Keyword

Part 1—Preliminary

4 Definitions

examination of a site that is a grave includes exhumation of the grave.

Part 1—Preliminary

4 Definitions

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.

Part 1—Preliminary

4 Definitions

search warrant (except in Part 4) means a warrant issued under section 111.

seizable item means anything that would present a danger to a person or could be used to assist a person to escape from lawful custody.

Part 1—Preliminary

4 Definitions

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.

Part 2—General provisions relating to requests by the ICC for cooperation

7 What constitutes a request for cooperation

(1) A request for cooperation is a request made by the ICC to Australia, in respect of an investigation or prosecution that the Prosecutor is conducting or proposing to conduct, for:

(a) assistance in connection with any one or more of the following:

(ix) the execution of searches and seizures;

Part 4—Other requests by ICC

Division 11—Search and seizure

77 Attorney General may authorise applications for search warrants

(1) This section applies if:

(a) the ICC makes a request to the Attorney General compliance with which may involve the issue of a search warrant in relation to evidential material; and
(b) the Attorney General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) there are reasonable grounds to believe that the material is in Australia.

(2) The Attorney General is to execute the request by authorising, in writing, a police officer to apply to a magistrate of the State or Territory in which that material is believed to be located for a search warrant.

78 Applications for search warrants

(1) If:

(a) a police officer is authorised under section 77 to apply for a search warrant; and
(b) the police officer has reasonable grounds for suspecting that the evidential material is, or within the applicable period referred to in subsection (3) of this section will be, at any premises;
the police officer may, by an information on oath setting out the grounds for that suspicion, apply for a search warrant in relation to the premises to search for that material.

(2) If:

(a) a police officer is authorised under section 77 to apply for a search warrant; and
(b) the police officer has reasonable grounds for suspecting that the evidential material is, or within the applicable period referred to in subsection (3) of this section will be, in a person’s possession;
the police officer may, by an information on oath setting out the grounds for that suspicion, apply for a search warrant in relation to that person to search for that material.

(3) For the purposes of this section, the applicable period is:

(a) if the application for the warrant is made by telephone, telex, fax or other electronic means, as provided by section 116—48 hours; or
(b) otherwise—72 hours.

Note: Part 6 deals with search warrants.

Part 6—Search, seizure and powers of arrest

Division 1—Search warrants

111 When search warrants can be issued

(1) A magistrate may issue a warrant to search premises if:

(a) an application has been made to the magistrate under subsection 27(1) or 78(1); and
(b) the magistrate is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or within the applicable period referred to in subsection (3) of this section will be, any evidential material at the premises.

(2) A magistrate may issue a warrant authorising an ordinary search or a frisk search of a person if:

(a) an application has been made to the magistrate under subsection 27(2) or 78(2); and
(b) the magistrate is satisfied by information on oath that there are reasonable grounds for suspecting that the person has, or within the applicable period referred to in subsection (3) of this section will have, any evidential material in his or her possession.

(3) For the purposes of subsections (1) and (2), the applicable period is:

(a) if the application for the warrant is made by telephone, telex, fax or other electronic means, as provided by section 116—48 hours; or
(b) otherwise—72 hours.

(4) 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.

(5) 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.

(6) A magistrate 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.

(7) A magistrate in a State may:

(a) issue a warrant in relation to premises or a person in that State; 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 in 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 if he or she is satisfied that it is not possible to predict where the person may be.

112 Content of warrants

(1) If a magistrate issues a search warrant, the magistrate is to state in the warrant:

(a) 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
(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 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
(e) the period for which the warrant remains in force, which must not be more than:
(i) if the warrant is issued on an application by telephone, telex, fax or other electronic means as provided by section 116—48 hours; or
(ii) 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:
(i) evidential material; or
(ii) 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:
(i) evidential material; or
(ii) 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:
(i) evidential material; or
(ii) 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:
(i) search the person as specified in the warrant; and
(ii) search things found in the possession of the person; and
(iii) search any recently used conveyance;
for things of the kind specified in the warrant; and
(b) to:
(i) seize things of that kind; and
(ii) record fingerprints from things; and
(iii) 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:
(i) evidential material; or
(ii) 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:

(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 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) 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 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.

(1) 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.

(2) 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:

(a) the form of warrant completed by the applicant; and
(b) 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:

(a) 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
(b) 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.

Division 2—Provisions relating to execution of search warrants

118 Availability of assistance and use of force in executing a warrant

In executing a search warrant:

(a) the executing officer may obtain such assistance; and
(b) 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
(c) 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.

(1) 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.

(2) 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.

(3) 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.

(4) The executing officer must identify himself or herself to the person at the premises or the person being searched.

(5) 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:

(a) for a purpose incidental to execution of the warrant; or
(b) 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:

(a) for not more than one hour; or
(b) for a longer period if the occupier of the premises consents in writing.

(3) If:

(a) the execution of a search warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(c) the warrant is still in force;
the execution of the warrant may be completed.

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:

(a) it is not practicable to examine or process the things at the warrant premises; or
(b) 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:

(a) inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and
(b) 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:

(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 thing.

122 Use of electronic equipment at premises

(1) 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.

(2) 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:

(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 a documentary form—operate the facilities to put the material in that form and seize the documents so produced; or
(c) if the material can be transferred to a disk, tape or other storage device:
(i) that is brought to the premises; or
(ii) 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:

(a) 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
(b) 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:

(a) evidential material may be accessible by operating electronic equipment at the warrant 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 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:

(a) for up to 24 hours; or
(b) 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.

(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:

(a) damage is caused to equipment as a result of it being operated as mentioned in section 121 or 122; or
(b) the data recorded on the equipment is damaged or programs associated with its use are damaged or corrupted;
because of:
(c) insufficient care being exercised in selecting the person who was to operate the equipment; or
(d) 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:

(a) the thing was seized under paragraph 122(2)(b) or (c); or
(b) 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

(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 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.

126 Receipts for things seized under warrant

(1) 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.

(2) If 2 or more things are seized or removed, they may be covered in the one receipt.

Division 3—Stopping and searching conveyances

127 Searches without warrant in emergency situations

(1) This section applies if a police officer suspects, on reasonable grounds, that:

(a) evidential material is in or on a conveyance; and
(b) it is necessary to exercise a power under subsection (2) in order to prevent the material 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 police officer may:

(a) stop and detain the conveyance; and
(b) search the conveyance, and any container in or on the conveyance, for the material; and
(c) 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:

(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 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
(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.

Part 6—Search, seizure and powers of arrest

Division 5—General

137 Conduct of ordinary searches and frisk searches

(1) 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.

(2) An officer assisting who is not a police officer must not take part in an ordinary search or a frisk search of a person under this Part.

138 Announcement before entry

(1) A police officer 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 police officer 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 the police officer); or
(b) that the effective execution of the warrant or the arrest is not frustrated.

139 Offences relating to telephone warrants

A person must not:

(a) state in a document that purports to be a form of warrant under section 116 the name of a magistrate unless that magistrate 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 magistrate; or
(c) purport to execute, or present to a person, a document that purports to be a form of warrant under that section that:
(i) the person knows has not been approved by a magistrate under that section; or
(ii) the person knows to depart in a material particular from the terms authorised by a magistrate under that section; or
(d) send to a magistrate a form of warrant under that section that is not the form of warrant that the person purported to execute.

Penalty: Imprisonment for 2 years.

140 Retention of things seized

(1) If a police officer seizes a thing under this Part, he or she must deliver it into the custody and control of the Commissioner of Police of the Australian Federal Police.

(2) Subject to subsection (5), the Commissioner must:

(a) inform the Attorney General that the thing has been so delivered; and
(b) retain the thing pending the Attorney General’s direction under subsection (3) about how to deal with the thing; and
(c) comply with any such direction that the Attorney General gives.

(3) The Attorney General may, by written notice, give the Commissioner a direction about how to deal with the thing.

(4) Without limiting the directions that may be given, a direction may require the Commissioner to send the thing to the ICC.

(5) The Attorney General must direct the Commissioner to return the thing if:

(a) the reason for its seizure no longer exists; or
(b) it is decided that the thing is not to be used in evidence by the ICC or in respect of criminal proceedings in Australia;

whichever first occurs, unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

141 Magistrate may permit a thing to be retained

(1) If a thing is seized under section 140 and:

(a) before the end of 60 days after the seizure; or
(b) before the end of a period previously specified in an order of a magistrate under this section;
proceedings in respect of which the thing may afford evidence have not commenced, the Commissioner of Police of the Australian Federal Police may apply to a magistrate for an order that he or she may retain the thing for a further period.

(2) If the magistrate is satisfied that it is necessary for the Commissioner to continue to retain the thing:

(a) for the purposes of an investigation as to whether an offence has been committed; or
(b) to enable evidence of an offence to be secured for the purposes of a prosecution;
the magistrate may order that the Commissioner may retain the thing for a period specified in the order.

(3) Before making the application, the Commissioner must:

(a) take reasonable steps to discover who has an interest in the retention of the thing; and
(b) if it is practicable to do so, notify each person who the Commissioner believes has such an interest that the application has been made.

Part 6—Search, seizure and powers of arrest

Division 5—General

140 Retention of things seized

(1) If a police officer seizes a thing under this Part, he or she must deliver it into the custody and control of the Commissioner of Police of the Australian Federal Police.

(2) Subject to subsection (5), the Commissioner must:

(a) inform the Attorney General that the thing has been so delivered; and
(b) retain the thing pending the Attorney General’s direction under subsection (3) about how to deal with the thing; and
(c) comply with any such direction that the Attorney General gives.

(3) The Attorney General may, by written notice, give the Commissioner a direction about how to deal with the thing.

(4) Without limiting the directions that may be given, a direction may require the Commissioner to send the thing to the ICC.

(5) The Attorney General must direct the Commissioner to return the thing if:

(a) the reason for its seizure no longer exists; or
(b) it is decided that the thing is not to be used in evidence by the ICC or in respect of criminal proceedings in Australia;
whichever first occurs, unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

141 Magistrate may permit a thing to be retained

(1) If a thing is seized under section 140 and:

(a) before the end of 60 days after the seizure; or
(b) before the end of a period previously specified in an order of a magistrate under this section;
proceedings in respect of which the thing may afford evidence have not commenced, the Commissioner of Police of the Australian Federal Police may apply to a magistrate for an order that he or she may retain the thing for a further period.

(2) If the magistrate is satisfied that it is necessary for the Commissioner to continue to retain the thing:

(a) for the purposes of an investigation as to whether an offence has been committed; or
(b) to enable evidence of an offence to be secured for the purposes of a prosecution;
the magistrate may order that the Commissioner may retain the thing for a period specified in the order.

(3) Before making the application, the Commissioner must:

(a) take reasonable steps to discover who has an interest in the retention of the thing; and
(b) if it is practicable to do so, notify each person who the Commissioner believes has such an interest that the application has been made.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 1—Preliminary

4 Definitions

In this Act, unless the contrary intention appears:

...

evidence includes expert evidence.

evidential material means a thing relevant to a crime within the jurisdiction of the ICC, including such a thing in electronic form.

examination of a site that is a grave includes exhumation of the grave.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 1—Preliminary

4 Definitions

In this Act, unless the contrary intention appears:

ordinary search means a search of a person or of articles in the possession of a person that may include:

requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and
an examination of those items.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 1—Preliminary

4 Definitions

In this Act, unless the contrary intention appears:

search warrant (except in Part 4) means a warrant issued under section 111.

seizable item means anything that would present a danger to a person or could be used to assist a person to escape from lawful custody.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 1—Preliminary

4 Definitions

In this Act, unless the contrary intention appears:

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.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 4 Other requests by ICC

Division 11 Search and seizure

77 Attorney-General may authorise applications for search warrants

(1) This section applies if:

the ICC makes a request to the Attorney-General compliance with which may involve the issue of a search warrant in relation to evidential material; and

the Attorney-General is satisfied that:

the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and

there are reasonable grounds to believe that the material is in Australia.

(2) The Attorney-General is to execute the request by authorising, in writing, a police officer to apply to a magistrate of the State or Territory in which that material is believed to be located for a search warrant.

78 Applications for search warrants

(1) If:

a police officer is authorised under section 77 to apply for a search warrant; and

the police officer has reasonable grounds for suspecting that the evidential material is, or within the applicable period referred to in subsection (3) of this section will be, at any premises;

the police officer may, by an information on oath setting out the grounds for that suspicion, apply for a search warrant in relation to the premises to search for that material.

(2) If:

a police officer is authorised under section 77 to apply for a search warrant; and

the police officer has reasonable grounds for suspecting that the evidential material is, or within the applicable period referred to in subsection (3) of this section will be, in a person’s possession;

the police officer may, by an information on oath setting out the grounds for that suspicion, apply for a search warrant in relation to that person to search for that material.

(3) For the purposes of this section, the applicable period is:

if the application for the warrant is made by telephone, telex, fax or other electronic means, as
provided by section 116- 48 hours; or otherwise-72 hours.

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.

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 5—General

140 Retention of things seized

(1) If a police officer seizes a thing under this Part, he or she must deliver it into the custody and control of the Commissioner of Police of the Australian Federal Police.

(2) Subject to subsection (5), the Commissioner must:

inform the Attorney-General that the thing has been so delivered; and

retain the thing pending the Attorney-General’s direction under subsection (3) about how to deal with the thing; and

comply with any such direction that the Attorney-General gives.

(3) The Attorney-General may, by written notice, give the Commissioner a direction about how to deal with the thing.

(4) Without limiting the directions that may be given, a direction may require the Commissioner to send the thing to the ICC.

(5) The Attorney-General must direct the Commissioner to return the thing if:
the reason for its seizure no longer exists; or

it is decided that the thing is not to be used in evidence by the ICC or in respect of criminal proceedings in Australia;

whichever first occurs, unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

141 Magistrate may permit a thing to be retained

(1) If a thing is seized under section 140 and:

(a) before the end of 60 days after the seizure; or

(b) before the end of a period previously specified in an order of a magistrate under this section;

proceedings in respect of which the thing may afford evidence have not commenced, the Commissioner of Police of the Australian Federal Police may apply to a magistrate for an order
that he or she may retain the thing for a further period.

(2) If the magistrate is satisfied that it is necessary for the Commissioner to continue to retain the thing:

for the purposes of an investigation as to whether an offence has been committed; or

to enable evidence of an offence to be secured for the purposes of a prosecution;

the magistrate may order that the Commissioner may retain the thing for a period specified in the order.

(3) Before making the application, the Commissioner must:

take reasonable steps to discover who has an interest in the retention of the thing; and

if it is practicable to do so, notify each person who the Commissioner believes has such an interest that the application has been made.

Part VI—Proceeds of crime
Division 2—Requests by foreign countries
Subdivision F—Search warrants relating to foreign serious offences
34ZB Applying for and issuing search warrants
(1) If an authorised officer has been authorised under section 34ZG of this Act in relation to a request by a foreign country, the authorised officer may apply for a search warrant under the Proceeds of Crime Act in relation to the foreign serious offence that is the subject of the request.
(2) Part 3 5 of the Proceeds of Crime Act applies to the application, and to any POCA search warrant issued as a result.
(3) However, Part 3 5 of the Proceeds of Crime Act applies as if:
(a) a reference in that Part to tainted property were a reference to tainted property within the meaning of this Act; and
(b) a reference in that Part to evidential material were a reference to evidential material as defined in subsection 3(1) of this Act for the purposes of this Subdivision; and
(c) the words “or section 34ZD, 34ZE or 34ZF of the Mutual Assistance Act” were inserted after “this Act” in paragraph 254(1)(a) of the Proceeds of Crime Act; and
(d) paragraphs 227(1)(a), (b), (h) and (ha) and 228(1)(d) and (da) and sections 256 to 262 of the Proceeds of Crime Act were omitted.
Note: Sections 34ZC and 34ZCA of this Act also apply in relation to a POCA search warrant. Sections 34ZD to 34ZF of this Act also apply in relation to property or things seized under such a warrant.

34ZC Contents of POCA search warrants
A POCA search warrant in relation to a foreign serious offence must state that the warrant authorises the seizure of property or a thing found by an authorised officer, or a person assisting in relation to the warrant, in the course of the search if the authorised officer or person assisting believes on reasonable grounds that:
(a) the property or thing:
(i) is tainted property of the foreign serious offence that is not of a kind specified in the warrant; or
(ii) is evidential material relating to the foreign serious offence that is not of a kind specified in the warrant; or
(iii) is tainted property of, or evidential material relating to, another foreign serious offence in relation to which a POCA search warrant is in force; or
(iv) is relevant to a criminal proceeding in respect of the foreign serious offence in the foreign country that requested the assistance referred to in section 34ZG in relation to that offence; or
(v) will afford evidence as to the commission of an Australian criminal offence; and
(b) the seizure of the property or thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.
Note: Subject to paragraph 34ZB(3)(d), the POCA search warrant must also state the matters set out in section 227 of the Proceeds of Crimes Act.
34ZCA Seizure of certain property or things found in the course of search
A POCA search warrant in relation to a foreign serious offence authorises an authorised officer, or a person assisting in relation to the warrant, to seize property or a thing found by the authorised officer or person assisting in the course of the search if the authorised officer or person assisting believes on reasonable grounds that:
(a) the property or thing:
(i) is tainted property of the foreign serious offence that is not of a kind specified in the warrant; or
(ii) is evidential material relating to the foreign serious offence that is not of a kind specified in the warrant; or
(iii) is tainted property of, or evidential material relating to, another foreign serious offence in relation to which a POCA search warrant is in force; or
(iv) is relevant to a criminal proceeding in respect of the foreign serious offence in the foreign country that requested the assistance referred to in section 34ZG in relation to that offence; or
(v) will afford evidence as to the commission of an Australian criminal offence; and
(b) the seizure of the property or thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.
Note: Subject to paragraph 34ZB(3)(d), the POCA search warrant also authorises the things set out in section 228 of the Proceeds of Crimes Act.

34ZD Return of seized property to third parties
(1) A person who claims an interest in property that has been seized under a POCA search warrant in relation to a foreign serious offence may apply to a court for an order that the property be returned to the person.
(2) The court must be a court of the State or Territory in which the POCA search warrant was issued that has proceeds jurisdiction.
(3) The court must order the responsible enforcement agency head to return the property to the applicant if the court is satisfied that:
(a) the applicant is entitled to possession of the property; and
(b) the property is not tainted property of the relevant foreign serious offence; and
(c) the person who is believed or alleged to have committed the relevant foreign serious offence has no interest in the property.
(4) If the court makes such an order, the responsible enforcement agency head must arrange for the property to be returned to the applicant.
(5) This section does not apply to property that has been seized under a POCA search warrant because:
(a) it is evidential material; or
(b) it is property of a kind referred to in subparagraph 34ZCA(a)(iv) or (v).

34ZE Dealing with certain seized property
(1) Property must be dealt with in accordance with this section if:
(a) it has been seized under a POCA search warrant in relation to a foreign serious offence; and
(b) it is not:
(i) evidential material; or
(ii) property of a kind referred to in subparagraph 34ZCA(a)(iv) or (v).
General rule—property to be returned after 30 days
(2) If, at the end of the period of 30 days after the day on which the property was seized:
(a) neither a foreign restraining order, nor a foreign forfeiture order, in relation to the property has been registered in a court under Subdivision A; and
(b) a restraining order has not been made under Subdivision B in respect of the property in relation to the foreign serious offence;
the responsible enforcement agency head must, unless subsection (3), (5) or (7) applies, arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the end of that period.
Effect of restraining orders being registered or obtained
(3) If, before the end of that period:
(a) a foreign restraining order in relation to the property is registered in a court under Subdivision A; or
(b) a restraining order is made under Subdivision B in respect of the property in relation to the foreign serious offence;
the responsible enforcement agency head:
(c) if there is in force, at the end of that period, a direction by a court that the Official Trustee take custody and control of the property—must arrange for the property to be given to the Official Trustee in accordance with the direction; or
(d) if there is in force at the end of that period an order under subsection (6) in relation to the property—must arrange for the property to be retained until it is dealt with in accordance with another provision of this Act or the Proceeds of Crime Act.
(4) If the property is subject to a direction of a kind referred to in paragraph (3)(c), the Proceeds of Crime Act applies to the property as if it were controlled property within the meaning of that Act.
Retaining property despite restraining orders
(5) If, at a time when the property is in the possession of the responsible enforcement agency head:
(a) a foreign restraining order in respect of the property has been registered in an Australian court under Subdivision A; or
(b) a restraining order has been made under Subdivision B in respect of the property in relation to the foreign serious offence;
the responsible enforcement agency head may apply to the court in which the restraining order was registered, or by which the restraining order was made, for an order that the responsible enforcement agency head retain possession of the property.
(6) If the court is satisfied that the responsible enforcement agency head requires the property to be dealt with in accordance with:
(a) a request under section 34 that the restraining order be registered; or
(b) a request under section 34J that the restraining order be obtained;
the court may make an order that the responsible enforcement agency head may retain the property for so long as the property is so required.
Effect of foreign forfeiture orders being registered or obtained
(7) If, while the property is in the possession of the responsible enforcement agency head, a foreign forfeiture order in respect of the property is registered in a court under Subdivision A, the responsible enforcement agency head must deal with the property as required by the forfeiture order.

34ZF Dealing with evidential material and certain property or things seized under POCA search warrants
(1) This section applies if:
(a) property or a thing (the seized item) is seized under a POCA search warrant in relation to a foreign serious offence; and
(b) the seized item is:
(i) evidential material; or
(ii) property or a thing of a kind referred to in subparagraph 34ZCA(a)(iv); and
(c) the seized item is seized by a person (the seizing officer) who is:
(i) an authorised officer; or
(ii) a person assisting in relation to the warrant.
(2) The seizing officer may retain the seized item for a period not exceeding 1 month pending a written direction from the Attorney General as to how to deal with the seized item.
(3) Without limiting the directions that may be given under subsection (2), the Attorney General may direct the seizing officer to send the seized item to an authority of the foreign country that requested the assistance referred to in section 34ZG in relation to the foreign serious offence.

Part VIIA—Search, seizure and powers of arrest
Division 2—Issue of search warrants
38B Application for search warrant
(1) This section applies if a police officer has been authorised under section 15 to apply for a search warrant in respect of evidential material relating to an investigation or proceeding in a foreign country that relates to a criminal matter involving a serious offence.
(2) If the police officer has reasonable grounds for suspecting that the evidential material:
(a) is on any particular premises; or
(b) will, within the applicable period, be on any particular premises;
the police officer may, by an information on oath or affirmation setting out the grounds for that suspicion, apply for a warrant to search those premises for the evidential material.
Note: For applicable period see subsection (4).
(3) If the police officer has reasonable grounds for suspecting that a person:
(a) is in possession of the evidential material; or
(b) will, within the applicable period, be in possession of the evidential material;
the police officer may, by an information on oath or affirmation setting out the grounds for that suspicion, apply for a warrant to search that person for the evidential material.
Note: For applicable period see subsection (4).

Part VIIA—Search, seizure and powers of arrest
Division 2—Issue of search warrants
38C When search warrants may be issued
(1) If the Magistrate or eligible Federal Circuit Court Judge is satisfied, on the information, that there are reasonable grounds for suspecting that the evidential material:
(a) is on any particular premises; or
(b) will, within the applicable period, be on any particular premises;
the Magistrate or Judge may issue a warrant to search the premises.
Note: For applicable period see subsection (3).
(2) If the Magistrate or eligible Federal Circuit Court Judge is satisfied, on the information, that there are reasonable grounds for suspecting that a person:
(a) is in possession of the evidential material; or
(b) will, within the applicable period, be in possession of the evidential material;
the Magistrate or Judge may issue a warrant authorising an ordinary search or a frisk search of the person.
Note: For applicable period see subsection (3).
(3) In subsections (1) and (2):
applicable period means:
(a) if the application for the warrant is made by telephone, telex, fax or any other electronic means, as provided by section 38H—48 hours; or
(b) in any other case—72 hours.
(4) If the police officer applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the police officer must state that suspicion, and the grounds for that suspicion, in the information.
(5) If the police officer applying for the warrant:
(a) is a member or special member of the Australian Federal Police; and
(b) has, at any time previously, applied for a warrant relating to the same person or premises;
the police officer must state the particulars, and the outcome, of those applications in the information.
(6) A Magistrate of New South Wales or the Australian Capital Territory may issue a warrant in relation to premises or a person in the Jervis Bay Territory.
(7) A Magistrate of 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 the Magistrate 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 the Magistrate is satisfied that it is not possible to predict where the person may be.

38D Content of warrants
(1) If the Magistrate or eligible Federal Circuit Court Judge issues a search warrant, the Magistrate or Judge is to state in the warrant:
(a) the purpose for which it is issued, including a reference to the nature of the criminal matter to which the relevant proceeding or investigation 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) a description of the evidential material that is to be searched for and seized under the warrant; and
(d) 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
(e) the period for which the warrant remains in force, which must not be more than:
(i) in the case of a warrant issued on an application by telephone, telex, fax or other electronic means as provided by section 38H—48 hours; or
(ii) in any other case—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) If the warrant relates to premises, the Magistrate or eligible Federal Circuit Court Judge is also to state in the warrant:
(a) that the warrant authorises the seizure of any thing (other than the evidential material 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:
(i) evidential material relating to the relevant proceeding or investigation; or
(ii) 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 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 in his or her possession any evidential material relating to the relevant proceeding or investigation or any seizable items.
(4) If the warrant relates to a person, the Magistrate or eligible Federal Circuit Court Judge is also to state in the warrant:
(a) the kind of search (ordinary or frisk) of the person that the warrant authorises; and
(b) that the warrant authorises the seizure of any thing (other than the evidential material referred to in paragraph (1)(c)) found, in the course of the search, in the possession of the person or in or on a vehicle recently used by the person, being a thing that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material relating to the relevant proceeding or investigation; or
(ii) 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 an indictable offence against an Australian law.

38E 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 to do any of the following:
(a) to enter the premises (in the case of a vehicle, wherever it may be);
(b) to search the premises for the evidential material specified in the warrant, and to seize such material if found at the premises;
(c) to seize other things that are found at the premises in the course of the search and that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material relating to the relevant proceeding or investigation; or
(ii) things relevant to an indictable offence against an Australian law;
if the executing officer or 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 an indictable offence against an Australian law;
(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 seizable items;
(e) 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 in his or her possession any evidential material relating to the relevant proceeding or investigation or any seizable items.
(2) If the warrant states that it may be executed only during particular hours, it must not be executed outside those hours.

38F 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 to do any of the following:
(a) to:
(i) search the person in the manner specified in the warrant; and
(ii) search things found in the possession of the person; and
(iii) search any vehicle recently used by the person;
for the evidential material specified in the warrant;
(b) to seize such evidential material if found in the course of the search;
(c) to seize other things that are found, in the course of the search, in the possession of the person or in or on any vehicle recently used by the person and that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material relating to the relevant proceeding or investigation; or
(ii) things relevant to an indictable offence against an Australian law;
if the executing officer or 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 an indictable offence against an Australian law;
(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 to that so authorised must not be done under the warrant.

38G Restrictions on personal searches
A warrant may not authorise a strip search or a search of a person’s body cavities.

38H Warrants may be issued by telephone etc.
(1) A police officer may apply to a Magistrate or eligible Federal Circuit Court Judge 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 Magistrate or Judge may require communication by voice to the extent that is practicable in the circumstances.
(3) In making the application, the police officer must give to the Magistrate or Judge all the information required to be provided in an application for the issue of a warrant under section 38C, but the application may, if necessary, be made before the information is sworn.
(4) If an application is made to a Magistrate or eligible Federal Circuit Court Judge under this section and the Magistrate or Judge, after considering the information and having received and considered such further information (if any) as the Magistrate or Judge requires, 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 Magistrate or Judge may complete and sign the same form of warrant that would be issued under section
38C.

38I Formalities relating to warrants issued by telephone etc.
(1) If the Magistrate or eligible Federal Circuit Court Judge decides to issue the warrant under section 38H, the Magistrate or Judge 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.
(2) The applicant must then complete a form of warrant in terms substantially corresponding to those given by the Magistrate or Judge, stating on the form the name of the Magistrate or Judge 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 transmit to the Magistrate or Judge:
(a) the form of warrant completed by the applicant; and
(b) if the information referred to in subsection 38H(3) was not sworn—that information duly sworn.
(4) The Magistrate or Judge is to attach to the documents provided under subsection (3) the form of warrant completed by the Magistrate or Judge.
(5) 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 section 38H was duly authorised; and
(b) the form of warrant signed by the Magistrate or Judge 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.

Division 3—Execution of search warrants
38J Availability of assistance and use of force in executing a warrant
In executing a search warrant:
(a) the executing officer may obtain such assistance; and
(b) the executing officer, or a police officer who is assisting in executing the warrant, may use such force against persons and things; and
(c) a person who is not a police officer 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.

38K Copy of warrant to be shown to occupier etc.
(1) If:
(a) a search warrant in relation to premises is being executed; and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
the executing officer or an officer assisting must make a copy of the warrant available to that person.
(2) If a search warrant in relation to a person is being executed, the executing officer or an officer assisting must make a copy of the warrant available to that person.
(3) 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.
(4) The executing officer must identify himself or herself to:
(a) the person present at the premises; or
(b) the person being searched;
as the case requires.
(5) The copy of the warrant referred to in subsection (1), (2) or (3) need not include the signature of the Magistrate or eligible Federal Circuit Court Judge who issued it.

38L Specific powers available to officers executing warrants
(1) When executing a search warrant in relation to premises, the executing officer or an officer assisting may:
(a) for a purpose incidental to the execution of the warrant; or
(b) with the written consent of the occupier of the premises;
photograph, film or videorecord the premises or things at the premises.
(2) The executing officer of a warrant in relation to premises and the officers assisting (if any) may not resume and complete the execution of the warrant if they:
(a) cease to execute the warrant; and
(b) leave the premises for a period of more than one hour without the written consent of the occupier of the premises.
(3) If:
(a) the execution of a search warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal;
the execution of the warrant may be completed if the warrant is still in force.

38M Use of equipment to examine or process things
(1) For the purpose of executing a warrant in relation to premises, the executing officer or an officer assisting may bring to the premises any equipment reasonably necessary to examine or process things found at the premises in order to determine whether the things may be seized under the warrant.
(2) If:
(a) it is not practicable to examine or process the things at the premises; or
(b) 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.
(3) If things are moved to another place for the purpose of examination or processing, the executing officer must, if it is practicable to do so:
(a) inform the occupier of the premises of:
(i) the address of that place; and
(ii) the day on which and the time at which the examination or processing will be carried out; and
(b) allow the occupier or his or her representative to be present during the examination or processing.
(4) The executing officer or officer assisting may operate equipment already at the premises to examine or process a thing found at the premises in order to determine whether it may be seized under the warrant, if the executing officer or officer assisting 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 damaging the equipment or thing.

38N Use of electronic equipment at premises
(1) The executing officer of a warrant in relation to premises or an officer assisting may operate electronic equipment at the 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 damaging the equipment.
(2) If the executing officer or officer assisting finds that evidential material is accessible by operating the equipment, 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 a documentary form by using facilities at the premises—operate those facilities to put the material in that form and seize the documents so produced; or
(c) if the material can be transferred to a disk, tape or other storage device:
(i) that is brought to the premises; or
(ii) 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:
(a) 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
(b) possession by the occupier of the equipment could constitute an offence against an Australian law.
(4) If the executing officer or officer assisting believes 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) the material may be destroyed, altered or otherwise interfered with if he or she does not take action under this subsection;
he or she may do whatever is necessary to secure the equipment, including locking it up or placing it under guard.
(5) The equipment may be secured:
(a) for up to 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
(6) The executing officer or officer assisting must give to the occupier of the premises notice of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.
(7) If the executing officer or 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 or eligible Federal Circuit Court Judge who issued the warrant for an extension of that period.
(8) The executing officer or 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.
(9) Division 2 applies, with such modifications as are necessary, to the issuing of an extension.

38O Compensation for damage to electronic equipment
(1) If:
(a) damage is caused to equipment as a result of its being operated as mentioned in section 38M or 38N; and
(b) the damage was caused as a result of:
(i) a lack of reasonable care in selecting the person who was to operate the equipment; or
(ii) a lack of reasonable care on the part of the person operating the equipment;
compensation for the damage is payable to the owner of the equipment.
(2) Compensation is payable out of money appropriated by the Parliament for the purpose.
(3) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises or his or her employees or agents could have provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances but failed to do so.

38P 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 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 was seized under paragraph 38N(2)(b) or taken under paragraph 38N(2)(c); or
(b) possession by the occupier of the document, film, computer file, thing or information could constitute an offence against an Australian law.

38Q Occupier entitled to watch search
(1) If:
(a) a warrant in relation to premises is being executed; and
(b) the occupier of the premises or another person who apparently represents the occupier is present at the premises;
the occupier of the premises or that person is entitled to watch the search being conducted.
(2) The right to watch 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.

38R Receipts for things seized under warrant etc.
(1) If a thing is seized under a warrant or moved under subsection 38M(2), the executing officer or an officer 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.

Part VIIA—Search, seizure and powers of arrest
Division 4—Arrest and related matters
38V Power to search an arrested person
(1) The police officer arresting the person, or any police officer who is present at the arrest, may:
(a) if he or she believes on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items—conduct a frisk search of the person at, or soon after, the time of arrest; or
(b) if he or she suspects on reasonable grounds that the person is carrying any seizable items—conduct an ordinary search of the person at, or soon after, the time of the arrest.
(2) The police officer may seize any seizable items found as a result of the search.

Search and seizure

Australia

Australia - ICC Act 2002 (2016)

Australia - Mutual Assistance in Criminal Matters Act No. 85 1987 (2018)

Rome Statute

Article 93 Other forms of cooperation