(b) if the equipment was operated under a warrant issued in relation to a person—that person, or that person’s agents.
(5) Compensation is payable out of money appropriated by the Parliament.
(6) For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure of data or addition of other data.
3N Copies of seized things to be provided
(1) Subject to subsection (2), if a constable seizes, under a warrant relating 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 constable 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 that has been seized was seized under subsection 3L(1A) or paragraph 3L(2)(b) or 3LAA(4)(b); or
(aaa) the thing that has been seized is a digital asset or a thing that suggests the existence of a digital asset; or
(aa) the thing embodies data that was accessed under the warrant at a place other than the premises; or
(b) possession by the occupier of the document, film, computer file, thing or information could constitute an offence.
3P 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, subject to Part IC, 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.
3Q Receipts for things seized under warrant or moved
(1) If a thing is seized under a warrant or moved under subsection 3K(2), the executing officer or a constable 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.
3R Warrants by telephone or other electronic means
(1) A constable may make an application to an issuing officer 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.
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(2) The issuing officer:
(a) may require communication by voice to the extent that it is practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such communication by voice.
(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 an issuing officer under this section and the issuing officer, after considering the information and having received and considered such further information (if any) as the issuing officer required, 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 issuing officer may complete and sign the same form of warrant that would be issued under section 3E.
(5) If the issuing officer decides to issue the warrant, the issuing officer 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.
(6) The applicant must then complete a form of warrant in terms substantially corresponding to those given by the issuing officer, stating on the form the name of the issuing officer and the day on which and the time at which the warrant was signed.
(7) 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 issuing officer the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn.
(8) The issuing officer is to attach to the documents provided under subsection (7) the form of warrant completed by the issuing officer.
(9) 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 this section was duly authorised; and
(b) the form of warrant signed by the issuing officer 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.
3S Restrictions on personal searches
A warrant cannot authorise a strip search or a search of a person’s body cavities.
3SA Relationship of this Division to parliamentary privileges and immunities
To avoid doubt, this Division does not affect the law relating to the powers, privileges and immunities of any of the following:
(a) each House of the Parliament;
(b) the members of each House of the Parliament;
(c) the committees of each House of the Parliament and joint committees of both Houses of the Parliament.
Division 3—Stopping and searching conveyances
3T Searches without warrant in emergency situations
(1) This section applies if a constable suspects, on reasonable grounds, that:
(a) a thing relevant to an indictable offence is in or on a conveyance; and
(b) it is necessary to exercise a power under subsection (2) in order to prevent the thing 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 constable may:
(a) stop and detain the conveyance; and
(b) search the conveyance and any container in or on the conveyance, for the thing; and
(c) seize the thing if he or she finds it there.
(3) If, in the course of searching for the thing, the constable finds another thing relevant to an indictable offence or a thing relevant to a summary offence, the constable may seize that 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 constable must exercise his or her powers subject to section 3U.
3U How a constable exercises a power under section 3T
When a constable exercises a power under section 3T 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.
Division 3A—Powers in relation to terrorist acts and terrorism offences
Subdivision A—Definitions
3UA Definitions
In this Division:
assessment officer: see subsection 3UJC(1).
Commonwealth place means a Commonwealth place within the meaning of the Commonwealth Places (Application of Laws) Act 1970.
nominated ART member means a person in relation to whom a nomination is in force under section 3UJE.
police officer means:
(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or
(b) a special member (within the meaning of that Act); or
(c) a member, however described, of a police force of a State or Territory.
post‑entry warrant: see subsection 3UEB(1).
prescribed security zone means a zone in respect of which a declaration under section 3UJ is in force.
serious offence related item means a thing that a police officer conducting a search under section 3UD reasonably suspects:
(a) may be used in a serious offence; or
(b) is connected with the preparation for, or the engagement of a person in, a serious offence; or
(c) is evidence of, or relating to, a serious offence.
State or Territory police oversight body means:
(a) an agency, body or authority that; or
(b) a person who;
under a law of a State or Territory, has functions relating to the investigation of complaints about the conduct of members of the police force of the State or Territory.
terrorism related item means a thing that a police officer conducting a search under section 3UD reasonably suspects:
(a) may be used in a terrorist act; or
(b) is connected with the preparation for, or the engagement of a person in, a terrorist act; or
(c) is evidence of, or relating to, a terrorist act.
vehicle includes any means of transport (and, without limitation, includes a vessel and an aircraft).
Subdivision B—Powers
3UB Application of Subdivision
(1) A police officer may exercise the powers under this Subdivision in relation to a person if:
(a) the person is in a Commonwealth place (other than a prescribed security zone) and the officer suspects on reasonable grounds that the person might have just committed, might be committing or might be about to commit, a terrorist act; or
(b) the person is in a Commonwealth place in a prescribed security zone.
(2) This section does not limit the operation of section 3UEA.
3UC Requirement to provide name etc.
(1) A police officer may request the person to provide the officer with the following details:
(a) the person’s name;
(b) the person’s residential address;
(c) the person’s reason for being in that particular Commonwealth place;
(d) evidence of the person’s identity.
(2) If a police officer:
(a) makes a request under subsection (1); and
(b) informs the person:
(i) of the officer’s authority to make the request; and
(ii) that it may be an offence not to comply with the request;
the person commits an offence if:
(c) the person fails to comply with the request; or
(d) the person gives a name or address that is false in a material particular.
Penalty: 20 penalty units.
Note: A more serious offence of obstructing a Commonwealth public official may also apply (see section 149.1 of the Criminal Code).
(3) Subsection (2) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
3UD Stopping and searching
(1) A police officer may:
(a) stop and detain the person for the purpose of conducting a search under paragraph (b); and
(b) conduct one of the following searches for a terrorism related item:
(i) an ordinary search or a frisk search of the person;
(ii) a search of any thing that is, or that the officer suspects on reasonable grounds to be, under the person’s immediate control;
(iii) a search of any vehicle that is operated or occupied by the person;
(iv) a search of any thing that the person has, or that the officer suspects on reasonable grounds that the person has, brought into the Commonwealth place.
Informing a person of a right to make a complaint
(1A) A police officer who stops and detains a person under this section must inform the person of any right the person has to make a complaint to:
(a) the Commonwealth Ombudsman; or
(b) a State or Territory police oversight body;
about the conduct of the police officer in exercising the powers conferred by this section.
(1B) Subsection (1A) does not require a police officer to inform a person of a right if it is not reasonably practicable to do so because of circumstances of urgency.
Conditions relating to conduct of search of person
(2) A police officer who conducts a search of a person under this section must not use more force, or subject the person to greater indignity, than is reasonable and necessary in order to conduct the search.
(3) A person must not be detained under this section for longer than is reasonably necessary for a search to be conducted under this section.
Other conditions relating to conduct of search of person or thing
(4) In searching a thing (including a vehicle) under subsection (1), a police officer may use such force as is reasonable and necessary in the circumstances, but must not damage the thing by forcing it, or a part of it, open unless:
(a) the person has been given a reasonable opportunity to open the thing or part of it; or
(b) it is not possible to give that opportunity.
3UE Seizure of terrorism related items and serious offence related items
If a police officer:
(a) conducts a search under section 3UD; and
(b) finds, in the course of the search, a thing that is:
(i) a terrorism related item; or
(ii) a serious offence related item;
the officer may seize the thing.
3UEA Emergency entry to premises without warrant
(1) A police officer may enter premises in accordance with this section if the police officer suspects, on reasonable grounds, that:
(a) it is necessary to exercise a power under subsection (2) in order to prevent a thing that is on the premises from being used in connection with a terrorism offence; and
(b) it is necessary to exercise the power without the authority of a search warrant because there is a serious and imminent threat to a person’s life, health or safety.
(2) The police officer may:
(a) search the premises for the thing; and
(b) seize the thing if he or she finds it there.
(3) If, in the course of searching for the thing, the police officer finds another thing that the police officer suspects, on reasonable grounds, to be relevant to an indictable offence or a summary offence, the police officer may secure the premises pending the obtaining of a warrant under Part IAA in relation to the premises.
(4) Premises must not be secured under subsection (3) for longer than is reasonably necessary to obtain the warrant.
(5) In the course of searching for the thing, the police officer may also seize any other thing, or do anything to make the premises safe, if the police officer suspects, on reasonable grounds, that it is necessary to do so:
(a) in order to protect a person’s life, health or safety; and
(b) without the authority of a search warrant because the circumstances are serious and urgent.
(6) In exercising powers under this section:
(a) the police officer may use such assistance; and
(b) the police officer, or a person who is also a police officer and who is assisting the police officer, may use such force against persons and things; and
(c) a person (other than a police officer) who is authorised by the police officer to assist the police officer may use such force against things;
as is necessary and reasonable in the circumstances.
Notification
(7) If one or more police officers have entered premises in accordance with this section, a police officer must, within 24 hours after the entry:
(a) notify the occupier of the premises that the entry has taken place; or
(b) if it is not practicable so to notify the occupier—leave a written notice of the entry at the premises.
3UEB Emergency entry to premises without warrant—post‑entry warrants
Requirement to apply for post‑entry warrant
(1) A police officer who has entered premises under, or purportedly under, subsection 3UEA(1) must:
(a) apply to an assessment officer for a warrant (a post‑entry warrant) under this section in relation to the entry to the premises; and
(b) do so as soon as practicable after the exercise, or purported exercise, of powers under section 3UEA in relation to the premises.
(2) The application must:
(a) be in writing; and
(b) set out:
(i) the nature of the matters suspected by the police officer for the purposes of paragraphs 3UEA(1)(a) and (b); and
(ii) the grounds on which the police officer held the suspicion; and
(c) state whether the police officer is:
(i) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or
(ii) a special member (within the meaning of that Act); or
(iii) a member, however described, of a police force of a State or Territory; and
(d) if the police officer is a member mentioned in subparagraph (c)(iii) of this subsection—identify the relevant State or Territory; and
(e) state the police officer’s name, rank, identification number (however described) and police station (if applicable and necessary); and
(f) state the police officer’s contact details, including details of how the assessment officer may give to the police officer the following:
(i) any request in writing under subsection (4) of this section for information or documents;
(ii) the post‑entry warrant or a notice of refusal to issue the warrant; and
(g) if the police officer is a member, or special member, mentioned in subparagraph (c)(i) or (ii) of this subsection—include details of how the assessment officer may give to the Commissioner the post‑entry warrant or a notice of refusal to issue the warrant; and
(h) if the police officer is a member mentioned in subparagraph (c)(iii) of this subsection—include details of how the assessment officer may give to the Commissioner of Police in the police force of the relevant State or Territory, or the person holding equivalent rank, the post‑entry warrant or a notice of refusal to issue the warrant; and