(a) the aircraft has landed in Australia as a result of a maritime officer requiring the person in charge of the aircraft to land the aircraft under subsection 55(7) of the Maritime Powers Act 2013; and
(b) in the case of an Australian aircraft—the requirement is made when the aircraft is over anywhere except a foreign country; and
(c) in the case of an aircraft that is not an Australian aircraft—the requirement is made when the aircraft is over Australia; and
(d) the flight of the aircraft is exempt from any provision of the Customs Acts under subsection 30A(5) of this Act.
Note: Section 30A gives effect to provisions of the Torres Strait Treaty in relation to certain traditional activities.
(3) An authorised person may seize without warrant any goods (other than narcotic goods) on the ship or aircraft that the authorised person reasonably suspects are special forfeited goods.
Note: For seizure of narcotic goods without warrant, see section 203C of this Act and subparagraph 67(1)(b)(ii) of the Maritime Powers Act 2013.
(4) If, in the course of searching the ship or aircraft, an authorised person finds a thing that he or she believes on reasonable grounds is evidential material relating to an offence committed in respect of special forfeited goods, the authorised person may, without warrant, seize that thing.
(5) The authorised person must exercise his or her powers subject to section 203D.
203CB Seizure without warrant of certain other goods in the Protected Zone
(1) This section applies if an authorised person suspects on reasonable grounds that:
(a) goods are:
(i) at, or in a container at, a place that is near a ship or aircraft to which paragraph 203CA(1)(c) or (2)(d) applies; or
(ii) in, on, or in a container on, a conveyance at such a place; or
(iii) in a container in the immediate physical possession of, but not carried on the body of, a person at such a place; and
(b) the goods:
(i) in the case of an arriving ship or aircraft—have been unloaded from that ship or aircraft; or
(ii) in the case of a leaving ship or aircraft—will be loaded onto that ship or aircraft; and
(c) the goods are special forfeited goods (other than narcotic goods).
(2) The authorised person may, without warrant:
(a) search the place or any container at the place for special forfeited goods (other than narcotic goods); or
(b) stop and detain the conveyance about to leave the place, and search it and any container on it for such goods; or
(c) search the container in the immediate physical possession of the person for such goods;
as the case requires, and seize any goods that the authorised person reasonably suspects are special forfeited goods (other than narcotic goods) if the authorised person finds them there.
Note: For seizure of narcotic goods without warrant, see section 203C of this Act and subparagraph 67(1)(b)(ii) of the Maritime Powers Act 2013.
(3) If, in the course of searching under subsection (2) for special forfeited goods, an authorised person finds a thing that he or she believes on reasonable grounds is evidential material relating to an offence committed in respect of those goods, the authorised person may, without warrant, seize that thing whether or not the authorised person has found those goods.
(4) For the purposes of a search conducted under subsection (2), the authorised person may question any person apparently in charge of the place, conveyance or container about any goods or thing at the place, in or on the conveyance, or in the container.
(5) The authorised person must exercise his or her powers subject to section 203D.
203D How an authorised person is to exercise certain powers
(1) An authorised person who exercises powers under section 203B, 203C, 203CA or 203CB in relation to a conveyance must not detain the conveyance for longer than is necessary and reasonable to exercise those powers.
(2) An authorised person exercising powers under section 203B, 203C, 203CA or 203CB may use such force as is necessary and reasonable in the circumstances, but must not:
(a) forcibly remove any container or other goods from a person’s physical possession; or
(b) damage any place, conveyance, container or other goods of which the person is apparently in charge;
unless:
(c) the person has been given a reasonable opportunity to facilitate the exercise of the powers by providing access to the place, conveyance, container or goods or by opening the conveyance or container; or
(d) it is not possible to give that person such an opportunity.
Subdivision DA—Seizure of certain goods in transit
203DA When seizure warrants for goods in transit can be issued
(1) A judicial officer may issue a warrant to seize goods on or in particular premises if the judicial officer is satisfied by information on oath that the Minister has reasonable grounds for suspecting that:
(a) the goods are, or within the next 72 hours will be, on or in the premises; and
(b) the goods have been or will be brought into Australia on a ship or aircraft and are intended to be kept on board the ship or aircraft for shipment on to a place outside Australia, without being imported into Australia or exported from Australia; and
(c) the goods satisfy either or both of the following subparagraphs:
(i) the goods are connected, whether directly or indirectly, with the carrying out of a terrorist act, whether a terrorist act has occurred, is occurring or is likely to occur;
(ii) the existence or the shipment of the goods prejudices, or is likely to prejudice, Australia’s defence or security or international peace and security.
(2) If a judicial officer issues a warrant, the judicial officer is to state in the warrant:
(a) a description of the goods to which the warrant relates; and
(b) a description of the premises on or in which the goods are believed to be located; and
(c) the name of the authorised person who, unless that authorised person inserts the name of another authorised person in the warrant, is to be responsible for executing the warrant; and
(d) the time at which the warrant expires (see subsection (3)); and
(e) whether the warrant may be executed at any time or only during particular hours.
(3) The time stated in the warrant under paragraph (2)(d) 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.
(4) The judicial officer is also to state in the warrant that it authorises the seizure of goods found on or in the premises in the course of the search that the executing officer or a person assisting believes on reasonable grounds to be special forfeited goods.
(5) Paragraph (2)(d) and subsection (3) do not prevent the issue of successive warrants in relation to the same premises.
(6) If the application for the warrant is made under section 203M, this section (other than subsection (3)) applies as if:
(a) subsection (1) referred to 48 hours rather than 72 hours; and
(b) paragraph (2)(d) required the judicial officer to state in the warrant the period for which the warrant is to remain in force, which must not be more than 48 hours.
(7) A judicial officer of a particular State or Territory may issue a warrant in respect of the seizure of goods on or in premises in another State or Territory.
203DB The things that are authorised by seizure warrants for goods in transit
(1) A seizure warrant that is in force under section 203DA in relation to premises authorises the executing officer or a person assisting:
(a) to enter the warrant premises; and
(b) to search for the goods described in the warrant; and
(c) to seize the goods described in the warrant; and
(d) to seize other goods:
(i) that are found on or in the premises in the course of searching for the goods the subject of the warrant; and
(ii) that the executing officer or a person assisting believes on reasonable grounds to be special forfeited goods.
(2) Without limiting the generality of the powers conferred by a warrant issued in respect of premises that are not a conveyance or a container, the warrant extends to every conveyance or container on the premises.
(3) Without limiting the generality of the powers conferred by a warrant issued in respect of premises that are a conveyance, the warrant:
(a) permits entry of the conveyance, wherever it is; and
(b) extends to every container on the conveyance.
(4) A warrant issued in respect of premises that are a container permits entry of the container, wherever it is, to the extent that it is of a size permitting entry.
(5) If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.
Subdivision E—Provisions applicable both to search and seizure warrants
203E Conduct of ordinary searches and frisk searches
An ordinary search or a frisk search of a person under this Division must, if practicable, be conducted by a person of the same sex as the person being searched.
203F Announcement before entry
(1) The executing officer must, before any person enters premises under a search warrant or a seizure warrant:
(a) announce that he or she is authorised to enter the premises; and
(b) give any person at the premises an opportunity to allow entry to the premises.
(2) The executing officer is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:
(a) the safety of a person (including the executing officer); or
(b) that the effective execution of the warrant is not frustrated.
203G Details of warrant to be given to occupier
(1) If a search warrant or a seizure 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 place where the warrant is executed, the executing officer or a person assisting must make available to that person a copy of the warrant.
(2) If a person is searched under a warrant in relation to premises, the executing officer or a person assisting must show the person a copy of the warrant.
(3) The executing officer must identify himself or herself to the person at the place where the warrant is executed.
(4) At the time of executing the warrant, the executing officer or a person assisting:
(a) is not required to have in his or her possession or under his or her immediate control the original warrant; but
(b) must have in his or her possession or under his or her immediate control a copy of the warrant.
(5) In this section:
a copy of the warrant means:
(a) in relation to a warrant issued under section 198, 203 or 203DA—a copy that includes the signature of the judicial officer who issued the warrant; and
(b) in relation to a warrant issued under section 203M—a completed form of warrant that includes the name of the judicial officer who issued the warrant.
203H Occupier entitled to be present during search or seizure
(1) If a search warrant or a seizure 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 place where the warrant is executed, the person is, subject to Part IC of the Crimes Act 1914, entitled to observe the search or seizure being conducted.
(2) The right to observe the search or seizure being conducted ceases if the person impedes the search or seizure.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
203HA Requirement to provide name or address etc.
Request to provide name or address etc.
(1) If:
(a) a search warrant or seizure warrant in relation to premises is being executed; and
(b) the designated warrant officer believes on reasonable grounds that a person who is at or near the premises may be able to assist the officer in the execution of the warrant;
the officer may request the person to provide his or her name or address, or name and address, to the officer.
Offence—person’s refusal or failure to comply with request etc.
(2) A person commits an offence if:
(a) a designated warrant officer:
(i) has made a request of the person under subsection (1); and
(ii) has informed the person of the reason for the request; and
(iii) has complied with any request that the person has made under paragraph (4)(b); and
(b) the person refuses or fails to comply with the request, or gives a name or address that is false in a material particular.
Penalty: 5 penalty units.
(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).
Offence—designated warrant officer’s refusal or failure to comply with request etc.
(4) A designated warrant officer commits an offence if:
(a) the officer makes a request of a person under subsection (1); and
(b) the person requests the officer to provide to the person:
(i) his or her name or the address of his or her place of duty; or
(ii) his or her name and that address; or
(iii) if the officer is not in uniform and it is practicable for the officer to provide the evidence—evidence that he or she is an officer; and
(c) the officer refuses or fails to comply with the request, or gives a name or address that is false in a material particular.
Penalty: 5 penalty units.
Definition
(5) In this section:
designated warrant officer, in relation to a search warrant or seizure warrant, means:
(a) the executing officer; or
(b) a person who is an authorised person and who is assisting in the execution of the warrant.
203J Availability of assistance and use of force in executing a warrant
In executing a search warrant or a seizure warrant:
(a) the executing officer may obtain such assistance; and
(b) the executing officer, or a person who is an authorised person and who is assisting in executing the warrant, may use such force against persons and things;
as is necessary and reasonable in the circumstances.
203K Specific powers available to executing officers
(1) In executing a search warrant or a seizure warrant in relation to premises, the executing officer or a person assisting may:
(a) for a purpose incidental to the execution of the warrant; or
(b) if the occupier of the premises consents in writing;
take photographs or video recordings of the premises or of things on or in the premises.
(2) If a search warrant or a seizure 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 a longer period if the occupier of the premises consents in writing.
(3) If:
(a) the execution of a search warrant or of a seizure 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.
(4) If:
(a) the execution of a search warrant or of a seizure warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(c) the warrant has ceased to be in force;
the court revoking or reversing the order may reissue the warrant for a further period not exceeding 7 days.
(5) The court must not exercise the power under subsection (4) unless it is satisfied of the matters set out in subsection 198(1), 199A(1), 203(1) or 203DA(1).
203L Use of animals in executing a warrant
In executing a search warrant or a seizure warrant in relation to premises, the executing officer or a person assisting may bring to the premises any animals reasonably necessary for locating things the subject of the warrant.
203M Warrants by telephone or other electronic means
(1) An authorised person may apply to a judicial officer for a search warrant or for a seizure 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 judicial 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 search warrant or for a seizure warrant, but the application may, if necessary, be made before the information is sworn.
(4) If an application is made to a judicial officer under this section and the judicial officer, after considering the information and having received and considered such further information (if any) as the judicial officer required, is satisfied that:
(a) a search warrant or a seizure 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 judicial officer may complete and sign the same form of warrant that would be issued under section 198, 199A, 203 or 203DA.
(5) If the judicial officer decides to issue the warrant, the judicial 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.