Search Warrants Act 1997

Search Warrants Act 1997

This Act may be cited as the Search Warrants Act 1997.

This Act commences on a day to be proclaimed.

In this Act, unless the contrary intention appears –

conveyance includes an aircraft, vehicle or vessel;

evidential material means a thing relevant to an offence, including such a thing in electronic form;

executing officer, in relation to a warrant, means – the police officer named in the warrant by the issuing officer as being responsible for executing the warrant; or if that police officer does not intend to be present at the execution of the warrant – another police officer whose name has been written in the warrant by the police officer so named; or another police officer whose name has been written in the warrant by the police officer last named in the warrant;

frisk search means – a search of a person conducted by running the hands over the person's outer garments; and an examination of anything worn by the person that is voluntarily removed by the person;

issuing officer, in relation to a warrant to search premises, means a justice of the peace but does not include a magistrate;

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, jacket or similar clothing and any gloves, shoes and hat; and an examination of those items;

person assisting, in relation to a warrant, means – a person who is a police officer and who is assisting in executing the warrant; or a person who is not a police officer and who has been authorised by the relevant executing officer to assist in executing the warrant;

premises includes a place and a conveyance;

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;

thing relevant to an offence means – anything with respect to which an offence against any law of the 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;

warrant means a warrant under this Act;

warrant premises means premises in relation to which a warrant is in force.

This Act is not intended to limit or exclude the operation of another law of the State relating to – the search of persons or premises; or arrest and related matters; or the stopping, detaining or searching of conveyances; or the seizure of things.

To avoid any doubt, it is declared that, even though another law of the State provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Act may be used despite the existence of the power under the other law.

An issuing officer may issue a warrant to search premises if the officer is satisfied by information on oath 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.

If an issuing officer issues a warrant, the issuing 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; 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 is not to be more than 28 days; and whether the warrant may be executed at any time or only during particular hours; and that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (c)) found at the premises in the course of the search that the executing officer or a person 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 – if the executing officer or person 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 executing officer or a person assisting who is a police officer to conduct an ordinary search and a frisk search of any person who is at or near the premises when the warrant is executed if the executing officer or person assisting suspects on reasonable grounds that theperson has any evidential material or seizable items in his or her possession; and that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (c)) found, in the course of a search of a person, on or in the possession of the person that the executing officer or a person assisting who is a police officer 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 – if the executing officer or person 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.

Subsection (2)(e) does not prevent the issue of successive warrants in relation to the same premises.

If the application for the warrant is made under section 15, this section applies as if – subsection (1) referred to 48 hours rather than 72 hours; and subsection (2)(e) referred to 48 hours rather than 28 days.

A warrant that is in force in relation to premises authorises the executing officer or a person assisting – to enter the warrant premises and, if the premises are a conveyance, to stop, detain and enter the conveyance, wherever it is; and to search for and record fingerprints found at the premises and to take samples of things, and from things, found at the premises for forensic purposes; and to search a conveyance, container or thing found on the premises; 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 a thing found at the premises in the course of the search that the executing officer or person 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 – if the executing officer or person 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 to seize a thing found at the premises in the course of the search that the executing officer or person assisting believes on reasonable grounds to be a seizable item.

A warrant that is in force in relation to premises authorises the executing officer or a person assisting who is a police officer – to conduct an ordinary search and a frisk search of any person at or near the premises if the executing officer or person assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession; and to detain any person at or near the premises for the purpose of conducting an ordinary search and a frisk search of the person; and to – seize a thing of the kind specified in the warrant; and record fingerprints from any thing; and take forensic samples of any thing – found, in the course of a search of a person, on or in the possession of the person; and to seize a thing found, in the course of a search of a person, on or in the possession of the person that the executing officer or person 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 – if the executing officer or person 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 to seize a thing found, in the course of a search of a person, on or in the possession of the person that the executing officer or person assisting believes on reasonable grounds to be a seizable item.

A warrant that is in force in relation to premises authorises a person assisting who is not a police officer – to record fingerprints from any thing; or to take forensic samples from any thing – found on or in the possession of a person in the course of a search of that person conducted in accordance with subsection (2).

If a thing is seized under a warrant, the warrant authorises the executing officer to make the thing available to an officer of another agency of this State, another State, a Territory or the Commonwealth if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the thing relates.

In executing a warrant –

the executing officer may obtain such assistance as is necessary and reasonable in the circumstances; and the executing officer or a person assisting who is a police officer may use such force against persons and things as is necessary and reasonable in the circumstances; and a person assisting who is not a police officer may use such force against things as is necessary and reasonable in the circumstances.

If a warrant is being executed and the occupier of the warrant premises or another person who apparently represents the occupier is present at the warrant premises, the executing officer or a person assisting is to show to that person a copy of the warrant.

If a person is searched under a warrant, the executing officer or a person assisting who is a police officer is to show the person a copy of the warrant.

The executing officer is to identify himself or herself to the person at the premises or the person being searched, as the case may be.

The copy of the warrant referred to in subsection (1) need not include the signature of the issuing officer.

In executing a warrant, the executing officer or a person assisting may – for a purpose incidental to the execution of the warrant; or if the occupier of the warrant premises consents – take photographs (including video recordings) of the premises or of things at the premises.

If a warrant is being executed, the executing officer and the persons assisting may, if thewarrant 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.

If – the execution of a 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.

The executing officer or a person assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant.

The executing officer or a person assisting may remove a thing from the warrant premises, or cause a thing to be removed from those premises, to another place for examination or processing in order to determine whether it is a thing that may be seized under the warrant.

The executing officer or a person assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant if he or she 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 the thing.

The executing officer or a person 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 a person 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 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 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 to transfer the material to the disk, tape or other storage device and take the disk, tape or other storage device from the premises.

The executing officer or a person assisting may seize equipment under subsection (2)(a) only if – it is not practicable to put the material in documentary form as mentioned in subsection (2)(b) or to copy the material as mentioned in subsection (2)(c); or possession by the occupier of the equipment could constitute an offence.

If the executing officer or a person assisting believes on reasonable grounds that – evidential material may be accessible by operating electronic equipment at the 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.

The executing officer or a person assisting is to 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.

The equipment may be secured – for a period not exceeding 24 hours; or until the equipment has been operated by the expert – whichever happens first.

If the executing officer or a person assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to an issuing officer for an extension of that period.

The executing officer or a person assisting is to 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.

The provisions of this Act relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension.