Search Warrants Act 1997 (TAS)

Search Warrants Act 1997

An Act to authorise the use of search warrants and for related matters

[Royal Assent 5 November 1997]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1Short titleThis Act may be cited as the Search Warrants Act 1997 . 2CommencementThis Act commences on a day to be proclaimed. 3InterpretationIn this Act, unless the contrary intention appears – conveyance includes an aircraft, vehicle or vessel; evidential material means a thing relevant to an offence, including such a thing in electronic form; executing officer, in relation to a warrant, means – (a) the police officer named in the warrant by the issuing officer as being responsible for executing the warrant; or (b) if that police officer does not intend to be present at the execution of the warrant – another police officer whose name has been written in the warrant by the police officer so named; or (c) another police officer whose name has been written in the warrant by the police officer last named in the warrant; frisk search means – (a) a search of a person conducted by running the hands over the person’s outer garments; and (b) an examination of anything worn by the person that is voluntarily removed by the person; issuing officer, in relation to a warrant to search premises, means a justice of the peace but does not include a magistrate; ordinary search means a search of a person or of articles in the possession of a person that may include – (a) requiring the person to remove his or her overcoat, coat, jacket or similar clothing and any gloves, shoes and hat; and (b) an examination of those items; person assisting, in relation to a warrant, means – (a) a person who is a police officer and who is assisting in executing the warrant; or (b) a person who is not a police officer and who has been authorised by the relevant executing officer to assist in executing the warrant; police officer has the same meaning as in the Police Regulation Act 1898 ; premises includes a place and a conveyance; seizable item means anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody; thing relevant to an offence means – (a) anything with respect to which an offence against any law of the State has been committed or is suspected, on reasonable grounds, to have been committed; or (b) anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or (c) anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence; warrant means a warrant under this Act; warrant premises means premises in relation to which a warrant is in force. 4Application of Act (1)  This Act is not intended to limit or exclude the operation of another law of the State relating to – (a) the search of persons or premises; or (b) arrest and related matters; or (c) the stopping, detaining or searching of conveyances; or (d) the seizure of things. (2)  To avoid any doubt, it is declared that, even though another law of the State provides power to do one or more of the things referred to in subsection (1) , a similar power conferred by this Act may be used despite the existence of the power under the other law. 5When search warrants can be issued (1) An issuing officer may issue a warrant to search premises if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises. (2) If an issuing officer issues a warrant, the issuing officer is to state in the warrant – (a) the offence to which the warrant relates; and (b) a description of the premises to which the warrant relates; and (c) the kinds of evidential material that are to be searched for under the warrant; and (d) the name of the police officer who, unless he or she inserts the name of another police officer in the warrant, is to be responsible for executing the warrant; and (e) the period for which the warrant remains in force, which is not to be more than 28 days; and (f) whether the warrant may be executed at any time or only during particular hours; and (g) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (c) ) found at the premises in the course of the search that the executing officer or a person assisting believes on reasonable grounds to be – (i) evidential material in relation to an offence to which the warrant relates; or (ii) evidential material in relation to another offence – if the executing officer or person assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and (h) that the warrant authorises the executing officer or a person assisting who is a police officer to conduct an ordinary search and a frisk search of any person who is at or near the premises when the warrant is executed if the executing officer or person assisting suspects on reasonable grounds that theperson has any evidential material or seizable items in his or her possession; and (i) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (c) ) found, in the course of a search of a person, on or in the possession of the person that the executing officer or a person assisting who is a police officer believes on reasonable grounds to be – (i) evidential material in relation to an offence to which the warrant relates; or (ii) evidential material in relation to another offence – if the executing officer or person assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence. (3)  Subsection (2)(e) does not prevent the issue of successive warrants in relation to the same premises. (4) If the application for the warrant is made under section 15 , this section applies as if – (a) subsection (1) referred to 48 hours rather than 72 hours; and (b) subsection (2)(e) referred to 48 hours rather than 28 days. 6Things authorised by search warrant (1) A warrant that is in force in relation to premises authorises the executing officer or a person assisting – (a) to enter the warrant premises and, if the premises are a conveyance, to stop, detain and enter the conveyance, wherever it is; and (b) to search for and record fingerprints found at the premises and to take samples of things, and from things, found at the premises for forensic purposes; and (c) to search a conveyance, container or thing found on the premises; and (d) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and (e) to seize a thing found at the premises in the course of the search that the executing officer or person assisting believes on reasonable grounds to be – (i) evidential material in relation to an offence to which the warrant relates; or (ii) evidential material in relation to another offence – if the executing officer or person assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and (f) to seize a thing found at the premises in the course of the search that the executing officer or person assisting believes on reasonable grounds to be a seizable item. (2) A warrant that is in force in relation to premises authorises the executing officer or a person assisting who is a police officer – (a) to conduct an ordinary search and a frisk search of any person at or near the premises if the executing officer or person assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession; and (b) to detain any person at or near the premises for the purpose of conducting an ordinary search and a frisk search of the person; and (c) to – (i) seize a thing of the kind specified in the warrant; and (ii) record fingerprints from any thing; and (iii) take forensic samples of any thing – found, in the course of a search of a person, on or in the possession of the person; and (d) to seize a thing found, in the course of a search of a person, on or in the possession of the person that the executing officer or person assisting believes on reasonable grounds to be – (i) evidential material in relation to an offence to which the warrant relates; or (ii) evidential material in relation to another offence – if the executing officer or person assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and (e) to seize a thing found, in the course of a search of a person, on or in the possession of the person that the executing officer or person assisting believes on reasonable grounds to be a seizable item. (3) A warrant that is in force in relation to premises authorises a person assisting who is not a police officer – (a) to record fingerprints from any thing; or (b) to take forensic samples from any thing – found on or in the possession of a person in the course of a search of that person conducted in accordance with subsection (2) . (4) If a thing is seized under a warrant, the warrant authorises the executing officer to make the thing available to an officer of another agency of this State, another State, a Territory or the Commonwealth if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the thing relates. 7Availability of assistance and use of force in executing a warrantIn executing a warrant – (a) the executing officer may obtain such assistance as is necessary and reasonable in the circumstances; and (b) the executing officer or a person assisting who is a police officer may use such force against persons and things as is necessary and reasonable in the circumstances; and (c) a person assisting who is not a police officer may use such force against things as is necessary and reasonable in the circumstances. 8Details of warrant to be given to occupier, &c. (1) If a warrant is being executed and the occupier of the warrant premises or another person who apparently represents the occupier is present at the warrant premises, the executing officer or a person assisting is to show to that person a copy of the warrant. (2) If a person is searched under a warrant, the executing officer or a person assisting who is a police officer is to show the person a copy of the warrant. (3) The executing officer is to identify himself or herself to the person at the premises or the person being searched, as the case may be. (4) The copy of the warrant referred to in subsection (1) need not include the signature of the issuing officer. 9Specific powers available to police officers executing warrant (1) In executing a warrant, 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 warrant premises consents – take photographs (including video recordings) of the premises or of things at the premises. (2) If a warrant is being executed, the executing officer and the persons assisting may, if thewarrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the warrant premises – (a) for not more than one hour; or (b) for a longer period if the occupier of the premises consents. (3)  If – (a) the execution of a 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. 10Use of equipment to examine or process things (1) The executing officer or a person assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant. (2) The executing officer or a person assisting may remove a thing from the warrant premises, or cause a thing to be removed from those premises, to another place for examination or processing in order to determine whether it is a thing that may be seized under the warrant. (3) The executing officer or a person assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant if he or she believes on reasonable grounds that – (a) the equipment is suitable for the examination or processing; and (b) the examination or processing can be carried out without damage to the equipment or the thing. 11Use of electronic equipment at premises (1) The executing officer or a person assisting may operate electronic equipment at the warrant premises to see whether evidential material is accessible by doing so if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. (2) If the executing officer or a person assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may – (a) seize the equipment and any disk, tape or other associated device; or (b) if the material can, by using facilities at the premises, be put in documentary form, operate the facilities to put the material in that form and seize the documents so produced; or (c) if the material can be transferred to a disk, tape or other storage device that – (i) is brought to the premises; or (ii) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises – operate the equipment to transfer the material to the disk, tape or other storage device and take the disk, tape or other storage device from the premises. (3) The executing officer or a person assisting may seize equipment under subsection (2)(a) only if – (a) it is not practicable to put the material in documentary form as mentioned in subsection (2)(b) or to copy the material as mentioned in subsection (2)(c) ; or (b) possession by the occupier of the equipment could constitute an offence. (4) If the executing officer or a person assisting believes on reasonable grounds that – (a) evidential material may be accessible by operating electronic equipment at the premises; and (b) expert assistance is required to operate the equipment; and (c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with – he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise. (5) The executing officer or a person assisting is to give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours. (6)  The equipment may be secured – (a) for a period not exceeding 24 hours; or (b) until the equipment has been operated by the expert – whichever happens first. (7) If the executing officer or a person assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to an issuing officer for an extension of that period. (8) The executing officer or a person assisting is to give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application. (9)  The provisions of this Act relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension. 12Copies of seized things to be provided (1)  Subject to subsection (2) , if the executing officer or a person assisting seizes – (a) a document, film, computer file or other thing that can be readily copied; or (b) a storage device, the information in which can be readily copied – the executing officer or person assisting, if requested to do so by the occupier of the warrant premises or another person who apparently represents the occupier and who is present when the warrant is executed, is to give a copy of the thing or the information to that person as soon as practicable after the seizure. (2)  Subsection (1) does not apply if – (a) the thing that has been seized was seized or taken under section 11(2)(b) or (c) ; or (b) possession by the occupier of the document, film, computer file, thing or information could constitute an offence. 13Occupier entitled to be present during search (1) If a warrant is being executed and the occupier of the warrant premises or another person who apparently represents the occupier is present at the premises, the occupier or other person is entitled to observe the search being conducted. (2)  The right to observe the search being conducted ceases if the occupier or other person impedes the search. (3) This section does not prevent 2 or more areas of the premises being searched at the same time. 14Receipts for things seized under warrant (1) If a thing is seized under a warrant or removed under section 10(2) , the executing officer or a person assisting is to provide a receipt for the thing. (2)  If 2 or more things are seized or removed, they may be covered in the one receipt. 15Warrants by telephone or other electronic means (1) A police officer may make an application to an issuing officer for a warrant by telephone, telex, facsimile 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 may require communication by voice to the extent that is practicable in the circumstances. (3) An application under this section is to include all information required to be provided in an ordinary application for a 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 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 5 . (5) If the issuing officer decides to issue the warrant, the issuing officer is to inform the applicant, by telephone, telex, facsimile 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 is to then complete a form of 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, 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, is to 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 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. 16Searches without warrant in emergency situations (1) This section applies if a police officer suspects, on reasonable grounds, that – (a) a thing relevant to an offence is in or on a conveyance; and (b) it is necessary to exercise a power under subsection (2) in order to prevent the thing from being concealed, lost or destroyed. (2) The police officer may – (a) stop and detain the conveyance; and (b) search the conveyance, and any thing attached to or carried in or on the conveyance, for the thing; and (c) seize the thing if he or she finds it there; and (d) if in immediate pursuit of a conveyance, continue the pursuit of that conveyance onto any premises and exercise any of the powers specified in paragraph (a) , (b) or (c) while the conveyance is on those premises. (3) If, in the course of searching for the thing, the police officer finds another thing relevant to an offence, the police officer may seize that thing if he or she suspects, on reasonable grounds, that it is necessary to seize it in order to prevent its concealment, loss or destruction. (4) The police officer is to exercise his or her powers subject to section 17 . 17How a police officer exercises a power under section 16When a police officer exercises a power under section 16 in relation to a conveyance, he or she – (a) may use such assistance as is necessary; and (b) except when exercising a power under section 16 in the circumstances referred to in section 16(2)(d) , is to search the conveyance in a public place or in some other place to which members of the public have ready access; and (c) is not to detain the conveyance for longer than is necessary and reasonable to search it and any thing attached to or found in or on the conveyance; and (d) may use such force as is necessary and reasonable in the circumstances, but is not to damage the conveyance or any thing attached to or found in or on the conveyance by forcing open a part of the conveyance or thing unless – (i) the person (if any) apparently in charge of the conveyance has been given a reasonable opportunity to open that part or thing; or (ii) it is not possible to give that person such an opportunity. 18Conduct of frisk searchesA frisk search of a person under this Act is, if practicable, to be conducted by a person of the same sex as the person being searched. 19Announcement before entry (1) Before any person enters premises under a warrant, the executing officer is to – (a) announce that he or she and any person assisting 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 a police officer); or (b) that the effective execution of the warrant is not frustrated. 20Retention of things which are seizedSubject to any contrary order of a court, if a thing is seized under this Act, a police officer is to return it if the reason for its seizure no longer exists or it is decided that it is not to be used in evidence unless the thing is forfeited or forfeitable to the Crown or is the subject of a dispute as to ownership. 21Refusal, &c., of admission of executing officer to warrant premises (1) If the admission to the warrant premises of the executing officer or a person assisting is refused, or is delayed or obstructed for such time that it may reasonably be inferred that the delay or obstruction was intentional, the occupier of the premises and any other person whorefuses, delays or obstructs the admission of the executing officer or person assisting are each guilty of an offence.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 6 months.

(2) If an executing officer or a person assisting is conducting a search of warrant premises or if an executing officer or a person assisting who is a police officer is conducting a search of a person on those premises, any person who obstructs the police officer or person assisting conducting such a search is guilty of an offence.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 6 months.

22Law relating to legal professional privilege not affectedThis Act does not affect the law relating to legal professional privilege. 23Laws relating to taking forensic samples not affectedNothing in this Act is intended to limit or exclude the operation of the Criminal Process (Identification and Search Procedures) Act 1976 . 24Regulations (1)  The Governor may make regulations for the purpose of this Act. (2)  Regulations may be made so as to apply differently according to any matter, condition, limitation, restriction, exception or circumstance specified in the regulations. (3)  The regulations may – (a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and (b) in respect of such an offence, provide for the imposition of a fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues. (4)  The regulations may authorise any matter to be determined, applied or regulated by any person or body. (5)  The regulations may confer a power and impose a duty on a specified person or a specified class of persons. (6)  The Governor may make regulations of a savings or transitional nature consequent on the enactment of this Act. (7)  Regulations under subsection (6) may take effect from the commencement of this Act or a later day. 25Administration of ActUntil provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  – (a) the administration of this Act is assigned to the Minister for Justice; and (b) the Department responsible to the Minister for Justice in relation to the administration of this Act is the Department of Justice.

[Second reading presentation speech made in:

House of Assembly on 30 SEPTEMBER 1997

Legislative Council on 16 OCTOBER 1997]