101ZSearches in emergencies

101Z  Searches in emergencies  (1) An investigating officer may:  (a) search a defence member or defence civilian, or clothing being worn by, or property under the immediate control of, a defence member or defence civilian, whom the investigating officer believes on reasonable grounds to be carrying anything connected with a service offence; or  (b) enter upon land, or upon or into premises or a ship, aircraft or vehicle, on or in which the investigating officer believes on reasonable grounds that any thing connected with a service offence is situated and search the land, premises, ship, aircraft or vehicle, as the case may be; and may seize any such thing found in the course of the search if:  (c) the investigating officer believes on reasonable grounds that it is necessary to do so in order to:  (i) prevent its concealment, loss or destruction; or  (ii) prevent its use in committing, continuing or repeating a service offence; and  (d) the search or entry and search, as the case may be, is made in circumstances of such seriousness and urgency as to require and justify immediate search or entry and search, as the case may be, without the authority of a warrant issued under section 101X or 101Y.  (2) Where an investigating officer believes on reasonable grounds that a defence member or defence civilian is, without lawful authority or reasonable excuse, carrying an offensive weapon, or any thing connected with a serious service offence, the investigating officer may:  (a) stop the defence member or defence civilian;  (b) search the defence member or defence civilian, and the clothing being worn by, and property under the immediate control of, the defence member or defence civilian, as the case may be; and  (c) seize any such weapon or thing found in the course of the search.  (3) Where an investigating officer believes on reasonable grounds that an offensive weapon, or any thing connected with a serious service offence, is in a ship, aircraft or vehicle, the investigating officer may:  (a) stop the ship, aircraft or vehicle;  (b) enter upon or into the ship, aircraft or vehicle;  (c) search the ship, aircraft or vehicle; and  (d) seize any such weapon or thing found in the course of the search.  (4) An investigating officer conducting a search in accordance with paragraph (1)(a) may:  (a) require a person to remove any clothing that the person is wearing; and  (b) if the person refuses or fails to comply with the requirement—remove the clothing.  (5) A person shall not be searched by, or in the presence of, a person who is not of the same sex as the first‑mentioned person.  (6) In subsections (2) and (3), offensive weapon means any thing:  (a) made or adapted for use for causing death or bodily injury; or  (b) intended by the person having it for such use. 101ZA  Consent to search  (1) Before obtaining the consent of a person for the purposes of section 101W, an investigating officer shall inform the person that the person may refuse to give his or her consent.  (2) An investigating officer who obtains the consent of a person for the purposes of section 101W shall ask the person to sign an acknowledgement, in accordance with the prescribed form:  (a) of the fact that the person has been informed that the person may refuse to give his or her consent;  (b) of the fact that the person has voluntarily given his or her consent; and  (c) of the date on which, and the time at which, the person gave his or her consent.  (3) A search or entry and search, as the case requires, by an investigating officer by virtue of the consent of a person is not lawful unless the person concerned voluntarily consented to the search or entry and search, as the case may be.  (4) Where it is material, in any action or proceeding, for a civil court or service tribunal to be satisfied of the voluntary consent of a person for the purposes of section 101W and an acknowledgment of the kind referred to in subsection (2) signed by the person is not produced in evidence, the civil court or service tribunal, as the case may be, shall presume, unless the contrary is proved, that the person did not give such a voluntary consent. Division 6A—Investigation under the Regulatory Powers Act 101ZAA  Simplified outline of this Division • The Regulatory Powers Act is triggered to allow appointed members of the Australian Defence Force or APS employees in the Department to enter premises under an investigation warrant or with consent of the occupier and to exercise investigation powers under that Act for the purposes of gathering material relating to the contravention of service offences. 101ZAB  Basic investigation powers under Part 3 of the Regulatory Powers Act Provisions subject to investigation  (1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is a service offence. Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.  (2) For the purposes of Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1), there are no related provisions. Authorised applicant  (3) For the purposes of Part 3 of the Regulatory Powers Act, a person appointed under subsection 101ZAD(1) is an authorised applicant in relation to evidential material that relates to a provision mentioned in subsection (1). Authorised person  (4) For the purposes of Part 3 of the Regulatory Powers Act, a person appointed under subsection 101ZAD(2) is an authorised person in relation to evidential material that relates to a provision mentioned in subsection (1). Issuing officer  (5) For the purposes of Part 3 of the Regulatory Powers Act, each of the following persons is an issuing officer in relation to evidential material that relates to a provision mentioned in subsection (1):  (a) if a Judge of the Federal Court of Australia has consented to act as an issuing officer for the purposes of this Act and that consent is in force—the Judge;  (b) if a Judge of the Federal Circuit and Family Court of Australia (Division 2) has consented to act as an issuing officer for the purposes of this Act and that consent is in force—the Judge;  (c) a magistrate. Relevant chief executive  (6) For the purposes of Part 3 of the Regulatory Powers Act, each of the following persons is a relevant chief executive in relation to evidential material that relates to a provision mentioned in subsection (1):  (a) the Chief of the Defence Force;  (b) the Inspector‑General of the Australian Defence Force.  (7) A relevant chief executive may, in writing, delegate the powers and functions mentioned in subsection (8) to:  (a) an APS employee who holds or performs the duties of an Executive Level 1 position, or an equivalent or higher position, in the Department; or  (b) an officer of the Navy who holds the rank of Commander or a higher rank; or  (c) an officer of the Army who holds the rank of Lieutenant‑Colonel or a higher rank; or  (d) an officer of the Air Force who holds the rank of Wing Commander or a higher rank.  (8) The powers and functions that may be delegated are:  (a) powers and functions under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1); and  (b) powers and functions under the Regulatory Powers Act that are incidental to a power or function mentioned in paragraph (a).  (9) A person exercising powers or performing functions under a delegation under subsection (7) must comply with any directions of the relevant chief executive. Relevant court  (10) For the purposes of Part 3 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to evidential material that relates to a provision mentioned in subsection (1):  (a) the Federal Court of Australia;  (b) the Federal Circuit and Family Court of Australia (Division 2). Person assisting  (11) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1). Use of force in executing an investigation warrant  (12) In executing an investigation warrant under Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1):  (a) an authorised person may use such force against things as is necessary and reasonable in the circumstances; and  (b) a person assisting the authorised person may use such force against things as is necessary and reasonable in the circumstances. Extension to external Territories  (13) Part 3 of the Regulatory Powers Act, as that Part applies in relation to a provision mentioned in subsection (1), extends to every external Territory. 101ZAC  Modifications of Part 3 of the Regulatory Powers Act Additional investigation power  (1) The additional power mentioned in subsection (2) is taken to be included in the investigation powers under Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection 101ZAB(1).  (2) The additional investigation power is the power of an authorised person to be accompanied by, and to make use of, an animal to assist the person in entering premises, or in exercising powers, under Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection 101ZAB(1). Note: Under subsection 101ZAB(4), a person appointed under subsection 101ZAD(2) is an authorised person.  (3) Subsection (2) does not apply in relation to the entry of premises under an investigation warrant unless the use of the animal by the authorised person is authorised by the warrant. Investigation warrant must deal with use of animals  (4) Subsection 70(4) of the Regulatory Powers Act applies in relation to evidential material that relates to a provision mentioned in subsection 101ZAB(1) of this Act as if subsection 70(4) of the Regulatory Powers Act also required the warrant:  (a) to state whether authorised persons named in the warrant are authorised to be accompanied by, and to make use of, an animal; and  (b) if they are authorised, to specify the kind of animal. 101ZAD  Appointment of persons under this Division Authorised applicants  (1) The Chief of the Defence Force (the appointer), or the Inspector‑General of the Australian Defence Force (the appointer), may, in writing, appoint the following to be an authorised applicant for the purposes of this Division:  (a) a specified member of the Australian Defence Force;  (b) a specified APS employee in the Department;  (c) each member of the Australian Defence Force included in a specified class of members of the Australian Defence Force;  (d) each APS employee in the Department included in a specified class of APS employee in the Department. Authorised persons  (2) The appointer may, in writing, appoint the following to be an authorised person for the purposes of this Division:  (a) a specified member of the Australian Defence Force;  (b) a specified APS employee in the Department;  (c) each member of the Australian Defence Force included in a specified class of members of the Australian Defence Force;  (d) each APS employee in the Department included in a specified class of APS employee in the Department. Appointees to have suitable qualifications, training or experience  (3) The appointer must not appoint a particular member of the Australian Defence Force under paragraph (1)(a) or (2)(a), or a particular APS employee in the Department under paragraph (1)(b) or (2)(b), unless the appointer is satisfied that the member or employee has suitable qualifications, training or experience.  (4) The appointer must not specify a class of members of the Australian Defence Force under paragraph (1)(c) or (2)(c), or a class of APS employees in the Department under paragraph (1)(d) or (2)(d), unless the appointer is satisfied that members or employees of that class have suitable qualifications, training or experience. 101ZAE  No limit on other powers   This Division does not limit a person’s powers under any other provision of this Act. Division 7—Exclusion of evidence 101ZB  Exclusion of evidence illegally obtained  (1) Where, in proceedings before a service tribunal in respect of a service offence, upon objection being taken to the admission of evidence on the ground that the evidence was obtained in contravention of, or in consequence of a contravention of, a provision of this Part, the service tribunal or, in the case of a court martial, the judge advocate of the court martial, is satisfied, on the balance of probabilities but having regard to any provision of this Act or the regulations relating to proof of particular matters, that the evidence was so obtained, the service tribunal or judge advocate must not admit the evidence unless the service tribunal or judge advocate is of the opinion that:  (a) admission of the evidence would substantially benefit the public interest in the administration of justice; and  (b) this benefit would outweigh any prejudice to the rights and freedoms of any person, including the accused person, that has occurred, or is likely to occur, as a result of the contravention or the admission of the evidence.  (2) The matters that the service tribunal or judge advocate may have regard to in deciding whether to admit the evidence include:  (a) the seriousness of the service offence, the urgency and difficulty of detecting the offender and the need to preserve evidence of the facts;  (b) the nature and seriousness of the contravention;  (c) the effect that admission of the evidence in the particular circumstances of the case is likely to have on the operation of the provisions of this Part;  (d) the effect (if any) of the contravention on the cogency of the evidence so obtained; and  (e) the extent to which the evidence might have been obtainable lawfully.  (3) This section is in addition to, and not in substitution for, any other law or rule under which a service tribunal or, in the case of a court martial, the judge advocate of the court martial, may refuse to admit evidence.  (4) Subsection (3) shall not be taken to authorize a service tribunal or judge advocate, in proceedings in respect of a service offence, to refuse to admit a statement in evidence on the ground that an investigating officer contravened the rules known as the Judge’s Rules.  (5) Nothing in this section derogates from the application of section 101J or 101K. Division 8—Application of Part 101ZC  Application of Part   Nothing in this Part shall be taken to limit or restrict, by implication:  (a) any action that may be taken, in accordance with any other law of the Commonwealth or the law of a State or Territory, for a purpose not connected with the investigation of a service offence; or  (b) any action that a constable, or any other person who is not an investigating officer, may take, in accordance with any other law of the Commonwealth or the law of a State or Territory, for the purpose of investigating a service offence. Part VII—Service tribunals Division 1—Director of Military Prosecutions