Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)Schedule 5 - Re-entry of premises in emergency situation
Overview
Currently, section 3J of the Crimes Act 1914 (Crimes Act) allows the police to re-enter a premises under a search warrant within one hour of leaving the premises. This time limitation does not provide sufficient scope for police to re-enter premises if they need to evacuate the premises because they have discovered a threat which could endanger the safety of police officers or the public. For example, under the current section 3J, if a police officer, upon executing a search warrant in the investigation of a Commonwealth offence, discovered a large stockpile of volatile chemicals on the premises requiring the immediate evacuation of all persons from the premises, the police officer would not have enough time to secure the premises and render the chemicals safe before re-entering to commence a search in accordance with the search warrant.
Schedule 5 contains proposed amendments that will modify the search warrant provisions in Part 1AA of the Crimes Act so that, in emergency situations, the time available for law enforcement officers to re-enter premises under a search warrant can be extended to 12 hours, or, where authorised by an issuing authority in exceptional circumstances, a longer time not exceeding the life of the warrant.
Crimes Act 1914
Item 1: Subsection 3C(1)
This item will insert a new definition of 'emergency situation' into subsection 3C(1).
'Emergency situation' will be defined to mean a situation where there are reasonable grounds to believe that there is a serious and imminent threat to a person's life, health or safety that requires officers to leave the premises. For example, upon executing a search warrant, officers may discover explosive material that requires the emergency exit of all personnel.
Item 2: Subsections 3E(1) and (2)
Existing subsections 3E(1) and (2) provide for an issuing officer to issue a warrant to search premises, or to issue a warrant authorising an ordinary search or frisk search of a person, if satisfied by information on oath of certain criteria.
This item will update subsections 3E(1) and (2) to include an option for a person to 'affirm' information or give it on oath when applying for these warrants. Currently, there is not an option for a person to 'affirm' information when giving it to an issuing officer. These proposed amendments will update the provisions to conform to the standardised drafting convention.
Item 3: After paragraph 3J(2)(a)
This item will add a new paragraph to the list of situations for when officers are permitted to re-enter premises while a warrant is being executed.
Proposed paragraph 3J(2)(aa) will provide that, if there is an emergency situation, the executing officer and the constables assisting may resume executing the warrant after they have temporarily ceased its execution and left the premises for no more than 12 hours or, where authorised by an issuing officer, a longer time not exceeding the life of the warrant. An issuing officer is defined in section 3C as a magistrate or a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants. 'Emergency situation' will be defined in section 3C (see item 1).
Item 4: proposed new section 3JA - Extension of time to re-enter premises in emergency situations
This item will insert proposed new section 3JA.
If the executing officer or constable assisting requires longer than 12 hours to re-enter the premises and there is an emergency situation, proposed section 3JA will set out the process for how they may apply to an issuing officer for an extension of that period.
An issuing officer will only be able to extend the period during which the executing officer and constables assisting may be away from the premises if the issuing officer is satisfied that there are exceptional circumstances that justify the extension and the extension would not result in the period ending after the expiry of the warrant.
Item 5: Subsection 3L(7)
Current subsections 3L(4) to (9) deal with the lock down of electronic equipment at premises when executing a search warrant. Under subsection 3L(4), the executing officer or constable assisting can secure equipment for 24 hours in order to get expert assistance. Subsection 3L(7) provides for an executing officer or constable assisting to go to the original issuing officer to get an extension of that 24 hour period.
The current situation is too restrictive if, for example, the original issuing officer is not available when the extension of time is required. For example, it is problematic in circumstances where the issuing officer who issued the warrant is on leave, ill or otherwise unavailable. The proposed amendment in this item will allow the executing officer or constable assisting to go to any issuing officer, rather than the issuing officer that issued the search warrant.