An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes
Part 6—Search, seizure and powers of arrest
Division 1—Search warrants
112 Content of warrants
(1) If a magistrate issues a search warrant, the magistrate is to state in the warrant:
the purpose for which it is issued, including the crime within the jurisdiction of the ICC to which the application for the warrant relates; and
a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and
the kinds of evidential material that are to be searched for under the warrant; and
the name of the police officer who, unless he or she inserts the name of another police officer in the warrant, is to be responsible for executing the warrant; and
the period for which the warrant remains in force, which must not be more than:
if the warrant is issued on an application by telephone, telex, fax or other electronic means as provided by section 116-48 hours; or
otherwise-7 days; and
(f) whether the warrant may be executed at any time or only during particular hours.
(2) Paragraph (1)(e) does not prevent the issue of successive warrants in relation to the same premises or person.
(3) The magistrate 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 (1)(c)) found at the premises in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be:
evidential material; or
a thing relevant to an indictable offence against an Australian law;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing the crime within the jurisdiction of the ICC or an indictable offence against an Australian law; 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 an officer assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
(4) The magistrate 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 (1)(c)) found, in the course of the search, in the possession of the person or in or on a recently used conveyance, being a thing that the executing officer or an officer assisting believes on reasonable grounds to be:
evidential material; or
a thing relevant to an indictable offence against an Australian law;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing the crime within the jurisdiction of the ICC or an indictable offence against an Australian law; and
(b) the kind of search of a person that the warrant authorises.
113 The things authorised by a search warrant in relation to premises
(1) A warrant in force in relation to premises authorises the executing officer or an officer 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 an officer assisting believes on reasonable grounds to be:
evidential material; or
things relevant to an indictable offence against an Australian law;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing the crime within the jurisdiction of the ICC or an indictable offence against an Australian law; and
(e) to seize other things found at the premises in the course of the search that the executing officer or an officer 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 an officer assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
(2) If the warrant states that it may be executed only during particular hours, it must not be executed outside those hours.
114 The things authorised by a search warrant in relation to a person
(1) A warrant in force in relation to a person authorises the executing officer or an officer assisting:
(a) to:
search the person as specified in the warrant; and
search things found in the possession of the person; and
search any recently used conveyance;
for things of the kind specified in the warrant; and
(b) to:
seize things of that kind; and
record fingerprints from things; and
take forensic samples from things;
found in the course of the search; and
(c) to seize other things found in the possession of the person or in or on the conveyance in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be:
evidential material; or
things relevant to an indictable offence against an Australian law;
if the executing officer or a police officer assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing the crime within the jurisdiction of the ICC or an indictable offence against an Australian law; and
(d) to seize other things found in the course of the search that the executing officer or a police officer assisting believes on reasonable grounds to be seizable items.
(2) If the warrant states that it may be executed only during particular hours, it must not be executed outside those hours.
(3) If the warrant authorises an ordinary search or a frisk search of a person, a search of the person different from that so authorised must not be done under the warrant.
115 Restrictions on personal searches
A warrant cannot authorise a strip search or a search of a person’s body cavities.
116 Warrants may be issued by telephone etc.
(1) A police officer may apply to a magistrate for a warrant by telephone, telex, fax or other electronic means:
in an urgent case; or
if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2) The magistrate may require communication by voice to the extent that is practicable in the circumstances.
(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 a magistrate under this section and the magistrate, after considering the information and having received and considered such further information (if any) as the magistrate requires, is satisfied that:
a warrant in the terms of the application should be issued urgently; or
the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the magistrate may complete and sign the same form of warrant as would be issued under section 111.
117 Formalities relating to warrants issued by telephone etc.
If the magistrate decides to issue the warrant under section 116, the magistrate 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.
The applicant must then complete a form of warrant in terms substantially corresponding to those given by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the warrant was signed.
(3) 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 send to the magistrate:
the form of warrant completed by the applicant; and
if the information referred to in subsection 116(3) was not sworn—that information duly sworn.
(4) The magistrate is to attach to the documents provided under subsection (3) the form of warrant completed by the magistrate.
(5) If:
it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under section 116 was duly authorised; and
the form of warrant signed by the magistrate 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.
118 Availability of assistance and use of force in executing a warrant
In executing a search warrant:
the executing officer may obtain such assistance; and
the executing officer, or a person who is a police officer assisting in executing the warrant, may use such force against persons and things; and
a person who is not a police officer and has been authorised to assist in executing the warrant may use such force against things;
as is necessary and reasonable in the circumstances.
119 Copy of warrant to be shown to occupier etc.
If a search 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 an officer assisting must make available to that person a copy of the warrant.
If a search warrant in relation to a person is being executed, the executing officer or an officer assisting must make available to that person a copy of the warrant.
If a person is searched under a search warrant in relation to premises, the executing officer or an officer assisting must show the person a copy of the warrant.
The executing officer must identify himself or herself to the person at the premises or the person being searched.
The copy of the warrant referred to in subsections (1), (2) and (3) need not include the signature of the magistrate who issued it or the seal of the relevant court.
120 Specific powers available to officers executing warrants
(1) In executing a search warrant in relation to premises, the executing officer or an officer assisting may:
for a purpose incidental to execution of the warrant; or
if the occupier of the warrant premises consents in writing;
take photographs (including video recordings) of the premises or of things at the premises.
(2) In executing a search warrant in relation to premises, the executing officer and the police officers 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 warrant premises:
for not more than one hour; or
for a longer period if the occupier of the premises consents in writing.
(3) If:
the execution of a search warrant is stopped by an order of a court; and
the order is later revoked or reversed on appeal; and
the warrant is still in force;
the execution of the warrant may be completed.
121 Use of equipment to examine or process things
(1) The executing officer or an officer assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of things found at the premises in order to determine whether the things may be seized under the warrant.
(2) If:
it is not practicable to examine or process the things at the warrant premises; or
the occupier of the premises consents in writing;
the things may be moved to another place so that the examination or processing can be carried out in order to determine whether the things may be seized under the warrant.
(3) If things are 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:
Search, seizure and powers of arrest Part 6 Provisions relating to execution of search warrants Division 2
Section 122 inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and
allow the occupier or his or her representative to be present during the examination or processing.
(4) The executing officer or an officer 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 may be seized under the warrant if the executing officer or police officer assisting believes on reasonable grounds that:
the equipment is suitable for the examination or processing; and
the examination or processing can be carried out without damage to the equipment or thing.
122 Use of electronic equipment at premises
The executing officer or an officer assisting may operate electronic equipment at the warrant premises to see whether evidential material is accessible by doing so if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
If the executing officer or an officer assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:
seize the equipment and any disk, tape or other associated device; or
if the material can, by using facilities at the premises, be put in a documentary form—operate the facilities to put the material in that form and seize the documents so produced; or
if the material can be transferred to a disk, tape or other storage device:
that is brought to the premises; or
that is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;
operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.
(3) Equipment may be seized under paragraph (2)(a) only if:
it is not practicable to put the material in documentary form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c); or
possession by the occupier of the equipment could constitute an offence against an Australian law.
(4) If the executing officer or an officer assisting believes on reasonable grounds that:
evidential material may be accessible by operating electronic equipment at the warrant premises; and
expert assistance is required to operate the equipment; and
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 an officer 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:
for up to 24 hours; or
until the equipment has been operated by the expert;
whichever happens first.
(7) If the executing officer or an officer assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to the magistrate who issued the warrant for an extension of that period.
(8) The executing officer or an officer 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.
Search, seizure and powers of arrest Part 6 Provisions relating to execution of search warrants Division 2 (9) Division 1 applies, with such modifications as are necessary, to issuing an extension.
123 Compensation for damage to electronic equipment
(1) This section applies if:
damage is caused to equipment as a result of it being operated as mentioned in section 121 or 122; or
the data recorded on the equipment is damaged or programs associated with its use are damaged or corrupted;
because of:
insufficient care being exercised in selecting the person who was to operate the equipment; or
insufficient care being exercised by the person operating the equipment.
(2) The Commonwealth must pay to the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as they agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings against the Commonwealth in the Federal Court for such reasonable amount of compensation as the Court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the warrant premises or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance 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 to data includes damage by erasure of data or addition of other data.
124 Copies of seized things to be provided
(1) Subject to subsection (2), if an executing officer or officer assisting seizes, under a warrant in relation 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 executing officer or officer assisting must, if requested to do so by the occupier of the warrant premises or another person who apparently represents the occupier and 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:
the thing was seized under paragraph 122(2)(b) or (c); or
possession by the occupier of the document, film, computer file, thing or information could constitute an offence against an Australian law.
125 Occupier entitled to be present during search
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 entitled to observe the search being conducted.
The right to observe the search being conducted ceases if the person impedes the search.
This section does not prevent 2 or more areas of the premises being searched at the same time.
126 Receipts for things seized under warrant
If a thing is seized under a warrant or moved under subsection 121(2), the executing officer or an officer assisting must provide a receipt for the thing.
If 2 or more things are seized or removed, they may be covered in the one receipt.
Search, seizure and powers of arrest Part 6 Stopping and searching conveyances Division 3
127 Searches without warrant in emergency situations
(1) This section applies if a police officer suspects, on reasonable grounds, that:
evidential material is in or on a conveyance; and
it is necessary to exercise a power under subsection (2) in order to prevent the material from being concealed, lost or destroyed; and
it is necessary to exercise the power without the authority of a search warrant because the circumstances are serious and urgent.
(2) The police officer may:
stop and detain the conveyance; and
search the conveyance, and any container in or on the conveyance, for the material; and
seize the material if he or she finds it there.
(3) If, in the course of searching for the material, the police officer finds other evidential material or a thing relevant to an offence against an Australian law, the police officer may seize that material or thing if he or she suspects, on reasonable grounds, that:
it is necessary to seize it in order to prevent its concealment, loss or destruction; and
it is necessary to seize it without the authority of a search warrant because the circumstances are serious and urgent.
(4) The police officer must exercise his or her powers subject to section 128.
128 How a police officer exercises a power to search without warrant
When a police officer exercises a power under section 127 in relation to a conveyance, he or she:
(a) may use such assistance as is necessary; and must search the conveyance in a public place or in some other place to which members of the public have ready access; and
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
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:
the person (if any) apparently in charge of the conveyance has been given a reasonable opportunity to open that part or container; or
it is not possible to give that person such an opportunity.
Search and seizure
Search and seizure - national procedures for ICC proceedings
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