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Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (116 of 2014)

Schedule 1 Main counter terrorism amendments

Part 1 Amendments

Crimes Act 1914

51 After Part IAA

Insert:

Part IAAA - Delayed notification search warrants

Division 1 - Preliminary

3ZZAA Object of this Part

(1) The object of this Part is to provide for eligible agencies to obtain search warrants:

(a) that relate to eligible offences; and

(b) that authorise the entry and search of premises without having to produce the warrant at the time of entry and search.

(2) A warrant issued under this Part is a delayed notification search warrant .

(3) An eligible agency is the Australian Federal Police.

(4) An eligible offence is a terrorism offence that is punishable on conviction by imprisonment for 7 years or more.

3ZZAB Application of Part

(1) This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to:

(a) the search of premises; or

(b) the seizure of things; or

(d) the installation of surveillance devices (within the meaning of the Surveillance Devices Act 2004).

(2) To avoid doubt, it is declared that even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.

3ZZAC Definitions

In this Part:

adjoining premises , in relation to particular premises, means premises adjoining, or providing access, to the premises.

adjoining premises occupier’s notice : see section 3ZZDB.

applicable normal search warrant regime : see subsection 3ZZBJ(2).

authorised agency means the Australian Federal Police.

chief officer , in relation to an authorised agency or eligible agency, means the Commissioner.

conditions for issue : see section 3ZZBA.

damage , in relation to data, includes damage by erasure of data or addition of other data.

day of execution of a delayed notification search warrant means the day on which the warrant premises were first entered under the warrant.

delayed notification search warrant : see subsection 3ZZAA(2).

eligible agency : see subsection 3ZZAA(3).

eligible issuing officer : see subsection 3ZZAD(1).

eligible offence : see subsection 3ZZAA(4).

eligible officer of an authorised agency or eligible agency means a member or special member of the Australian Federal Police.

emergency situation , in relation to the execution of a delayed notification search warrant in relation to premises, means a situation that the executing officer or a person assisting believes, on reasonable grounds, involves a serious and imminent threat to a person’s life, health or safety that requires the executing officer and persons assisting to leave the premises.

evidential material means a thing relevant to an eligible offence, or an indictable offence, that has been, is being, is about to be or is likely to be committed.

executing officer , in relation to a delayed notification search warrant, means:

(a) the eligible officer of the authorised agency who is named in the warrant by the eligible issuing officer as being responsible for executing the warrant; or

(b) if that eligible officer does not intend to be present at the execution of the warrant - another eligible officer of the authorised agency whose name has been written in the warrant by the eligible officer so named; or

(c) another eligible officer of the authorised agency whose name has been written in the warrant by the eligible officer of the authorised agency last named in the warrant.

inspecting officer means a person appointed under subsection 3ZZGA(1).

nominated AAT member means a person in relation to whom a nomination is in force under section 3ZZAF.

person assisting , in relation to a delayed notification search warrant, means:

(a) a person who is an eligible officer of the authorised agency and who is assisting in the execution of the warrant; or

(b) another person who has been authorised by the executing officer to assist in executing the warrant.

premises includes a place and a conveyance.

relevant eligible agency , in relation to a thing seized under this Part, is the eligible agency whose chief officer authorised the application for the delayed notification search warrant under which the thing was seized.

staff member of an authorised agency or eligible agency means a person referred to in paragraph (a) of the definition of law enforcement officer in subsection 3(1).

State or Territory agency : see section 3ZZGF.

State or Territory inspecting authority : see section 3ZZGF.

State or Territory law enforcement agency means:

(a) the police force or police service of a State or Territory; or

(b) the New South Wales Crime Commission constituted by the Crime Commission Act 2012 (NSW); or

(c) the Independent Commission Against Corruption constituted by the Independent Commission Against Corruption Act 1988 (NSW); or

(d) the Police Integrity Commission constituted by the Police Integrity Commission Act 1996 (NSW); or

(e) the Independent Broad-based Anti-corruption Commission established by the Independent Broad-based Anti-corruption Commission Act 2011 (Vic.); or

(f) the Crime and Corruption Commission established by the Crime and Corruption Act 2001 (Qld); or

(g) the Corruption and Crime Commission established by the Corruption and Crime Commission Act 2003 (WA); or

(h) the Independent Commissioner Against Corruption established by the Independent Commissioner Against Corruption Act 2012 (SA); or

(i) the Integrity Commission established by the Integrity Commission Act 2009 (Tas.).

thing includes a thing in electronic form.

warrant premises means premises in relation to which a delayed notification search warrant is in force, but does not include any adjoining premises that are also authorised to be entered under the warrant.

warrant premises occupier’s notice : see section 3ZZDA.

3ZZAD Eligible issuing officers

(1) An eligible issuing officer is:

(a) a person:

(i) who is a Judge of the Federal Court of Australia, or a Judge of the Supreme Court of a State or Territory; and

(ii) in relation to whom a consent under subsection 3ZZAE(1), and a declaration under subsection 3ZZAE(2), are in force; or

(b) a nominated AAT member.

(2) A function or power conferred on a Judge by this Part is conferred on the Judge in a personal capacity and not as a court or a member of a court.

(3) A Judge has, in relation to the performance or exercise of a function or power conferred on an eligible issuing officer by this Part, the same protection and immunity as if he or she were performing that function, or exercising that power, as, or as a member of, a court (being the court of which the Judge is a member).

Note: A member of the Administrative Appeals Tribunal has the same protection and immunity as a Justice of the High Court (see subsection 60(1) of the Administrative Appeals Tribunal Act 1975).

3ZZAE Consent of Judges

(1) A Judge of the Federal Court of Australia, or of the Supreme Court of a State or Territory, may, by writing, consent to be declared an eligible issuing officer by the Minister under subsection (2).

(2) The Minister may, by writing, declare a Judge in relation to whom a consent under subsection (1) is in force to be an eligible issuing officer for the purposes of this Part.

(3) A consent or declaration under this section is not a legislative instrument.

3ZZAF Nominated AAT members

(1) The Minister may, by writing, nominate a person who holds one of the following appointments to the Administrative Appeals Tribunal to issue delayed notification search warrants and perform related functions under this Act:

(a) Deputy President;

(b) full-time senior member.

(2) Despite subsection (1), the Minister must not nominate a person who holds an appointment as a full-time senior member of the Tribunal unless the person:

(a) is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or of the Australian Capital Territory; and

(b) has been so enrolled for not less than 5 years.

(3) A nomination ceases to be in force if:

(a) the nominated AAT member ceases to hold an appointment described in subsection (1); or

(b) the Minister, by writing, withdraws the nomination.

Division 2 - Issue of delayed notification search warrants

Subdivision A - The normal process for applying for and issuing delayed notification search warrants

3ZZBA The conditions for issue of a delayed notification search warrant

A person is satisfied that the conditions for issue of a delayed notification search warrant are met in respect of particular premises if the person:

(a) suspects, on reasonable grounds, that one or more eligible offences have been, are being, are about to be or are likely to be committed; and

(b) suspects, on reasonable grounds, that entry and search of the premises will substantially assist in the prevention or investigation of one or more of those offences; and

(c) believes, on reasonable grounds, that it is necessary for the entry and search of the premises to be conducted without the knowledge of the occupier of the premises or any other person present at the premises.

3ZZBB Authorisation to apply for a delayed notification search warrant

(1) The chief officer of an eligible agency may, in writing, authorise an eligible officer of the agency to apply for a delayed notification search warrant in respect of particular premises if the chief officer is satisfied that the conditions for issue are met.

(2) The chief officer of an eligible agency may orally (in person or by telephone or other means of voice communication) authorise an eligible officer of the agency to apply for a delayed notification search warrant in respect of particular premises if the chief officer is satisfied that:

(a) the conditions for issue are met; and

(b) either:

(i) it is an urgent case; or

(ii) the delay that would occur if the authorisation were in writing would frustrate the effective execution of the delayed notification search warrant.

(3) If the chief officer of an eligible agency gives an authorisation under subsection (2), he or she must make a written record of the authorisation within 7 days.

3ZZBC Applying for a delayed notification search warrant

(1) An eligible officer of an eligible agency may apply to an eligible issuing officer for a delayed notification search warrant in respect of particular premises if the officer is authorised under section 3ZZBB to apply for the warrant.

Note 1: The application will need to address:

(a) why the conditions for issue are met (see section 3ZZBA); and

(b) other matters the eligible issuing officer must have regard to (see subsection 3ZZBD(2)); and

Note 2: In urgent cases or certain other cases, an application may be made by telephone, fax or other electronic means: see section 3ZZBF.

(2) The eligible officer must provide the eligible issuing officer with:

(a) a copy of, or details of, the authorisation under section 3ZZBB; and

(b) particulars of any applications, and the outcomes, so far as known to the eligible officer, of any previous applications, in respect of the premises, for a warrant under this Part or Division 2 of Part IAA.

(3) The application must be supported by an affidavit setting out the grounds on which the warrant is sought.

(4) The eligible issuing officer may request further information relating to the application, and may require that the information be provided on oath or affirmation.

3ZZBD Issuing a delayed notification search warrant

(1) If:

(a) an eligible officer applies to an eligible issuing officer, in accordance with section 3ZZBC, for a delayed notification search warrant in respect of particular premises (the main premises ); and

(b) the eligible issuing officer is satisfied, by information on oath or affirmation, that the conditions for issue are met;

the eligible issuing officer may issue a delayed notification search warrant in respect of the premises.

(2) In determining whether the delayed notification search warrant should be issued, the eligible issuing officer must have regard to the following:

(a) the extent to which the exercise of the powers under the warrant would assist the prevention or investigation of the eligible offence to which the application for the warrant relates;

(b) the existence of alternative means of obtaining the evidence or information sought to be obtained;

(d) the nature and seriousness of that offence;

(e) if it is proposed that adjoining premises be entered for the purpose of entering the main premises - whether allowing entry to the adjoining premises is reasonably necessary:

(i) to enable entry to the main premises; and

(ii) to avoid compromising the prevention or investigation of that offence;

(f) any conditions to which the warrant should be subject;

(g) the outcome, so far as known to the eligible issuing officer, of any previous application, in respect of the main premises, for a warrant under this Part or Division 2 of Part IAA.

(3) An eligible issuing officer of the Federal Court of Australia or the Administrative Appeals Tribunal may issue a delayed notification search warrant in relation to premises located anywhere in the Commonwealth or an external Territory.

(4) An eligible issuing officer of the Supreme Court of a State or Territory may issue a delayed notification search warrant only in relation to premises located in that State or Territory.

3ZZBE Contents of a delayed notification search warrant

(1) A delayed notification search warrant must specify the following:

(a) the name of the applicant;

(b) the name of the authorised agency;

(c) the name of the eligible officer of that agency who, unless he or she inserts the name of another such eligible officer in the warrant, is to be responsible for executing the warrant;

(d) the address, location or other description of the warrant premises;

(e) the eligible offence to which the warrant relates;

(f) whether the warrant authorises the entry of adjoining premises, and if it does, the address, location or other description of the adjoining premises;

(g) the day on which, and the time at which, the warrant is issued;

(h) the day on which, and the time at which, the warrant expires (which must be a time on a day that is not more than 30 days after the day on which the warrant is issued);

(i) the time by which notice of entry of premises under the warrant is to be given (expressed as a time on a specified day that is not more than 6 months after the day on which the warrant is issued);

(j) a description of the kinds of things that may be searched for, seized, copied, photographed, recorded, marked, tagged, operated, printed, tested or sampled;

(k) whether the warrant authorises a thing to be placed in substitution for a thing seized under the warrant or moved under subsection 3ZZCE(2);

(l) whether the warrant authorises the re-entry of the warrant premises, and any adjoining premises authorised to be entered, to:

(i) return to the warrant premises any thing seized under the warrant or moved under subsection 3ZZCE(2); or

(ii) retrieve any thing substituted at the warrant premises for a thing seized under the warrant or moved under subsection 3ZZCE(2);

(m) if the warrant authorises such re-entry - that the re-entry must be within:

(i) 14 days of the day of execution of the warrant; or

(ii) if a thing is moved under subsection 3ZZCE(2) and the time for which it may be examined or processed is more than 14 days because of an extension under section 3ZZCE - that time as extended under that section;

(n) any conditions to which the warrant is subject;

(o) that the eligible issuing officer is satisfied as mentioned in paragraph 3ZZBD(1)(b), and has had regard to the matters specified in subsection 3ZZBD(2).

Note 1: Regarding paragraph (i):

(a) the specified time is the time by which a warrant premises occupier’s notice, and any adjoining premises occupier’s notice, must be given (subject to subsections 3ZZDA(4), 3ZZDB(4) and 3ZZDC(3)); and

(b) the specified time can be extended (see subsection 3ZZDC(5)).

Note 2: Regarding the period described in paragraph (m), see also subsection 3ZZCA(3).

(2) The warrant must be signed by the eligible issuing officer who issued it and include his or her name.

Subdivision B - Delayed notification search warrants by telephone, fax etc.

3ZZBF Delayed notification search warrants by telephone, fax etc.

When this section applies

(1) This section applies if the requirements specified in subsection 3ZZBC(1) for when an eligible officer of an eligible agency may apply for a delayed notification search warrant in respect of particular premises are satisfied.

Note: This section sets out an alternative method of applying for and issuing delayed notification search warrants.

Application for delayed notification search warrant

(2) The eligible officer may apply to an eligible issuing officer by telephone, fax or other electronic means for a delayed notification search warrant in respect of the premises:

(a) if it is an urgent case; or

(b) if the delay that would occur if the application were made in person would frustrate the effective execution of the delayed notification search warrant.

(3) The eligible issuing 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.

(4) The application must:

(a) include all information required to be provided in an ordinary application for a delayed notification search warrant, but the application may, if necessary, be made before the information is sworn or affirmed; and

(b) include details of, or be accompanied by a copy of, the authorisation under section 3ZZBB.

Eligible issuing officer may complete and sign warrant

(5) The eligible issuing officer may complete and sign the same delayed notification search warrant that would have been issued under section 3ZZBD if, after:

(a) considering the information and having received and considered such further information (if any) as the eligible issuing officer required; and

(b) having regard to the matters specified in subsection 3ZZBD(2);

the eligible issuing officer is satisfied:

(d) that:

(i) a delayed notification search warrant in the terms of the application should be issued urgently; or

(ii) the delay that would occur if an application were made in person would frustrate the effective execution of the delayed notification search warrant.

(6) After completing and signing the delayed notification search warrant, the eligible issuing officer must inform the applicant, by telephone, fax or other electronic means, of:

(a) the terms of the warrant; and

(b) the day on which, and the time at which, the warrant was signed.

Obligations on applicant

(7) The applicant must then do the following:

(a) complete a form of delayed notification search warrant in the same terms as the warrant completed and signed by the eligible issuing officer;

(b) state on the form the following:

(i) the name of the eligible issuing officer;

(ii) the day and time of signing of the warrant;

(i) the form of warrant completed by the applicant;

(ii) the information referred to in subsection (4), which must have been duly sworn or affirmed.

(8) The applicant must comply with paragraph (7)(c) by the end of the day after the earlier of the following:

(a) the day on which the delayed notification search warrant expires;

(b) the day of execution of the warrant.

Eligible issuing officer to attach documents together

(9) The eligible issuing officer must attach the documents provided under paragraph (7)(c) to the delayed notification search warrant signed by the eligible issuing officer.

3ZZBG Authority of delayed notification search warrant by telephone, fax etc.

(1) A form of delayed notification search warrant duly completed under subsection 3ZZBF(7) is authority for the same powers as are authorised by the warrant signed by the eligible issuing officer under subsection 3ZZBF(5).

(2) In any proceedings, a court is to assume (unless the contrary is proved) that an exercise of power was not authorised by a delayed notification search warrant under section 3ZZBF if:

(a) it is material, in those proceedings, for the court to be satisfied that the exercise of power was duly authorised by the warrant; and

(b) the delayed notification search warrant signed by the eligible issuing officer authorising the exercise of the power is not produced in evidence.

Subdivision C - Offences relating to applying for warrants etc.

3ZZBH Offence for making false statement in application for delayed notification search warrant

A person must not make, in an application for a delayed notification search warrant, a statement that the person knows to be false or misleading in a material particular.

Penalty: Imprisonment for 2 years.

3ZZBI Offence relating to delayed notification search warrant by telephone, fax etc.

A person must not:

(a) state in a document that purports to be a form of delayed notification search warrant under section 3ZZBF the name of an eligible issuing officer unless that eligible issuing officer issued the warrant; or

(b) state on a form of delayed notification search warrant under that section a matter that, to the person’s knowledge, departs in a material particular from the form authorised by the eligible issuing officer; or

(c) purport to execute, or present to a person, a document that purports to be a form of delayed notification search warrant under that section that the person knows:

(i) has not been approved by an eligible issuing officer under that section; or

(ii) departs in a material particular from the terms authorised by an eligible issuing officer under that section; or

(d) give to an eligible issuing officer a form of delayed notification search warrant under that section that is not the form of warrant that the person purported to execute.

Penalty: Imprisonment for 2 years.

Subdivision D - Interaction with other provisions under which search warrants may be issued

3ZZBJ Issue of warrants under other provisions as well as or instead of delayed notification search warrants

When this section applies

(1) This section applies if an eligible officer of an eligible agency, under an authorisation under section 3ZZBB from the chief officer of the agency, makes an application (the delayed notification search warrant application ) to an eligible issuing officer for a delayed notification search warrant:

(a) in respect of particular premises; and

(b) in relation to a particular eligible offence.

(2) The applicable normal search warrant regime is Division 2 of Part IAA.

Application may be made to eligible issuing officer for normal search warrant

(3) The eligible officer may, at the same time or subsequently, make an application to the eligible issuing officer for the issue of a warrant, under the applicable normal search warrant regime, to search the premises or other premises for evidential material relevant to the eligible offence or to another offence connected to the eligible offence.

(4) If the eligible issuing officer is not a person who is authorised to issue warrants under the applicable normal search warrant regime, the eligible issuing officer may consider and deal with an application made as mentioned in subsection (3) as if the eligible issuing officer were such a person.

Eligible issuing officer may instead treat application as if it were made under applicable normal search warrant regime

(5) If the eligible issuing officer is not satisfied that a delayed notification search warrant in respect of the premises should be issued, the eligible issuing officer may:

(a) treat the delayed notification search warrant application as if it were an application for a warrant under the applicable normal search warrant regime (even if such an application has not been made); and

(b) consider and deal with the application under that regime:

(i) as if the application had been validly made under that regime; and

(ii) if the eligible issuing officer is not a person who is authorised to issue warrants under the applicable normal search warrant regime - as if the eligible issuing officer were such a person.

Division 3 - Exercise of powers under delayed notification search warrants

3ZZCA What is authorised by a delayed notification search warrant

(1) A delayed notification search warrant authorises the executing officer or a person assisting to do any of the following:

(a) to enter the warrant premises;

(b) if the warrant authorises the entry of adjoining premises - to enter the adjoining premises solely for the purpose of entering or leaving the warrant premises;

(d) to search the warrant premises for the kinds of things (if any) specified in the warrant as the kinds of things that may be searched for;

(e) to seize any thing of a kind specified in the warrant as a kind of thing that may be seized;

(f) to seize other things found in the course of executing the warrant at the warrant premises that the executing officer or a person assisting believes on reasonable grounds to be evidential material, if the executing officer or a person assisting believes on reasonable grounds that the seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing any offence;

(g) to seize any thing found in the course of executing the warrant at the warrant premises that the executing officer or a person assisting believes on reasonable grounds:

(i) would present a danger to a person; or

(ii) could be used to assist a person to escape from lawful custody;

(h) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes;

(i) if specified in the warrant - to place a thing in substitution for a thing seized or moved under subsection 3ZZCE(2);

(j) to do any of the following acts to a thing found in the course of executing the warrant at the warrant premises that is of a kind specified in the warrant as the kind of thing to which the act may be done, or that the executing officer or a person assisting believes on reasonable grounds to be evidential material:

(i) copy the thing;

(ii) photograph or otherwise record the thing;

(iii) mark or tag the thing (whether or not the mark or tag can be detected only with the use of a device);

(iv) operate the thing;

(v) print the thing;

(vi) test the thing;

(vii) sample the thing;

(k) to do anything reasonably necessary to conceal the fact that any thing has been done under the warrant;

(l) if specified in the warrant - to re-enter:

(i) the warrant premises; and

(ii) if the warrant authorises the entry of adjoining premises - the adjoining premises solely for the purpose of entering or leaving the warrant premises;

within the period described in paragraph 3ZZBE(1)(m), for the purpose of returning any thing seized from the warrant premises or moved under subsection 3ZZCE(2), or retrieving any thing substituted at the premises for a thing seized or moved under that subsection;

(m) to exercise the other powers conferred on the executing officer, or a person assisting, by the other provisions of this Division.

Note: Paragraph (c) does not authorise the acquisition or use of an assumed identity (see Part IAC). The protection provided by Part IAC only applies if the requirements of that Part have been complied with.

(2) The entry of premises under a paragraph of subsection (1) may be effected without the knowledge of the occupier of the premises or any other person present at the premises.

(3) If the period referred to in paragraph (1)(l) ends after the delayed notification search warrant expires, the powers referred to in that paragraph may be exercised during that period as if the warrant were still in force.

3ZZCB Specific powers available to person executing warrant

Photography

(1) In executing a delayed notification search warrant, the executing officer or a person assisting may, for a purpose incidental to the execution of the warrant, take photographs (including video recordings) of the warrant premises or of things at the warrant premises.

Completion of execution of warrant after brief interruption

(2) If a delayed notification search 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 not more than 24 hours, or such longer period as allowed by an eligible issuing officer under section 3ZZCC, if they leave the premises:

(i) because of an emergency situation; or

(ii) to reduce the risk of discovery of the fact that a law enforcement officer has been on the premises.

Completion of execution of warrant after court proceedings

(3) If:

(a) the execution of a delayed notification search warrant is stopped by an order of a court; and

(b) the order is later revoked or reversed on appeal; and

the execution of the warrant may be completed.

3ZZCC Extension of time to re-enter premises left in emergency situation or to avoid discovery of law enforcement officer

(1) If:

(a) a delayed notification search warrant in relation to premises is being executed; and

(b) the executing officer and the persons assisting (if any) leave the premises for a reason described in subparagraph 3ZZCB(2)(b)(i) or (ii); and

(c) the executing officer or a person assisting believes on reasonable grounds that the executing officer and the persons assisting will not be able to return to the premises within the 24-hour period mentioned in paragraph 3ZZCB(2)(b);

he or she may apply to an eligible issuing officer for an extension of that period.

(2) If an application mentioned in subsection (1) has been made, an eligible issuing officer may extend the period during which the executing officer and persons assisting may be away from the premises if:

(a) the eligible issuing officer is satisfied, by information on oath or affirmation, that there are circumstances that justify the extension; and

(b) the extension would not result in the period ending after the expiry of the warrant.

3ZZCD Executing a warrant - assistance, use of force and related matters

(1) In executing a delayed notification search warrant:

(a) the executing officer may obtain such assistance; and

(b) the executing officer, or an eligible officer who is a person assisting, may use such force against persons and things; and

as is necessary and reasonable in the circumstances.

(2) At any time when the executing officer is at warrant premises, or adjoining premises, under a delayed notification search warrant, the executing officer must have in his or her possession, or be in a position to produce without delay:

(a) a copy of the warrant; or

(b) if the warrant was issued under section 3ZZBF - a copy of the form of warrant completed under subsection 3ZZBF(7).

(3) To avoid doubt, subsection (2) does not require the executing officer to produce a copy of the warrant or the form of warrant.

3ZZCE Use of equipment to examine or process things

Equipment may be brought onto warrant premises

(1) In executing a delayed notification search warrant, 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.

Thing may be moved for examination or processing

(2) A thing found at the warrant premises may be moved to another place for examination or processing in order to determine whether it may be seized under the delayed notification search warrant if:

(a) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; and

(b) the executing officer or a person assisting suspects on reasonable grounds that the thing contains or constitutes a thing that may be seized under the warrant.

Note: Sections 3ZZCG and 3ZZCH authorise operation of electronic equipment moved under this section.

Time limit on moving a thing

(3) The thing may be moved to another place for examination or processing for no longer than 14 days.

(4) An executing officer may apply to an eligible issuing officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 14 days or that time as previously extended.

(5) A single extension cannot exceed 7 days.

Equipment at warrant premises may be operated

(6) 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, if the executing officer or person 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.

3ZZCF Use of electronic equipment at warrant premises

Use of electronic equipment to access data

(1) In executing a delayed notification search warrant, the executing officer or a person assisting may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes a thing that may be seized under the warrant.

Copy of data onto disk, tape or other device

(2) If the executing officer or person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes a thing that may be seized under the warrant, he or she may copy the data to a disk, tape or other associated device and take the disk tape or device from the warrant premises.

(3) If:

(a) under subsection (2), the executing officer or person assisting copies data to a disk, tape or device; and

(b) the chief officer of the authorised agency is satisfied that the data is not required, is no longer required, or is not likely to be required, for a purpose mentioned in section 3ZZEA;

the chief officer must arrange for:

(d) the destruction of any other reproduction of the data in the control of the authorised agency.

Powers if thing that may be seized is accessible by operating equipment

(4) If the executing officer or a person assisting, after operating the electronic equipment, finds that a thing that may be seized under the warrant 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 thing can, by using facilities at the warrant premises, be put in documentary form - operate the facilities to put the thing in that form and seize the documents so produced.

(5) The executing officer or a person assisting may seize equipment under paragraph (4)(a) only if:

(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the thing that may be seized in documentary form as mentioned in paragraph (4)(b); or

(b) possession of the equipment, by the occupier of the warrant premises, could constitute an offence.

3ZZCG Use of moved electronic equipment at other place

(1) If electronic equipment is moved to another place under subsection 3ZZCE(2), the executing officer or a person assisting may operate the equipment to access data (including data held at another place).

(2) If the executing officer or person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes a thing that may be seized under the warrant, he or she may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.

(3) If the chief officer of the authorised agency is satisfied that the data is not required, is no longer required, or is not likely to be required, for a purpose mentioned in section 3ZZEA, the chief officer must arrange for:

(a) the removal of the data from any device in the control of the authorised agency; and

(b) the destruction of any other reproduction of the data in the control of the authorised agency.

(4) If the executing officer or a person assisting, after operating the equipment, finds that a thing that may be seized under the warrant 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 thing can be put in documentary form - put the thing in that form and seize the documents so produced.

(5) The executing officer or a person assisting may seize equipment under paragraph (4)(a) only if:

(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the thing that may be seized in documentary form as mentioned in paragraph (4)(b); or

(b) possession of the equipment, by the occupier of the warrant premises, could constitute an offence.

3ZZCH Operating seized or moved electronic equipment

(1) This section applies to electronic equipment seized under this Part or moved under section 3ZZCE.

(2) The electronic equipment may be operated at any location after it has been seized or moved, for the purpose of determining whether data that is a thing that may be seized under the relevant delayed notification search warrant is held on or accessible from the electronic equipment, and obtaining access to such data.

(3) The data referred to in subsection (2) includes, but is not limited to, the following:

(a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized;

(b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.

(4) The electronic equipment may be operated before or after the expiry of the relevant delayed notification search warrant.

(5) This section does not limit the operation of other provisions of this Part that relate to dealing with items seized under this Part or moved under section 3ZZCE.

Note: For example, this section does not affect the operation of the time limits in section 3ZZCE on examination or processing of a thing moved under that section.

3ZZCI Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of equipment being operated as mentioned in section 3ZZCE, 3ZZCF, 3ZZCG or 3ZZCH:

(i) damage is caused to the equipment; or

(ii) damage is caused to data recorded on the equipment or data access to which was obtained from the operation of the equipment; or

(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the court determines.

Division 4 - Notice to occupiers

3ZZDA Warrant premises occupier’s notice must be prepared and given

(1) As soon as practicable after the exercise of powers under a delayed notification search warrant has been completed, the executing officer must prepare a written notice (the warrant premises occupier’s notice ) that complies with subsection (2).

(2) The warrant premises occupier’s notice must:

(a) specify the name of the authorised agency; and

(b) specify the day on which, and the time at which, the warrant was issued; and

(d) specify the address, location or other description of the warrant premises; and

(e) specify the number of persons who entered the warrant premises for the purposes of executing, or assisting in the execution of, the warrant; and

(f) include a summary of:

(i) the purpose of delayed notification search warrants (including a statement to the effect that they are to authorise entry and search of premises to be conducted without the knowledge of the occupier of the premises or any other person present at the premises); and

(ii) the things done under the warrant; and

(g) describe any thing seized from the warrant premises and state whether a thing was placed in substitution for the seized thing; and

(h) state whether any thing was returned to, or retrieved from, the warrant premises and the date on which this occurred.

(3) Subject to subsection (4), a staff member of the authorised agency must give the warrant premises occupier’s notice, and a copy of the warrant (or the form of warrant completed under subsection 3ZZBF(7)), to the person (the occupier ) who was the occupier of the warrant premises when they were entered under the warrant. The notice, and the copy of the warrant (or form of warrant), must be given to the occupier by the time applicable under section 3ZZDC.

(4) If the occupier cannot be identified or located, a staff member of the authorised agency must report back to an eligible issuing officer, and the eligible issuing officer may give such directions as the eligible issuing officer thinks fit.

(5) A notice and a direction under this section are not legislative instruments.

3ZZDB Adjoining premises occupier’s notice must be prepared and given

(1) As soon as practicable after adjoining premises are entered under a delayed notification search warrant, the executing officer must prepare a written notice (the adjoining premises occupier’s notice ) that complies with subsection (2).

(2) The adjoining premises occupier’s notice must specify:

(a) the name of the authorised agency; and

(b) the day on which, and the time at which, the warrant was issued; and

(d) the address, location or other description of:

(i) the warrant premises; and

(ii) the adjoining premises; and

(e) the purpose of delayed notification search warrants, including:

(i) a statement to the effect that they are to authorise entry and search of warrant premises to be conducted without the knowledge of the occupier of those premises or any other person present at those premises; and

(ii) a statement that adjoining premises may be entered solely for the purpose of entering or leaving the warrant premises.

(3) Subject to subsection (4), a staff member of the authorised agency must give the adjoining premises occupier’s notice, and a copy of the warrant (or the form of warrant completed under subsection 3ZZBF(7)), to the person (the occupier ) who was the occupier of the adjoining premises when they were entered under the warrant. The notice, and the copy of the warrant, must be given to the occupier by the time applicable under section 3ZZDC.

(5) A notice and a direction under this section are not legislative instruments.

3ZZDC Time for giving warrant premises occupier’s notice or adjoining premises occupier’s notice

Section determines time by which notice must be given

(1) This section:

(a) applies if a warrant premises occupier’s notice, or an adjoining premises occupier’s notice, is prepared in relation to a delayed notification search warrant; and

(b) determines the time by which the notice (and a copy of the warrant, or the form of warrant) must be given in accordance with subsection 3ZZDA(3) or 3ZZDB(3).

Note: This section has effect subject to any directions given under subsection 3ZZDA(4) or 3ZZDB(4).

General rule

(2) Subject to subsection (3), the notice (and the copy of the warrant or form of warrant) must be given by:

(a) the time specified under paragraph 3ZZBE(1)(i); or

(b) if that time has been extended under subsection (5), that time as so extended.

Rule if person is charged with an offence relying on evidence obtained under the warrant

(3) If:

(a) a person is charged with an offence; and

(b) the prosecution proposes to rely on evidence obtained under the warrant;

the notice (and the copy of the warrant or of the form of the warrant completed under subsection 3ZZBF(7)) must be given as soon as practicable after the person is charged with the offence, but no later than the earlier of the following times:

(d) the time of service of the brief of evidence by the prosecution.

Extending the time specified in the warrant for giving notice

(4) The chief officer of the authorised agency may, in writing, authorise an eligible officer of the agency to apply to an eligible issuing officer for an extension of the time specified under paragraph 3ZZBE(1)(i) by which notice of entry of premises under a delayed notification search warrant is to be given.

(5) An eligible issuing officer may, on application by an eligible officer authorised under subsection (4), extend the time specified under paragraph 3ZZBE(1)(i) by which notice of entry of premises under a delayed notification search warrant is to be given if the eligible issuing officer is satisfied that there are reasonable grounds for continuing to delay notice of entry of the premises.

(6) An eligible issuing officer may, under subsection (5), extend the time specified under paragraph 3ZZBE(1)(i) on more than one occasion, but:

(a) must not extend the time by more than 6 months on any one occasion; and

(b) must not extend the time to more than 12 months after the day on which the delayed notification search warrant was issued unless:

(i) the Minister is satisfied on reasonable grounds that there are exceptional circumstances justifying the extension, and that it is in the public interest to do so; and

(ii) the Minister has issued a certificate approving the application for the extension; and

(iii) the eligible issuing officer is satisfied that there are exceptional circumstances justifying such an extension.

(7) A certificate issued under subsection (6) is not a legislative instrument.

Division 5 - Using, sharing and returning things seized

Subdivision A - Using and sharing things seized

3ZZEA Purposes for which things may be used and shared

Use and sharing of thing by eligible officer or Commonwealth officer

(1) An eligible officer of an eligible agency or a Commonwealth officer may use, or make available to another eligible officer or Commonwealth officer to use, a thing seized under this Part for the purpose of any or all of the following if it is necessary to do so for that purpose:

(a) preventing, investigating or prosecuting an offence;

(b) proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002;

(d) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104 or 105 of the Criminal Code;

(e) investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part;

(f) investigating or resolving an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979) under Part V of that Act;

(g) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988;

(h) investigating or inquiring into a corruption issue under the Law Enforcement Integrity Commissioner Act 2006;

(i) proceedings in relation to a complaint, allegation or issue mentioned in paragraph (e), (f), (g) or (h);

(j) deciding whether to institute proceedings, to make an application or request, or to take any other action, mentioned in any of the preceding paragraphs of this subsection;

(k) the performance of the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979.

(2) An eligible officer of an eligible agency or a Commonwealth officer may use a thing seized under this Part for any other use that is required or authorised by or under a law of a State or a Territory.

(3) An eligible officer of an eligible agency may make available to another eligible officer of an eligible agency or a Commonwealth officer to use a thing seized under this Part for any purpose for which the making available of the thing or document is required or authorised by a law of a State or Territory.

(4) To avoid doubt, this section does not limit any other law of the Commonwealth that:

(a) requires or authorises the use of a thing; or

(b) requires or authorises the making available (however described) of a thing.

Sharing thing for use by State, Territory or foreign agency

(5) An eligible officer of an eligible agency or a Commonwealth officer may make a thing seized under this Part available to:

(a) a State or Territory law enforcement agency; or

(b) an agency that has responsibility for:

(i) law enforcement in a foreign country; or

(ii) intelligence gathering for a foreign country; or

(iii) the security of a foreign country;

to be used by that agency for a purpose mentioned in subsection (1), (2) or (3) and the purpose of any or all of the following (but not for any other purpose):

(d) proceedings under a corresponding law (within the meaning of the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002);

(e) proceedings for the forfeiture of the thing under a law of a State or Territory;

(f) deciding whether to institute proceedings or to take any other action mentioned in any of paragraphs (1)(a) to (k) (inclusive), subsection (2) or (3) or paragraph (c), (d) or (e) of this subsection.

Ministerial arrangements for sharing

(6) This Division does not prevent the Minister from making an arrangement with a Minister of a State or Territory for:

(a) the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (3) and (5), of things seized under this Part; and

(b) the disposal by the agency of such things when they are no longer of use to that agency for those purposes.

Note: This subsection does not empower the Minister to make such an arrangement.

Subdivision B - Returning things seized

3ZZEB When things seized must be returned

(1) If the chief officer of the relevant eligible agency is satisfied that a thing seized under this Part is not required (or is no longer required) for a purpose mentioned in section 3ZZEA or for other judicial or administrative review proceedings, the chief officer must take reasonable steps to return the thing to the person from whom it was seized, or to the owner if that person is not entitled to possess it.

(2) However, the chief officer does not have to take those steps if:

(a) either:

(i) the thing may be retained because of an order under subsection 3ZZEC(1), or any other order under that subsection has been made in relation to the thing; or

(ii) the chief officer has applied for such an order and the application has not been determined; or

(b) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or

(d) a warrant premises occupier’s notice has not been given in relation to the occupier of the warrant premises.

3ZZEC Eligible issuing officer may permit a thing seized to be retained, forfeited etc.

(1) An eligible issuing officer may, on application by an eligible officer of an eligible agency, make any of the orders referred to in subsection (2) in relation to a thing seized under this Part if the eligible issuing officer is satisfied that there are reasonable grounds to suspect that, if the thing is returned to the owner of the thing, or the person from whom the thing was seized, it is likely to be used by that person or another person in the commission of:

(a) a terrorist act or a terrorism offence; or

(b) a serious offence (within the meaning of Part IAA).

(2) The orders are as follows:

(a) an order that the thing may be retained for the period specified in the order;

(b) an order that the thing is forfeited to the Commonwealth;

(i) the thing be sold and the proceeds given to the owner of the thing; or

(ii) the thing be sold in some other way;

(d) an order that the thing is to be destroyed or otherwise disposed of.

(3) If the eligible issuing officer is not satisfied as mentioned in subsection (1), the eligible issuing officer must order that the thing be returned to:

(a) the person from whom the thing was seized; or

(b) if that person is not entitled to possess the thing - the owner of the thing.

Division 6 - Reporting and record-keeping

3ZZFA Reporting on delayed notification search warrants

(1) The executing officer in relation to a delayed notification search warrant, or the applicant for the warrant, must give a written report on the warrant to the chief officer of the authorised agency.

(2) The report must be given to the chief officer of the authorised agency as soon as practicable after:

(a) the day of execution of the warrant; or

(b) if the warrant was not executed - the expiry of the warrant.

(3) The report must:

(a) specify the address, location or other description of the warrant premises; and

(b) state whether or not the warrant was executed; and

(4) If the warrant was executed, the report must also include the following information:

(a) the day of execution of the warrant;

(b) the name of the executing officer;

(d) the name of the occupier of the warrant premises, if known to the executing officer;

(e) whether adjoining premises were entered under the warrant and, if they were, the name of the occupier of the adjoining premises, if known to the executing officer;

(f) the things that were done under the warrant;

(g) without limiting paragraph (f) - details of any thing at the warrant premises:

(i) seized; or

(ii) replaced with a substitute; or

(iii) copied, photographed or otherwise recorded; or

(iv) marked or tagged; or

(v) operated, printed, tested or sampled;

(h) whether or not the execution of the warrant assisted in the prevention or investigation of an eligible offence;

(i) details of compliance with any conditions to which the warrant was subject;

(j) details of any warrant premises occupier’s notice given in relation to the warrant;

(k) details of any adjoining premises occupier’s notice given in relation to the warrant;

(l) details of any directions given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the warrant.

(5) To avoid doubt, if, at the time a report was given, the details in any of paragraphs (4)(j), (k) and (l) were not included because notice or directions had not been given at that time, but are given later, the person who gave the original report under subsection (1) must give a further report under that subsection including those details.

(6) If the warrant was not executed, the report must state the reason why it was not executed.

(7) If the warrant premises were entered after the warrant was executed for the purpose of returning a thing to, or retrieving a thing left at, the premises, a written report in relation to that entry must be provided to the chief officer of the authorised agency. The report must include the following information:

(a) the address, location or other description of the warrant premises;

(b) the date on which the warrant premises were entered for that purpose;

(d) details of the thing returned or retrieved;

(e) if the thing was not returned or retrieved - the reason why the thing was not returned or removed.

(8) A report under subsection (7) must be given as soon as practicable after the warrant premises were entered as mentioned in that subsection.

(9) A report under this section is not a legislative instrument.

3ZZFB Annual reports to Minister

(1) The chief officer of an eligible agency must give a written report to the Minister that includes the following information in respect of each financial year:

(a) the number of applications for delayed notification search warrants made in person by eligible officers of the agency;

(b) the number of applications for delayed notification search warrants made under section 3ZZBF by eligible officers of the agency;

(c) the number of delayed notification search warrants issued as a result of applications referred to in paragraphs (a) and (b) and the eligible offences to which they related;

(d) the number of delayed notification search warrants that were executed by an eligible officer of the agency;

(e) the number of delayed notification search warrants that were executed by an eligible officer of the agency under which:

(i) one or more things were seized from the warrant premises; or

(ii) one or more things were placed in substitution at the warrant premises for a seized thing; or

(iii) one or more things were returned to, or retrieved from, the warrant premises; or

(iv) one or more things were copied, photographed, recorded, marked, tagged, operated, printed, tested or sampled at the warrant premises;

(f) any other information relating to delayed notification search warrants and the administration of this Part that the Minister considers appropriate.

(2) The report for a financial year must be given to the Minister as soon as practicable, and in any event not more than 3 months, after the end of the financial year.

(3) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.

3ZZFC Regular reports to Ombudsman

As soon as practicable after each 6-month period starting on 1 January or 1 July the chief officer of an eligible agency must give a written report to the Ombudsman that includes the following information in respect of the period:

(a) the number of applications for delayed notification search warrants made in person by eligible officers of the agency;

(b) the number of applications for delayed notification search warrants made under section 3ZZBF by eligible officers of the agency;

(c) the number of delayed notification search warrants issued as a result of applications referred to in paragraphs (a) and (b) and the eligible offences to which they related;

(d) the number of delayed notification search warrants that were executed by an eligible officer of the agency.

3ZZFD Keeping documents connected with delayed notification search warrants

The chief officer of an eligible agency must cause the following to be kept:

(a) a copy of each authorisation given in writing by the chief officer under section 3ZZBB;

(b) a copy of the written record made under section 3ZZBB of each authorisation given orally by the chief officer under that section;

(c) a copy of each application for a delayed notification search warrant made by an eligible officer of the agency, and a statement of whether the application was granted or refused;

(d) each delayed notification search warrant issued to an eligible officer of the agency;

(e) a copy of each form of delayed notification search warrant completed under subsection 3ZZBF(7) by an eligible officer of the agency;

(f) a copy of the following:

(i) each warrant premises occupier’s notice given in relation to a delayed notification search warrant issued to an eligible officer of the agency;

(ii) each adjoining premises occupier’s notice given in relation to such a warrant;

(iii) each application made by an eligible officer of the agency under section 3ZZCC;

(iv) any directions given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to such a warrant;

(v) each authorisation given by the chief officer of the agency under subsection 3ZZDC(4);

(vi) each application made by an eligible officer of the agency as mentioned in subsection 3ZZDC(5);

(vii) each extension of time granted under subsection 3ZZDC(5) in response to such an application;

(g) each report given to the chief officer of the agency under section 3ZZFA.

3ZZFE Register of delayed notification search warrants

(1) The chief officer of an eligible agency must cause a register of delayed notification search warrants to be kept.

(2) The register is to specify, for each delayed notification search warrant sought by an eligible officer of the eligible agency:

(a) the date the warrant was issued or refused; and

(b) the name of the eligible issuing officer who issued or refused to issue the warrant; and

(i) the name of the applicant for the warrant and the executing officer; and

(ii) the eligible offence to which the warrant relates; and

(iii) if the warrant was executed - the day of execution of the warrant; and

(iv) the day and time of issue of the warrant, and the time of expiry of the warrant; and

(v) the time by which notice of entry of premises under the warrant is to be given; and

(vi) whether a warrant premises occupier’s notice has been given in relation to the warrant and, if such a notice has been given, the date on which it was given; and

(vii) whether an adjoining premises occupier’s notice has been given in relation to the warrant and, if such a notice has been given, the date on which it was given; and

(viii) details of any extension of time granted under subsection 3ZZDC(5) in relation to the warrant; and

(ix) details of any directions given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the warrant.

(3) The register is not a legislative instrument.

Division 7 - Inspections by Ombudsman

3ZZGA Appointment of inspecting officers

(1) The Ombudsman may appoint members of the Ombudsman’s staff to be inspecting officers for the purposes of this Division.

(2) An appointment under subsection (1) must be in writing.

3ZZGB Inspection of records by the Ombudsman

(1) The Ombudsman must, from time to time and at least once in each 6-month period starting on 1 January or 1 July, inspect the records of each eligible agency to determine the extent of compliance with this Part by the agency, and eligible officers of the agency, in relation to delayed notification search warrants.

(2) For the purpose of an inspection under this section, the Ombudsman:

(a) may, after notifying the chief officer of the eligible agency, enter at any reasonable time premises occupied by the agency; and

(b) is entitled to have full and free access at all reasonable times to all records of the agency that are relevant to the inspection; and

(c) may require a staff member of the agency to give the Ombudsman any information that the Ombudsman considers necessary, being information that is in the member’s possession, or to which the member has access, and that is relevant to the inspection.

(3) The chief officer must ensure that staff members of the agency give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.

(4) Nothing in this section requires the Ombudsman to inspect records that are relevant to the obtaining or execution of a delayed notification search warrant if a warrant premises occupier’s notice has not yet been given in relation to the warrant, unless directions have been made under subsection 3ZZDA(4) or 3ZZDB(4) not requiring such notice to be given.

3ZZGC Power to obtain relevant information

(1) If the Ombudsman has reasonable grounds to believe that a staff member of an eligible agency is able to give information relevant to an inspection under this Division of the agency’s records, subsections (2) and (3) have effect.

(2) The Ombudsman may, by writing given to the staff member, require the staff member to give the information to the Ombudsman:

(a) by writing signed by the staff member; and

(b) at a specified place and within a specified period.

(3) The Ombudsman may, by writing given to the staff member, require the staff member to attend:

(a) before a specified inspecting officer; and

(b) at a specified place; and

to answer questions relevant to the inspection.

(4) If the Ombudsman:

(a) has reasonable grounds to believe that a staff member of an eligible agency is able to give information relevant to an inspection under this Division of the agency’s records; and

(b) does not know the staff member’s identity;

the Ombudsman may, by writing given to the chief officer of the agency, require the chief officer, or a person nominated by the chief officer, to attend:

(d) at a specified place; and

(e) within a specified period or at a specified time on a specified day;

to answer questions relevant to the inspection.

(5) The place, and the period or the time and day, specified in a requirement under this section, must be reasonable having regard to the circumstances in which the requirement is made.

3ZZGD Offence

A person commits an offence if:

(a) the person is required under section 3ZZGC to attend before another person, to give information or to answer questions; and

(b) the person refuses or fails to do so.

Penalty: Imprisonment for 6 months.

3ZZGE Ombudsman to be given information etc. despite other laws

(1) Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be:

(a) would contravene a law; or

(b) would be contrary to the public interest; or

(d) would disclose one of the following:

(i) a legal advice given to a Minister or a Department, or a prescribed authority (within the meaning of the Ombudsman Act 1976);

(ii) a communication between an officer of a Department or of a prescribed authority (within the meaning of the Ombudsman Act 1976) and another person or body, being a communication protected against disclosure by legal professional privilege.

(2) However, if the person is a natural person:

(a) the information, the answer, or the fact that the person has given access to the document, as the case may be; and

(b) any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;

are not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against section 3ZZHA or against Part 7.4 or 7.7 of the Criminal Code.

(3) Nothing in section 3ZZHA or any other law prevents a staff member of an eligible agency from:

(a) giving information to the Ombudsman or an inspecting officer (whether orally or in writing and whether or not in answer to a question); or

(b) giving access to a record of the agency to the Ombudsman or an inspecting officer;

for the purposes of an inspection under this Division of the agency’s records.

(4) Nothing in section 3ZZHA or any other law prevents a staff member of an eligible agency from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (3).

(5) The fact that a person is not excused under subsection (1) from giving information, answering a question or producing a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, answer or document.

3ZZGF Exchange of information between Ombudsman and State or Territory inspecting authorities

(1) The Ombudsman may give information that:

(a) relates to a State or Territory agency; and

(b) was obtained by the Ombudsman under this Division;

to the State or Territory inspecting authority in relation to the agency.

(2) The Ombudsman may only give information to an authority under subsection (1) if the Ombudsman is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to the State or Territory agency.

(3) The Ombudsman may receive from a State or Territory inspecting authority information relevant to the performance of the Ombudsman’s functions under this Division.

(4) In this section:

State or Territory agency means the police force or police service of a State or Territory.

State or Territory inspecting authority , in relation to a State or Territory agency, means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 3ZZGB.

3ZZGG Ombudsman not to be sued

(1) The Ombudsman, an inspecting officer, or a person acting under an inspecting officer’s direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Division.

(2) A reference in this section to the Ombudsman includes a reference to a Deputy Ombudsman or a delegate of the Ombudsman.

3ZZGH Report on inspection

(1) As soon as practicable after each 6-month period starting on 1 January or 1 July the Ombudsman must give a written report to the Minister on the results of each inspection under section 3ZZGB in the period.

(2) If, having regard to information obtained in the course of the inspection or a previous inspection, the Ombudsman considers that the requirements of section 3ZZFB or 3ZZFC have not been properly complied with in relation to an eligible agency, the Ombudsman may include a comment to that effect in the report.

(3) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.

Division 8 - Unauthorised disclosure of information

3ZZHA Unauthorised disclosure of information

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information relates to:

(i) an application for a delayed notification search warrant; or

(ii) the execution of a delayed notification search warrant; or

(iii) a report under section 3ZZFA in relation to a delayed notification search warrant; or

(iv) a warrant premises occupier’s notice or an adjoining premises occupier’s notice prepared in relation to a delayed notification search warrant.

Penalty: Imprisonment for 2 years.

(2) Each of the following is an exception to the offence created by subsection (1):

(a) the disclosure is in connection with the administration or execution of this Part;

(aa) the disclosure is for the purposes of obtaining or providing legal advice related to this Part;

(b) the disclosure is for the purposes of any legal proceeding arising out of or otherwise related to this Part or of any report of any such proceedings;

(d) the disclosure is for the purposes of:

(i) the performance of duties or functions or the exercise of powers under or in relation to this Part; or

(ii) the performance of duties or functions or the exercise of powers by a law enforcement officer, an officer of the Australian Security Intelligence Organisation, a staff member of the Australian Secret Intelligence Service or a person seconded to either of those bodies;

(da) the disclosure is made by anyone to the Ombudsman, a Deputy Commonwealth Ombudsman or a member of the Ombudsman’s staff (whether in connection with the exercise of powers or performance of functions under Division 7, in connection with a complaint made to the Ombudsman or in any other circumstances);

(e) the disclosure is made after a warrant premises occupier’s notice or an adjoining premises occupier’s notice has been given in relation to the warrant;

(f) the disclosure is made after a direction has been given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the warrant.

Note: A defendant bears an evidential burden in relation to a matter in subsection (2) - see subsection 13.3(3) of the Criminal Code.

Division 9 - Other matters

3ZZIA Delegation

Delegation by chief officer

(1) The chief officer of an authorised agency or eligible agency may, in writing, delegate all or any of the chief officer’s powers, functions or duties under this Part to:

(a) a Deputy Commissioner of the Australian Federal Police; or

(b) a senior executive AFP employee who is a member of the Australian Federal Police and who is authorised in writing by the Commissioner for the purposes of this paragraph.

(2) The chief officer of an authorised agency or eligible agency may, in writing, delegate all or any of the chief officer’s powers, functions or duties under Division 5 to the chief executive officer (however described) of a State or Territory law enforcement agency.

(3) The chief officer of an authorised agency or eligible agency may, in writing, delegate all or any of the chief officer’s powers, functions or duties under Division 5 to a Commonwealth officer if the chief officer is satisfied on reasonable grounds that the Commonwealth officer is able to properly exercise those powers, functions or duties.

Delegation by Ombudsman

(4) The Ombudsman may, in writing, delegate all or any of the Ombudsman’s powers under this Part, other than a power to report to the Minister, to an APS employee responsible to the Ombudsman.

Delegate must produce delegation on request

(5) A delegate must, upon request by a person affected by the exercise of any power delegated to the delegate, produce the instrument of delegation, or a copy of the instrument, for inspection by the person.

3ZZIB Law relating to legal professional privilege not affected

Except as expressly provided, this Part does not affect the law relating to legal professional privilege.

Note: Section 3ZZGE expressly overrides legal professional privilege.

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