Australian Competition Law

Part XID - Search and Seizure

The following is a simplified outline of this Part:

• This Part sets out an enforcement regime for the purposes of finding out whether there has been a contravention of this Act, Part 20 of the Telecommunications Act 1997 or Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

• Division 2 provides for the appointment of inspectors and the issue of identity cards.

• Division 3 deals with entry to premises with the consent of the occupier of the premises.

• Division 4 deals with entry to premises under a search warrant issued by a magistrate. It sets out the powers available under a search warrant, the obligations of persons entering the premises and the rights and responsibilities of the occupier of the premises.

• Division 5 contains some general provisions relating to the operation of electronic equipment at premises.

Note: See also section 155 (which deals with the obtaining of information, documents and evidence).

154A Definitions

In this Part:

consultant means a person engaged under section 27A.

contravention, in relation to a law, includes an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence against that law.

data includes:

(a) information in any form; or

(b) any program (or part of a program).

data held in a computer includes:

(a) data held in any removable data storage device for the time being held in a computer; or

(b) data held in a data storage device on a computer network of which the computer forms a part.

data storage device means a thing containing, or designed to contain, data for use by a computer.

evidential material means a document or other thing that may afford evidence relating to:

(a) a contravention of this Act; or

(b) a contravention of Part 20 of the Telecommunications Act 1997; or

(d) a contravention of section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part.

executing officer, for a search warrant, means:

(a) the inspector named in the warrant as being responsible for executing the warrant; or

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

inspector means a person appointed as an inspector under section 154B.

occupier, in relation to premises, includes a person present at the premises who apparently represents the occupier.

officer assisting, for a search warrant, means:

(a) an inspector who is assisting in executing the warrant; or

(b) a person authorised under section 154K in relation to the warrant.

premises means:

(a) an area of land or any other place (whether or not it is enclosed or built on); or

(b) a building or other structure; or

(d) a part of any such premises.

search warrant means a warrant issued by a magistrate under section 154X or signed by a magistrate under section 154Y.

thing includes a thing in electronic or magnetic form.

Division 2—Appointment of inspectors and identity cards

154B Appointment of inspectors

(1) The Chairperson may, by writing, appoint a member of the staff assisting the Commission to be an inspector.

Staff member to have suitable qualifications and experience

(2) The Chairperson must not do so unless he or she is satisfied that the staff member has suitable qualifications and experience to properly exercise the powers of an inspector.

Inspector to comply with Chairperson’s directions

(3) An inspector must comply with any directions of the Chairperson in exercising powers or performing functions as an inspector.

154C Identity cards

(1) The Chairperson must issue an identity card to an inspector.

Form of identity card

(2) The identity card must:

(a) be in the form prescribed by the regulations; and

(b) contain a recent photograph of the inspector.

Offence

(3) A person commits an offence if:

(a) the person has been issued with an identity card; and

(b) the person ceases to be an inspector; and

Penalty: 1 penalty unit.

(4) An offence against subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Card lost or destroyed

(5) Subsection (3) does not apply if the identity card was lost or destroyed.

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

Inspector must carry card

(6) An inspector must carry his or her identity card at all times when exercising powers or performing functions as an inspector.

Inspector must produce card on request

(7) An inspector is not entitled to exercise any powers under this Part in relation to premises if:

(a) the occupier of the premises has requested the inspector to produce the inspector’s identity card for inspection by the occupier; and

(b) the inspector fails to comply with the request.

Division 3—Entry to premises with consent

154D Entry with consent

Entry

(1) An inspector may enter premises if:

(a) the Commission, the Chairperson or a Deputy Chairperson has reasonable grounds for suspecting that there may be evidential material on the premises; and

(b) the inspector obtains the consent of the occupier of the premises to enter the premises.

(2) The inspector may be accompanied by any one or more of the following persons (each of whom is an assistant):

(a) another member of the staff assisting the Commission;

(b) a consultant.

Obtaining consent

(3) Before obtaining the consent of a person to enter premises under this Division, the inspector must inform the person that the person may refuse consent.

(4) A consent of a person is not effective for the purposes of this section unless it is voluntary.

154E Powers in relation to premises

(1) The inspector or an assistant may do any of the following after entering premises under this Division:

(a) search the premises, and any thing on the premises, for the evidential material;

(b) make copies of the evidential material found on the premises;

Note: See also Division 5 (which contains provisions relating to the operation of electronic equipment at the premises).

(d) remove the evidential material from the premises with the consent of the owner of the material;

Note: See also subsection (2).

(e) secure the evidential material, pending the obtaining of a search warrant to seize it;

(f) take equipment and material onto the premises, and use it, for any of the above purposes.

Obtaining consent to remove evidential material

(2) Before obtaining the consent of a person to remove evidential material from premises under paragraph (1)(d), the inspector or an assistant must inform the person of the purpose for which the material is required and that the person may refuse consent. A consent of a person is not effective for the purposes of that paragraph unless the consent is voluntary.

154F Operation of electronic equipment at premises

(1) If:

(a) an inspector or an assistant enters premises under this Division; and

(b) he or she believes on reasonable grounds that any data accessed by operating electronic equipment at the premises (including data not held at the premises) might constitute evidential material;

he or she may do only 1 of 2 things.

Removal of documents

(2) One thing he or she may do is operate the equipment or other facilities at the premises to put the data in documentary form and remove the documents so produced from the premises.

Removal of disk, tape or other storage device

(3) The other thing he or she may do is operate the equipment or other facilities at the premises to transfer the data to a disk, tape or other storage device that:

(a) is brought to the premises for the exercise of the power; or

(b) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;

and remove the disk, tape or other storage device from the premises.

Division 4—Entry to premises under a search warrant

Subdivision A—Powers available under a search warrant

154G The things that are authorised by a search warrant

(1) A search warrant that is in force in relation to premises authorises the executing officer or an officer assisting to do any of the following:

(a) enter the premises;

(b) search the premises, and any thing on the premises, for the kind of evidential material specified in the warrant, and seize things of that kind found on the premises;

(d) operate electronic equipment at the premises to see whether the kind of evidential material specified in the warrant is accessible by doing so;

Note: See also Division 5 (which contains provisions relating to the operation of electronic equipment at the premises).

(e) take equipment and material onto the premises, and use it, for any of the above purposes.

(1A) In executing a search warrant that is in force in relation to premises, the executing officer or an officer assisting may:

(a) for a purpose incidental to the execution of the warrant; or

(b) with the written consent of the occupier of the premises;

take photographs, or make video recordings, of the premises or of anything at the premises.

(1B) If a search warrant in relation to premises is being executed, the executing officer and the officers 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 a longer period if the occupier of the premises consents in writing.

Seizing other evidence

(2) If:

(a) the executing officer or an officer assisting, in the course of searching for the kind of evidential material specified in the warrant, finds another thing that he or she believes on reasonable grounds to be evidence of:

(i) an indictable offence against this Act; or

(ii) an indictable offence against Part 20 of the Telecommunications Act 1997; or

(iii) an indictable offence against Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999; or

(iv) an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part; and

(b) he or she believes on reasonable grounds that it is necessary to seize the other thing in order to prevent its concealment, loss or destruction;

then he or she may seize that other thing.

154GA Removing things for examination or processing

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

(a) both of the following subparagraphs apply:

(i) 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;

(ii) there are reasonable grounds to believe that the thing contains or constitutes evidential material; or

(b) the occupier of the premises consents in writing.

Notice to occupier

(2) If a thing is moved to another place for the purpose of examination or processing under subsection (1), the executing officer must, if it is practicable to do so:

(a) inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and

(b) allow the occupier or his or her representative to be present during the examination or processing.

Period of removal

(3) The thing may be moved to another place for examination or processing for no longer than 72 hours.

Extensions

(4) An executing officer may apply to a magistrate 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 72 hours or that time as previously extended.

(5) The executing officer must give notice of the application 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.

(6) The magistrate may order an extension for a period specified in the order if the magistrate is satisfied that the extension is necessary.

154H Operation of electronic equipment at premises

(1) If:

(a) a search warrant is in force in relation to premises; and

(b) the executing officer or an officer assisting believes on reasonable grounds that any data accessed by operating electronic equipment at the premises (including data not held at the premises) might constitute evidential material of the kind specified in the warrant;

he or she may do only 1 of 3 things.

Seizure

(2) One thing he or she may do is seize the equipment and any disk, tape or other associated device.

Note: Subsection (5) sets out limitations on seizure.

Removal of documents

(3) Another thing he or she may do is operate the equipment or other facilities at the premises to put the data in documentary form and remove the documents so produced from the premises.

Note: An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance—see section 154RA.

Removal of disk, tape or other storage device

(4) The final thing he or she may do is operate the equipment or other facilities at the premises to transfer the data to a disk, tape or other storage device that:

(a) is brought to the premises; or

(b) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;

and remove the disk, tape or other storage device from the premises.

Note: An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance—see section 154RA.

Limitation on seizure

(5) A person may seize a thing under subsection (2) only if:

(a) it is not practicable to put the data in documentary form as mentioned in subsection (3) or to transfer the data as mentioned in subsection (4); or

(b) possession of the thing by the occupier could constitute an offence against a law of the Commonwealth.

154J Securing electronic equipment for use by experts

(1) If a search warrant in relation to premises is being executed and the executing officer or an officer assisting believes on reasonable grounds that:

(a) the kind of evidential material specified in the warrant 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.

Notice to occupier

(2) The executing officer or officer assisting must give notice to the occupier of the premises of his or her intention to secure the equipment and of the fact that the equipment may be secured for up to 24 hours.

Period equipment may be secured

(3) 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.

Extensions

(4) If the executing officer or officer assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate for an extension of that period.

(5) The executing officer or officer 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.

(6) The magistrate may order an extension for a period specified in the order if the magistrate is satisfied that the extension is necessary.

Subdivision B—Availability of assistance and use of force in executing a search warrant

154K Authorisation of officers assisting

The executing officer for a search warrant may, by writing, authorise a member of the Australian Federal Police, a member of the staff assisting the Commission, or a consultant, to assist in executing the warrant.

154L Availability of assistance and use of force in executing a search warrant

In executing a search warrant:

(a) the executing officer may obtain such assistance as is necessary and reasonable in the circumstances; and

(b) the executing officer, or another inspector who is an officer assisting, may use such force against persons and things as is necessary and reasonable in the circumstances; and

(ba) a member of the Australian Federal Police who is an officer assisting may use such force against persons and things as is necessary and reasonable in the circumstances; and

(c) a person who is not an inspector, but who is an officer assisting, may use such force against things as is necessary and reasonable in the circumstances.

Subdivision C—Obligations of executing officer and officers assisting

154M Announcement before entry

(1) Before any person enters premises under a search warrant, the executing officer must:

(a) announce that he or she is authorised to enter the premises; and

(b) give any person at the premises an opportunity to allow entry to the premises.

(2) However, 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 that the effective execution of the warrant is not frustrated.

154N Details of warrant to be given to occupier

If a search warrant in relation to premises is being executed and the occupier of the premises is present at the premises, the executing officer or an officer assisting must make available to the occupier a copy of the warrant or a copy of the form of warrant.

Subdivision D—Occupier’s rights and responsibilities

154P Occupier entitled to observe search being conducted

(1) If a search warrant in relation to premises is being executed and the occupier of the premises is present at the premises, the occupier is entitled to observe the search being conducted.

(2) The occupier’s right to observe the search being conducted ends if the occupier impedes the search.

(3) This section does not prevent 2 or more areas of the premises being searched at the same time.

154Q Occupier to provide reasonable facilities and assistance

The occupier of premises in relation to which a search warrant is being executed must provide the executing officer and any officer assisting with all reasonable facilities and assistance for the effective exercise of their powers.

Penalty: 30 penalty units.

154R Answering of questions or producing evidential material

(1) If a search warrant in relation to premises is being executed, the executing officer or an officer assisting may:

(a) require a person at the premises to answer questions or produce evidential material to which the warrant relates; and

(b) seize that evidential material.

(2) A person commits an offence if the person fails to comply with a requirement under subsection (1).

Penalty: 30 penalty units or imprisonment for 12 months, or both.

Self‑incrimination is no excuse

(3) An individual is not excused from answering a question or producing evidential material on the ground that the answer, or the production of the material, might tend to incriminate the individual or make the individual liable to a penalty.

(4) However, the answer is not admissible in evidence against the individual in any criminal proceedings, other than:

(a) proceedings for an offence against subsection (2); or

(b) proceedings for an offence against section 137.1 , 137.2 or 149.1 of the Criminal Code that relates to this Part.

154RA Person with computer knowledge to assist access etc.

(1) The executing officer for a search warrant may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer to do one or more of the following:

(a) access data held in, or accessible from, a computer that is on premises to which the warrant relates;

(b) transfer the data to a disk, tape or other storage device;

(2) The magistrate may grant the order if the magistrate is satisfied that:

(a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer; and

(b) the specified person is:

(i) reasonably suspected of having committed the contravention, or one or more of the contraventions, stated in the search warrant; or

(ii) the owner or lessee of the computer; or

(iii) an employee of the owner or lessee of the computer; and

(i) the computer or a computer network of which the computer forms a part; or

(ii) measures applied to protect data held in, or accessible from, the computer.

(3) A person commits an offence if:

(a) the person is subject to an order under this section; and

(b) the person engages in conduct; and

Penalty for a contravention of this subsection: Imprisonment for 6 months.

Subdivision E—General provisions relating to seizure

154S Copies of seized things to be provided

(1) If, under a search warrant relating to premises, the executing officer or an officer 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;

then he or she must, if requested to do so by the occupier of the premises, give a copy of the thing or the information to the occupier as soon as practicable after the seizure.

(2) However, subsection (1) does not apply if possession of the document, film, computer file, thing or information by the occupier could constitute an offence against a law of the Commonwealth.

154T Receipts for things seized or moved under warrant

(1) If a thing is seized under a search warrant or moved under subsection 154GA(1), the executing officer or an officer assisting must provide a receipt for the thing.

(2) If 2 or more things are seized or moved, they may be covered in the one receipt.

154U Return of seized things

(1) Subject to any contrary order of a court, if a person (the seizer) seizes a thing under this Division, the person must return it if:

(a) the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or

(b) the period of 120 days after its seizure ends;

whichever first occurs, unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

(2) At the end of the 120 days specified in subsection (1), the seizer 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), unless:

(a) proceedings in respect of which the thing may afford evidence were instituted before the end of the 120 days and have not been completed (including an appeal to a court in relation to those proceedings); or

(b) an inspector may retain the thing because of an order under section 154V; or

(c) the seizer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy or dispose of the thing.

154V Magistrate may permit a thing to be retained

Application for extension

(1) An inspector may apply to a magistrate for an order that he or she may retain the thing for a further period if:

(a) before the end of 120 days after the seizure; or

(b) before the end of a period previously specified in an order of a magistrate under this section;

proceedings in respect of which the thing may afford evidence have not commenced.

Grant of extension

(2) If the magistrate is satisfied that it is necessary for the inspector to continue to retain the thing for the purposes of an investigation as to whether there has been:

(a) a contravention of this Act; or

(b) a contravention of Part 20 of the Telecommunications Act 1997; or

(d) a contravention of section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part;

the magistrate may order that the inspector may retain the thing for a period (not exceeding 3 years) specified in the order.

Affect on interested parties

(3) Before making the application, the inspector must:

(a) take reasonable steps to discover who has an interest in the retention of the thing; and

(b) if it is practicable to do so, notify each person whom the inspector believes to have such an interest of the proposed application.

154W Disposal of things if there is no owner or owner cannot be located

If:

(a) a thing is seized under this Division; and

(b) a person would otherwise be required to return the thing to its owner; and

the person may dispose of the thing in such manner as he or she thinks appropriate.

Subdivision F—Search warrants

154X Issue of search warrants

Application for warrant

(1) An inspector may apply to a magistrate for a warrant under this section in relation to premises.

Issue of warrant

(2) The magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that:

(a) there is evidential material on the premises; or

(b) there may be evidential material on the premises within the next 72 hours.

Note: A magistrate who holds office under a law of a State or Territory may issue a warrant in relation to premises even if those premises are not in that State or Territory.

(3) However, the magistrate must not issue the warrant unless the inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.

Content of warrant

(4) The warrant must state:

(a) a description of the premises to which the warrant relates; and

(b) the kind of evidential material that is to be searched for under the warrant (including stating the contraventions to which the warrant relates); and

(d) whether the warrant may be executed at any time of the day or night or during specified hours of the day or night; and

(e) the day (not more than one week after the issue of the warrant) on which the warrant ceases to have effect.

154Y Search warrants by telephone, fax etc.

Application for warrant

(1) If, in an urgent case, an inspector considers it necessary to do so, the inspector may apply to a magistrate by telephone, fax or other electronic means for a warrant under section 154X in relation to premises.

Voice communication

(2) The magistrate may require communication by voice to the extent that it is practicable in the circumstances.

Information

(3) Before applying for the warrant, the inspector must prepare an information of the kind mentioned in subsection 154X(2) in relation to the premises that sets out the grounds on which the warrant is sought. If it is necessary to do so, the inspector may apply for the warrant before the information is sworn or affirmed.

Issue of warrant

(4) If the magistrate is satisfied:

(a) after having considered the terms of the information; and

(b) after having received such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought;

that there are reasonable grounds for issuing the warrant, the magistrate may complete and sign the same warrant that the magistrate would issue under section 154X if the application had been made under that section.

Notification

(5) If the magistrate completes and signs the warrant, the magistrate 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; and

(c) the day (not more than one week after the magistrate completes and signs the warrant) on which the warrant ceases to have effect.

Form of warrant

(6) The applicant must then complete a form of warrant in the same terms as the warrant completed and signed by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the warrant was signed.

Completed form of warrant to be given to magistrate

(7) The applicant must also, not later than the day after the day of expiry or execution of the warrant, whichever is the earlier, send to the magistrate:

(a) the form of warrant completed by the applicant; and

(b) the information referred to in subsection (3), which must have been duly sworn or affirmed.

Attachment

(8) The magistrate is to attach to the documents provided under subsection (7) the warrant completed by the magistrate.

Authority of warrant

(9) A form of warrant duly completed under subsection (6) is authority for the same powers as are authorised by the warrant signed by the magistrate.

(10) If:

(a) it is material, in any proceedings, for a court to be satisfied that an exercise of a power was authorised by this section; and

(b) the warrant signed by the magistrate authorising the exercise of the power is not produced in evidence;

the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.

154Z Offences relating to warrants

(1) An inspector must not make, in an application for a warrant, a statement that the inspector knows to be false or misleading in a material particular.

Penalty: Imprisonment for 2 years.

(2) An inspector must not:

(a) state in a document that purports to be a form of warrant under section 154Y the name of a magistrate unless that magistrate issued the warrant; or

(b) state on a form of warrant under that section a matter that, to the inspector’s knowledge, departs in a material particular from the form authorised by the magistrate; or

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

(i) has not been approved by a magistrate under that section; or

(ii) departs in a material particular from the terms authorised by a magistrate under that section; or

(d) give to a magistrate a form of warrant under that section that is not the form of warrant that the inspector purported to execute.

Penalty: Imprisonment for 2 years.

Subdivision G—Powers of magistrates

154ZA Powers conferred on magistrates

(1) A power conferred on a magistrate by this Division is conferred on the magistrate in a personal capacity and not as a court or a member of a court. The magistrate need not accept the power conferred.

(2) A magistrate exercising such a power has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.

Division 5—General provisions relating to electronic equipment

154ZB Operation of electronic equipment at premises

A person may operate electronic equipment at premises in order to exercise a power under this Part only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

154ZC Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of electronic equipment being operated as mentioned in section 154E, 154F, 154G, 154H or 154J:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; 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.

(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

(5) Compensation is payable out of money appropriated by the Parliament.

(6) For the purposes of subsection (1):

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

Trade Practices Act 1974 (Consolidated to Act 59 of 2009)

Part XID - Search and Seizure