Sch 3Search warrants and privilege

Schedule 3—Search warrants and privilege claimant—see clause 2(1)(b); searcher—see clause 2(1)(a). 2—Privilege claims in relation to search warrants (1) This clause applies if— (a) a person executing a warrant (the searcher) wishes to inspect, copy or seize a document or other thing under the warrant; and (b) a person who is entitled to claim the privilege (the claimant) claims that the document or other thing is the subject of privilege. (2) The searcher must consider the claim of privilege and either— (a) cease exercising the power under the warrant in relation to the document or other thing over which the claim of privilege is made; or (b) require the claimant to immediately seal the document or other thing in an envelope, or otherwise secure it if it cannot be sealed in an envelope, and give it to the searcher. (3) The searcher must not inspect the document or other thing in considering the claim of privilege. (4) If the searcher requires the claimant to give the document or other thing to the searcher under subclause (2)(b), the searcher must— (a) notify the Commission as soon as is reasonably practicable; and (b) as soon as is reasonably practicable, give the document or other thing to the proper officer of the Supreme Court to be held in safe custody. (5) Subject to clause 4, a person must not open a sealed envelope or interfere with a document or thing secured otherwise than in an envelope before delivery to the proper officer of the Supreme Court. 3—Application to Supreme Court to determine privilege (1) Within 7 days after a sealed envelope or document or thing secured otherwise than in an envelope is given to the proper officer of the Supreme Court in accordance with clause 2, the claimant may apply to the Supreme Court to determine whether or not the document or other thing is the subject of privilege. (2) If no application is made under subclause (1) within the period of 7 days, the proper officer must give the document or thing to the Commission. (3) The claimant must give notice of the application to the Commission within a reasonable time before the hearing of the application. (4) Notice under subclause (3) must be in the prescribed form. (5) The Commission is entitled to appear and be heard on the hearing of the application. 4—Determination of privilege claims (1) On an application under clause 3, the Supreme Court must determine whether or not the document in the sealed envelope or the document or thing secured otherwise than in an envelope is the subject of privilege (in whole or in part). (2) For the purpose of making a determination under subclause (1), the Judge constituting the Supreme Court and any other person authorised by the Court may— (a) open the sealed envelope or access the document or thing secured otherwise than in an envelope; and (b) inspect the document or thing. (3) If the Supreme Court determines that the whole of the document or thing is the subject of privilege— (a) the Court must order that the document or thing be returned to the claimant; and (b) the proper officer must return the document or thing to the claimant. (4) If the Supreme Court determines that the document or thing is not the subject of privilege— (a) the Court must order that the document or thing be given to the Commission; and (b) the proper officer must release the document or thing accordingly. (5) If the Supreme Court determines that a part of the document or thing is the subject of privilege (the privileged part) and a part is not (the non-privileged part)— (a) if the document or thing is able to be divided into the privileged part and the non-privileged part— (i) the Court must so divide the document or thing and order that the privileged part be returned to the claimant and the non-privileged part be given to the Commission; and (ii) the proper officer must return the privileged part to the claimant and release the non-privileged part to the Commission; or (b) if paragraph (a) does not apply but the Court is of the opinion that it would be possible to produce a copy of the document or thing from which the privileged part is able to be redacted— (i) the Court must make such orders as the Court thinks fit for the production of such a copy; and (ii) the Court must order that the copy so produced be given to the Commission and that the document or thing be returned to the claimant; and (iii) the proper officer must— (A) release the copy so produced to the Commission; and (B) return the document or thing to the claimant; or (c) in any other case— (i) the Court must order that the document or thing be returned to the claimant; and (ii) the proper officer must return the document or thing to the claimant. (6) Except as provided in subclause (2), a person must not open the sealed envelope or otherwise have access to the document or thing contained in the sealed envelope before— (a) the Supreme Court determines the claim of privilege; or (b) the document or thing is given to the claimant. Maximum penalty: $5 000 or imprisonment for 1 year. (7) Except as provided in subclause (2), a person must not open or otherwise have access to a document or thing secured otherwise than in an envelope before— (a) the Supreme Court determines the claim of privilege; or (b) the document or thing is returned to the claimant. Maximum penalty: $5 000 or imprisonment for 1 year.