3ZZBJ Issue of warrants under other provisions as well as or instead of delayed notification search warrants
When this section applies
(1) This section applies if an eligible officer of an eligible agency, under an authorisation under section 3ZZBB from the chief officer of the agency, makes an application (the delayed notification search warrant application) to an eligible issuing officer for a delayed notification search warrant:
(a) in respect of particular premises; and
(b) in relation to a particular eligible offence.
(2) The applicable normal search warrant regime is Division 2 of Part IAA.
Application may be made to eligible issuing officer for normal search warrant
(3) The eligible officer may, at the same time or subsequently, make an application to the eligible issuing officer for the issue of a warrant, under the applicable normal search warrant regime, to search the premises or other premises for evidential material relevant to the eligible offence or to another offence connected to the eligible offence.
(4) If the eligible issuing officer is not a person who is authorised to issue warrants under the applicable normal search warrant regime, the eligible issuing officer may consider and deal with an application made as mentioned in subsection (3) as if the eligible issuing officer were such a person.
Eligible issuing officer may instead treat application as if it were made under applicable normal search warrant regime
(5) If the eligible issuing officer is not satisfied that a delayed notification search warrant in respect of the premises should be issued, the eligible issuing officer may:
(a) treat the delayed notification search warrant application as if it were an application for a warrant under the applicable normal search warrant regime (even if such an application has not been made); and
(b) consider and deal with the application under that regime:
(i) as if the application had been validly made under that regime; and
(ii) if the eligible issuing officer is not a person who is authorised to issue warrants under the applicable normal search warrant regime—as if the eligible issuing officer were such a person.
Division 3—Exercise of powers under delayed notification search warrants
3ZZCA What is authorised by a delayed notification search warrant
(1) A delayed notification search warrant authorises the executing officer or a person assisting to do any of the following:
(a) to enter the warrant premises;
(b) if the warrant authorises the entry of adjoining premises—to enter the adjoining premises solely for the purpose of entering or leaving the warrant premises;
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(c) to impersonate another person to the extent reasonably necessary for executing the warrant;
(d) to search the warrant premises for the kinds of things (if any) specified in the warrant as the kinds of things that may be searched for;
(e) to seize any thing of a kind specified in the warrant as a kind of thing that may be seized;
(f) to seize other things found in the course of executing the warrant at the warrant premises that the executing officer or a person assisting believes on reasonable grounds to be evidential material, if the executing officer or a person assisting believes on reasonable grounds that the seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing any offence;
(g) to seize any thing found in the course of executing the warrant at the warrant premises that the executing officer or a person assisting believes on reasonable grounds:
(i) would present a danger to a person; or
(ii) could be used to assist a person to escape from lawful custody;
(h) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes;
(i) if specified in the warrant—to place a thing in substitution for a thing seized or moved under subsection 3ZZCE(2);
(j) to do any of the following acts to a thing found in the course of executing the warrant at the warrant premises that is of a kind specified in the warrant as the kind of thing to which the act may be done, or that the executing officer or a person assisting believes on reasonable grounds to be evidential material:
(i) copy the thing;
(ii) photograph or otherwise record the thing;
(iii) mark or tag the thing (whether or not the mark or tag can be detected only with the use of a device);
(iv) operate the thing;
(v) print the thing;
(vi) test the thing;
(vii) sample the thing;
(k) to do anything reasonably necessary to conceal the fact that any thing has been done under the warrant;
(l) if specified in the warrant—to re‑enter:
(i) the warrant premises; and
(ii) if the warrant authorises the entry of adjoining premises—the adjoining premises solely for the purpose of entering or leaving the warrant premises;
within the period described in paragraph 3ZZBE(1)(m), for the purpose of returning any thing seized from the warrant premises or moved under subsection 3ZZCE(2), or retrieving any thing substituted at the premises for a thing seized or moved under that subsection;
(m) to exercise the other powers conferred on the executing officer, or a person assisting, by the other provisions of this Division.
Note: Paragraph (c) does not authorise the acquisition or use of an assumed identity (see Part IAC). The protection provided by Part IAC only applies if the requirements of that Part have been complied with.
(2) The entry of premises under a paragraph of subsection (1) may be effected without the knowledge of the occupier of the premises or any other person present at the premises.
(3) If the period referred to in paragraph (1)(l) ends after the delayed notification search warrant expires, the powers referred to in that paragraph may be exercised during that period as if the warrant were still in force.
3ZZCB Specific powers available to person executing warrant
Photography
(1) In executing a delayed notification search warrant, the executing officer or a person assisting may, for a purpose incidental to the execution of the warrant, take photographs (including video recordings) of the warrant premises or of things at the warrant premises.
Completion of execution of warrant after brief interruption
(2) If a delayed notification search warrant in relation to premises is being executed, the executing officer and the persons 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 premises:
(a) for not more than one hour; or
(b) for not more than 24 hours, or such longer period as allowed by an eligible issuing officer under section 3ZZCC, if they leave the premises:
(i) because of an emergency situation; or
(ii) to reduce the risk of discovery of the fact that a law enforcement officer has been on the premises.
Completion of execution of warrant after court proceedings
(3) If:
(a) the execution of a delayed notification 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.
3ZZCC Extension of time to re‑enter premises left in emergency situation or to avoid discovery of law enforcement officer
(1) If:
(a) a delayed notification search warrant in relation to premises is being executed; and
(b) the executing officer and the persons assisting (if any) leave the premises for a reason described in subparagraph 3ZZCB(2)(b)(i) or (ii); and
(c) the executing officer or a person assisting believes on reasonable grounds that the executing officer and the persons assisting will not be able to return to the premises within the 24‑hour period mentioned in paragraph 3ZZCB(2)(b);
he or she may apply to an eligible issuing officer for an extension of that period.
(2) If an application mentioned in subsection (1) has been made, an eligible issuing officer may extend the period during which the executing officer and persons assisting may be away from the premises if:
(a) the eligible issuing officer is satisfied, by information on oath or affirmation, that there are circumstances that justify the extension; and
(b) the extension would not result in the period ending after the expiry of the warrant.
3ZZCD Executing a warrant—assistance, use of force and related matters
(1) In executing a delayed notification search warrant:
(a) the executing officer may obtain such assistance; and
(b) the executing officer, or an eligible officer who is a person assisting, may use such force against persons and things; and
(c) a person assisting who is not an eligible officer may use such force against things;
as is necessary and reasonable in the circumstances.
(2) At any time when the executing officer is at warrant premises, or adjoining premises, under a delayed notification search warrant, the executing officer must have in his or her possession, or be in a position to produce without delay:
(a) a copy of the warrant; or
(b) if the warrant was issued under section 3ZZBF—a copy of the form of warrant completed under subsection 3ZZBF(7).
(3) To avoid doubt, subsection (2) does not require the executing officer to produce a copy of the warrant or the form of warrant.
3ZZCE Use of equipment to examine or process things
Equipment may be brought onto warrant premises
(1) In executing a delayed notification search warrant, 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.
Thing may be moved for examination or processing
(2) A thing found at the warrant premises may be moved to another place for examination or processing in order to determine whether it may be seized under the delayed notification search warrant if:
(a) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; and
(b) the executing officer or a person assisting suspects on reasonable grounds that the thing contains or constitutes a thing that may be seized under the warrant.
Note: Sections 3ZZCG and 3ZZCH authorise operation of electronic equipment moved under this section.
Time limit on moving a thing
(3) The thing may be moved to another place for examination or processing for no longer than 14 days.
(4) An executing officer may apply to an eligible issuing officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 14 days or that time as previously extended.
(5) A single extension cannot exceed 7 days.
Equipment at warrant premises may be operated
(6) 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, if the executing officer or person 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 the thing.
3ZZCF Use of electronic equipment at warrant premises
Use of electronic equipment to access data
(1) In executing a delayed notification search warrant, the executing officer or a person assisting may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes a thing that may be seized under the warrant.
Copy of data onto disk, tape or other device
(2) If the executing officer or person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes a thing that may be seized under the warrant, he or she may copy the data to a disk, tape or other associated device and take the disk tape or device from the warrant premises.
(3) If:
(a) under subsection (2), the executing officer or person assisting copies data to a disk, tape or device; and
(b) the chief officer of the authorised agency is satisfied that the data is not required, is no longer required, or is not likely to be required, for a purpose mentioned in section 3ZZEA;
the chief officer must arrange for:
(c) the removal of the data from any device in the control of the authorised agency; and
(d) the destruction of any other reproduction of the data in the control of the authorised agency.
Powers if thing that may be seized is accessible by operating equipment
(4) If the executing officer or a person assisting, after operating the electronic equipment, finds that a thing that may be seized under the warrant 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 thing can, by using facilities at the warrant premises, be put in documentary form—operate the facilities to put the thing in that form and seize the documents so produced.
(5) The executing officer or a person assisting may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the thing that may be seized in documentary form as mentioned in paragraph (4)(b); or
(b) possession of the equipment, by the occupier of the warrant premises, could constitute an offence.
3ZZCG Use of moved electronic equipment at other place
(1) If electronic equipment is moved to another place under subsection 3ZZCE(2), the executing officer or a person assisting may operate the equipment to access data (including data held at another place).
(2) If the executing officer or person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes a thing that may be seized under the warrant, he or she may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.
(3) If the chief officer of the authorised agency is satisfied that the data is not required, is no longer required, or is not likely to be required, for a purpose mentioned in section 3ZZEA, the chief officer must arrange for:
(a) the removal of the data from any device in the control of the authorised agency; and
(b) the destruction of any other reproduction of the data in the control of the authorised agency.
(4) If the executing officer or a person assisting, after operating the equipment, finds that a thing that may be seized under the warrant 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 thing can be put in documentary form—put the thing in that form and seize the documents so produced.
(5) The executing officer or a person assisting may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the thing that may be seized in documentary form as mentioned in paragraph (4)(b); or
(b) possession of the equipment, by the occupier of the warrant premises, could constitute an offence.
3ZZCH Operating seized or moved electronic equipment
(1) This section applies to electronic equipment seized under this Part or moved under section 3ZZCE.
(2) The electronic equipment may be operated at any location after it has been seized or moved, for the purpose of determining whether data that is a thing that may be seized under the relevant delayed notification search warrant is held on or accessible from the electronic equipment, and obtaining access to such data.
(3) The data referred to in subsection (2) includes, but is not limited to, the following:
(a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized;
(b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.
(4) The electronic equipment may be operated before or after the expiry of the relevant delayed notification search warrant.
(5) This section does not limit the operation of other provisions of this Part that relate to dealing with items seized under this Part or moved under section 3ZZCE.
Note: For example, this section does not affect the operation of the time limits in section 3ZZCE on examination or processing of a thing moved under that section.
3ZZCI Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in section 3ZZCE, 3ZZCF, 3ZZCG or 3ZZCH:
(i) damage is caused to the equipment; or
(ii) damage is caused to data recorded on the equipment or data access to which was obtained from the operation of the equipment; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the court determines.