Search and seizure - national proceedings

Australia

Australia - ICC Act 2002 (2016)

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.

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

137 Conduct of ordinary searches and frisk searches

An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched.

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:

announce that he or she is authorised to enter the premises; and

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:

the safety of a person (including the police officer); or
that the effective execution of the warrant or the arrest is not frustrated.

139 Offences relating to telephone warrants

A person must not:

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

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

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:

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.

Rome Statute

Article 93 Other forms of cooperation

1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

(h) The execution of searches and seizures;