Act as in force at any time before the commencement of Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010; or
(d) a State or Territory registrable child sex offence.
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 abuse material outside Australia);
(iia) Division 273A (Possession of child‑like sex dolls etc.);
(iii) Subdivisions B and C of Division 471 (which create offences relating to use of postal or similar services in connection with 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 abuse material, sexual activity involving children and harm to children); or
(b) an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence described in paragraph (a) of this definition; or
(c) an offence against a provision described in paragraph (a) of this definition that is taken to have been committed because of section 11.2, 11.2A or 11.3 of the Criminal Code.
Commonwealth child sexual abuse offence means a Commonwealth child sex offence, other than an offence against subsection 272.8(1) or (2), 272.9(1) or (2), section 272.10, 272.11, 272.18, 272.19, 273.7, 471.22, 474.23A or 474.24A, subsection 474.25A(1) or (2) or section 474.25B or 474.25C of the Criminal Code.
Commonwealth entity has the meaning given by section 10 of the Public Governance, Performance and Accountability Act 2013.
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).
confiscation proceedings has a meaning affected by subsection 16AC(5).
constable means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory.
controlled substance means:
(a) a controlled drug or border controlled drug within the meaning of Part 9.1 of the Criminal Code; or
(b) a controlled plant or border controlled plant within the meaning of Part 9.1 of the Criminal Code; or
(c) a controlled precursor or border controlled precursor within the meaning of Part 9.1 of the Criminal Code.
conveyance includes an aircraft, vehicle or vessel.
criminal detention has the meaning given by section 45A.
cultural heritage has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999, and includes sacred sites.
cultural heritage object means an object that is important for cultural, religious, ethnological, archaeological, historical, literary, artistic, scientific or technological reasons.
data includes:
(a) information in any form; and
(b) any program (or part of a program).
data storage device means a thing containing, or designed to contain, data for use by a computer.
de facto partner has the meaning given by the Acts Interpretation Act 1901.
Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.
dentist means a dental practitioner within the meaning of the Health Insurance Act 1973.
Deputy Commissioner means a Deputy Commissioner of the Australian Federal Police.
federal aspect, in relation to an offence against a law of a State or of the Australian Capital Territory, has the meaning given by subsection 3AA(1).
Note: This subsection defines State to include the Northern Territory.
federal court means the High Court or a court created by the Parliament, other than a court of a Territory.
federal criminal detention has the meaning given by section 45A.
federal judicial proceeding has the meaning given by section 31.
Foreign Affairs Department means the Department administered by the Minister administering the Diplomatic Privileges and Immunities Act 1967.
Foreign Affairs Minister means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
have in possession includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.
illicit goods means goods the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.
Immigration and Border Protection Department means the Department administered by the Minister administering the Australian Border Force Act 2015.
Integrity Commissioner has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006.
integrity purpose means the purpose of preventing, detecting, investigating or dealing with any of the following:
(a) misconduct (within the meaning of the Privacy Act 1988) of a serious nature by any of the following:
(i) an official (as defined in section 13 of the Public Governance, Performance and Accountability Act 2013) of a Commonwealth entity;
(ii) a person employed by, or in the service of, a Privacy Act agency or a wholly‑owned Commonwealth company;
(iii) a person acting on behalf of, or for the purposes of activities of, a Privacy Act agency;
(iv) an officer of a wholly‑owned Commonwealth company;
(b) conduct that may have the purpose or effect of inducing misconduct described in paragraph (a);
(c) fraud that has or may have a substantial adverse effect on the Commonwealth or a target entity;
(d) an offence against Chapter 7 of the Criminal Code (which is about the proper administration of Government).
Note 1: An example of dealing with the matters described in paragraphs (a), (b), (c) and (d) is taking legal proceedings, disciplinary proceedings or other administrative action.
Note 2: An integrity purpose relating to misconduct of a person covered by a subparagraph of paragraph (a) does not cease to exist merely because the person ceases to be covered by that subparagraph after the misconduct occurs.
judicial proceeding has the meaning given by section 31 (other than in section 3L).
judicial tribunal has the meaning given by section 31.
law enforcement officer means any of the following:
(a) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979);
(b) a member of the police force of a State or Territory;
(ba) a staff member of ACLEI;
(c) a member of the staff of the ACC;
(d) an officer of Customs;
(e) a member of a police force, or other law enforcement agency, of a foreign country.
medical practitioner has the same meaning as in the Health Insurance Act 1973.
member of the staff of the ACC has the same meaning as in the Australian Crime Commission Act 2002.
narcotic goods has the same meaning as in the Customs Act 1901.
nurse means a registered nurse within the meaning of the Health Insurance Act 1973.
officer of Customs has the meaning given by subsection 4(1) of the Customs Act 1901.
Official Trustee means the Official Trustee in Bankruptcy.
parent: without limiting who is a parent of a person for the purposes of this Act, someone (the adult) is the parent of a person if:
(a) the adult is legally entitled to, and has, custody of the person; or
(b) the adult is legally responsible for the day‑to‑day care, welfare and development of the person and has the person in his or her care.
participating State has the meaning given by subsection 3B(2).
participating Territory has the meaning given by subsection 3B(2).
personal information has the meaning given by section 6 of the Privacy Act 1988.
Privacy Act agency has the same meaning as agency has in the Privacy Act 1988.
property includes money and every thing, animate or inanimate, capable of being the subject of ownership.
public authority under the Commonwealth means any authority or body constituted by or under a law of the Commonwealth or of a Territory.
quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.
relative has a meaning affected by subsection (3).
senior executive AFP employee has the same meaning as in the Australian Federal Police Act 1979.
sensitive information has the meaning given by section 6 of the Privacy Act 1988.
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.
State or Territory registrable child sex offence means an offence:
(a) that a person becomes, or may at any time have become, a person whose name is entered on a child protection offender register (however described) of a State or Territory for committing; and
(b) in respect of which:
(i) a child was a victim or an intended victim; or
(ii) the offending involved child abuse material.
substantial adverse effect means an effect that is adverse and not insubstantial, insignificant or trivial.
target entity means:
(a) a Privacy Act agency; or
(b) a wholly‑owned Commonwealth company.
Note: A target entity is an APP entity as defined in section 6 of the Privacy Act 1988, because it is either an agency or an organisation for the purposes of that Act (as a wholly‑owned Commonwealth company is an organisation as defined in section 6C of that Act).
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.
wholly‑owned Commonwealth company has the meaning given by section 90 of the Public Governance, Performance and Accountability Act 2013.
(2) In this Act, a reference to a fine includes a reference:
(a) to a pecuniary penalty other than a pecuniary penalty imposed:
(i) under Division 3 of Part XIII of the Customs Act 1901; or
(ii) by a pecuniary penalty order, a literary proceeds order or an unexplained wealth order made under the Proceeds of Crime Act 2002; or
(iia) by a pecuniary penalty order made under the Proceeds of Crime Act 1987; or
(iii) by a superannuation order made under the Australian Federal Police Act 1979; or
(iv) by a superannuation order made under the Crimes (Superannuation Benefits) Act 1989; or
(b) to costs or other amounts ordered to be paid by offenders.
(3) For the purposes of this Act, the relatives of a person are taken to include the following (without limitation):
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in this section;
(c) anyone else who would be a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a relative of the person.
3AA State offences that have a federal aspect
Object
(1A) The object of this section is to identify State offences that have a federal aspect because:
(a) they potentially fall within Commonwealth legislative power because of the elements of the State offence; or
(b) they potentially fall within Commonwealth legislative power because of the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be acts or omissions involved in committing the offence); or
(c) the Australian Federal Police investigating them is incidental to the Australian Federal Police investigating an offence against a law of the Commonwealth or a Territory.
State offences that have a federal aspect
(1) For the purposes of this Act, a State offence has a federal aspect if, and only if:
(a) both:
(i) the State offence is not an ancillary offence; and
(ii) assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or
(b) both:
(i) the State offence is an ancillary offence that relates to a particular primary offence; and
(ii) assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or
(c) assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence—that provision would have been a valid law of the Commonwealth; or
(d) both:
(i) the Australian Federal Police is investigating an offence against a law of the Commonwealth or a Territory; and
(ii) if the Australian Federal Police is investigating, or were to investigate, the State offence—that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i).
Specificity of acts or omissions
(2) For the purposes of paragraph (1)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence).
State offences covered by paragraph (1)(c)
(3) A State offence is taken to be covered by paragraph (1)(c) if the conduct constituting the State offence:
(a) affects the interests of:
(i) the Commonwealth; or
(ii) an authority of the Commonwealth; or
(iii) a constitutional corporation; or
(b) was engaged in by a constitutional corporation; or
(c) was engaged in in a Commonwealth place; or
(d) involved the use of a postal service or other like service; or
(e) involved an electronic communication; or
(f) involved trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2 Territories; or
(g) involved:
(i) banking (other than State banking not extending beyond the limits of the State concerned); or
(ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or
(h) relates to a matter outside Australia; or
(i) relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement; or
(j) relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern.
(4) Subsection (3) does not limit paragraph (1)(c).
Definitions
(5) In this section:
ancillary offence, in relation to an offence (the primary offence), means:
(a) an offence of conspiring to commit the primary offence; or
(b) an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or
(c) an offence of attempting to commit the primary offence.
Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.
conduct has the same meaning as in the Criminal Code.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
electronic communication means a communication of information:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms;
by means of guided and/or unguided electromagnetic energy.
engage in conduct has the same meaning as in the Criminal Code.
State includes the Australian Capital Territory and the Northern Territory.
State offence means an offence against a law of a State.
Note: Subsection 3(1) defines State to include the Northern Territory.
3A Operation of Act
This Act applies throughout the whole of the Commonwealth and the Territories and also applies beyond the Commonwealth and the Territories.
3B Arrangements with States, Australian Capital Territory and Northern Territory
(1) The Governor‑General may make arrangements with the Governor of a State, the Government of the Australian Capital Territory or the Administrator of the Northern Territory for:
(a) officers of the State or Territory to exercise powers and perform functions; and
(b) facilities and procedures of the State or Territory to be made available;
in relation to the carrying out or enforcement under this Act of orders made under this Act or another Act.
(2) In this Act:
(a) a reference to a participating State is a reference to a State in relation to which an arrangement is in force under subsection (1) of this section; and
(b) a reference to a participating Territory:
(i) is a reference to a Territory other than the Australian Capital Territory or the Northern Territory; and
(ii) if an arrangement is in force under subsection (1) of this section in relation to the Australian Capital Territory—includes a reference to the Australian Capital Territory; and
(iii) if an arrangement is in force under subsection (1) of this section in relation to the Northern Territory—includes a reference to the Northern Territory.
(3) In this section:
order includes a sentence.
State does not include the Australian Capital Territory or the Northern Territory.
3BA Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Part IAA—Search, information gathering, arrest and related powers (other than powers under delayed notification search warrants)
Division 1—Preliminary
3C Interpretation
(1) In this Part, unless the contrary intention appears:
account‑based data has the meaning given by section 3CAA.
carrier means:
(a) a carrier within the meaning of the Telecommunications Act 1997; or
(b) a carriage service provider within the meaning of that Act.
communication in transit means a communication (within the meaning of the Telecommunications Act 1997) passing over a telecommunications network (within the meaning of that Act).
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.
electronic service has the same meaning as in the Enhancing Online Safety Act 2015.
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.
telecommunications facility means a facility within the meaning of the Telecommunications Act 1997.
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.
3CAA Account‑based data
(1) For the purposes of this Part, if:
(a) an electronic service has accounts for end‑users; and
(b) either:
(i) a person holds an account with the electronic service; or
(ii) a person is, or is likely to be, a user of an account with the electronic service; and
(c) the person can (with the use of appropriate equipment) access particular data provided by the service;
the data is account‑based data in relation to the person.
(2) For the purposes of this Part, if:
(a) an electronic service has accounts for end‑users; and
(b) either:
(i) a deceased person held, before the person’s death, an account with the electronic service; or
(ii) a deceased person, before the person’s death, was, or was likely to be, a user of an account with the electronic service; and
(c) the deceased person could, before the person’s death (with the use of appropriate equipment), access particular data provided by the service;
the data is account‑based data in relation to the deceased person.
(3) For the purposes of this section, account has the same meaning as in the Enhancing Online Safety Act 2015.
3CA Nature of functions of magistrate
(1) A function of making an order conferred on a magistrate by section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZQZB is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
(2) Without limiting the generality of subsection (1), an order made by a magistrate under section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZQZB has effect only by virtue of this Act and is not to be taken by implication to be made by a court.
(3) A magistrate performing a function of, or connected with, making an order under section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZQZB has the same protection and immunity as if he or she were performing that function as, or as a member of, a court (being the court of which the magistrate is a member).
(4) The Governor‑General may make arrangements with the Governor of a State, the Chief Minister of the Australian Capital Territory or the Administrator of the Northern Territory for the performance, by all or any of the persons who from time to time hold office as magistrates in that State or Territory, of the function of making orders under sections 3ZI, 3ZJ, 3ZK, 3ZN and 3ZQZB.
3D Application of Part
(1) This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to:
(a) the search of premises; or
(b) arrest and related matters; or
(c) the stopping, detaining or searching of conveyances or persons; or
(d) the seizure of things; or
(e) the requesting of information or documents from persons.
(2) To avoid any doubt, it is declared that even though another law of the Commonwealth (including other provisions of this Act) provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
(4) This Part is not intended to limit or exclude the operation of a law of a Territory relating to:
(a) the search of premises; or
(b) arrest and related matters; or
(c) the stopping, detaining or searching of conveyances or persons; or
(d) the seizure of things; or
(e) the requesting of information or documents from persons;
in relation to offences against a law of that Territory.
(5) This Part does not apply to the exercise by a constable of powers under the Defence Force Discipline Act 1982.
(6) The application of this Part in relation to State offences that have a federal aspect is not intended to limit or exclude the concurrent operation of any law of a State or of the Australian Capital Territory.
Note 1: Subsection 3(1) defines State to include the Northern Territory.
Note 2: Section 3AA has the effect that an offence against the law of the Australian Capital Territory is a State offence that has a federal aspect.
Division 2—Search warrants
3E When search warrants can be issued
(1) An issuing officer may issue a warrant to search premises if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.
Note: For the issue of delayed notification search warrants, see Part IAAA.
(2) An issuing officer may issue a warrant authorising an ordinary search or a frisk search of a person if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material.
(3) If the person applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the person must state that suspicion, and the grounds for that suspicion, in the information.
(4) If the person applying for the warrant is a member or special member of the Australian Federal Police and has, at any time previously, applied for a warrant relating to the same person or premises the person must state particulars of those applications and their outcome in the information.
(5) If an issuing officer issues a warrant, the officer is to state in the warrant:
(a) the offence to which the warrant relates; and
(b) a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and
(c) the kinds of evidential material that are to be searched for under the warrant; and
(d) the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and
(e) the time at which the warrant expires (see subsection (5A)); and
(f) whether the warrant may be executed at any time or only during particular hours.
(5A) The time stated in the warrant under paragraph 3E(5)(e) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.
(6) The issuing officer is also to state, in a warrant in relation to premises:
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to another offence that is an indictable offence; or
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and
(b) whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
(7) The issuing officer is also to state, in a warrant in relation to a person:
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found, in the course of the search, on or in the possession of the person or in a recently used conveyance, being a thing that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to another offence that is an indictable offence; or
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and
(b) the kind of search of a person that the warrant authorises.
(8) Paragraph (5)(e) and subsection (5A) do not prevent the issue of successive warrants in relation to the same premises or person.
(9) If the application for the warrant is made under section 3R, this section (other than subsection (5A)) applies as if:
(a) subsections (1) and (2) referred to 48 hours rather than 72 hours; and
(b) paragraph (5)(e) required the issuing officer to state in the warrant the period for which the warrant is to remain in force, which must not be more than 48 hours.
(10) An issuing officer in New South Wales or the Australian Capital Territory may issue a warrant in relation to premises or a person in the Jervis Bay Territory.
(11) An issuing officer in a State or internal Territory may:
(a) issue a warrant in relation to premises or a person in that State or Territory; or
(b) issue a warrant in relation to premises or a person in an external Territory; or
(c) issue a warrant in relation to premises or a person in another State or internal Territory (including the Jervis Bay Territory) if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate; or
(d) issue a warrant in relation to a person wherever the person is in Australia or in an external Territory if he or she is satisfied that it is not possible to predict where the person may be.
3F The things that are authorised by a search warrant
(1) A warrant that is in force in relation to premises authorises the executing officer or a constable assisting:
(a) to enter the warrant premises and, if the premises are a conveyance, to enter the conveyance, wherever it is; and
(b) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; and
(c) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and
(d) to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) evidential material in relation to another offence that is an indictable offence; or
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and
(e) to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be seizable items; and
(f) if the warrant so allows—to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
(2) A warrant that is in force in relation to a person authorises the executing officer or a constable assisting:
(a) to search the person as specified in the warrant and things found in the possession of the person and any recently used conveyance for things of the kind specified in the warrant; and
(b) to:
(i) seize things of that kind; or
(ii) record fingerprints from things; or
(iii) to take forensic samples from things;
found in the course of the search; and
(c) to seize other things found on or in the possession of the person or in the conveyance in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to another offence that is an indictable offence; or
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and
(d) to seize other things found in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be seizable items.
(2A) A warrant that is in force authorises the executing officer or a constable assisting:
(a) to use:
(i) a computer, or data storage device, found in the course of a search authorised under the warrant; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment; or
(iv) a data storage device;
for the purpose of obtaining access to data (the relevant data) that is held in the computer or device mentioned in subparagraph (i) at any time when the warrant is in force, in order to determine whether the relevant data is evidential material of a kind specified in the warrant; and
(b) if necessary to achieve the purpose mentioned in paragraph (a)—to add, copy, delete or alter other data in the computer or device mentioned in subparagraph (a)(i); and
(c) if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so:
(i) to use any other computer or a communication in transit to access the relevant data; and
(ii) if necessary to achieve that purpose—to add, copy, delete or alter other data in the computer or the communication in transit; and
(d) to copy any data to which access has been obtained, and that:
(i) appears to be relevant for the purposes of determining whether the relevant data is evidential material of a kind specified in the warrant; or
(ii) is evidential material of a kind specified in the warrant; and
(e) to do any other thing reasonably incidental to any of the above.
Note: As a result of the warrant, a person who, by means of a telecommunications facility, obtains access to data stored in a computer etc. will not commit an offence under Part 10.7 of the Criminal Code or equivalent State or Territory laws (provided that the person acts within the authority of the warrant).
(2B) A warrant that is in force authorises the executing officer or a constable assisting:
(a) to use:
(i) a computer found in the course of a search authorised under the warrant; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment;
for the purpose of obtaining access to data (the relevant account‑based data) that is account‑based data in relation to:
(iv) a person who is the owner or lessee of the computer mentioned in subparagraph (i); or
(v) a person who uses or has used the computer mentioned in subparagraph (i); or
(vi) a deceased person who, before the person’s death, was the owner or lessee of the computer mentioned in subparagraph (i); or
(vii) a deceased person who, before the person’s death, used the computer mentioned in subparagraph (i);
in order to determine whether the relevant account‑based data is evidential material of a kind specified in the warrant; and
(b) if necessary to achieve the purpose mentioned in paragraph (a)—to add, copy, delete or alter other data in the computer mentioned in subparagraph (a)(i); and
(c) if, having regard to other methods (if any) of obtaining access to the relevant account‑based data which are likely to be as effective, it is reasonable in all the circumstances to do so:
(i) to use any other computer or a communication in transit to access the relevant account‑based data; and
(ii) if necessary to achieve that purpose—to add, copy, delete or alter other data in the computer or the communication in transit; and
(d) to copy any data to which access has been obtained, and that:
(i) appears to be relevant for the purposes of determining whether the relevant account‑based data is evidential material of a kind specified in the warrant; or
(ii) is evidential material of a kind specified in the warrant; and
(e) to do any other thing reasonably incidental to any of the above.
(2C) Subsections (2A) and (2B) do not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:
(a) materially interfere with, interrupt or obstruct:
(i) a communication in transit; or
(ii) the lawful use by other persons of a computer;
unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified in the warrant; or
(b) cause any other material loss or damage to other persons lawfully using a computer.
(2D) In the case of a warrant that is in force in relation to premises, it is immaterial whether a thing mentioned in subsection (2A) or (2B) is done:
(a) at the premises; or
(b) at any other place.
(2E) In the case of a warrant that is in force in relation to a person, it is immaterial whether a thing mentioned in subsection (2A) or (2B) is done:
(a) in the presence of the person; or
(b) at any other place.
(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 whichever of the following is applicable:
(a) if the thing is a computer or data storage device—30 days;
(b) otherwise—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 the time applicable under subsection (3A) 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 whichever of the following is applicable:
(a) if the thing is a computer or data storage device—14 days;
(b) otherwise—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.
Extended powers of examination and processing
(5) For the purposes of this section, if a computer or data storage device (the relevant computer or device) was found in the course of a search authorised under a warrant, the examination or processing of the relevant computer or device may include:
(a) using:
(i) the relevant computer or device; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment; or
(iv) a data storage device;
for the purpose of obtaining access to data (the relevant data) that is held in the relevant computer or device in order to determine whether the relevant computer or device is a thing that may be seized under the warrant; and
(b) if necessary to achieve the purpose mentioned in paragraph (a)—to add, copy, delete or alter other data in the relevant computer or device; and
(c) if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so:
(i) to use any other computer or a communication in transit to access the relevant data; and
(ii) if necessary to achieve that purpose—to add, copy, delete or alter other data in the computer or the communication in transit; and
(d) to copy any data to which access has been obtained, and that appears to be relevant for the purposes of determining whether the relevant computer or device is a thing that may be seized under the warrant; and
(e) to do any other thing reasonably incidental to any of the above.
(6) For the purposes of this section, if a computer (the relevant computer) was found in the course of a search authorised under a warrant, the examination or processing of the relevant computer may include:
(a) using:
(i) the relevant computer; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment;
for the purpose of obtaining access to data (the relevant account‑based data) that is account‑based data in relation to:
(iv) a person who is the owner or lessee of the relevant computer; or
(v) a person who uses or has used the relevant computer; or
(vi) a deceased person who, before the person’s death, was the owner or lessee of the relevant computer; or
(vii) a deceased person who, before the person’s death, used the relevant computer;
in order to determine whether the relevant computer is a thing that may be seized under the warrant; and
(b) if necessary to achieve the purpose mentioned in paragraph (a)—to add, copy, delete or alter other data in the relevant computer; and
(c) if, having regard to other methods (if any) of obtaining access to the relevant account‑based data which are likely to be as effective, it is reasonable in all the circumstances to do so:
(i) to use any other computer or a communication in transit to access the relevant account‑based data; and
(ii) if necessary to achieve that purpose—to add, copy, delete or alter other data in the computer or the communication in transit; and
(d) to copy any data to which access has been obtained, and that appears to be relevant for the purposes of determining whether the relevant computer is a thing that may be seized under the warrant; and
(e) to do any other thing reasonably incidental to any of the above.
(7) Subsections (5) and (6) do not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:
(a) materially interfere with, interrupt or obstruct:
(i) a communication in transit; or
(ii) the lawful use by other persons of a computer;
unless the addition, deletion or alteration, or the doing of the thing, is necessary to determine:
(iii) in the case of subsection (5)—whether the relevant computer or device is a thing that may be seized under the warrant referred to in that subsection; or
(iv) in the case of subsection (6)—whether the relevant computer is a thing that may be seized under the warrant referred to in that subsection; or
(b) cause any other material loss or damage to other persons lawfully using a computer.
(8) In the case of a warrant that was in force in relation to premises, it is immaterial whether a thing mentioned in subsection (5) or (6) is done:
(a) at the premises; or
(b) at any other place.
(9) In the case of a warrant that was in force in relation to a person, it is immaterial whether a thing mentioned in subsection (5) or (6) is done:
(a) in the presence of the person; or
(b) at any other place.
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:
(a) access data (including data held at another place); or
(b) access account‑based data.
(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
(ia) is found in the course of an ordinary search of a person, or a frisk search of a person, authorised by a warrant under section 3E; 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.
Offences
(5) A person commits an offence if:
(a) the person is subject to an order under this section; and
(b) the person is capable of complying with a requirement in the order; and
(c) the person omits to do an act; and
(d) the omission contravenes the requirement.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(6) A person commits an offence if:
(a) the person is subject to an order under this section; and
(b) the person is capable of complying with a requirement in the order; and
(c) the person omits to do an act; and
(d) the omission contravenes the requirement; and
(e) the offence to which the relevant warrant relates is:
(i) a serious offence; or
(ii) a serious terrorism offence.
Penalty for contravention of this subsection: Imprisonment for 10 years or 600 penalty units, or both.
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
(aa) the thing embodies data that was accessed under the warrant at a place other than the premises; 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.
3SA Relationship of this Division to parliamentary privileges and immunities
To avoid doubt, this Division does not affect the law relating to the powers, privileges and immunities of any of the following:
(a) each House of the Parliament;
(b) the members of each House of the Parliament;
(c) the committees of each House of the Parliament and joint committees of both Houses of the Parliament.
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 CA—Reporting on exercise of powers under this Division
3UJA Report after powers are exercised
(1) As soon as practicable after the exercise of a power or powers by an AFP police officer (or officers) under Subdivision B in relation to an incident, the Commissioner must give a report to the following:
(a) the Minister;
(b) the Independent National Security Legislation Monitor;
(c) the Parliamentary Joint Committee on Intelligence and Security.
(2) The report must state, in relation to the incident:
(a) the number of instances when an AFP police officer (or officers) exercised a power under section 3UE, 3UEA or 3UF; and
(b) the circumstances in which an AFP police officer (or officers) exercised powers under section 3UC or 3UD.
Note: The nature of these powers is as follows:
(a) for section 3UC—requirement to provide names etc.;
(b) for section 3UD—stopping and searching;
(c) for section 3UE—seizure of terrorism related items and serious offence related items;
(d) for section 3UEA—emergency entry to premises without a warrant;
(e) for section 3UF—seizure notices.
(3) An AFP police officer is a member or a special member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979).
Note: AFP police officers are police officers within the meaning of this Division (see section 3UA).
3UJB Annual report on exercise of powers
(1) The Minister must, as soon as practicable after each 30 June, cause to be prepared a report about the exercise of powers under this Division, during the year ended on that 30 June.
(2) Without limiting subsection (1), a report relating to a year must include the following matters:
(a) the number of instances when an AFP police officer (or officers) exercised a power under section 3UE, 3UEA or 3UF;
(b) the number of incidents when an AFP police officer (or officers) exercised powers under section 3UC or 3UD;
(c) the number of applications made under section 3UI for declarations that Commonwealth places are prescribed security zones;
(d) the number of declarations made under section 3UJ that Commonwealth places are prescribed security zones.
(3) The Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is completed.
(4) An AFP police officer is a member or a special member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979).
Note: AFP police officers are police officers within the meaning of this Division (see section 3UA).
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 2021.
(2) A declaration under section 3UJ that is in force at the end of 7 September 2021 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 2021.
Division 3B—Identity information requirements, and move‑on powers, at airports
3UL Definitions—Division 3B
In this Division:
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.
major airport: see section 3UM.
protective service officer means a protective service officer within the meaning of the Australian Federal Police Act 1979.
public order and safe operation of a major airport: see section 3UN.
relevant criminal activity: see section 3UQ.
senior police officer: see section 3UQ.
3UM Meaning of major airport
(1) For the purposes of this Division, each of the following airports is a major airport:
(a) Adelaide Airport;
(b) Alice Springs Airport;
(c) Brisbane Airport;
(d) Canberra Airport;
(e) Darwin International Airport;
(f) Gold Coast Airport;
(g) Hobart International Airport;
(h) Launceston Airport;
(i) Melbourne (Tullamarine) Airport;
(j) Perth Airport;
(k) Sydney (Kingsford‑Smith) Airport;
(l) Townsville Airport;
(m) an airport determined by the Minister under section 3UO.
(2) A reference in this Division to a major airport includes a reference to:
(a) for an airport mentioned in paragraphs (1)(a) to (l)—the place made up of the land described in relation to the airport in regulations made for the purposes of the definition of airport site in section 5 of the Airports Act 1996; and
(b) for an airport determined by the Minister under section 3UO—the place made up of the land described in the determination in relation to the airport; and
(c) for any airport mentioned in subsection (1)—any building, structure, installation or equipment situated on the relevant land mentioned in paragraph (a) or (b) of this subsection.
3UN Meaning of public order and safe operation
(1) In this Division, the public order and safe operation of a major airport means:
(a) the public order of the airport, or flights to and from the airport; or
(b) the safety of persons at the airport, or on flights to and from the airport; or
(c) the safe operation of the airport, or flights to and from the airport.
(2) However, the exercise of a person’s right to engage lawfully in advocacy, protest, dissent or industrial action is not, by itself, to be regarded as prejudicial to the public order and safe operation of a major airport.
3UO Determination of airports
(1) The Minister may, by legislative instrument, determine an airport for the purposes of the definition of major airport in section 3UM.
(2) A determination of an airport under subsection (1) must include a description of land in relation to the airport for the purposes of paragraph 3UM(2)(b).
(3) This Division applies in relation to an airport determined under subsection (1) only if the airport is ordinarily used for the purposes of any of the following:
(a) flights that start or end in a Territory;
(b) flights between Australia and a foreign country in which aircraft are used in the course of trade or commerce, for the carriage of passengers;
(c) flights between one State and another State in which aircraft are used in the course of trade or commerce, for the carriage of passengers.
(4) This Division may apply in relation to an airport determined under subsection (1) even if the airport is also used for a purpose other than a purpose mentioned in subsection (3).
Note: See also section 3UR (move‑on directions at airports—alternative constitutional scope).
3UP Identity information at airports
Direction to give identity information
(1) A constable or a protective service officer may direct a person to give the constable or officer evidence of the person’s identity if:
(a) the direction is given at a major airport; and
(b) the constable or officer:
(i) suspects on reasonable grounds that the person has committed, is committing, or intends to commit an offence against a law of the Commonwealth or a Territory, or a law of a State having a federal aspect, punishable by imprisonment for 12 months or more; or
(ii) considers on reasonable grounds that it is necessary to give the direction to safeguard the public order and safe operation of that airport or another major airport.
Evidence of identity
(2) A person must comply with a direction under subsection (1) by:
(a) producing a government photographic identity document issued in relation to the person; or
(b) if the person does not produce such a document—producing:
(i) another identity document in relation to the person; or
(ii) if so directed by the constable or officer—2 different identity documents in relation to the person; or
(c) if the person does not produce an identity document (or documents) under paragraph (a) or (b)—giving the constable or officer the person’s name, address and date of birth.
3UQ Move‑on directions at airports
When may a direction be given?
(1) A constable or a protective service officer may give a person a direction under this section if:
(a) the direction is given at a major airport; and
(b) one or more of the following applies:
(i) the constable or officer considers on reasonable grounds that the person has contravened a direction given at that airport under section 3UP (identity information at airports) or section 3US (stop and directions powers at airports), and the constable or officer is not reasonably satisfied of the person’s identity;
(ii) the constable or officer suspects on reasonable grounds that it is necessary to give the direction to prevent or disrupt relevant criminal activity occurring at any major airport, or in relation to a flight to or from any major airport;
(iii) the constable or officer considers on reasonable grounds that it is necessary to give the direction to safeguard the public order and safe operation of that airport or another major airport.
(2) Relevant criminal activity is criminal activity involving the commission of an offence that is punishable by imprisonment for 12 months or more, against either of the following:
(a) a law of the Commonwealth or a Territory;
(b) a law of a State having a federal aspect.
What type of direction may be given?
(3) The constable or officer may give a written direction to the person requiring the person to do either or both of the following:
(a) not to take a specified flight, or any flight, to or from that airport, or any specified major airport, for a specified period of no more than 24 hours after the direction is given;
(b) to leave the airport as soon as practicable, and not enter that airport, or any other specified major airport, for a specified period of no more than 24 hours after the direction is given.
(4) However, a direction covering a period of more than 12 hours must be given, or authorised (orally or in writing), by a senior police officer.
Note: In addition, if, before a direction (the later direction) is given to a person, a direction had already been given to the same person within a period of 7 days before the later direction is given, the later direction must be given or authorised by a senior police officer even if the period covered by the later direction is 12 hours or less (see subsection (9)).
(5) If a senior police officer orally authorises a direction under subsection (4), the senior police officer must record the authorisation in writing as soon as practicable afterwards.
(6) A senior police officer is a constable:
(a) having the rank of sergeant or an equivalent rank, or higher; or
(b) with formal authorisation to act as a constable having such a rank.
(7) A direction given to a person under this section must be in a form approved in writing by the Minister.
(8) A form approved for the purposes of subsection (7) must, without limitation, include the following to assist a person to whom a direction is given to apply for judicial review, or interlocutory orders, in relation to the giving of the direction:
(a) details to enable the person to contact a Federal Court registry in the State or Territory in which the direction is given, or a requirement for the constable or officer giving the direction to include such details;
(b) any other information the Minister considers appropriate to assist the person to make such applications, for example information relating to the procedure for urgent or expedited applications.
Restriction on later directions within 7 days
(9) After a direction (the earlier direction) is given to a person under this section, a later direction under this section may be given to a person within 7 days after the earlier direction was given only if:
(a) subsection (1) applies (or continues to apply) in relation to the person at the time the later direction is given; and
(b) the later direction is given, or authorised (orally or in writing), by a senior police officer; and
(c) no more than one later direction under this section is given within that 7‑day period; and
(d) the later direction covers a period that would end no later than 7 days after the earlier direction was given, at the same time of day at the place at which the earlier direction was given.
3UR Move‑on directions at airports—alternative constitutional scope
Without limiting its effect apart from this section, section 3UQ also has the effect it would have if the definition of major airport in section 3UM did not include an airport determined by the Minister under section 3UO.
3US Stop and directions powers at airports
(1) A constable or a protective service officer may give a person a direction under this section if:
(a) the direction is given at a major airport; and
(b) the constable or officer considers on reasonable grounds that it is necessary to give the direction to facilitate the exercise of a power under section 3UP (identity information at airports) or section 3UQ (move‑on directions at airports).
(2) The constable or officer may direct the person:
(a) to stop; or
(b) to do anything else the constable or officer considers on reasonable grounds to be necessary to facilitate the exercise of a power under section 3UP or 3UQ.
3UT Constables’ and protective service officers’ duties at airports
Scope of section
(1) A constable or protective service officer must comply with this section in relation to a direction given to a person under:
(a) section 3UP (identity information at airports); or
(b) section 3UQ (move‑on directions at airports).
Evidence of constable’s or protective service officer’s status or identity etc.
(2) The constable or officer must:
(a) if not in uniform—before the direction is given, show the person evidence that the constable is a constable, or that the officer is an officer; and
(b) if the person so requests before or after the direction is given—comply with subsection (3); and
(c) in any case—before the direction is given, inform the person that it may be an offence not to comply with the direction, or to give the constable or officer a false or misleading document, or false or misleading information, in response to the direction.
(3) The constable or officer must give the person any of the following information if requested by the person:
(a) the constable’s or officer’s name;
(b) the address of the constable’s or officer’s place of duty;
(c) the constable’s or officer’s identification number (if any);
(d) if the constable or officer has no identification number—the constable’s or officer’s rank.
3UU Directions at airports—offences
Contravening directions
(1) A person commits an offence if:
(a) the person is given a direction by a constable or protective service officer under:
(i) section 3UP (identity information at airports); or
(ii) section 3UQ (move‑on directions at airports); or
(iii) section 3US (stop and directions powers at airports); and
(b) the person engages in conduct; and
(c) the conduct contravenes the direction; and
(d) in the case of a direction given under section 3UP or 3UQ—the constable or officer complies with section 3UT (constables’ and protective service officers’ duties at airports).
Penalty: 20 penalty units.
(2) Absolute liability applies to paragraph (1)(d).
Note 1: For absolute liability, see section 6.2 of the Criminal Code.
Note 2: For subsection (1), a person may contravene a direction by failing to comply with the direction (see the definition of contravene in section 2B of the Acts Interpretation Act 1901).
Note 3: The following offences more serious than the offence under subsection (1) 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).
Failure by constable or protective service officer to give status or identity information etc.
(3) A person commits an offence if:
(a) the person is subject to a requirement under section 3UT (constables’ and protective service officers’ duties at airports); 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.
3UV Review of Division
(1) The Parliamentary Joint Committee on Intelligence and Security must review:
(a) the operation, effectiveness and implications of this Division; and
(b) security matters relating to major airports.
(2) The Committee must begin the review before the end of the period of 3 years beginning on the day the Crimes Legislation Amendment (Police Powers at Airports) Act 2019 commenced.
(3) The Committee must report on the review to each House of the Parliament before the end of the period of 9 months beginning on the day the review commences.
Division 4—Arrest and related matters
3V Requirement to furnish name etc.
(1) If a constable believes on reasonable grounds that a person whose name or address is, or whose name and address are, unknown to the constable may be able to assist the constable in inquiries in relation to an indictable offence that the constable has reason to believe has been or may have been committed, the constable may request the person to provide his or her name or address, or name and address, to the constable.
(2) If a constable:
(a) makes a request of a person under subsection (1); and
(b) informs the person of the reason for the request; and
(c) complies with subsection (3) if the person makes a request under that subsection;
the person must not:
(d) refuse or fail to comply with the request; or
(e) give a name or address that is false in a material particular.
(2A) Subsection (2) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).
(3) If a constable who makes a request of a person under subsection (1) is requested by the person to provide to the person:
(a) his or her name or the address of his or her place of duty; or
(b) his or her name and that address; or
(c) if he or she is not in uniform and it is practicable for the constable to provide the evidence—evidence that he or she is a constable;
the constable must not:
(d) refuse or fail to comply with the request; or
(e) give a name or address that is false in a material particular.
Penalty: 5 penalty units.
3W Power of arrest without warrant by constables
(1) A constable may, without warrant, arrest a person for an offence (other than a terrorism offence and an offence against section 80.2C of the Criminal Code) if the constable believes on reasonable grounds that:
(a) the person has committed or is committing the offence; and
(b) proceedings by summons against the person would not achieve one or more of the following purposes:
(i) ensuring the appearance of the person before a court in respect of the offence;
(ii) preventing a repetition or continuation of the offence or the commission of another offence;
(iii) preventing the concealment, loss or destruction of evidence relating to the offence;
(iv) preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
(v) preventing the fabrication of evidence in respect of the offence;
(vi) preserving the safety or welfare of the person.
(2) If:
(a) a person has been arrested for an offence under subsection (1); and
(b) before the person is charged with the offence, the constable in charge of the investigation ceases to believe on reasonable grounds:
(i) that the person committed the offence; or
(ii) that holding the person in custody is necessary to achieve a purpose referred to in paragraph (1)(b);
the person must be released.
(3) A constable may, without warrant, arrest a person whom he or she believes on reasonable grounds has escaped from lawful custody to which the person is still liable in respect of an offence.
3WA Constables’ power of arrest without warrant for a terrorism offence or offence of advocating terrorism
(1) A constable may, without warrant, arrest a person for a terrorism offence or an offence against section 80.2C of the Criminal Code if the constable suspects on reasonable grounds that:
(a) the person has committed or is committing the offence; and
(b) proceedings by summons against the person would not achieve one or more of the following purposes:
(i) ensuring the appearance of the person before a court in respect of the offence;
(ii) preventing a repetition or continuation of the offence or the commission of another offence;
(iii) preventing the concealment, loss or destruction of evidence relating to the offence;
(iv) preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
(v) preventing the fabrication of evidence in respect of the offence;
(vi) preserving the safety or welfare of the person.
(2) If:
(a) a person has been arrested for an offence under subsection (1); and
(b) before the person is charged with the offence, the constable in charge of the investigation ceases to suspect on reasonable grounds:
(i) that the person committed the offence; or
(ii) that holding the person in custody is necessary to achieve a purpose referred to in paragraph (1)(b);
the person must be released.
3X Arrest of prisoner unlawfully at large
(1) A constable may, without warrant, arrest a person whom the constable believes on reasonable grounds to be a prisoner unlawfully at large.
(2) The constable must, as soon as practicable, take the person before a Magistrate.
(3) If the Magistrate is satisfied that the person is a prisoner unlawfully at large, the Magistrate may issue a warrant:
(a) authorising any constable to convey the person to a prison or other place of detention specified in the warrant; and
(b) directing that the person, having been conveyed to that place in accordance with the warrant, be detained there to undergo the term of imprisonment or other detention that the person is required by law to undergo.
(4) In this section:
prisoner unlawfully at large means a person who is at large (otherwise than because the person has escaped from lawful custody) at a time when the person is required by law to be detained under a provision of a law of the Commonwealth, including Divisions 6 to 9, inclusive, of Part IB.
3Y Power of arrest without warrant of person on bail
(1) A constable may, without warrant, arrest a person who has been released on bail if the constable believes on reasonable grounds that the person has contravened or is about to contravene a condition of a recognisance on which bail was granted to the person in respect of an offence, even though the condition was imposed in a State or Territory other than the one in which the person is.
(2) Subject to subsection (3), if a constable arrests a person under subsection (1), the constable must cause the person to be brought before a magistrate as soon as is practicable.
(3) If a constable arrests a person under subsection (1) in the State or Territory in which the condition was imposed, the person is to be dealt with according to relevant laws of that State or Territory applied by section 68 of the Judiciary Act 1903.
(4) When a person arrested under subsection (1) in a State or Territory other than the one in which the condition was imposed is brought before a magistrate in the State or Territory in which the arrest took place, the court may:
(a) release the person unconditionally; or
(b) admit the person to bail on such recognisances as the court thinks fit to appear again before the same court at such time as the court orders; or
(c) if the condition was not imposed by the Federal Court of Australia—remand the person in custody for a reasonable time pending the obtaining of a warrant for the apprehension of the person from the State or Territory in which the condition was imposed; or
(d) if the condition was imposed by the Federal Court of Australia—remand the person in custody for a reasonable time pending the obtaining of a warrant for the apprehension of the person from that Court.
(5) A release referred to in paragraph (4)(a) does not affect the operation of the bail order or the conditions of the bail imposed in the other State or Territory.
3Z Power of arrest without warrant by other persons
(1) A person who is not a constable may, without warrant, arrest another person if he or she believes on reasonable grounds that:
(a) the other person is committing or has just committed an indictable offence; and
(b) proceedings by summons against the other person would not achieve one or more of the purposes referred to in paragraph 3W(1)(b).
(2) A person who arrests another person under subsection (1) must, as soon as practicable after the arrest, arrange for the other person, and any property found on the other person, to be delivered into the custody of a constable.
3ZA Warrants for arrest
(1) An issuing officer must not, under a law of a State or Territory applied by section 68 of the Judiciary Act 1903, issue a warrant for the arrest of a person for an offence as a result of an information laid before the officer unless:
(a) the information is on oath; and
(b) except where the issuing officer is informed that the warrant is sought for the purpose of making a request for the extradition of a person from a foreign country—the informant has given the issuing officer an affidavit setting out the reasons why the warrant is sought, including:
(i) the reasons why it is believed that the person committed the offence; and
(ii) the reasons why it is claimed that proceedings by summons would not achieve one or more of the purposes set out in paragraph 3W(1)(b); and
(c) if the issuing officer has requested further information concerning the reasons for which the issue of the warrant is sought—that information has been provided to the officer; and
(d) the issuing officer is satisfied that there are reasonable grounds for the issue of the warrant.
(2) If an issuing officer issues such a warrant, the officer must write on the affidavit which of the reasons specified in the affidavit, and any other reasons, he or she has relied on as justifying the issue of the warrant.
3ZB Power to enter premises to arrest offender
(1) Subject to subsection (3), if:
(a) a constable has, under a warrant, power to arrest a person for an offence; and
(b) the constable believes on reasonable grounds that the person is on any premises;
the constable may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(2) Subject to subsection (3), if:
(a) a constable may, under section 3W or 3WA, arrest a person without warrant for an offence; and
(b) the offence is an indictable offence; and
(c) the constable believes on reasonable grounds that the person is on any premises;
the constable may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(3) A constable must not enter a dwelling house under subsection (1) or (2) at any time during the period commencing at 9 p.m. on a day and ending at 6 a.m. on the following day unless the constable believes on reasonable grounds that:
(a) it would not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time; or
(b) it is necessary to do so in order to prevent the concealment, loss or destruction of evidence relating to the offence.
(4) In subsection (3):
dwelling house includes a conveyance, and a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.
3ZC Use of force in making arrest
(1) A person must not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.
(2) Without limiting the operation of subsection (1), a constable must not, in the course of arresting a person for an offence:
(a) do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the constable believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the constable); or
(b) if the person is attempting to escape arrest by fleeing—do such a thing unless:
(i) the constable believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the constable); and
(ii) the person has, if practicable, been called on to surrender and the constable believes on reasonable grounds that the person cannot be apprehended in any other manner.
3ZD Persons to be informed of grounds of arrest
(1) A person who arrests another person for an offence must inform the other person, at the time of the arrest, of the offence for which the other person is being arrested.
(2) It is sufficient if the other person is informed of the substance of the offence, and it is not necessary that this be done in language of a precise or technical nature.
(3) Subsection (1) does not apply to the arrest of the other person if:
(a) the other person should, in the circumstances, know the substance of the offence for which he or she is being arrested; or
(b) the other person’s actions make it impracticable for the person making the arrest to inform the other person of the offence for which he or she is being arrested.
3ZE Power to conduct a frisk search of an arrested person
A constable who arrests a person for an offence, or who is present at such an arrest, may, if the constable suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items:
(a) conduct a frisk search of the person at or soon after the time of arrest; and
(b) seize any seizable items found as a result of the search.
3ZF Power to conduct an ordinary search of an arrested person
A constable who arrests a person for an offence, or who is present at such an arrest, may, if the constable suspects on reasonable grounds that the person is carrying:
(a) evidential material in relation to that or another offence; or
(b) a seizable item;
conduct an ordinary search of the person at or soon after the time of arrest, and seize any such thing found as a result of the search.
3ZG Power to conduct search of arrested person’s premises
A constable who arrests a person at premises for an offence, or who is present at such an arrest, may seize things in plain view at those premises that the constable believes on reasonable grounds to be:
(a) evidential material in relation to that or another offence; or
(b) seizable items.
3ZH Power to conduct an ordinary search or a strip search
(1) If a person who has been arrested for an offence is brought to a police station, a constable may:
(a) if an ordinary search of the person has not been conducted—conduct an ordinary search of the person; or
(b) subject to this section, conduct a strip search of the person.
(2) A strip search may be conducted if:
(a) a constable suspects on reasonable grounds that the person has in his or her possession:
(i) a seizable item; or
(ii) evidential material (other than forensic material as defined in Part ID) in relation to that or another offence; and
(b) the constable suspects on reasonable grounds that it is necessary to conduct a strip search of the person in order to recover that item or evidential material; and
(c) a constable of the rank of superintendent or higher has approved the conduct of the search.
(2A) If:
(a) in the course of carrying out a strip search, the constable comes to believe on reasonable grounds that the carrying out of a forensic procedure would be likely to produce evidence relating to the offence for which the person has been arrested or any other offence; and
(b) Part ID provides for the carrying out of such a forensic procedure;
the forensic procedure must not be carried out except in accordance with Part ID.
(2B) The conducting of a strip search may include taking photographs of evidential material found on the person, whether or not taking photographs is a forensic procedure provided for by Part ID.
(3) Subject to section 3ZI, a strip search may also be conducted if the person consents in writing.
(3A) Subsection (3) does not authorise the conduct of a strip search for the purpose of obtaining forensic material as defined in Part ID. Such a search must not be conducted except in accordance with Part ID.
(4) Subject to section 3ZI, a strip search may be conducted in the presence of a medical practitioner who may assist in the search.
(5) The approval may be obtained by telephone, telex, fax or other electronic means.
(6) A constable who gives or refuses to give an approval for the purposes of paragraph (2)(c) must make a record of the decision and of the reasons for the decision.
(7) Such force as is necessary and reasonable in the circumstances may be used to conduct a strip search under subsection (2).
(8) Any item of a kind referred to in paragraph (2)(a) that is found during a strip search may be seized.
3ZI Rules for conduct of strip search
(1) A strip search:
(a) must be conducted in a private area; and
(b) must be conducted by a constable who is of the same sex as the person being searched; and
(c) subject to subsections (3) and (4), must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched; and
(d) must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search; and
(e) must not be conducted on a person who is under 10; and
(f) if the person being searched is at least 10 but under 18, or is incapable of managing his or her affairs:
(i) may only be conducted if the person has been arrested and charged or if a magistrate orders that it be conducted; and
(ii) must be conducted in the presence of a parent or guardian of the person being searched or, if that is not acceptable to the person, in the presence of another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person; and
(g) must not involve a search of a person’s body cavities; and
(h) must not involve the removal of more garments than the constable conducting the search believes on reasonable grounds to be necessary to determine whether the person has in his or her possession the item searched for or to establish the person’s involvement in the offence; and
(i) must not involve more visual inspection than the constable believes on reasonable grounds to be necessary to establish the person’s involvement in the offence.
(2) In deciding whether to make an order referred to in paragraph (1)(f), the magistrate must have regard to:
(a) the seriousness of the offence; and
(b) the age or any disability of the person; and
(c) such other matters as the magistrate thinks fit.
(3) A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if a medical practitioner of the same sex as the person being searched is not available within a reasonable time.
(4) Paragraph (1)(c) does not apply to a parent, guardian or personal representative of the person being searched if the person being searched has no objection to the person being present.
(5) If any of a person’s garments are seized as a result of a strip search, the person must be provided with adequate clothing.
3ZJ Taking fingerprints, recordings, samples of handwriting or photographs
(1) In this section and in sections 3ZK and 3ZL:
identification material, in relation to a person, means prints of the person’s hands, fingers, feet or toes, recordings of the person’s voice, samples of the person’s handwriting or photographs (including video recordings) of the person, but does not include tape recordings made for the purposes of section 23U or 23V.
(2) A constable must not:
(a) take identification material from a person who is in lawful custody in respect of an offence except in accordance with this section; or
(b) require any other person to submit to the taking of identification material, but nothing in this paragraph prevents such a person consenting to the taking of identification material.
(3) If a person is in lawful custody in respect of an offence, a constable who is of the rank of sergeant or higher or who is for the time being in charge of a police station may take identification material from the person, or cause identification material from the person to be taken, if:
(a) the person consents in writing; or
(b) the constable believes on reasonable grounds that it is necessary to do so to:
(i) establish who the person is; or
(ii) identify the person as the person who committed the offence; or
(iii) provide evidence of, or relating to, the offence; or
(ba) both of the following apply:
(i) the identification material taken, or caused to be taken, is fingerprints or photographs (including video recordings) of the person;
(ii) the offence is punishable by imprisonment for a period of 12 months or more; or
(c) the constable suspects on reasonable grounds that the person has committed another offence and the identification material is to be taken for the purpose of identifying the person as the person who committed the other offence or of providing evidence of, or relating to, the other offence.
(4) A constable may use such force as is necessary and reasonable in the circumstances to take identification material from a person under this section.
(5) Subject to subsection (9), a constable must not take identification material from a person who is under 10.
(6) Subject to this section, a constable must not take identification material (other than hand prints, finger prints, foot prints or toe prints) from a suspect who:
(a) is at least 10 but under 18, or is incapable of managing his or her affairs; and
(b) has not been arrested and charged;
unless a magistrate orders that the material be taken.
(6A) A constable must not take hand prints, finger prints, foot prints or toe prints from a suspect who:
(a) is at least 10 but under 18, or is incapable of managing his or her affairs; and
(b) has not been arrested and charged;
except in accordance with Part ID.
(7) In deciding whether to make such an order, the magistrate must have regard to:
(a) the seriousness of the offence; and
(b) the age or any disability of the person; and
(c) such other matters as the magistrate thinks fit.
(8) The taking of identification material from a person who:
(a) is under 18; or
(b) is incapable of managing his or her affairs;
must be done in the presence of:
(c) a parent or guardian of the person; or
(d) if the parent or guardian of the person is not acceptable to the person, another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person.
(9) Despite this section, identification material may be taken from a person who:
(a) is not a suspect; and
(b) is under 10 or is incapable of managing his or her affairs;
if a magistrate orders that the material be taken.
(10) Despite this section, identification material may be taken from a person who:
(a) is not a suspect; and
(b) is at least 10 but under 18; and
(c) is capable of managing his or her affairs;
if one of the following paragraphs applies:
(d) the person agrees in writing to the taking of the material and a parent or guardian of the person also agrees in writing or, if a parent or guardian is not acceptable to the person, another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person also agrees in writing;
(e) if:
(i) one of those persons agrees in writing to the taking of the material but the other does not; and
(ii) a magistrate orders that the material be taken.
(11) In deciding whether to make such an order, the magistrate must have regard to the matters set out in subsection (7).
(12) Despite this section, identification material may be taken from a person who:
(a) is at least 18; and
(b) is capable of managing his or her affairs; and
(c) is not a suspect;
if the person consents in writing.
3ZK Destruction of identification material
(1) If:
(a) identification material has been taken from a person under section 3ZJ; and
(b) a period of 12 months has elapsed since the identification material was taken; and
(c) proceedings in respect of an offence to which the investigation material relates have not been instituted or have been discontinued;
the identification material must be destroyed as soon as practicable.
(2) If identification material has been taken from a person under section 3ZJ and:
(a) the person is found to have committed an offence to which the identification material relates but no conviction is recorded; or
(b) the person is acquitted of such an offence and:
(i) no appeal is lodged against the acquittal; or
(ii) an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn;
the identification material must be destroyed as soon as practicable unless an investigation into, or a proceeding against the person for, another offence to which the identification material relates is pending.
(3) A magistrate may, on application by a constable, extend the period of 12 months referred to in subsection (1) or that period as previously extended under this subsection in relation to particular identification material if the magistrate is satisfied that there are special reasons for doing so.
3ZL Offence of refusing to allow identification material to be taken
(1) If a person is convicted of an offence, the judge or magistrate presiding at the proceedings at which the person was convicted may order:
(a) the person to attend a police station; or
(b) that a constable be permitted to attend on the person in a place of detention;
within one month after the conviction to allow impressions of the person’s fingerprints and/or or a photograph of the person to be taken in accordance with the order.
(2) A person must not refuse or fail to allow those impressions or a photograph of the person to be taken.
Penalty: Imprisonment for 12 months.
(3) Subsection (2) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(3A) The judge or magistrate may also make any other orders that are reasonably necessary for ensuring that the impressions of the person’s fingerprints and/or a photograph of the person are taken in accordance with the order under subsection (1). For example, the judge or magistrate may order the person to attend a specified police station at a specified time.
(3B) A person commits an offence if:
(a) the person is subject to an order under subsection (3A); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the order.
Penalty: Imprisonment for 12 months.
(3C) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
(4) Nothing in this section derogates from the right to use the provisions of Part ID as authority for the taking of fingerprints from a prescribed offender or a serious offender.
(5) In subsection (4), prescribed offender and serious offender have the meanings given in subsection 23WA(1).
3ZM Identification parades
(1) This section applies to identification parades held in relation to offences.
(2) Subject to subsection (3) and to section 3ZN, an identification parade:
(a) may be held if the suspect agrees; or
(b) must be held if:
(i) the suspect has requested that an identification parade be held; and
(ii) it is reasonable in the circumstances to do so.
(2A) Without limiting the matters that may be taken into account in determining whether it is reasonable in the circumstances to hold an identification parade, the following must be taken into account:
(a) the kind of offence, and the gravity of the offence, concerned;
(b) the likely importance in the circumstances of the evidence of identification;
(c) the practicality of holding an identification parade, having regard, among other things:
(i) if the suspect fails to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure; and
(ii) in any case—to whether an identification was made at or about the time of the commission of the offence; and
(d) the appropriateness of holding an identification parade, having regard, among other things, to the relationship (if any) between the suspect and the person who may make an identification at the identification parade.
(3) An identification parade must not be held unless the suspect has been informed that:
(a) he or she is entitled to refuse to take part in the parade; and
(b) if he or she refuses to take part in the parade:
(i) evidence of the refusal may be given in later proceedings relating to an offence, for the purpose of explaining why an identification parade was not held; and
(ii) evidence may be given in such proceedings of any identification of the suspect by a witness as a result of having seen a photograph or having seen the suspect otherwise than during an identification parade; and
(c) in addition to any requirement under section 3ZN, a legal representative or other person of the suspect’s choice may be present while the person is deciding whether to take part in the parade, and during the holding of the parade, if arrangements for that person to be present can be made within a reasonable time.
(4) The giving of the information referred to in subsection (3) must be recorded by a video recording or an audio recording.
(5) An identification parade must be arranged and conducted in a manner that will not unfairly prejudice the suspect.
(6) Without limiting the intent of subsection (5), an identification parade must be arranged and conducted in accordance with the following rules:
(a) the parade must consist of at least 9 persons;
(b) each of the persons who is not the suspect must:
(i) resemble the suspect in age, height and general appearance; and
(ii) not have features that will be visible during the parade that are markedly different from those of the suspect as described by the witness before viewing the parade;
(c) unless it is impracticable for another constable to arrange or conduct the parade, no constable who has taken part in the investigation relating to the offence may take part in the arrangements for, or the conduct of, the parade;
(d) no person in the parade is to be dressed in a way that would obviously distinguish him or her from the other participants;
(e) if it is practicable to do so, numbers should be placed next to each participant in order to allow the witness to make an identification by indicating the number of the person identified;
(f) the parade may take place so that the witness can view the parade without being seen if the witness requests that it take place in such a manner and:
(i) a legal representative or other person of the suspect’s choice is present with the witness; or
(ii) the parade is recorded by a video recording;
(g) nothing is to be done that suggests or is likely to suggest to a witness which member of the parade is the suspect;
(h) if the witness so requests, members of the parade may be required to speak, move or adopt a specified posture but, if this happens, the witness must be reminded that the members of the parade have been chosen on the basis of physical appearance only;
(i) the suspect may select where he or she wishes to stand in the parade;
(j) if more than one witness is to view the parade:
(i) each witness must view the parade alone; and
(ii) the witnesses are not to communicate with each other at a time after arrangements for the parade have commenced and before each of them has viewed the parade; and
(iii) the suspect may change places in the parade after each viewing;
(k) each witness must be told that:
(i) the suspect may not be in the parade; and
(ii) if he or she is unable to identify the suspect with reasonable certainty he or she must say so;
(l) the parade must be recorded by a video recording if it is practicable to do so and, if that is done, a copy of the video recording must be made available to the suspect or his or her legal representative as soon as it is practicable to do so;
(m) if the parade is not recorded by a video recording:
(i) the parade must be photographed in colour; and
(ii) a print of a photograph of the parade that is at least 250mm ´ 200mm in size must be made available to the suspect or his or her legal representative; and
(iii) the constable in charge of the parade must take all reasonable steps to record everything said and done at the parade and must make a copy of the record available to the suspect or his or her legal representative;
(n) the suspect may have present during the holding of the parade a legal representative or other person of his or her choice if arrangements for that person to be present can be made within a reasonable time.
(7) Nothing in this Act affects the determination of the following questions:
(a) whether or not evidence of a suspect having refused to take part in an identification parade is admissible;
(b) if evidence of such a refusal is admissible, what inferences (if any) may be drawn by a court or jury from the refusal;
(c) whether, after such a refusal, evidence of alternative methods of identification is admissible.
(8) If a witness is, under the supervision of a constable, to attempt to identify a suspect otherwise than during an identification parade, the constable must ensure that the attempted identification is done in a manner that is fair to the suspect.
3ZN Identification parades for suspects under 18 etc.
(1) An identification parade must not be held for a suspect who is under 10.
(2) An identification parade must not be held for a suspect who is incapable of managing his or her affairs unless a magistrate orders that it be held.
(3) An identification parade must not be held for a suspect who:
(a) is at least 10 but under 18; and
(b) is capable of managing his or her affairs;
unless one of the following paragraphs applies:
(c) the suspect agrees to or requests in writing the holding of the parade and a parent or guardian of the suspect agrees in writing to the holding of the parade or, if the parent or guardian is not acceptable to the suspect, another person (other than a constable) who is capable of representing the interests of the suspect and who, as far as is practicable in the circumstances, is acceptable to the suspect agrees in writing to the holding of the parade;
(d) if:
(i) one of those persons agrees in writing to the holding of the parade but the other does not; and
(ii) a magistrate orders that the parade be held.
(4) In deciding whether to make such an order, the magistrate must have regard to:
(a) the seriousness of the offence; and
(b) the age or any disability of the person; and
(c) such other matters as the magistrate thinks fit.
(5) An identification parade for a suspect who is under 18 or is incapable of managing his or her affairs must be held in the presence of:
(a) a parent or guardian of the suspect; or
(b) if the parent or guardian is not acceptable to the suspect, another person (other than a constable) who is capable of representing the interests of the suspect and who, as far as is practicable in the circumstances, is acceptable to the suspect.
3ZO Identification by means of photographs
(1) If a suspect is in custody in respect of an offence or is otherwise available to take part in an identification parade, a constable investigating the offence must not show photographs, or composite pictures or pictures of a similar kind, to a witness for the purpose of establishing, or obtaining evidence of, the identity of the suspect unless:
(a) the suspect has refused to take part in an identification parade; or
(aa) the suspect’s appearance has changed significantly since the offence was committed; or
(b) the holding of an identification parade would be:
(i) unfair to the suspect; or
(ii) unreasonable in the circumstances.
(1A) Without limiting the matters that may be taken into account in determining whether it would be unreasonable in the circumstances to hold an identification parade, the following must be taken into account:
(a) the kind of offence, and the gravity of the offence, concerned;
(b) the likely importance in the circumstances of the evidence of identification;
(c) the practicality of holding an identification parade, having regard, among other things:
(i) if the suspect fails to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure; and
(ii) in any case—to whether an identification was made at or about the time of the commission of the offence; and
(d) the appropriateness of holding an identification parade, having regard, among other things, to the relationship (if any) between the suspect and the person who may make an identification at the identification parade.
(2) If a constable investigating an offence shows photographs or pictures to a witness for the purpose of establishing, or obtaining evidence of, the identity of a suspect, whether or not the suspect is in custody, the following rules apply:
(a) the constable must show to the witness photographs or pictures of at least 9 different persons;
(b) each photograph or picture of a person who is not the suspect must be of a person who:
(i) resembles the suspect in age and general appearance; and
(ii) does not have features visible in the photograph or picture that are markedly different from those of the suspect as described by the witness before viewing the photographs or pictures;
(ba) the photographs or pictures shown to the witness must not suggest that they are photographs or pictures of persons in police custody;
(c) the constable must not, in doing so, act unfairly towards the suspect or suggest to the witness that a particular photograph or picture is the photograph or picture of the suspect or of a person who is being sought by the police in respect of an offence;
(d) if practicable, the photograph or picture of the suspect must have been taken or made after he or she was arrested or was considered as a suspect;
(e) the witness must be told that a photograph or picture of the suspect may not be amongst those being seen by the witness;
(f) the constable must keep, or cause to be kept, a record identifying each photograph or picture that is shown to the witness;
(g) the constable must notify the suspect or his or her legal representative in writing that a copy of the record is available for the suspect;
(h) the constable must retain the photographs or pictures shown, and must allow the suspect or his or her legal representative, upon application, an opportunity to inspect the photographs or pictures.
(3) If:
(a) a photograph or picture of a person who is suspected in relation to the commission of an offence is shown to a witness; and
(b) the photograph was taken or the picture made after the suspect was arrested or was considered to be a suspect; and
(c) proceedings in relation to the offence referred to in paragraph (a) or another offence arising out of the same course of conduct for which the photograph was taken or picture made are brought against the suspect before a jury; and
(d) the photograph or picture is admitted into evidence;
the jury must be informed that the photograph was taken or the picture made after the suspect was arrested or was considered as a suspect.
(4) If a suspect is in custody in respect of an offence, a constable investigating the offence must not show a composite picture or a picture of a similar kind to a witness for the purpose of assisting the witness to describe the features of the suspect.
(5) If, after a constable investigating an offence has shown to a witness a composite picture or a picture of a similar kind for the purpose referred to in subsection (4):
(a) a suspect comes into custody in respect of the offence; and
(b) an identification parade is to be held in relation to the suspect;
the constable in charge of the investigation of the offence may, unless doing so would be unfair to the suspect or be unreasonable in the circumstances, request the witness to attend the identification parade and make the necessary arrangements for the witness to attend.
(6) If, after the witness has been shown a composite picture or a picture of a similar kind for the purpose referred to in subsection (4), a person is charged with the offence, the constable in charge of investigating the offence must, upon application by that person or his or her legal representative, provide him or her with particulars of any such picture shown to the witness and the comments (if any) of the witness concerning the picture.
(7) If a suspect is in custody in respect of an offence and a constable investigating the offence wishes to investigate the possibility that a person other than the suspect committed the offence, subsection (4) does not prevent a constable from taking action referred to in that subsection for the purpose of assisting a witness to describe the features of a person other than the suspect.
3ZP Identification procedures where there is more than one suspect
If:
(a) a constable is attempting to ascertain:
(i) which of 2 or more suspects committed an offence; or
(ii) the identities of 2 or more suspects who may have been jointly involved in an offence; and
(b) for that purpose, the constable intends to conduct an identification parade or to identify a person by showing a photograph or a picture of a suspect to a person;
the constable must undertake a separate identification process for each of the suspects.
3ZQ Descriptions
(1) If a description of a suspect is given to a constable in relation to an offence, the constable must ensure that a record of the description is made and that the record is retained until any proceedings in respect of the offence are completed.
(2) Subject to subsection (4), a constable must, if requested to do so by a person who has been charged with an offence, provide the person with the name of every person who, to the knowledge of the constable, claims to have seen, at or about the time of the commission of the offence, a person who is suspected of being involved in its commission.
(3) If:
(a) a record of a description of a person is made under subsection (1); and
(b) the person is charged with an offence to which the description relates;
a constable must notify the person or his or her legal representative in writing that a copy of the record, and of any other record of a description that the constable knows about of a person who is suspected of being involved in the commission of the offence, is available for the person.
(4) If the constable suspects on reasonable grounds that providing the name of a person under subsection (2) could:
(a) place the person in danger; or
(b) expose the person to harassment or unreasonable interference;
the constable is not required to provide the name of the person.
Division 4A—Determining a person’s age
Subdivision A—Preliminary
3ZQA Definitions
(1) In this Division:
age determination information means a record, or information, relating to a person that is obtained by carrying out a prescribed procedure.
appropriately qualified, in relation to the carrying out of a prescribed procedure, means:
(a) having suitable professional qualifications or experience to carry out the prescribed procedure; or
(b) qualified under the regulations to carry out the prescribed procedure.
Commonwealth offence means:
(a) an offence against a law of the Commonwealth, other than an offence that is a service offence for the purposes of the Defence Force Discipline Act 1982; or
(b) a State offence that has a federal aspect.
investigating official means:
(a) a member or special member of the Australian Federal Police; or
(b) a member of the police force of a State or Territory; or
(c) a person who holds an office the functions of which include the investigation of Commonwealth offences and who is empowered by a law of the Commonwealth because of the holding of that office to make arrests in respect of such offences.
prescribed procedure means a procedure specified by regulations made for the purposes of subsection (2) to be a prescribed procedure for determining a person’s age.
(2) The regulations may specify a particular procedure to be a prescribed procedure for determining a person’s age.
(3) A procedure prescribed for the purposes of subsection (2):
(a) may involve the operation of particular equipment that is specified for the purpose; and
(b) must require that equipment to be operated by an appropriately qualified person.
(4) Before the Governor‑General makes a regulation for the purposes of subsection (2), the Minister must consult with the Minister responsible for the administration of the Therapeutic Goods Act 1989.
Subdivision B—Determination of age during investigation
3ZQB Circumstances where investigating official may seek authority to carry out a prescribed procedure
(1) If:
(a) an investigating official suspects, on reasonable grounds, that a person may have committed a Commonwealth offence; and
(b) it is necessary to determine whether or not the person is, or was, at the time of the alleged commission of the offence, under 18 because that question is relevant to the rules governing the person’s detention, the investigation of the offence or the institution of criminal proceedings;
the investigating official may, whether or not the person is in custody at the time, arrange for the carrying out of a prescribed procedure in respect of the person only if:
(c) the investigating official obtains, in accordance with section 3ZQC, the requisite consents to the carrying out of the procedure in respect of the person; or
(d) a magistrate orders, on application by the investigating official, the carrying out of the procedure in respect of the person.
(2) An application to a magistrate by an investigating official for the purposes of paragraph (1)(d) may be made:
(a) in person; or
(b) by telephone, telex, fax or other electronic means.
(3) In deciding whether to make such an order on application by an investigating official, the magistrate must be satisfied that:
(a) there are reasonable grounds for the suspicion that the person has committed a Commonwealth offence; and
(b) there is uncertainty as to whether or not the person is, or was, at the time of the alleged commission of the offence, under 18; and
(c) the uncertainty will need to be resolved in order to determine the application of the rules governing the person’s detention, the investigation of the offence or the institution of criminal proceedings.
3ZQC Obtaining of consents for the carrying out of a prescribed procedure
(1) For the purposes of paragraph 3ZQB(1)(c), an investigating official is taken to have obtained the requisite consents to the carrying out of a prescribed procedure in respect of a person if the following persons agree in writing to the carrying out of the procedure:
(a) the person in respect of whom it is sought to carry out the procedure;
(b) either:
(i) a parent or guardian of the person; or
(ii) if a parent or guardian is not available or is not acceptable to the person—an independent adult person (other than an investigating official involved in the investigation of the person) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person.
(2) Before seeking the consents referred to in subsection (1), an investigating official must first inform each of the persons from whom such a consent is being sought, in a language in which the person is able to communicate with reasonable fluency:
(a) the purpose and reasons for which the prescribed procedure is to be carried out; and
(b) the nature of the procedure; and
(c) if the procedure involves the operation of particular equipment—the nature of that equipment; and
(d) that the information obtained from the carrying out of the procedure could affect the manner of dealing with the person on whom the procedure is to be carried out; and
(e) the known risks (if any) that would be posed to the health of the person on whom the procedure is to be carried out; and
(ea) that the persons giving the requisite consent may withdraw that consent at any time; and
(f) that the seeking of the requisite consent and any giving of such consent was being, or would be, recorded; and
(g) that the persons giving the requisite consent are each entitled to a copy of that record; and
(h) that the person on whom the procedure is to be carried out may have, so far as is reasonably practicable, a person of his or her choice present while the procedure is carried out.
(3) The requisite consents may be given:
(a) in person; or
(b) by telephone, telex, fax or other electronic means.
(4) Nothing in this section affects the rights of a person under Part IC, in particular a person’s rights under:
(a) section 23G (Right to communicate with friend, relative and legal practitioner); or
(b) section 23P (Right of foreign national to communicate with consular office).
3ZQD Withdrawal of consent
If a person who has given consent to the carrying out of a prescribed procedure expressly withdraws consent to the carrying out of that procedure (or if the withdrawal of such consent can reasonably be inferred from the person’s conduct) before or during the carrying out of the procedure, the carrying out of the procedure is not to proceed otherwise than by order of a magistrate on the application of an investigating official.
3ZQE Recording of giving of information about carrying out a prescribed procedure and relevant responses
(1) An investigating official must, if practicable, ensure that:
(a) the giving of information about a prescribed procedure and the responses (if any) of the persons to whom the information is given are recorded by audio tape, video tape or other electronic means; and
(b) a copy of the record is made available to the person on whom it is sought to carry out the procedure.
(2) If recording the giving of information and the responses (if any) of the persons to whom the information is given in the manner referred to in subsection (1) is not practicable, the investigating official must ensure that:
(a) a written record of the giving of the information and of the responses (if any) is made; and
(b) a copy of the record is made available to the person on whom it is sought to carry out the procedure.
Subdivision C—Determination of age during proceedings
3ZQF Circumstances where judge or magistrate may order carrying out of a prescribed procedure on own initiative
If:
(a) a person is being prosecuted for a Commonwealth offence; and
(b) the judge or magistrate presiding over the proceedings related to that offence is satisfied that it is necessary to ascertain whether or not the person is, or was, at the time of the alleged commission of that offence, under 18;
the judge or magistrate presiding may make an order requiring the carrying out of a prescribed procedure in respect of the person.
Subdivision D—Communication of orders by judges or magistrates
3ZQG Orders made by judges or magistrates concerning carrying out of a prescribed procedure
(1) If a judge or a magistrate orders the carrying out of a prescribed procedure (whether as a result of a request by an investigating official or not), the judge or magistrate must:
(a) ensure that a written record of the order, and of the reasons for the making of the order, is kept; and
(b) ensure that the person on whom the procedure is to be carried out is told by an investigating official in a language in which the person is able to communicate with reasonable fluency:
(i) that an order for the carrying out of the procedure has been made and of the reasons for the making of the order; and
(ii) of the arrangements for the carrying out of the procedure; and
(iii) of the fact that reasonable force may be used to secure the compliance of the person to whom the order relates.
(2) The judge or magistrate may give directions as to the time, place and manner in which the procedure is to be carried out.
Subdivision E—Matters relating to the carrying out of prescribed procedures
3ZQH Appropriate medical or other standards to be applied
A prescribed procedure must be carried out in a manner consistent with either or both of the following:
(a) appropriate medical standards;
(b) appropriate other relevant professional standards.
3ZQI Reasonable and necessary force
Except where the carrying out of a prescribed procedure to determine a person’s age is undertaken with the consent of that person and of an additional adult person in accordance with section 3ZQC, the person carrying out the procedure, and any person assisting that person, is entitled to use such force as is reasonable and necessary in the circumstances.
Subdivision F—Disclosure and destruction of age determination information
3ZQJ Disclosure of age determination information
(1) A person commits an offence if:
(a) the person’s conduct causes the disclosure of age determination information other than as provided by this section; and
(b) the person is reckless as to any such disclosure.
Penalty: Imprisonment for 2 years.
(2) A person may only disclose age determination information:
(a) for a purpose related to establishing and complying with the rules governing:
(i) the detention of the person to whom the age determination information relates; or
(ii) the investigation of a Commonwealth offence by that person; or
(iii) the institution of criminal proceedings against that person for a Commonwealth offence; or
(b) for a purpose related to the conduct of:
(i) the investigation of the person to whom the age determination information relates for a Commonwealth offence; or
(ii) proceedings for a Commonwealth offence against that person; or
(c) for the purpose of an investigation by the Information Commissioner of the Commonwealth or the Commonwealth Ombudsman; or
(d) if the person to whom the age determination information relates consents in writing to the disclosure.
Note: A defendant bears an evidential burden in relation to the matters referred to in subsection (2)—see subsection 13.3(3) of the Criminal Code.
3ZQK Destruction of age determination information
(1) If, in relation to a Commonwealth offence:
(a) age determination information relating to a person has been obtained by carrying out a prescribed procedure; and
(b) 12 months have passed since the carrying out of the procedure; and
(c) proceedings in respect of the offence have not been instituted against the person from whom the information was taken or have discontinued;
the information must be destroyed as soon as practicable.
(2) If, in relation to a Commonwealth offence, age determination information relating to a person has been obtained by carrying out a prescribed procedure and:
(a) the person is found to have committed the offence but no conviction is recorded; or
(b) the person is acquitted of the offence and:
(i) no appeal is lodged against the acquittal; or
(ii) an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn;
the information must be destroyed as soon as practicable unless an investigation into, or a proceeding against, the person for another Commonwealth offence is pending.
(3) A magistrate may, on application by an investigating official, extend the period of 12 months referred to in subsection (1), or that period as previously extended under this subsection in relation to the information, if the magistrate is satisfied that there are special reasons for doing so.
Division 4B—Power to obtain information and documents
Subdivision A—Definitions
3ZQL Definition
In this Division:
authorised AFP officer means:
(a) the Commissioner; or
(b) a Deputy Commissioner; or
(c) a senior executive AFP employee who:
(i) is a member of the Australian Federal Police; and
(ii) is authorised in writing by the Commissioner for the purposes of this paragraph.
Subdivision B—Power to request information or documents about terrorist acts from operators of aircraft or ships
3ZQM Power to request information or documents about terrorist acts from operators of aircraft or ships
(1) This section applies if an authorised AFP officer believes on reasonable grounds that an operator of an aircraft or ship has information or documents (including in electronic form) that are relevant to a matter that relates to the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).
(2) The officer may:
(a) ask the operator questions relating to the aircraft or ship, or its cargo, crew, passengers, stores or voyage, that are relevant to the matter; or
(b) request the operator to produce documents relating to the aircraft or ship, or its cargo, crew, passengers, stores or voyage:
(i) that are relevant to the matter; and
(ii) that are in the possession or under the control of the operator.
(3) A person who is asked a question or requested to produce a document under subsection (2) must answer the question or produce the document as soon as practicable.
Offence
(4) A person commits an offence if:
(a) the person is an operator of an aircraft or ship; and
(b) the person is asked a question or requested to produce a document under subsection (2); and
(c) the person fails to answer the question or produce the document.
Penalty: 60 penalty units.
(5) Subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) It is a defence to a prosecution for an offence against subsection (4) if the person charged had a reasonable excuse for:
(a) failing to answer the question; or
(b) failing to produce the document.
Definitions
(7) In this section:
operator has the meaning given by section 4 of the Customs Act 1901.
Subdivision C—Power to obtain documents relating to serious terrorism and non‑terrorism offences
3ZQN Power to obtain documents relating to serious terrorism offences
(1) This section applies if an authorised AFP officer considers on reasonable grounds that a person has documents (including in electronic form) that are relevant to, and will assist, the investigation of a serious terrorism offence.
(2) The officer may give the person a written notice requiring the person to produce documents that:
(a) relate to one or more of the matters set out in section 3ZQP, as specified in the notice; and
(b) are in the possession or under the control of the person.
(3) The notice must:
(a) specify the name of the person to whom the notice is given; and
(b) specify the matters to which the documents to be produced relate; and
(c) specify the manner in which the documents are to be produced; and
(d) specify the place at which the documents are to be produced; and
(e) specify the day by which the person must comply with the notice, being a day that is at least:
(i) 14 days after the giving of the notice; or
(ii) if the officer believes that it is appropriate, having regard to the urgency of the situation, to specify an earlier day—3 days after the giving of the notice; and
(f) set out the effect of section 3ZQS (offence for failure to comply); and
(g) if the notice specifies that information about the notice must not be disclosed—set out the effect of section 3ZQT (offence for disclosing existence or nature of a notice).
3ZQO Power to obtain documents relating to serious offences
(1) An authorised AFP officer may apply to a Judge of the Federal Circuit Court of Australia for a notice under this section in respect of a person if the AFP officer considers on reasonable grounds that the person has documents (including in electronic form) that are relevant to, and will assist, the investigation of a serious offence.
(2) If the Judge is satisfied on the balance of probabilities, by information on oath or by affirmation, that:
(a) the person has documents (including in electronic form) that are relevant to, and will assist, the investigation of a serious offence; and
(b) giving the person a notice under this section is reasonably necessary, and reasonably appropriate and adapted, for the purpose of investigating the offence;
the Judge may give the person a written notice requiring the person to produce documents that:
(c) relate to one or more of the matters set out in section 3ZQP, as specified in the notice; and
(d) are in the possession or under the control of the person.
(3) The Judge must not give the notice unless the authorised AFP officer or some other person has given to the Judge, either orally or by affidavit, such further information (if any) as the Judge requires concerning the grounds on which the issue of the notice is being sought.
(4) The notice must:
(a) specify the name of the person to whom the notice is given; and
(b) specify the matters to which the documents to be produced relate; and
(c) specify the manner in which the documents are to be produced; and
(d) specify the place at which the documents are to be produced; and
(e) state that the person must comply with the notice within 14 days after the day on which the notice is given; and
(f) set out the effect of section 3ZQS (offence for failure to comply); and
(g) if the notice specifies that information about the notice must not be disclosed—set out the effect of section 3ZQT (offence for disclosing existence or nature of a notice).
3ZQP Matters to which documents must relate
A document to be produced under a notice under section 3ZQN or 3ZQO must relate to one or more of the following matters:
(a) determining whether an account is held by a specified person with a specified financial institution, and details relating to the account (including details of any related accounts);
(b) determining whether a specified person is a signatory to an account with a specified financial institution, and details relating to the account (including details of any related accounts);
(c) determining whether a transaction has been conducted by a specified financial institution on behalf of a specified person, and details relating to the transaction (including details relating to other parties to the transaction);
(d) determining whether a specified person travelled or will travel between specified dates or specified locations, and details relating to the travel (including details relating to other persons travelling with the specified person);
(e) determining whether assets have been transferred to or from a specified person between specified dates, and details relating to the transfers (including details relating to the names of any other persons to or from whom the assets were transferred);
(f) determining whether an account is held by a specified person in respect of a specified utility (such as gas, water or electricity), and details relating to the account (including the names of any other persons who also hold the account);
(g) determining who holds an account in respect of a specified utility (such as gas, water or electricity) at a specified place, and details relating to the account;
(h) determining whether a telephone account is held by a specified person, and details relating to the account (including:
(i) details in respect of calls made to or from the relevant telephone number; or
(ii) the times at which such calls were made or received; or
(iii) the lengths of such calls; or
(iv) the telephone numbers to which such calls were made and from which such calls were received);
(i) determining who holds a specified telephone account, and details relating to the account (including details mentioned in paragraph (h));
(j) determining whether a specified person resides at a specified place;
(k) determining who resides at a specified place.
3ZQQ Powers conferred on Federal Circuit Court Judges in their personal capacity
(1) A power conferred on a Judge of the Federal Circuit Court of Australia by section 3ZQO is conferred on the Judge in a personal capacity and not as a court or a member of a court.
(2) A Judge of the Federal Circuit Court of Australia need not accept the power conferred.
(3) A Judge of the Federal Circuit Court of Australia exercising a power conferred by section 3ZQO has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the Judge is a member.
3ZQR Documents must be produced
(1) A person is not excused from producing a document under section 3ZQN or 3ZQO on the ground that to do so:
(a) would contravene any other law; or
(b) might tend to incriminate the person or otherwise expose the person to a penalty or other liability; or
(c) would disclose material that is protected against disclosure by legal professional privilege or any other duty of confidence; or
(d) would be otherwise contrary to the public interest.
(2) However, neither:
(a) the production of the document; nor
(b) any information, document or thing obtained as a direct or indirect consequence of producing the document;
is admissible in evidence against the person in proceedings other than proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Act.
(3) A person is not liable to any penalty by reason of his or her producing a document when required to do so under section 3ZQN or 3ZQO.
(4) The fact that a person is not excused under subsection (1) from producing a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that document.
3ZQS Offence for failure to comply with notice under section 3ZQN or 3ZQO
A person commits an offence if:
(a) the person is given a notice under section 3ZQN or 3ZQO; and
(b) the person fails to comply with the notice.
Penalty: 30 penalty units.
3ZQT Offence for disclosing existence or nature of notice
(1) A person commits an offence if:
(a) the person is given a notice under section 3ZQN or 3ZQO; and
(b) the notice specifies that information about the notice must not be disclosed; and
(c) the person discloses the existence or nature of the notice.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(2) Subsection (1) does not apply if:
(a) the person discloses the information to another person in order to obtain a document that is required by the notice in order to comply with it, and that other person is directed not to inform the person to whom the document relates about the matter; or
(b) the disclosure is made to obtain legal advice or legal representation in relation to the notice; or
(c) the disclosure is made for the purposes of, or in the course of, legal proceedings.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Division 4C—Using, sharing and returning things seized and documents produced
Subdivision A—Using and sharing things seized and documents produced
3ZQU Purposes for which things and documents may be used and shared
Use and sharing of thing or document by constable or Commonwealth officer
(1) A constable or Commonwealth officer may use, or make available to another constable or Commonwealth officer to use, a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for the purpose of any or all of the following if it is necessary to do so for that purpose:
(a) preventing, investigating or prosecuting an offence;
(b) proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002;
(c) proceedings under a corresponding law (within the meaning of either of the Acts mentioned in paragraph (b)) that relate to a State offence that has a federal aspect;
(d) proceedings for the forfeiture of the thing under a law of the Commonwealth;
(e) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104, 105 or 105A of the Criminal Code;
(f) investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part;
(g) investigating or resolving an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979) under Part V of that Act;
(h) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988;
(i) investigating or inquiring into a corruption issue under the Law Enforcement Integrity Commissioner Act 2006;
(j) proceedings in relation to a complaint, allegation or issue mentioned in paragraph (f), (g), (h) or (i);
(k) deciding whether to institute proceedings, to make an application or request, or to take any other action, mentioned in any of the preceding paragraphs of this subsection;
(l) the performance of the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979.
(2) A constable or Commonwealth officer may use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any other use that is required or authorised by or under a law of a State or a Territory.
(3) A constable or Commonwealth officer may make available to another constable or Commonwealth officer to use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any purpose for which the making available of the thing or document is required or authorised by a law of a State or Territory.
(4) To avoid doubt, this section does not limit any other law of the Commonwealth that:
(a) requires or authorises the use of a document or other thing; or
(b) requires or authorises the making available (however described) of a document or other thing.
Sharing thing or document for use by State, Territory or foreign agency
(5) A constable or Commonwealth officer may make a thing seized under this Part, or the original or a copy of a document produced under Division 4B, available to:
(a) a State or Territory law enforcement agency; or
(b) an agency that has responsibility for:
(i) law enforcement in a foreign country; or
(ii) intelligence gathering for a foreign country; or
(iii) the security of a foreign country;
to be used by that agency for a purpose mentioned in subsection (1), (2) or (3) and the purpose of any or all of the following (but not for any other purpose):
(c) preventing, investigating or prosecuting an offence against a law of a State or Territory;
(d) proceedings under a corresponding law (within the meaning of the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002);
(e) proceedings for the forfeiture of the thing under a law of a State or Territory;
(f) deciding whether to institute proceedings or to take any other action mentioned in any of paragraphs (1)(a) to (l) (inclusive), subsection (2) or (3) or paragraph (c), (d) or (e) of this subsection.
Ministerial arrangements for sharing
(6) This Division does not prevent the Minister from making an arrangement with a Minister of a State or Territory for:
(a) the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (3) and (5), of things seized under this Part and originals and copies of documents produced under Division 4B; and
(b) the disposal by the agency of such things, originals and copies when they are no longer of use to that agency for those purposes.
Note: This subsection does not empower the Minister to make such an arrangement.
Definition
(7) In this section:
State or Territory law enforcement agency means:
(a) the police force or police service of a State or Territory; or
(b) the New South Wales Crime Commission; or
(c) the Independent Commission Against Corruption of New South Wales; or
(d) the Law Enforcement Conduct Commission of New South Wales; or
(e) the Independent Broad‑based Anti‑corruption Commission of Victoria; or
(f) the Crime and Corruption Commission of Queensland; or
(g) the Corruption and Crime Commission of Western Australia; or
(h) the Independent Commissioner Against Corruption of South Australia.
3ZQV Operating seized electronic equipment
(1) This section applies to electronic equipment seized under this Part or moved under section 3K.
(2) The electronic equipment may be operated at any location after it has been seized or moved, for the purpose of determining whether data that is evidential material is held on or accessible from the electronic equipment, and obtaining access to such data.
(3) The data referred to in subsection (2) includes, but is not limited to, the following:
(a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized;
(b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.
(3A) If the electronic equipment was seized under a warrant, subsection (2) does not apply to data that was generated after the expiry of the warrant.
(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