(ii) to exercise the monitoring powers in relation to the person; and
(iii) to exercise the powers set out in section 3ZZLC in relation to the person or a recently used conveyance; and
(e) state whether the search is authorised to be carried out 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 that a person who is not a constable may be authorised under section 3ZZLD to assist in executing the warrant; and
(h) state the name of the person to whom the relevant Part 5.3 supervisory order relates; and
(i) state that the Part 5.3 supervisory order is in force; and
(j) 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
(k) specify the date the Part 5.3 supervisory order was made; and
(l) specify the court that made the Part 5.3 supervisory order; and
(m) if the Part 5.3 supervisory order is an interim control order—specify the date the order was served on the person; and
(n) 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
(o) 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
(p) 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 person.
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A monitoring warrant cannot authorise a strip search or a search of a person’s body cavities.
3ZZOD Monitoring warrant must not be executed if the relevant Part 5.3 supervisory order is revoked etc.
(1) If:
(a) a monitoring warrant was issued on the basis that a Part 5.3 supervisory order was in force in relation to a person; and
(b) any of the following happens:
(i) the Part 5.3 supervisory order is a control order that is revoked;
(ii) the Part 5.3 supervisory order is an extended supervision order or interim supervision order in relation to a terrorist offender that is revoked and no further extended supervision order or interim supervision order is made in relation to the terrorist offender;
(iii) the Part 5.3 supervisory order is an interim control order that a court declares to be void;
(iv) a court varies the Part 5.3 supervisory order by removing one or more conditions imposed on the person by the order;
a constable must not:
(c) execute the warrant; or
(d) exercise a power under Division 2 or 3, if the exercise of the power is consequential on the warrant.
Evidence
(2) A thing seized in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).
(3) Information obtained in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).
(4) A document obtained in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).
Division 6—Monitoring warrants by telephone or other electronic means
3ZZPA Monitoring warrants by telephone or other electronic means
(1) A constable may make an application to an issuing officer for a monitoring 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.
(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 monitoring 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 monitoring 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 3ZZOA or 3ZZOB, as the case requires.
(5) If the issuing officer decides to issue the monitoring 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 monitoring 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 monitoring 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.
3ZZPB Offences relating to telephone warrants
A person commits an offence if:
(a) the person states in a document that purports to be a form of warrant under section 3ZZPA the name of an issuing officer unless that officer issued the warrant; or
(b) the person states on a form of warrant under that section a matter that, to the person’s knowledge, departs in a material particular from the form authorised by the issuing officer; or
(c) the person purports to execute, or present to a person, a document that purports to be a form of warrant under that section that the person knows:
(i) has not been approved by an issuing officer under that section; or
(ii) to depart in a material particular from the terms authorised by an issuing officer under that section; or
(d) the person gives to an issuing officer a form of warrant under that section that is not the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
Division 7—Extension of periods in which things secured
3ZZQA Extension of periods in which things secured
Application
(1) This section applies if a constable applies to an issuing officer under subsection 3ZZKD(5) for an extension of the period during which a thing may be secured.
Granting extension
(2) The issuing officer may, by order, grant an extension of the period if the issuing officer is satisfied, by information on oath or affirmation, that it is necessary to secure the thing to ensure that relevant data is not destroyed, altered or otherwise interfered with.
(3) The issuing officer must not grant the extension unless the constable 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 extension is being sought.
Content of order
(4) The order extending the period must:
(a) describe the thing to which the order relates; and
(b) state the period for which the extension is granted; and
(c) state that the order is made under this section; and
(d) state that the constable is authorised to secure the thing for that period.
Division 8—Things seized, documents produced, and answers given, under this Part
3ZZRA Receipts for things seized under this Part
(1) If a thing is seized by a constable under this Part, the constable must provide a receipt for the thing.
(2) If 2 or more things are seized, they may be covered in the one receipt.
3ZZRB Using, sharing and returning things seized under this Part
Division 4C of Part IAA applies to a thing seized under this Part in a corresponding way to the way in which it applies to a thing seized under Division 2 of Part IAA.
3ZZRC Using, sharing and returning documents produced under section 3ZZKE
(1) Subject to subsection (2), Division 4C of Part IAA applies to a document produced under section 3ZZKE in a corresponding way to the way in which it applies to a document produced under Division 4B of Part IAA.
(2) Section 3ZQU has effect, in relation to a document produced under section 3ZZKE, as if the following additional purposes were set out in subsection 3ZQU(1):
(a) achieving a Part 5.3 object;
(b) determining whether the relevant Part 5.3 supervisory order has been, or is being, complied with.
3ZZRD Answers to questions asked under section 3ZZKE
An answer given to a question asked under subsection 3ZZKE(2) or (3) may only be used for one or more of the following purposes:
(a) achieving a Part 5.3 object;
(b) determining whether the relevant Part 5.3 supervisory order has been, or is being, complied with;
(e) preventing, investigating or prosecuting an offence.
Division 9—Powers of issuing officers
3ZZSA Powers of issuing officers
Powers conferred personally
(1) A power conferred on an issuing officer by this Part is conferred on the issuing officer:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
Powers need not be accepted
(2) The issuing officer need not accept the power conferred.
Protection and immunity
(3) An issuing officer exercising a power conferred by this Part has the same protection and immunity as if the issuing officer were exercising the power:
(a) as the court of which the issuing officer is a member; or
(b) as a member of the court of which the issuing officer is a member.
Division 10—General
3ZZTA Conduct of ordinary searches and frisk searches
An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched.
3ZZTB Protection of persons—control order declared to be void
(1) If:
(a) a monitoring warrant was issued on the basis that an interim control order was in force; and
(b) a court subsequently declares the interim control order to be void;
a criminal proceeding does not lie against a person in respect of anything done, or omitted to be done, in good faith by the person:
(c) in the purported execution of the warrant; or
(d) in the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the warrant.
(2) Subsection (1) does not apply to a thing done, or omitted to be done, at a particular time if, at that time, the person knew, or ought reasonably to have known, of the declaration.
3ZZTC Dealing with things, information or documents obtained under a monitoring warrant—control order declared to be void
Scope
(1) This section applies if:
(a) a monitoring warrant was issued on the basis that an interim control order was in force; and
(b) a court subsequently declares the interim control order to be void; and
(c) before the declaration was made, a thing was seized, information was obtained, or a document was produced, as a result of:
(i) the purported execution of the warrant; or
(ii) the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the warrant.
Dealing
(2) A person may:
(a) adduce the thing, information or document as evidence in a proceeding; or
(b) use or communicate the information; or
(c) use, or communicate the contents of, the document;
if:
(d) the person reasonably believes that doing so is necessary to assist in preventing, or reducing the risk of:
(i) the commission of a terrorist act; or
(ii) serious harm to a person; or
(iii) serious damage to property; or
(e) the person does so for one or more purposes set out in subsection (3).
Purposes
(3) The purposes are purposes connected with:
(a) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Division 105 of the Criminal Code, so far as the function, duty or power relates to a preventative detention order (within the meaning of Part 5.3 of the Criminal Code); or
(b) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2A of the Terrorism (Police Powers) Act 2002 (NSW), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or
(c) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2A of the Terrorism (Community Protection) Act 2003 (Vic.), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or
(d) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2005 (Qld), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or
(e) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2006 (WA), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or
(f) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2005 (SA), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or
(g) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2005 (Tas.), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or
(h) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2 of the Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or
(i) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2B of the Terrorism (Emergency Powers) Act 2003 (NT), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part).
Definition
(4) In this section:
serious harm has the same meaning as in the Criminal Code.
3ZZTD Commissioner to keep documents connected with issue of monitoring warrants
The Commissioner must cause to be kept in the Australian Federal Police’s records:
(a) each monitoring warrant issued to the Australian Federal Police; and
(b) each instrument revoking a monitoring warrant; and
(c) each order under section 3ZZQA granting an extension of a period.
3ZZTE Commissioner to notify Ombudsman in relation to monitoring warrants
(1) Within 6 months after a monitoring warrant is issued in response to an application by the Australian Federal Police, the Commissioner must:
(a) notify the Ombudsman that the warrant has been issued; and
(b) give to the Ombudsman a copy of the warrant.
(2) As soon as practicable after a member or special member of the Australian Federal Police has contravened a provision of this Part or of a monitoring warrant, the Commissioner must notify the Ombudsman of the contravention.
(3) A failure to comply with subsection (1) or (2) does not affect the validity of a monitoring warrant.