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This Act may be cited as the Crimes Act 1914.
In this Act, unless the contrary intention appears:
Aboriginal person means a person of the Aboriginal race of Australia.
ACC means the Australian Crime Commission.
associated offence means:
in relation to an offence against section 233B of the Customs Act 1901—an ancillary offence (within the meaning of the Criminal Code) that relates to the offence; or
in relation to an offence against section 10, 11, 12, 13 or 14 of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990—an ancillary offence (within the meaning of the Criminal Code) that relates to the offence; or
in relation to an offence against a law of a State or Territory—an offence:
under a provision of a law of that State or Territory that corresponds to a provision of Part 2.4 of the Criminal Code; and
that relates to the offence.
Australian law enforcement officer means a law enforcement officer other than a member of a police force, or other law enforcement agency, of a foreign country.
bail authority means a court or person authorised to grant bail under a law of the Commonwealth, a State or a Territory.
child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.
child abuse material has the same meaning as in Part 10.6 of the Criminal Code.
child sexual abuse offence means:
a Commonwealth child sex offence; or
an offence against section 273.5, 471.16, 471.17, 474.19 or 474.20 of the Criminal Code as in force at any time before the commencement of Schedule 7 to the Combatting Child Sexual Exploitation Legislation Amendment Act 2019; or
an offence against Part IIIA of this Act as in force at any time before the commencement of Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010; or
a State or Territory registrable child sex offence.
Commissioner means the Commissioner of the Australian Federal Police.
Commonwealth child sex offence means:
an offence against any of the following provisions of the Criminal Code:
Division 272 (Child sex offences outside Australia);
Division 273 (Offences involving child abuse material outside Australia);
Division 273A (Possession of child‑like sex dolls etc.);
Subdivisions B and C of Division 471 (which create offences relating to use of postal or similar services in connection with child abuse material and sexual activity involving children);
Subdivisions D and F of Division 474 (which create offences relating to use of telecommunications in connection with child abuse material, sexual activity involving children and harm to children); or
an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence described in paragraph (a) of this definition; or
an offence against a provision described in paragraph (a) of this definition that is taken to have been committed because of section 11.2, 11.2A or 11.3 of the Criminal Code.
Commonwealth child sexual abuse offence means a Commonwealth child sex offence, other than an offence against subsection 272.8(1) or (2), 272.9(1) or (2), section 272.10, 272.11, 272.18, 272.19, 273.7, 471.22, 474.23A or 474.24A, subsection 474.25A(1) or (2) or section 474.25B or 474.25C of the Criminal Code.
Commonwealth entity has the meaning given by section 10 of the Public Governance, Performance and Accountability Act 2013.
Commonwealth offence, except in Part IC, means an offence against a law of the Commonwealth.
Commonwealth officer means a person holding office under, or employed by, the Commonwealth, and includes:
a person appointed or engaged under the Public Service Act 1999;
a person permanently or temporarily employed in the Public Service of a Territory or in, or in connection with, the Defence Force, or in the Service of a public authority under the Commonwealth;
the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979).
confiscation proceedings has a meaning affected by subsection 16AC(5).
constable means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory.
controlled substance means:
a controlled drug or border controlled drug within the meaning of Part 9.1 of the Criminal Code; or
a controlled plant or border controlled plant within the meaning of Part 9.1 of the Criminal Code; or
a controlled precursor or border controlled precursor within the meaning of Part 9.1 of the Criminal Code.
conveyance includes an aircraft, vehicle or vessel.
criminal detention has the meaning given by section 45A.
cultural heritage has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999, and includes sacred sites.
cultural heritage object means an object that is important for cultural, religious, ethnological, archaeological, historical, literary, artistic, scientific or technological reasons.
data includes:
information in any form; and
any program (or part of a program).
data storage device means a thing containing, or designed to contain, data for use by a computer.
de facto partner has the meaning given by the Acts Interpretation Act 1901.
Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.
dentist means a dental practitioner within the meaning of the Health Insurance Act 1973.
Deputy Commissioner means a Deputy Commissioner of the Australian Federal Police.
federal aspect, in relation to an offence against a law of a State or of the Australian Capital Territory, has the meaning given by subsection 3AA(1).
This subsection defines State to include the Northern Territory.
federal court means the High Court or a court created by the Parliament, other than a court of a Territory.
federal criminal detention has the meaning given by section 45A.
federal judicial proceeding has the meaning given by section 31.
Foreign Affairs Department means the Department administered by the Minister administering the Diplomatic Privileges and Immunities Act 1967.
Foreign Affairs Minister means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
have in possession includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.
IGIS official (short for Inspector‑General of Intelligence and Security official) means:
the Inspector‑General of Intelligence and Security; or
any other person covered by subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986.
illicit goods means goods the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.
Immigration and Border Protection Department means the Department administered by the Minister administering the Australian Border Force Act 2015.
Inspector of the National Anti‑Corruption Commission means the Inspector within the meaning of the National Anti‑Corruption Commission Act 2022.
integrity purpose means the purpose of preventing, detecting, investigating or dealing with any of the following:
misconduct (within the meaning of the Privacy Act 1988) of a serious nature by any of the following:
an official (as defined in section 13 of the Public Governance, Performance and Accountability Act 2013) of a Commonwealth entity;
a person employed by, or in the service of, a Privacy Act agency or a wholly‑owned Commonwealth company;
a person acting on behalf of, or for the purposes of activities of, a Privacy Act agency;
an officer of a wholly‑owned Commonwealth company;
conduct that may have the purpose or effect of inducing misconduct described in paragraph (a);
fraud that has or may have a substantial adverse effect on the Commonwealth or a target entity;
an offence against Chapter 7 of the Criminal Code (which is about the proper administration of Government).
An example of dealing with the matters described in paragraphs (a), (b), (c) and (d) is taking legal proceedings, disciplinary proceedings or other administrative action.
An integrity purpose relating to misconduct of a person covered by a subparagraph of paragraph (a) does not cease to exist merely because the person ceases to be covered by that subparagraph after the misconduct occurs.
judicial proceeding has the meaning given by section 31 (other than in section 3L).
judicial tribunal has the meaning given by section 31.
law enforcement officer (except in Part IAAC) means any of the following:
the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979);
a member of the police force of a State or Territory;
a staff member of the NACC;
a member of the staff of the ACC;
an officer of Customs;
a member of a police force, or other law enforcement agency, of a foreign country.
medical practitioner has the same meaning as in the Health Insurance Act 1973.
member of the staff of the ACC has the same meaning as in the Australian Crime Commission Act 2002.
narcotic goods has the same meaning as in the Customs Act 1901.
National Anti‑Corruption Commissioner means the Commissioner within the meaning of the National Anti‑Corruption Commission Act 2022.
National Anti‑Corruption Deputy Commissioner means a Deputy Commissioner within the meaning of the National Anti‑Corruption Commission Act 2022.
nurse means a registered nurse within the meaning of the Health Insurance Act 1973.
officer of Customs has the meaning given by subsection 4(1) of the Customs Act 1901.
Official Trustee means the Official Trustee in Bankruptcy.
parent: without limiting who is a parent of a person for the purposes of this Act, someone (the adult) is the parent of a person if:
the adult is legally entitled to, and has, custody of the person; or
the adult is legally responsible for the day‑to‑day care, welfare and development of the person and has the person in his or her care.
participating State has the meaning given by subsection 3B(2).
participating Territory has the meaning given by subsection 3B(2).
personal information has the meaning given by section 6 of the Privacy Act 1988.
person assisting the NACC Inspector means a person assisting the Inspector within the meaning of the National Anti‑Corruption Commission Act 2022.
Privacy Act agency has the same meaning as agency has in the Privacy Act 1988.
property includes money and every thing, animate or inanimate, capable of being the subject of ownership.
public authority under the Commonwealth means any authority or body constituted by or under a law of the Commonwealth or of a Territory.
quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.
relative has a meaning affected by subsection (3).
senior executive AFP employee has the same meaning as in the Australian Federal Police Act 1979.
sensitive information has the meaning given by section 6 of the Privacy Act 1988.
staff member of the NACC has the same meaning as in the National Anti‑Corruption Commission Act 2022.
State includes the Northern Territory.
State offence means an offence against a law of a State or the Australian Capital Territory.
State or Territory registrable child sex offence means an offence:
that a person becomes, or may at any time have become, a person whose name is entered on a child protection offender register (however described) of a State or Territory for committing; and
in respect of which:
a child was a victim or an intended victim; or
the offending involved child abuse material.
substantial adverse effect means an effect that is adverse and not insubstantial, insignificant or trivial.
target entity means:
a Privacy Act agency; or
a wholly‑owned Commonwealth company.
A target entity is an APP entity as defined in section 6 of the Privacy Act 1988, because it is either an agency or an organisation for the purposes of that Act (as a wholly‑owned Commonwealth company is an organisation as defined in section 6C of that Act).
Territory does not include the Northern Territory.
terrorism offence means:
an offence against Subdivision A of Division 72 of the Criminal Code; or
an offence against Subdivision B of Division 80 of the Criminal Code; or
an offence against Part 5.3, 5.3A or 5.5 of the Criminal Code; or
an offence against Subdivision HA of Division 474 of the Criminal Code; or
an offence against either of the following provisions of the Charter of the United Nations Act 1945:
Part 4 of that Act;
Part 5 of that Act, to the extent that it relates to the Charter of the United Nations (Sanctions—Al‑Qaida) Regulations 2008.
terrorist act means:
a terrorist act within the meaning of subsection 100.1(1) of the Criminal Code; or
a state terrorist act within the meaning of the Criminal Code.
thing relevant to an indictable offence means:
either of the following:
anything with respect to which an indictable offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed;
anything with respect to which a State offence that has a federal aspect, and that is an indictable offence against the law of that State, has been committed or is suspected, on reasonable grounds, to have been committed; or
anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or
anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence.
thing relevant to a summary offence means:
either of the following:
anything with respect to which a summary offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed;
anything with respect to which a State offence that has a federal aspect, and that is a summary or simple offence against the law of that State, has been committed or is suspected, on reasonable grounds, to have been committed; or
anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or
anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence.
Torres Strait Islander means a descendent of an indigenous inhabitant of the Torres Strait Islands.
wholly‑owned Commonwealth company has the meaning given by section 90 of the Public Governance, Performance and Accountability Act 2013.
In this Act, a reference to a fine includes a reference:
to a pecuniary penalty other than a pecuniary penalty imposed:
under Division 3 of Part XIII of the Customs Act 1901; or
by a pecuniary penalty order, a literary proceeds order or an unexplained wealth order made under the Proceeds of Crime Act 2002; or
by a pecuniary penalty order made under the Proceeds of Crime Act 1987; or
by a superannuation order made under the Australian Federal Police Act 1979; or
by a superannuation order made under the Crimes (Superannuation Benefits) Act 1989; or
to costs or other amounts ordered to be paid by offenders.
For the purposes of this Act, the relatives of a person are taken to include the following (without limitation):
a de facto partner of the person;
someone who is the child of the person, or of whom the person is the child, because of the definition of child in this section;
anyone else who would be a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a relative of the person.
Object
The object of this section is to identify State offences that have a federal aspect because:
they potentially fall within Commonwealth legislative power because of the elements of the State offence; or
they potentially fall within Commonwealth legislative power because of the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be acts or omissions involved in committing the offence); or
the Australian Federal Police investigating them is incidental to the Australian Federal Police investigating an offence against a law of the Commonwealth or a Territory.
State offences that have a federal aspect
For the purposes of this Act, a State offence has a federal aspect if, and only if:
both:
the State offence is not an ancillary offence; and
assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or
both:
the State offence is an ancillary offence that relates to a particular primary offence; and
assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or
assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence—that provision would have been a valid law of the Commonwealth; or
both:
the Australian Federal Police is investigating an offence against a law of the Commonwealth or a Territory; and
if the Australian Federal Police is investigating, or were to investigate, the State offence—that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i).
Specificity of acts or omissions
For the purposes of paragraph (1)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence).
State offences covered by paragraph (1)(c)
A State offence is taken to be covered by paragraph (1)(c) if the conduct constituting the State offence:
affects the interests of:
the Commonwealth; or
an authority of the Commonwealth; or
a constitutional corporation; or
was engaged in by a constitutional corporation; or
was engaged in in a Commonwealth place; or
involved the use of a postal service or other like service; or
involved an electronic communication; or
involved trade or commerce:
between Australia and places outside Australia; or
among the States; or
within a Territory, between a State and a Territory or between 2 Territories; or
involved:
banking (other than State banking not extending beyond the limits of the State concerned); or
insurance (other than State insurance not extending beyond the limits of the State concerned); or
relates to a matter outside Australia; or
relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement; or
relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern.
Subsection (3) does not limit paragraph (1)(c).
Definitions
In this section:
ancillary offence, in relation to an offence (the primary offence), means:
an offence of conspiring to commit the primary offence; or
an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or
an offence of attempting to commit the primary offence.
Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.
conduct has the same meaning as in the Criminal Code.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
electronic communication means a communication of information:
whether in the form of text; or
whether in the form of data; or
whether in the form of speech, music or other sounds; or
whether in the form of visual images (animated or otherwise); or
whether in any other form; or
whether in any combination of forms;
by means of guided and/or unguided electromagnetic energy.
engage in conduct has the same meaning as in the Criminal Code.
State includes the Australian Capital Territory and the Northern Territory.
State offence means an offence against a law of a State.
Subsection 3(1) defines State to include the Northern Territory.
This Act applies throughout the whole of the Commonwealth and the Territories and also applies beyond the Commonwealth and the Territories.
The Governor‑General may make arrangements with the Governor of a State, the Government of the Australian Capital Territory or the Administrator of the Northern Territory for:
officers of the State or Territory to exercise powers and perform functions; and
facilities and procedures of the State or Territory to be made available;
in relation to the carrying out or enforcement under this Act of orders made under this Act or another Act.
In this Act:
a reference to a participating State is a reference to a State in relation to which an arrangement is in force under subsection (1) of this section; and
a reference to a participating Territory:
is a reference to a Territory other than the Australian Capital Territory or the Northern Territory; and
if an arrangement is in force under subsection (1) of this section in relation to the Australian Capital Territory—includes a reference to the Australian Capital Territory; and
if an arrangement is in force under subsection (1) of this section in relation to the Northern Territory—includes a reference to the Northern Territory.
In this section:
order includes a sentence.
State does not include the Australian Capital Territory or the Northern Territory.
Chapter 2 of the Criminal Code applies to all offences against this Act.
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
In this Part, unless the contrary intention appears:
account‑based data has the meaning given by section 3CAA.
carrier means:
a carrier within the meaning of the Telecommunications Act 1997; or
a carriage service provider within the meaning of that Act.
communication in transit means a communication (within the meaning of the Telecommunications Act 1997) passing over a telecommunications network (within the meaning of that Act).
constable assisting, in relation to a warrant, means:
a person who is a constable and who is assisting in executing the warrant; or
a person who is not a constable and who has been authorised by the relevant executing officer to assist in executing the warrant.
data held in a computer includes:
data held in any removable data storage device for the time being held in a computer; or
data held in a data storage device on a computer network of which the computer forms a part.
digital asset means:
a digital representation of value or rights (including rights to property), the ownership of which is evidenced cryptographically and that is held and transferred electronically by:
a type of distributed ledger technology; or
another distributed cryptographically verifiable data structure; or
a right or thing prescribed by the regulations;
but does not include any right or thing that, under the regulations, is taken not to be a digital asset for the purposes of this Part.
electronic service has the same meaning as in the Online Safety Act 2021.
emergency situation, in relation to the execution of a warrant in relation to premises, means a situation that the executing officer or a constable assisting believes, on reasonable grounds, involves a serious and imminent threat to a person’s life, health or safety that requires the executing officer and constables assisting to leave the premises.
evidential material means a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form.
executing officer, in relation to a warrant, means:
the constable named in the warrant by the issuing officer as being responsible for executing the warrant; or
if that constable does not intend to be present at the execution of the warrant—another constable whose name has been written in the warrant by the constable so named; or
another constable whose name has been written in the warrant by the constable last named in the warrant.
frisk search means:
a search of a person conducted by quickly running the hands over the person’s outer garments; and
an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
issuing officer, in relation to a warrant to search premises or a person or a warrant for arrest under this Part, means:
a magistrate; or
a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants or warrants for arrest, as the case may be.
Under section 3ZZBJ, an eligible issuing officer (within the meaning of Part IAAA) may, as specified in that section, consider and deal with an application for a warrant as if the eligible issuing officer were an issuing officer within the meaning of this Part.
magistrate, in sections 3ZI, 3ZJ, 3ZK, 3ZN and 3ZQZB, has a meaning affected by section 3CA.
offence means:
an offence against a law of the Commonwealth (other than the Defence Force Discipline Act 1982); or
an offence against a law of a Territory; or
a State offence that has a federal aspect.
ordinary search means a search of a person or of articles in the possession of a person that may include:
requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and
an examination of those items.
police station includes:
a police station of a State or Territory; and
a building occupied by the Australian Federal Police.
premises includes a place and a conveyance.
recently used conveyance, in relation to a search of a person, means a conveyance that the person had operated or occupied at any time within 24 hours before the search commenced.
seizable item means anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.
seize, for a digital asset, has a meaning affected by subsection 3FA(8).
serious offence means an offence:
that is punishable by imprisonment for 2 years or more; and
that is one of the following:
a Commonwealth offence;
an offence against a law of a State that has a federal aspect;
an offence against a law of a Territory; and
that is not a serious terrorism offence.
serious terrorism offence means:
a terrorism offence (other than offence against section 102.8, Division 104, Division 105 or section 112.7 of the Criminal Code); or
an offence against a law of a State:
that has a federal aspect; and
that has the characteristics of a terrorism offence (other than such an offence that has the characteristics of an offence against section 102.8, Division 104, Division 105 or section 112.7 of the Criminal Code); or
an offence against a law of a Territory that has the characteristics of a terrorism offence (other than such an offence that has the characteristics of an offence against section 102.8, Division 104, Division 105 or section 112.7 of the Criminal Code).
strip search means a search of a person or of articles in the possession of a person that may include:
requiring the person to remove all of his or her garments; and
an examination of the person’s body (but not of the person’s body cavities) and of those garments.
telecommunications facility means a facility within the meaning of the Telecommunications Act 1997.
warrant means a warrant under this Part.
warrant premises means premises in relation to which a warrant is in force.
A person referred to in paragraph (b) of the definition of constable assisting in subsection (1) must not take part in searching or arresting a person.
For the purposes of this Part, if:
an electronic service has accounts for end‑users; and
either:
a person holds an account with the electronic service; or
a person is, or is likely to be, a user of an account with the electronic service; and
the person can (with the use of appropriate equipment) access particular data provided by the service;
the data is account‑based data in relation to the person.
For the purposes of this Part, if:
an electronic service has accounts for end‑users; and
either:
a deceased person held, before the person’s death, an account with the electronic service; or
a deceased person, before the person’s death, was, or was likely to be, a user of an account with the electronic service; and
the deceased person could, before the person’s death (with the use of appropriate equipment), access particular data provided by the service;
the data is account‑based data in relation to the deceased person.
For the purposes of this section, account has the same meaning as in the Online Safety Act 2021.
A function of making an order conferred on a magistrate by section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZQZB is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
Without limiting the generality of subsection (1), an order made by a magistrate under section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZQZB has effect only by virtue of this Act and is not to be taken by implication to be made by a court.
A magistrate performing a function of, or connected with, making an order under section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZQZB has the same protection and immunity as if he or she were performing that function as, or as a member of, a court (being the court of which the magistrate is a member).
The Governor‑General may make arrangements with the Governor of a State, the Chief Minister of the Australian Capital Territory or the Administrator of the Northern Territory for the performance, by all or any of the persons who from time to time hold office as magistrates in that State or Territory, of the function of making orders under sections 3ZI, 3ZJ, 3ZK, 3ZN and 3ZQZB.
This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to:
the search of premises; or
arrest and related matters; or
the stopping, detaining or searching of conveyances or persons; or
the seizure of things; or
the requesting of information or documents from persons.
To avoid any doubt, it is declared that even though another law of the Commonwealth (including other provisions of this Act) provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
This Part is not intended to limit or exclude the operation of a law of a Territory relating to:
the search of premises; or
arrest and related matters; or
the stopping, detaining or searching of conveyances or persons; or
the seizure of things; or
the requesting of information or documents from persons;
in relation to offences against a law of that Territory.
This Part does not apply to the exercise by a constable of powers under the Defence Force Discipline Act 1982.
The application of this Part in relation to State offences that have a federal aspect is not intended to limit or exclude the concurrent operation of any law of a State or of the Australian Capital Territory.
Subsection 3(1) defines State to include the Northern Territory.
Section 3AA has the effect that an offence against the law of the Australian Capital Territory is a State offence that has a federal aspect.
An issuing officer may issue a warrant to search premises if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.
For the issue of delayed notification search warrants, see Part IAAA.
An issuing officer may issue a warrant authorising an ordinary search or a frisk search of a person if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material.
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.
For applying for a search warrant, see section 3QA.
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.
For applying for a search warrant, see section 3QA.
If an issuing officer issues a warrant, the officer is to state in the warrant:
the offence to which 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 constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and
the time at which the warrant expires (see subsection (5A)); and
The power to seize a digital asset under the warrant and certain other powers may be exercised after the warrant expires: see subsection 3FA(10).
whether the warrant may be executed at any time or only during particular hours.
The time stated in the warrant under paragraph 3E(5)(e) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.
If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.
The issuing officer is also to state, in a warrant in relation to premises:
that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
evidential material in relation to an offence to which the warrant relates; or
a thing relevant to another offence that is an indictable offence; or
evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and
that the warrant authorises the seizure of a digital asset if paragraphs 3FA(1)(a) to (c) are satisfied; and
whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
The issuing officer is also to state, in a warrant in relation to a person:
that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found, in the course of the search, on or in the possession of the person or in a recently used conveyance, being a thing that the executing officer or a constable assisting believes on reasonable grounds to be:
evidential material in relation to an offence to which the warrant relates; or
a thing relevant to another offence that is an indictable offence; or
evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and
that the warrant authorises the seizure of a digital asset if paragraphs 3FA(2)(a) to (c) are satisfied; and
the kind of search of a person that the warrant authorises.
Paragraph (5)(e) and subsection (5A) do not prevent the issue of successive warrants in relation to the same premises or person.
If the application for the warrant is made under section 3R, this section applies as if:
subsections (1) and (2) referred to 48 hours rather than 72 hours; and
paragraph (5)(e) required the issuing officer to state in the warrant the period for which the warrant is to remain in force, which must not be more than 48 hours, and subsection (5A) has no effect.
An issuing officer in New South Wales or the Australian Capital Territory may issue a warrant in relation to premises or a person in the Jervis Bay Territory.
An issuing officer in a State or internal Territory may:
issue a warrant in relation to premises or a person in that State or Territory; or
issue a warrant in relation to premises or a person in an external Territory; or
issue a warrant in relation to premises or a person in another State or internal Territory (including the Jervis Bay Territory) if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate; or
issue a warrant in relation to a person wherever the person is in Australia or in an external Territory if he or she is satisfied that it is not possible to predict where the person may be.
A warrant that is in force in relation to premises authorises the executing officer or a constable assisting:
to enter the warrant premises and, if the premises are a conveyance, to enter the conveyance, wherever it is; and
to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; and
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
to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
evidential material in relation to an offence to which the warrant relates; or
evidential material in relation to another offence that is an indictable offence; or
evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and
to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be seizable items; and
if the warrant so allows—to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
A warrant that is in force in relation to a person authorises the executing officer or a constable assisting:
to search the person as specified in the warrant and things found in the possession of the person and any recently used conveyance for things of the kind specified in the warrant; and
to:
seize things of that kind; or
record fingerprints from things; or
to take forensic samples from things;
found in the course of the search; and
to seize other things found on or in the possession of the person or in the conveyance in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
evidential material in relation to an offence to which the warrant relates; or
a thing relevant to another offence that is an indictable offence; or
evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and
to seize other things found in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be seizable items.
A warrant that is in force authorises the executing officer or a constable assisting:
to use:
a computer, or data storage device, found in the course of a search authorised under the warrant; or
a telecommunications facility operated or provided by the Commonwealth or a carrier; or
any other electronic equipment; or
a data storage device;
for the purpose of obtaining access to data (the relevant data) that is held in the computer or device mentioned in subparagraph (i) at any time when the warrant is in force, in order to determine whether the relevant data is evidential material of a kind specified in the warrant; and
if necessary to achieve the purpose mentioned in paragraph (a)—to add, copy, delete or alter other data in the computer or device mentioned in subparagraph (a)(i); and
if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so:
to use any other computer or a communication in transit to access the relevant data; and
if necessary to achieve that purpose—to add, copy, delete or alter other data in the computer or the communication in transit; and
to copy any data to which access has been obtained, and that:
appears to be relevant for the purposes of determining whether the relevant data is evidential material of a kind specified in the warrant; or
is evidential material of a kind specified in the warrant; and
to do any other thing reasonably incidental to any of the above.
As a result of the warrant, a person who, by means of a telecommunications facility, obtains access to data stored in a computer etc. will not commit an offence under Part 10.7 of the Criminal Code or equivalent State or Territory laws (provided that the person acts within the authority of the warrant).
A warrant that is in force authorises the executing officer or a constable assisting:
to use:
a computer found in the course of a search authorised under the warrant; or
a telecommunications facility operated or provided by the Commonwealth or a carrier; or
any other electronic equipment;
for the purpose of obtaining access to data (the relevant account‑based data) that is account‑based data in relation to:
a person who is the owner or lessee of the computer mentioned in subparagraph (i); or
a person who uses or has used the computer mentioned in subparagraph (i); or
a deceased person who, before the person’s death, was the owner or lessee of the computer mentioned in subparagraph (i); or
a deceased person who, before the person’s death, used the computer mentioned in subparagraph (i);
in order to determine whether the relevant account‑based data is evidential material of a kind specified in the warrant; and
if necessary to achieve the purpose mentioned in paragraph (a)—to add, copy, delete or alter other data in the computer mentioned in subparagraph (a)(i); and
if, having regard to other methods (if any) of obtaining access to the relevant account‑based data which are likely to be as effective, it is reasonable in all the circumstances to do so:
to use any other computer or a communication in transit to access the relevant account‑based data; and
if necessary to achieve that purpose—to add, copy, delete or alter other data in the computer or the communication in transit; and
to copy any data to which access has been obtained, and that:
appears to be relevant for the purposes of determining whether the relevant account‑based data is evidential material of a kind specified in the warrant; or
is evidential material of a kind specified in the warrant; and
to do any other thing reasonably incidental to any of the above.
Subsections (2A) and (2B) do not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:
materially interfere with, interrupt or obstruct:
a communication in transit; or
the lawful use by other persons of a computer;
unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified in the warrant; or
cause any other material loss or damage to other persons lawfully using a computer.
In the case of a warrant that is in force in relation to premises, it is immaterial whether a thing mentioned in subsection (2A) or (2B) is done:
at the premises; or
at any other place.
In the case of a warrant that is in force in relation to a person, it is immaterial whether a thing mentioned in subsection (2A) or (2B) is done:
in the presence of the person; or
at any other place.
If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.
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.