(b) the person must not exercise a power set out in subsection 3ZZKD(5) or section 3ZZKE or 3ZZKF.
(6) A power exercised by a person assisting the constable as mentioned in subsection (4) is taken to have been exercised by the constable.
Division 3—Powers of constables in relation to persons subject to Part 5.3 supervisory orders
3ZZLA Searching a person by consent or under a warrant
(1) If a Part 5.3 supervisory order is in force in relation to a person, a constable may conduct an ordinary search or a frisk search of the person, and exercise the monitoring powers, for either of the following purposes:
(a) achieving a Part 5.3 object;
(b) determining whether the Part 5.3 supervisory order has been, or is being, complied with.
Note: The monitoring powers are set out in section 3ZZLB.
(2) However, a constable is not authorised to conduct an ordinary search or a frisk search of the person unless:
(a) the person has consented to the search; or
(b) the search is conducted under a monitoring warrant.
3ZZLB Monitoring powers
The following are the monitoring powers that a constable may exercise in relation to a person under section 3ZZLA:
(a) the power to search things found in the possession of the person;
(b) the power to search any recently used conveyance;
(c) the power to record fingerprints from things found in the course of:
(i) a search under section 3ZZLA; or
(ii) a search under paragraph (a) or (b) of this section;
(d) the power to take samples from things found in the course of:
(i) a search under section 3ZZLA; or
(ii) a search under paragraph (a) or (b) of this section.
3ZZLC Seizure powers
Scope
(1) This section applies if:
(a) a constable conducts a search of a person, or of a recently used conveyance, under section 3ZZLA; and
(b) the search is authorised by a monitoring warrant.
Powers
(2) The constable has the following powers:
(a) the power to seize things found in the course of the search that the constable suspects on reasonable grounds to be:
(i) evidential material; or
(ii) seizable items;
(b) the power to seize other things found on or in the possession of the person, or in the recently used conveyance, in the course of the search that the constable suspects on reasonable grounds to be:
(i) evidential material (within the meaning of the Proceeds of Crime Act 2002); or
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(ii) tainted property (within the meaning of that Act).
3ZZLD Availability of assistance and use of force in executing a warrant
Scope
(1) This section applies if:
(a) a constable conducts a search of a person, or of a recently used conveyance, under section 3ZZLA; and
(b) the search is authorised by a monitoring warrant.
Availability of assistance and use of force
(2) In:
(a) executing the warrant; or
(b) exercising the powers set out in section 3ZZLC in relation to the person or conveyance;
the constable may use such force against persons and things as is necessary and reasonable in the circumstances.
(3) In executing the warrant, the constable may obtain such assistance as is necessary and reasonable in the circumstances.
(4) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person may:
(a) exercise the monitoring powers in relation to the person mentioned in paragraph (1)(a); and
(b) in exercising the monitoring powers, use such force against things as is necessary and reasonable in the circumstances.
(5) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person must not exercise a power set out in section 3ZZLC.
(6) A power exercised by a person assisting the constable as mentioned in subsection (4) is taken to have been exercised by the constable.
Division 4—Obligations and incidental powers of constables
3ZZNA Consent of occupier of premises
(1) Before obtaining the consent of an occupier of premises for the purposes of paragraph 3ZZKA(2)(a), a constable must inform the occupier that the occupier may refuse consent.
(2) A consent has no effect unless the consent is voluntary.
(3) A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.
(5) If a constable entered premises because of the consent of the occupier of the premises, the constable, and any person assisting the constable, must leave the premises if the consent ceases to have effect.
(6) If:
(a) a constable enters premises because of the consent of the occupier of the premises; and
(b) the constable has not shown the occupier his or her identity card before entering the premises;
the constable must do so on, or as soon as is reasonably practicable after, entering the premises.
3ZZNB Consent to search of a person
(1) Before obtaining the consent of a person for the purposes of paragraph 3ZZLA(2)(a), a constable must inform the person that the person may refuse consent.
(2) A consent has no effect unless the consent is voluntary.
(3) A consent may be expressed to be limited to a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.
3ZZNC Announcement before entry under warrant
Before entering premises under a monitoring warrant, a constable must:
(a) announce that he or she is authorised to enter the premises; and
(b) show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and
(c) give any person at the premises an opportunity to allow entry to the premises.
3ZZND Constable to be in possession of warrant
A constable executing a monitoring warrant must be in possession of the warrant or a copy of the warrant.
3ZZNE Details of warrant etc. to be given to occupier
If:
(a) a monitoring warrant is being executed by a constable in relation to premises; and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
the constable must, as soon as practicable, make a copy of the warrant available to the occupier or other person.
3ZZNF Compensation for damage to electronic equipment
Scope
(1) This section applies if:
(a) as a result of electronic equipment being operated as mentioned in this Part:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; 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.
Compensation
(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:
(a) the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2); or
(b) a court of a State or Territory that has jurisdiction in relation to the matter;
for such reasonable amount of compensation as the court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
3ZZNG Occupier entitled to be present during search
(1) If:
(a) a monitoring warrant in relation to premises is being executed; and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
the person is 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.
3ZZNH Person subject to a Part 5.3 supervisory order is entitled to be present during search
(1) If:
(a) a monitoring warrant in relation to premises is being executed; and
(b) the warrant was issued on the basis that a Part 5.3 supervisory order is in force in relation to a person; and
(c) the person is present at the premises;
the person is 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.
Division 5—Monitoring warrants
3ZZOA Monitoring warrant in relation to premises
Application for warrant
(1) A constable may apply to an issuing officer for a warrant under this section in relation to premises.
Issue of warrant
(2) The issuing officer may issue the warrant if the issuing officer is satisfied, by information on oath or affirmation, that:
(a) a Part 5.3 supervisory order is in force in relation to a person; and
(b) the person has a prescribed connection with the premises; and
(c) having regard to:
(i) the nature of the person’s prescribed connection with the premises; and
(ii) one or more of the matters set out in paragraphs (4)(a) to (f), and the matter set out in paragraph (4)(g); and
(iii) such other matters (if any) as the issuing officer considers relevant;
it is reasonably necessary that one or more constables should have access to the premises for the purposes of:
(iv) achieving a Part 5.3 object; or
(v) determining whether the Part 5.3 supervisory order has been, or is being, complied with.
(3) The issuing officer must not issue the warrant unless the applicant or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought.
(4) The matters referred to in subparagraph (2)(c)(ii) are the following:
(a) in relation to a control order:
(i) the possibility that the person has engaged, is engaging, or will engage, in a terrorist act;
(ii) the possibility that the person has provided, is providing, or will provide, support for a terrorist act;
(iii) the possibility that the person has facilitated, is facilitating, or will facilitate, a terrorist act;
(iv) the possibility that the person has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country;
(v) the possibility that the person has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country;
(b) in relation to an extended supervision order or interim supervision order—the possibility that the person has committed, is committing, or will commit, a serious Part 5.3 or 5.3A offence;
(f) in relation to any Part 5.3 supervisory order—the possibility that the person has contravened, is contravening, or will contravene, the order;
(g) whether allowing one or more constables to have access to the premises, and exercise the monitoring powers in relation to the premises and the powers set out in section 3ZZKF in relation to the premises, would be likely to have the least interference with any person’s liberty and privacy that is necessary in the circumstances.
Content of warrant
(5) The warrant must:
(a) describe the premises to which the warrant relates; and
(b) state that the warrant is issued under this section; and
(c) state the purpose or purposes for which the warrant is issued; and
(d) authorise one or more constables (whether or not named in the warrant) from time to time while the warrant remains in force:
(i) to enter the premises; and
(ii) to exercise the monitoring powers in relation to the premises; and
(iii) to exercise the powers set out in section 3ZZKF in relation to the premises; and
(e) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and
(f) specify the time at which the warrant expires (see subsection (7)); and
(g) state whether the warrant authorises a constable to exercise powers under subsection 3ZZKE(3) in relation to the entry; and
(h) state that a person who is not a constable may be authorised under section 3ZZKG to assist in executing the warrant; and
(i) state the name of the person to whom the relevant Part 5.3 supervisory order relates; and
(j) describe the nature of the person’s prescribed connection with the premises; and
(k) state that the Part 5.3 supervisory order is in force; and
(l) state whether the Part 5.3 supervisory order is:
(i) an interim control order; or
(ii) a confirmed control order; or
(iii) an interim supervision order; or
(iv) an extended supervision order; and
(m) specify the date the Part 5.3 supervisory order was made; and
(n) specify the court that made the Part 5.3 supervisory order; and
(o) if the Part 5.3 supervisory order is an interim control order—specify the date the order was served on the person; and
(p) if the Part 5.3 supervisory order is an extended supervision order or an interim supervision order—specify when the order comes into force; and
(q) if the Part 5.3 supervisory order is a confirmed control order, an extended supervision order or an interim supervision order—specify the end of the period during which the order is in force; and
(r) if the warrant is issued for the purposes of determining whether the Part 5.3 supervisory order has been, or is being, complied with—include, in an attachment to the warrant, a copy of the order.
(6) To avoid doubt, paragraph (5)(c) does not require the purpose or purposes for which the warrant is issued to be specified in the warrant if disclosure of that purpose, or those purposes, is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).
(7) The time stated in the warrant under paragraph (5)(f) 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.
Example: 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.
(8) Paragraph (5)(f) and subsection (7) do not prevent the issue of successive monitoring warrants in relation to the same premises.
3ZZOB Monitoring warrant in relation to a person
Application for warrant
(1) A constable may apply to an issuing officer for a warrant under this section in relation to a person.
Issue of warrant
(2) The issuing officer may issue the warrant if the issuing officer is satisfied, by information on oath or affirmation, that:
(a) a Part 5.3 supervisory order is in force in relation to the person; and
(b) having regard to:
(i) one or more of the matters set out in paragraphs (4)(a) to (c), and the matter set out in paragraph (4)(g); and
(ii) such other matters (if any) as the issuing officer considers relevant;
it is reasonably necessary that a constable should conduct an ordinary search or a frisk search of the person for the purposes of:
(iii) achieving a Part 5.3 object; or
(iv) determining whether the Part 5.3 supervisory order has been, or is being, complied with.
(3) The issuing officer must not issue the warrant unless the applicant or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought.
(4) The matters referred to in subparagraph (2)(b)(i) are the following:
(a) in relation to a control order:
(i) the possibility that the person has engaged, is engaging, or will engage, in a terrorist act;
(ii) the possibility that the person has provided, is providing, or will provide, support for a terrorist act;
(iii) the possibility that the person has facilitated, is facilitating, or will facilitate, a terrorist act;
(iv) the possibility that the person has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country;
(v) the possibility that the person has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country;
(b) in relation to an extended supervision order or interim supervision order—the possibility that the person has committed, is committing, or will commit, a serious Part 5.3 or 5.3A offence;
(c) in relation to any Part 5.3 supervisory order—the possibility that the person has contravened, is contravening, or will contravene, the order;
(g) whether allowing one or more constables to conduct an ordinary search or a frisk search of the person, and exercise the monitoring powers in relation to the person and the powers set out in section 3ZZLC in relation to the person or a recently used conveyance, would be likely to have the least interference with any person’s liberty and privacy that is necessary in the circumstances.
Content of warrant
(5) The warrant must:
(a) state the name of the person; and
(b) state that the warrant is issued under this section; and
(c) state the purpose or purposes for which the warrant is issued; and
(d) authorise a constable (whether or not named in the warrant) from time to time while the warrant remains in force:
(i) to conduct an ordinary search or a frisk search of the person; and