Criminal Investigation (Extraterritorial Offences) Act 1984

The Act defines several key concepts that structure its operation. An offence to which this Act applies is an indictable offence against the law of a reciprocating State, but only if the conduct (act, omission or state of affairs) would also attract criminal liability under South Australian law if done or occurring in this State. This double criminality requirement ensures that the warrant power is not used for conduct that South Australia itself does not treat as criminal. A reciprocating State is another State or Territory of the Commonwealth in which a corresponding law is in force and in relation to which ministerial arrangements under s7 are in force. A corresponding law is a law of another State or Territory that has been declared by proclamation of the Governor to be a corresponding law for the purposes of this Act. The Governor may vary or revoke such a declaration by subsequent proclamation. The appropriate authority differs depending on the jurisdiction: for another State or Territory (other than the ACT), it is the authority exercising functions corresponding to those of the Commissioner of Police in relation to the police force of that State or Territory; for the ACT, it is the Commissioner of the Australian Federal Police. This ensures that seized objects can be transmitted to and from the correct law enforcement body. An object relevant to the investigation is defined expansively in s3(2) to include anything obtained by the commission of an offence, used for the purpose of committing an offence, in respect of which an offence has been committed, anything that may afford evidence of the commission of an offence, or anything intended to be used for the purpose of committing an offence. This covers both physical evidence and instrumentalities. Premises is defined broadly to include buildings, structures, places (whether built upon or not, enclosed or unenclosed), and also aircraft, vessels or vehicles. Night is defined as the period from 7 pm to 7 am, and a warrant must not be executed at night unless the magistrate gives a direction authorising night execution or specific hours. Telephone includes any telecommunication device, which allows for modern electronic applications beyond traditional voice calls. The concept of owner of an object includes a person entitled to possession, not just the legal owner.

The Act directly affects several categories of persons and entities. Members of the South Australian police force are the primary operators of the warrant system: they make applications, execute warrants, seize objects, prepare notices, and transmit objects to other jurisdictions under ministerial arrangements. Police also bear the obligation to verify grounds by affidavit and to mitigate intrusion by observing the night restriction. Magistrates of the Adelaide Magistrates Court are the issuing authorities; they must assess whether reasonable grounds exist, and in telephone applications they must record the facts relied upon and require an undertaking to make an affidavit. The Act imposes a filing obligation on magistrates to file the warrant or a copy and the supporting affidavit. Occupiers of premises in South Australia may be affected when police execute a search warrant on their property. They have a right to receive a notice containing the officer's name, rank, magistrate details, and a description of any objects seized. Occupiers must not hinder execution; doing so without lawful excuse is a summary offence. Owners of objects seized (including those entitled to possession) acquire a right to the return of the object when it is transmitted back to the Commissioner of Police after the requesting jurisdiction no longer needs it. That right is enforceable by an action in detinue. Law enforcement authorities in reciprocating States and Territories are affected because they are the ultimate beneficiaries of the seized objects. They must have a corresponding law in force and ministerial arrangements in place with the South Australian Minister. The Act imposes reciprocal obligations: objects seized under the corresponding law in another jurisdiction must be transmitted to the South Australian Commissioner of Police when they may be relevant to a South Australian offence. The Governor of South Australia is affected as the executive who makes proclamations declaring corresponding laws. The Minister responsible for the administration of the Act enters into arrangements for transmission and return of objects. The Act thus affects not only private individuals and businesses who own or occupy premises but also state and federal government agencies involved in cross border criminal investigation.

The Act imposes several duties on police and magistrates and confers rights on occupiers and owners. Duty to apply on proper grounds: a police applicant must have reasonable grounds to believe that an offence to which this Act applies has been or is intended to be committed and that an object relevant to the investigation is on specific premises. The grounds must be verified by affidavit (s4(3)). For telephone applications, the applicant must first inform the magistrate of name, rank and police number; the magistrate may assume without further inquiry that the applicant is a police member. If the magistrate considers proper grounds exist, the applicant must undertake to make an affidavit verifying the facts. The warrant does not issue until that undertaking is given. The applicant must then forward the affidavit as soon as practicable after issuance (s4(5)(g)). Duty not to execute at night without direction: s5(2) prohibits night execution unless the magistrate authorises it by direction. Duty to use only reasonably necessary force: s5(3) permits force but only that which is reasonably necessary for execution. Duty to seize only relevant objects: s5(4) limits seizure to objects that the executing officer believes on reasonable grounds to be relevant to the investigation. Duty to give notice: s5(6) requires the executing officer to prepare a notice in the prescribed form containing the officer's name and rank, the issuing magistrate's name, the date and time of issue, and a description of any objects seized; the notice must be given to the occupier or left in a prominent position on the premises as soon as practicable after execution. Duty to deal with objects under ministerial arrangements: seized objects must be dealt with according to s7 arrangements, which provide for transmission to the reciprocating State and eventual return to the Commissioner of Police unless a court orders otherwise. Right of owners to return of objects: s7(2) provides that the owner of an object returned to the Commissioner of Police is entitled to its return. This right is enforceable by an action in detinue in any court of competent jurisdiction (s7(3)). Right of occupiers to notice: as noted above, occupiers receive a notice detailing the warrant and seized items. Right of persons to be free from unreasonable search: the Act does not create an explicit right to challenge a warrant, but the magistrate’s discretion is constrained by the reasonable grounds test, and the warrant expires one month after issue if not executed (s5(7)). Duty not to hinder: s6 makes it a summary offence to hinder execution without lawful excuse.

The only penalty expressly created by the Act is for the offence of hindering execution of a search warrant. Section 6 provides that a person who, without lawful excuse, hinders a member of the police force or a person assisting them in the execution of a search warrant is guilty of a summary offence. The maximum penalty is two thousand dollars or imprisonment for six months. This is a relatively modest penalty by contemporary standards, reflecting the age of the Act and the fact that it is a summary offence dealt with in the Magistrates Court. The Act does not prescribe penalties for police who fail to comply with procedural requirements, such as failing to forward the affidavit after a telephone application or failing to give the notice to the occupier. However, such noncompliance could be grounds for challenging the lawfulness of the search or the admissibility of evidence in criminal proceedings, either in South Australia or in the reciprocating State depending on the rules of evidence in that jurisdiction. The Act also does not provide a statutory tort for unlawful search or seizure; the only remedial right expressly stated is the action in detinue for the return of objects (s7(3)). This right is enforceable only after objects have been returned to the Commissioner of Police. If objects are not returned, or if they are returned but the owner is not given possession, the owner may sue. The Act does not specify what happens if the Minister fails to make arrangements or if a reciprocating State fails to return objects. Enforcement of the transmission and return arrangements is left to the executive level. The penalty for noncompliance by a police officer with the warrant procedure would likely be dealt with internally under police discipline or as a matter of common law.

The Act does not operate in isolation. It explicitly depends on the existence of corresponding laws in other States and Territories. The Governor may declare a law of another jurisdiction to be a corresponding law by proclamation, and may vary or revoke that declaration. This means the Act only becomes operational as a mutual assistance tool when a reciprocating State enacts its own legislation creating the mirror power. Without a corresponding law, the South Australian warrant cannot issue, because section 4 requires that the offence be against the law of a reciprocating State, and a reciprocating State is defined as one in which a corresponding law is in force. The Act also requires ministerial arrangements under s7 to facilitate the transmission and return of objects. These arrangements are inter executive agreements, not legislation, and they can be tailored to specific jurisdictions. The Act interacts with the general criminal law of South Australia: the warrant may only issue for an indictable offence that would also be an offence under South Australian law if the conduct occurred in this state. This double criminality requirement means that purely political offences, or offences unique to the other jurisdiction's legal system, are excluded. The Act also interacts with the law of evidence: objects seized under this Act may be used in proceedings in the reciprocating State, but their admissibility will be governed by the laws of that State or Territory. The Act does not override the common law of search and seizure; it creates a statutory power that supplements existing powers such as those under the Summary Offences Act or the Controlled Substances Act. Because the warrant is issued by a South Australian magistrate, it is subject to review by the Supreme Court of South Australia on judicial review grounds. The Act also interacts with the Legislation Revision and Publication Act 2002, which caused the omission of s2 (the interpretation provision for earlier citation purposes). The Act does not purport to affect the law of extradition or mutual assistance in criminal matters at the Commonwealth level, but it provides a more targeted interstate investigative tool. Finally, the Act may interact with privacy and data protection laws when objects seized include electronic devices containing personal information.

The legislation history provided with the Act shows limited amendment. The only substantive change noted is the omission of section 2 under the Legislation Revision and Publication Act 2002. Section 2 originally contained the short title and commencement provision; its omission suggests it was superseded by the standard citation and commencement provisions in the Legislation Revision and Publication Act. No other amendments are recorded in the legislative history provided. The Act received assent on 15 November 1984 and commenced on 14 April 1986, a delay of about 17 months to allow time for the making of proclamations and ministerial arrangements. The paucity of amendment history suggests the Act has been stable and has not required significant legislative adjustment over nearly 40 years. This may indicate either that the Act is rarely used, or that its procedural framework is considered adequate. However, the absence of amendment does not mean the Act is obsolete; it may simply reflect that the Act’s interstate mutual assistance function has been overtaken by other mechanisms such as the Service and Execution of Process Act 1992 (Cth) or the Mutual Assistance in Criminal Matters Act 1987 (Cth), which provide broader frameworks for cross border law enforcement. The Act remains in force and available for use where its specific conditions are met. The fact that no amendment has been made to update the penalty (two thousand dollars from 1984) suggests either that the penalty has not caused issues or that prosecutions under s6 are rare.

The source provided does not include any case law or references to judicial decisions interpreting the Criminal Investigation (Extraterritorial Offences) Act 1984. This absence may be significant. It suggests that the Act has not been the subject of reported appellate litigation in South Australia. There are several possible explanations: the Act may be used infrequently; the warrants issued under it may be executed without controversy; or any disputes may have been resolved at first instance without appeal or without publication. It is also possible that challenges to searches under this Act have been brought under the common law or under general principles of search and seizure rather than under the Act itself. The Act does not create an independent right to challenge the warrant’s validity, so any litigation would likely take the form of an application for judicial review of the magistrate's decision to issue the warrant, or a challenge to the admissibility of evidence in the reciprocating State. Without any cited case law, the interpretive risks remain: the meaning of “reasonable grounds to believe” and “offence to which this Act applies” have not been judicially tested in the context of this Act. Practitioners should be cautious and rely on analogous principles from other search warrant legislation. The lack of litigation history also means there is no judicial guidance on whether the telephone warrant procedure has been properly followed, or what constitutes a “lawful excuse” for the purpose of the hindrance offence. This uncertainty is itself a legal risk.

Several aspects of the Act are likely to catch out practitioners who are not careful.

Telephone warrant affidavit requirement: s4(5) mandates that a magistrate issuing a warrant by telephone must not proceed unless the applicant undertakes to make an affidavit verifying the facts relied on. The warrant is deemed issued when signed, but if the applicant fails to forward the affidavit as soon as practicable (s4(5)(g)), there is no provision for the warrant to be retrospectively invalidated. However, such failure could be used to challenge the validity of the search or the admissibility of seized objects. Police must treat this as a strict procedural step.

Double criminality trap: The offence must be indictable under the law of the reciprocating State and also “attract criminal liability under the law of this State” if the act, omission or state of affairs occurred in South Australia. This is not simply a mirror of the same offence; it requires the conduct to be criminal in South Australia, not necessarily under the same statutory provision. If the other jurisdiction criminalises conduct that is not an offence in South Australia, the Act cannot apply. For example, if a State has an indictable offence of breaching a specific regulatory rule that has no equivalent in South Australia, the warrant will not issue.

Night restriction: s5(2) prohibits night execution (7 pm to 7 am) unless the magistrate gives a direction authorising it. This is a hard bar. A warrant that does not contain a night direction cannot be executed during those hours. If police try to execute at night anyway, the search may be unlawful and evidence may be excluded. The Act does not define what constitutes a proper ground for a night direction; that is left to the magistrate’s discretion.

Expiry at one month: s5(7) provides that a warrant expires at the expiration of one month from the date of its issue if not executed. This is a relatively short lifespan compared to some other warrant regimes. Police must coordinate promptly with the reciprocating State to execute the warrant in time. Failure to execute within the month means reapplication.

Definition of “appropriate authority” for ACT: The ACT is singled out: the appropriate authority is the Commissioner of the Australian Federal Police, not an ACT police authority. This is because the ACT does not have its own state police force. If ministerial arrangements are made with the ACT, the AFP Commissioner is the contact point.

Ownership rights after return: s7(2) gives the owner a right to the return of the object, but only after it has been returned to the Commissioner of Police under the ministerial arrangements. If the requesting jurisdiction fails to return the object, or returns it late, the owner’s right may be delayed or frustrated. The owner may sue in detinue, but that is a civil remedy that may be costly.

No power to require assistance: The Act does not expressly require the occupier to assist police in entering or searching. The hindrance offence applies to active obstruction, not passive non cooperation. Police may use reasonable force under s5(3), but they cannot compel the occupier to provide passwords or keys.

Compliance with the Act depends on which role the person or entity occupies. For South Australian police officers: before applying for a warrant, ensure that the target offence is an indictable offence under the law of a reciprocating State (check the current proclamations of corresponding laws) and that it would also be an offence under South Australian law. Verify that ministerial arrangements under s7 are in force with that jurisdiction. Prepare an affidavit setting out the reasonable grounds for belief that an offence has been or is intended to be committed and that an object relevant to the investigation is on the premises. The application may be made in person or by telephone. For telephone applications, have the applicant’s name, rank and number ready, and be prepared to undertake to provide the affidavit. After the warrant is issued, note the magistrate’s directions regarding night execution, if any. When executing, take only such assistants as are necessary, limit force to what is reasonably necessary, and seize only objects that you believe on reasonable grounds are relevant. Do not execute at night unless the warrant authorises it. Prepare the notice in the prescribed form (s5(6)) and give it to the occupier or leave it prominently. Deal with seized objects strictly in accordance with the ministerial arrangements: transmit them to the appropriate authority in the reciprocating State as required. Keep records of transmission and maintain a log of objects. For occupiers of premises: do not physically hinder police executing the warrant, as that is an offence. You may ask to see the warrant, but the Act does not require the police to display it; however, good practice suggests they should. You may request the notice after execution. If you believe the warrant was unlawfully issued, challenge it through legal process after the fact, not by resisting. For owners of seized objects: monitor whether the object is returned to the Commissioner of Police. If it is, you are entitled to its return. Enforce that right by an action in detinue in a court of competent jurisdiction if necessary. For magistrates: on a telephone application, verify the applicant’s identity by name, rank and number and assume they are a police member. Require an undertaking to provide an affidavit. Record the facts relied on. File the warrant and affidavit in the Adelaide Magistrates Court. For ministers: ensure ministerial arrangements are in place with each reciprocating State, covering transmission and return. For law enforcement in reciprocating States: ensure your jurisdiction has a corresponding law declared by South Australian proclamation. Comply with the reciprocal obligations under s7: transmit objects seized under the corresponding law to the South Australian Commissioner of Police when relevant, and return objects no longer needed.