Customs Act 1901

PART XII - OFFICERS  

Division 1 - Powers of officers  

Subdivision C - Search warrants in respect of things believed to be evidential material  

SECTION 201   USE OF ELECTRONIC EQUIPMENT ON OR IN PREMISES  

201(1)  


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 believes on reasonable grounds that:


(a) the data might constitute evidential material; and


(b) the equipment can be operated without damaging it.

Note:

An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 201A .

201(1A)  


If the executing officer or person assisting believes on reasonable grounds that any data accessed by operating the electronic equipment might constitute evidential material, he or she may:


(a) copy the data to a disk, tape or other associated device brought to the premises; or


(b) if the occupier of the premises agrees in writing-copy the data to a disk, tape or other associated device at the premises;

and take the device from the premises.

201(1B)  


If:


(a) the executing officer or person assisting takes the device from the premises; and


(b) the Comptroller-General of Customs is satisfied that the data is not required (or is no longer required) for:


(i) investigating an offence against the law of the Commonwealth, a State or a Territory; or

(ii) judicial proceedings or administrative review proceedings; or

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

the Comptroller-General of Customs must arrange for:


(c) the removal of the data from any device subject to customs control; and


(d) the destruction of any other reproduction of the data subject to customs control.

201(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 on or in the premises, be put in documentary form - operate the facilities to put the material in that form and seize the documents so produced.

201(3)  


The executing officer or a person assisting may seize equipment under paragraph (2)(a) only if it is not practicable to copy the material as mentioned in subsection (1A) or to put the material in documentary form as mentioned in paragraph (2)(b).

201(4)  
If the executing officer or a person assisting believes on reasonable grounds that:


(a) evidential material may be accessible by operating electronic equipment on or in 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.

201(5)  
The executing officer or a person assisting must 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.

201(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 first occurs.

201(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 a judicial officer for an extension of that period.

201(8)  
The executing officer or a person assisting must 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.

201(9)  
The provisions of this Subdivision relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension.


 

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