Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)Schedule 4 - Powers to search premises in relation to terrorism offences
Overview
Division 3A of the Crimes Act 1914 (Crimes Act) provides police with powers to stop, search and question in relation to terrorist acts. This Division was first inserted into the Crimes Act by the Anti-Terrorism Act (No 2) 2005 to provide police with specific powers in relation to terrorist acts in addition to existing police powers. However, Division 3A does not provide police with a power to enter premises without a warrant in emergency circumstances relating to a terrorism offence where there is material that may pose a risk to the health or safety of the public.
Schedule 4 will amend Division 3A of the Crimes Act to include a new power for police to enter premises without a warrant in emergency circumstances.
Crimes Act 1914
Item 1: Division 3A of Part IAA (heading)
This item will substitute the heading 'Powers in relation to terrorist acts and terrorism offences' in place of the current Division 3A heading 'Powers to stop, question and search persons in relation to terrorist acts'.
Item 2: Section 3UB
This item is a minor amendment to the numbering of section 3UB. The number (1) will be inserted before the words 'A police officer'.
Item 3: at the end of section 3UB
Currently, Division 3A provides police with various powers in relation to terrorist acts, but only in a Commonwealth place and prescribed security zone. Item 3 will provide that this limitation will not apply to proposed new section 3UEA.
Item 4: Subsection 3UEA(1) - Emergency entry to premises without warrant
This item will insert new section 3UEA.
Proposed subsection 3UEA(1) - emergency entry to premises without warrant
Proposed section 3UEA will enable a police officer to enter premises without a warrant, but only if strict criteria are met. The police officer must suspect on reasonable grounds that it is necessary to use a power under subsection (2) to prevent a thing that is on the premises from being used in connection with a terrorism offence and it is necessary to exercise this power without the authority of a warrant because there is a serious and imminent threat to a person's life, health or safety.
Proposed subsection 3UEA(2) - powers of search and seizure
The powers available under proposed section 3UEA will be limited to searching the premises for the particular thing and seizing the particular thing in circumstances outlined in subsection (1). Subsections (3) to (5) will provide for some additional limited powers if certain criteria are met.
Proposed subsections 3UEA(3) and (4) - power to secure premises
If, in the course of searching for the thing, the police officer finds another thing that they reasonably suspect is relevant to an indictable offence or a summary offence, the police officer will be able to secure the premises for a period that is reasonably necessary so that they can make an application for a search warrant over the premises. This will ensure that evidence of criminal activity is preserved. The premises will not be able to be secured under proposed subsection (3) for longer than is reasonably necessary to obtain the warrant. If a warrant is not authorised the premises could then be handed over to the occupier.
Proposed subsection 3UEA(5) - power to seize any other thing or make premises safe in emergency circumstances
In the course of searching for the thing, the police officer may seize another thing, or do anything to make the premises safe, if the police officer suspects on reasonable grounds that it is necessary to do so:
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- to protect a person's life, health or safety and
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- without the authority of a search warrant because the circumstances are serious and urgent.
In certain circumstances, it may not be possible to seize the thing under proposed paragraph 3UEA(2)(b) without taking actions necessary to make it safe for removal. For example, where a live explosive device is on the premises, the device may need to be neutralised before it can be seized and removed from the premises. Proposed subsection 3UEA(5) will enable police to render the premises safe before removing the thing.
Proposed subsection 3UEA(6) - assistance and use of reasonable force
Proposed subsection 3UEA(6) will provide that the police officer may use assistance in exercising a power under this section. The police officer will be able to use force against persons and things. If another person, who is not a police officer, is assisting the police officer, that person will not be able to use force against persons and will only be able to use force against things if authorised by the police officer.
Proposed subsection 3UEA(7) - notification to occupier of premises
Proposed subsection 3UEA(7) will ensure that, if the occupier of the premises is not present at the time the police officer enters the premises, then a police officer must, within 24 hours of entering the premises, notify the occupier that the entry has taken place. However, if it is not practicable to notify the occupier, the police officer must leave a written notice of entry at the premises.
Item 5: Subsection 3UF(1)
Currently, section 3UF sets out how things seized under section 3UE must be dealt with. Subsection 3UF(1) requires a seizure notice to be served within 7 days after the day on which the thing was seized. Item 5 will insert a reference to proposed new section 3UEA in subsection 3UF(1) so that this requirement will apply to things seized under the proposed new section.