Senate

Explanatory Memorandum

(Circulated by authority of the Minister for Justice, the Honourable Brendan O'Connor MP)

Schedule 3 - Amendment of the Crimes Act 1914

GENERAL OUTLINE

This Schedule will amend the Crimes Act to:

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extend the application of certain search-related provisions that currently only apply to searches conducted under warrants in relation to premises so they also apply to searches conducted under warrants in relation to a person (Part 1)

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insert rules to govern when documents produced under Division 4B of Part IAA must be returned (Part 2)

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streamline and extend provisions governing applications for, and determination of, orders in relation to things seized and documents produced under Part IAA (Part 2)

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allow the Commissioner to delegate responsibility for dealing with things seized and documents produced under Part IAA to Commonwealth officers legitimately in possession of such items (Part 2), and

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provide police with a standing power to take fingerprints and photographs of arrested persons (Part 3).

Under Division 2 of Part IAA, a search warrant may be issued in relation to a premises or a person. However, some of the provisions governing how searches under warrant are to be conducted are restricted in application to searches of premises, particularly those setting out how electronic equipment may be dealt with. Part 1 of this Schedule will extend some of these provisions to help police deal more effectively with electronic equipment located during a search under a warrant in relation to a person.

Division 4C of Part IAA sets out how things seized and documents produced under that Part may be used or shared and the return obligations that apply to seized things. Part 2 of this Schedule will insert provisions to apply the same return requirements to documents produced under Division 4B as currently apply to things seized under Divisions 2 and 4. It will also allow orders to prevent things or documents being used in terrorist acts, terrorism offences or serious offences to be made regardless of which Division of Part IAA a thing or document was obtained under. Provisions governing orders in relation to things seized and documents produced will be streamlined and certain safeguards extended. An additional delegation provision will also be inserted by Part 2 so that responsibility for dealing with things seized and documents produced under Part IAA can be delegated to a Commonwealth officer who has legitimate possession of an item.

Part 3 of this Schedule will introduce a new standing power for police to take fingerprints and photographs of arrested persons when taking them in to custody in relation to a Commonwealth offence. This amendment will provide police with a fast and reliable way of confirming the identity of suspects and improve processes for establishing and maintaining accurate records of arrests, which will in turn ensure that records of arrest are admissible in court proceedings.

Part 1 - Amendments relating to warrants issued in relation to persons

Crimes Act 1914

Division 2, Part IAA of the Crimes Act governs the issue and execution of search warrants under that Act. Under section 3E, a warrant may be issued to search premises or to search a person. A warrant may be issued authorising an ordinary search or a frisk search of a person if the issuing officer is satisfied that there are reasonable grounds for suspecting that the person has in his or her possession (or will have, within the next 72 hours) any evidential material.

A warrant in force in relation to a person authorises the executing officer or a constable assisting to search the person as specified in the warrant, and things found in the possession of the person and any recently used conveyance, for things of the kind specified in the warrant.

Some of the provisions governing how searches under warrant are to be conducted are restricted in application to searches of premises, particularly those setting out how electronic equipment may be dealt with. This Part will extend some of these provisions to help police deal more effectively with electronic equipment located during a search under a warrant in relation to a person. Specifically, the amendments will:

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enable a thing found during a search under a warrant in relation to a person to be moved to another place for examination and processing if certain conditions are met, or if the person consents in writing

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clarify how electronic equipment may be operated if it has been moved to another location for examination or processing

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provide for orders to be made requiring a specified person to provide information and assistance with accessing or copying data from a computer or data storage device moved or seized under a warrant in relation to a person

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require that if data held at a premises is accessed by operating electronic equipment found during a search under a warrant in relation to a person, the executing officer must notify the occupier of that premises, and

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provide that the Commonwealth must pay reasonable compensation if:

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damage is caused to equipment, data recorded on the equipment or data to which access was obtained from the operation of the equipment, or

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damage or corruption to programs associated with the use of the equipment, or with the use of data recorded on the equipment or data to which access was obtained from the operation of the equipment

because insufficient care was exercised in selecting the person who was to operate the equipment or in the operation of the equipment, where it has been moved or seized under a warrant in relation to a person.

Warrants issued in relation to premises may also authorise a search of a person who is at or near the premises when the warrant is executed if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession. The amendments in this Part do not affect how these searches may be conducted. Searches of persons under a warrant issued in relation to premises will continue to operate as part of a search of the relevant premises.

Items 1 to 9

Section 3K governs the use of equipment to examine and process things found at warrant premises, including when they may be moved to another place for examination or processing. These items will amend section 3K to enable a thing found during a search under a warrant in relation to a person to be moved to another place for examination and processing if certain conditions are met, or if the person consents in writing. They will also apply the same procedural requirements, including those relating to time limits, when a thing found during a search under a warrant in relation to a person is moved as when a thing is moved from warrant premises.

Item 1

This item will amend subsection 3K(1) to clarify that it continues to apply only to searches under a warrant in relation to premises.

Items 2 to 4

Subsection 3K(2) allows a thing to be moved from warrant premises to another place for examination or processing to determine whether it may be seized if:

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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

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the executing officer or constable assisting suspects on reasonable grounds that it contains or constitutes evidential material, or

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the occupier consents in writing.

These items will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved to another place for examination or processing under equivalent circumstances. It is now possible for a person to possess large amounts of data on equipment that can be carried in, for example, their pockets, backpack or handbag. This could include data held on a laptop computer, smartphone or USB drive. These amendments will allow things to be taken to another place for examination if the person referred to in paragraph 2(b) or (c) consents or if the other conditions outlined above are met. If a thing is to be moved with consent under a warrant in relation to a person, written consent of the person in relation to whom the warrant is in force will be required. If a thing is to be moved with consent under a warrant in relation to premises, written consent of the occupier of the premises will be required as is currently the case.

Items 5 and 6

Subsection 3K(3) requires that where a thing is moved to another place for examination or processing under subsection 3K(2), the executing officer must, if practicable:

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inform the occupier of the warrant premises of the address of the place and the time at which the examination or processing will be carried out, and

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

Exceptions to these general obligations apply under subsection 3K(3AA), where an executing officer need not comply with one or both if he or she believes on reasonable grounds that to do so might endanger the safety of a person or prejudice an investigation or prosecution.

Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved for examination or processing. These items will amend subsection 3K(3) so that an executing officer has the same obligations to the person in relation to whom a warrant was issued as an officer currently has to the occupier of warrant premises.

Items 7 and 8

Subsections 3K(3A) to 3K(3D) govern how long a thing may be moved for examination or processing under subsection 3K(2), including the process for extensions to the initial time allowed. Under subsection 3K(3A), a thing may be moved for an initial period of no longer than 14 days. Under subsection 3K(3B), an executing officer may apply to an issuing officer for one or more extensions if he or she believes on reasonable grounds that the thing cannot be examined or processed within the available time. Under subsection 3K(3C), an executing officer must give notice of the application to the occupier of the warrant premises and the occupier is entitled to be heard in relation to the application. Subsection 3K(3D) provides that a single extension cannot exceed seven days.

Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved for examination or processing. These items will amend subsection 3K(3C) to make the same rights available to the person in relation to whom a warrant was issued as currently exist for the occupier of warrant premises. The provisions in subsections 3K(3A), (3B) and (3D) will apply by virtue of amendments to subsection 3K(2) that will be made by items 2 to 4.

Item 9

This item will amend subsection 3K(4) to clarify that it continues to apply only to searches under a warrant in relation to premises.

Item 10

Section 3L governs the use of electronic equipment at warrant premises. This item will amend subsection 3L(1) to clarify that section 3L continues to apply only to searches under a warrant in relation to premises.

Items 11 and 12

Section 3LAA governs what an executing officer or constable assisting may do with electronic equipment moved from warrant premises to another place for examination or processing under subsection 3K(2). Briefly, this section provides that:

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an executing officer or constable assisting may operate the equipment to access data (subsection (1))

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if the executing officer or constable assisting suspects on reasonable grounds that any data accessed constitutes evidential material, he or she may copy any or all of the data to a disk, tape or similar device (subsection (2))

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the Commissioner must remove or destroy data copied under subsection 3LAA(2) if it is no longer needed for a purpose specified in section 3ZQU or for other judicial or administrative review proceedings (subsection (3))

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the equipment may be seized or the data put into documentary form and the documents seized if the executing officer or constable assisting finds, after operating the equipment, that evidential material is accessible (subsection (4)), and

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an executing officer or constable assisting may only seize equipment under paragraph 3LAA(4)(a) if it would be impractical to copy the data from the equipment or put it in documentary form, or if possession of the equipment by the occupier could constitute an offence (subsection(5)).

As items 2 to 4 will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved for examination or processing, these items will amend subsections 3LAA(1) and (5) so that section 3LAA applies in the same way to equipment moved in such circumstances.

Items 13 to 15

Section 3LA allows a constable to apply to a magistrate for an order requiring a specified person to provide information or assistance with accessing or copying data from a computer or data storage device, and for a magistrate to grant such an order. A magistrate may make such an order if he or she is satisfied that there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, a computer or data storage device that:

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is on warrant premises

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has been moved from warrant premises under subsection 3K(2) and is at another place for examination or processing, or

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has been seized under Division 2 and is no longer on warrant premises.

The magistrate must also be satisfied that the specified person falls within one of the categories in paragraph 3LA(2)(b) and has relevant knowledge of the computer, device or computer network of which it forms a part or measures applied to protect data held in, or accessible from, the computer or device.

Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved for examination or processing. Item 13 will amend subparagraph 3LA(1)(a)(ii) to enable an order to also be made in relation to a computer or data storage device found during a search under a warrant in relation to a person that has been moved under subsection 3K(2) as amended.

Section 3ZQV allows police to operate electronic equipment seized under Part IAA, including where it has been seized under a warrant in relation to a person, to determine whether data that is evidential material is held on, or accessible from, the equipment and obtain access to such data. However, police are currently unable to seek an assistance order under section 3LA in relation to equipment seized under a warrant in relation to a person if they are unable to operate it as a result of data encryption or password protection. Item 14 will amend subparagraph 3LA(1)(a)(iii) to enable an order to be made in such circumstances.

These amendments will help police to properly examine electronic equipment moved or seized under a warrant in relation to a person by providing access to a mechanism for assistance already available in relation to equipment moved or seized from warrant premises.

Item 15 will repeal part of a note to subsection 3LA(3) which clarified that a further order under section 3LA made in relation to a thing after it has been seized and removed from warrant premises may specify conditions relating to the provision of the information or assistance, as this is already clear from subsection 3LA(4). Paragraphs 3LA(4)(a) and (b) provide that if the computer or data storage device is not on warrant premises, the order must specify the period within which and the place at which the person must provide information or assistance. Paragraph 3LA(4)(c) provides that the order must specify any other conditions the magistrate determines should apply to the requirement on the person to provide the information or assistance.

As a computer or data storage device moved or seized under a warrant in relation to a person would not be on warrant premises, the requirements in subsection 3LA(4) will apply to all orders under section 3LA made in relation to such items.

Items 16 to 18

Section 3LB requires that where electronic equipment is operated to access data not held on warrant premises, the occupier of the other premises must, if it is practicable to do so, be notified as soon as possible that the data was accessed. The section applies if data is accessed under subsection 3L(1), which allows equipment at a warrant premises to be operated at the premises, or subsection 3LAA(1), which allows equipment moved to another place under subsection 3K(2) to be operated.

Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved for examination or processing. Item 11 will amend subsection 3LAA(1) so that section 3LAA will also apply to electronic equipment found during a search under a warrant in relation to a person that has been moved for examination or processing under subsection 3K(2) as amended. These items will amend section 3LB as a consequence of the amendments to be made by items 2 to 4 and item 11. In particular, they will insert notification requirements where data held on premises is accessed as a result of equipment moved from a search under a warrant in relation to a person being operated under subsection 3LAA(1).

Item 16 will repeal existing paragraph 3LB(1)(a) and replace it with new paragraphs 3LB(1)(a) and (aa). If the relevant warrant was issued in relation to premises, notification will be required if the data accessed is held on premises other than that for which the warrant was issued. If the relevant warrant was issued in relation to a person, notification will be required if the data accessed is held on any premises. For example, a person in relation to whom a warrant is in force might be carrying a laptop computer that is networked to other computers at their place of work. If the computer was removed from the person for examination under subsection 3K(2) and data held at their workplace was then accessed under subsection 3LAA(1), the notification requirements would apply.

Item 17 will amend paragraph 3LB(1)(b) so that the requirement is to notify the occupier of the premises on which the data is held, instead of the occupier of the 'other premises', as for warrants in relation to persons, there is no initial premises. Similarly, item 18 will amend subsection 3LB(2) so that the notification must include sufficient information to allow the occupier of the premises on which the data is held, instead of the occupier of the 'other premises', to contact the executing officer.

Item 19

Section 3M provides for the payment of compensation for damage caused to electronic equipment, data or programs and corruption of programs resulting from equipment being operated under section 3K, 3L or 3LAA. Compensation is payable if the damage or corruption occurred because insufficient care was exercised in either selecting the person who was to operate the equipment or in operating the equipment.

Subsection 3M(2) provides that the Commonwealth must pay such reasonable compensation as the Commonwealth and the owner of the equipment or user of the data or programs agree on. If agreement cannot be reached, subsection 3M(3) provides that the owner or user may institute proceedings for such reasonable amount of compensation as a court of competent jurisdiction determines. Subsection 3M(4) currently provides that in making such a determination, regard is to be had to whether the occupier of the warrant premises, or his or her employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment. This provision was included to minimise compensation in cases where software has been deliberately programmed to cause damage if not accessed in a particular manner or where someone fails to mitigate damage by providing warning or guidance where they are able to do so.

Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved for examination or processing. Item 11 will amend subsection 3LAA(1) so that section 3LAA will also apply to electronic equipment found during a search under a warrant in relation to a person that has been moved for examination or processing under subsection 3K(2) as amended.

This item will repeal and replace subsection 3M(4). The effect will be to provide that if equipment was operated under a warrant issued in relation to a person, regard is to be given to whether that person or his or her agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment. If it was operated under a warrant issued in relation to a premises, the obligation will remain the same as it is currently.

References to 'under a warrant' in new subsection 3M(4) are intended to capture the operation of equipment under section 3LAA both while the relevant warrant is in force and afterwards, provided there is proper legal authority for the operation of the equipment. Under section 3K, things may be moved for examination or processing for an initial period of up to 14 days, with provision for one or more extensions of up to seven days. Search warrants issued under Division 2, Part IAA of the Crimes Act may remain in force for up to seven days. This means that in some circumstances, equipment moved under section 3K may be operated under section 3LAA after the warrant has ceased to be in force.

Items 20 and 21

Section 3ZQV clarifies what may be done with electronic equipment seized under Part IAA or moved from warrant premises under section 3K for examination or processing. Broadly, section 3ZQV:

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clarifies that equipment may be operated at any location after it has been seized or moved, for the purpose of determining whether data held on or accessible from the electronic equipment is evidential material, and obtain access to such data (subsection (2))

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allows that data held on the equipment or accessible from it may be accessed even if it was not held on, or accessible from, the equipment at the time it was seized or moved (subsection (3))

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clarifies that the equipment may be operated before or after the expiry of the relevant warrant (subsection (4)), and

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makes it clear that the section does not limit the operation of other relevant provisions in Part IAA (subsection (5)).

Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved for examination or processing. Item 20 will amend subsection 3ZQV(1) so that section 3ZQV also applies to equipment moved in such circumstances. Item 21 will make a consequential amendment to an explanatory note that accompanies subsection 3ZQV(5).

Item 22

Section 3ZQW provides for the payment of compensation for damage caused to electronic equipment, data or programs and corruption of programs resulting from equipment being operated under section 3ZQV (which is outlined at items 20 and 21 above). Compensation is payable if the damage or corruption occurred because insufficient care was exercised in either selecting the person who was to operate the equipment or in operating the equipment.

Subsection 3ZQW(2) provides that the Commonwealth must pay such reasonable compensation as the Commonwealth and the owner of the equipment or user of the data or programs agree on. If agreement cannot be reached, subsection 3ZQW(3) provides that the owner or user may institute proceedings for such reasonable amount of compensation as a court of competent jurisdiction determines. Subsection 3ZQW(4) currently requires that if the equipment was seized or moved from premises, regard is to be had in making such a determination to whether the occupier of the warrant premises, or his or her employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment. This subsection was based on section 3M, which was included to minimise compensation in cases where software has been deliberately programmed to cause damage if not accessed in a particular manner or where someone fails to mitigate damage by providing warning or guidance where they are able to do so.

Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved for examination or processing. Item 20 will amend subsection 3ZQV(1) so that section 3ZQV also applies to equipment moved in such circumstances. As a consequence of these changes, and to properly capture warnings or guidance offered or withheld where a thing is seized other than from premises under Part IAA, this item will repeal and replace subsection 3ZQW(4).

New subsection 3ZQW(4) will provide that in determining the amount of compensation payable, regard is to be had to whether any appropriate warning or guidance was provided on the operation of the equipment before it was operated under section 3ZQV. The subsection is drafted broadly to capture anyone capable of providing such warning or guidance before electronic equipment is operated under section 3ZQV whether it was:

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moved for examination or processing under section 3K(2) under a warrant in relation to premises or a person

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seized under a Division 2, Part IAA search warrant

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seized under Division 3 of Part IAA, which provides powers to stop and search conveyances

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seized under Division 3A of Part IAA, which provides powers to stop, question and search persons in relation to terrorist acts, or

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seized under Division 4 of Part IAA, which covers arrest and related matters.

Electronic equipment may be operated under section 3ZQV having been seized under any of the above provisions, many of which cover seizure not just from premises, but from persons. It is important for subsection 3ZQW(4) to match the scope of circumstances under which equipment may be operated under section 3ZQV.

Item 23

Sub-item 23(1) is an application provision that provides that all amendments in this Schedule, other than those made by items 14 and 22, will only apply to warrants issued in relation to a person after the Schedule commences. This will mean that if a warrant is issued before commencement but executed after commencement, the amendments made by items 1 to 13 and 15 to 21 will not apply.

Sub-item 23(2) is an application provision that provides that the amendment made by item 14 of this Schedule will apply in relation to any thing seized under Division 2 of Part IAA, whether before or after the Schedule commences. This provision is retrospective in application but does not create retrospective criminal liability. It provides that an order requiring a person to provide assistance with a computer or data storage device may be sought from commencement in relation to a thing seized under a warrant in relation to a person, regardless of whether the thing was seized before or after this Schedule commences. This is necessary to allow police to deal appropriately with evidence that they have lawfully acquired prior to the commencement of the amendment made by item 14. In the absence of such a provision, police would be required to separate material seized pre-amendment and post-amendment, which would impose a considerable and impractical burden on the storage of evidence.

Sub-item 23(3) is an application provision that provides that the amendment made by item 22 will apply in relation to applications instituting compensation proceedings in relation to damage caused to equipment under section 3ZQV that are made after the Schedule commences. It could create practical difficulties for courts if this amendment were to apply to proceedings instituted before commencement but heard after commencement, as the matters to which the court would be required to have regard would change while proceedings were on foot.

Part 2 - Amendments relating to retention etc. of things seized and documents produced

Crimes Act 1914

Part IAA of the Crimes Act contains the search, information gathering, arrest and related powers available under the Act. Subdivision A, Division 4C of Part IAA governs the use and sharing of:

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things seized under a search warrant issued under Division 2

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things seized under powers in Division 3 to stop and search conveyances without a warrant

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things seized under powers in Division 3A to stop and search persons in relation to terrorist acts without a warrant

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things seized under arrest related search powers in Division 4, and

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documents produced under a request or notice issued under Division 4B.

Subdivisions B, C and D govern the return of things seized under Divisions 2 and 4, 3 and 3A respectively. There are currently no provisions dealing with the return of documents produced under Division 4B.

This Part will make three key changes to Division 4C. The first set of amendments will insert rules about when documents produced under Division 4B must be returned to the person who produced them or to the owner. The return requirements will be the same as those that currently apply in relation to things seized under Divisions 2 or 4.

The second set of amendments will streamline and extend provisions governing applications for, and determination of, various orders in relation to things seized and documents produced. This will include allowing orders to prevent things or documents being used in terrorist acts, terrorism offences or serious offences to be sought and made regardless of which Division of Part IAA a thing or document was obtained under. These amendments will also require certain things of the Commissioner and a magistrate determining an application for an order to ensure that the rights of persons with an interest in a thing or document for which an order is sought are protected. This will extend obligations that currently exist only in relation to certain orders or on a more limited basis so that they apply to all orders in relation to things seized and documents produced.

The final amendment will be an additional delegation power for the Commissioner. While the return obligations and ability to apply for orders rest with the Commissioner, section 3ZW allows the Commissioner to delegate to a constable any or all of his or her powers, functions or duties under Part IAA. An amendment to this section will enable the Commissioner to delegate to a Commonwealth officer responsibilities under Division 4C relating to returning things seized and documents produced. This is consistent with the use and sharing provisions in section 3ZQU, which allow seized material and documents produced to be shared with a constable or a Commonwealth officer for a range of purposes. The Commissioner will only be able to make this delegation if he or she is satisfied on reasonable grounds that the officer is able to properly exercise the relevant powers, functions or duties.

Item 24

This item will insert a definition of terrorist act in subsection 3(1), which contains definitions of general application throughout the Crimes Act. The existing identical definitions currently in section 3UA, subsection 3ZQM(7) and subsection 3ZQZA(4) will be repealed by items 27, 28 and 38.

Terrorist act will be defined to have the same meaning as in subsection 100.1(1) of the Criminal Code. This is how the term was defined under each of the definitions being repealed.

Item 25

This item will replace a reference to section 3ZQZ in the definition of magistrate in subsection 3C(1) with a reference to section 3ZQZB. Section 3ZQZ will be repealed by item 34, and orders that may currently be made by a magistrate under that section will be able to be made under section 3ZQZB as amended by item 39.

Item 26

Section 3CA provides that the functions of making an order conferred on a magistrate by particular sections of the Crimes Act are conferred on a magistrate in a personal capacity and not as a court or a member of a court. It also sets out the effects of the conferral and provides that the Governor-General may make arrangements with the head of a State, the Australian Capital Territory, the Northern Territory or Norfolk Island for the performance by magistrates of the function of making those orders.

This item will replace references to section 3ZQZ throughout section 3CA with references to section 3ZQZB. Section 3ZQZ will be repealed by item 34, and orders that may currently be made by a magistrate under that section will be able to be made under section 3ZQZB as amended by item 39. This item also clarifies that the function of making an order currently available under section 3ZQZB and retained in that section as amended is conferred on a magistrate in a personal capacity.

Item 27

This item will repeal the definition of terrorist act in section 3UA. Item 24 will insert an identical definition in subsection 3(1), which contains definitions of general application throughout the Crimes Act.

Item 28

This item will repeal the definition of terrorist act in subsection 3ZQM(7). Item 24 will insert an identical definition in subsection 3(1), which contains definitions of general application throughout the Crimes Act.

Item 29

This Part will amend Division 4C of Part IAA to streamline provisions governing orders that may be made in relation to things seized under Part IAA. Current Subdivisions B, C and D will be consolidated into a single Subdivision. This item will repeal the current heading for Subdivision B and replace it with a heading that reflects the amended content of that Subdivision.

Item 30

Section 3ZQX governs when a thing seized under Division 2 or 4 must to be returned to the person from whom it was seized, or to the owner of the thing. Subsection 3ZQX(1) places a general obligation on the Commissioner to take reasonable steps to return a thing when he or she is satisfied that it is not required, or is no longer required, for a purpose set out in section 3ZQU, or for other judicial or administrative review proceedings. Subsection 3ZQX(2) outlines exceptions to the general obligation to take steps to return a thing.

Under existing subection 3ZQZB(4) a magistrate may make certain orders in relation to things seized under Division 3A of Part IAA, which provides powers to stop, question and search persons in relation to terrorist acts. Such orders are available to prevent a seized thing from having to be returned to the owner if a magistrate is satisfied that there are reasonable grounds to suspect that if it were, it would be likely to be used in the commission of a terrorist act, terrorism offence or serious offence. Item 39 will repeal existing section 3ZQZB and replace it with a new section to cover all orders in relation to things and documents produced under Part IAA. This will allow orders currently only available under subsection 3ZQZB(4) in relation to things seized under Division 3A to be made in relation to any thing seized or document produced under Part IAA.

As a consequence of amendments made by item 39, this item will insert a new exception to the general obligation to return a thing seized under Division 2 or 4 into subsection 3ZQX(2). New paragraph 3ZQX(2)(aa) will provide that the Commissioner does not need to take reasonable steps to return a thing if:

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the thing may be retained, sold, destroyed or otherwise disposed of, or is forfeited to the Commonwealth, because of an order under subsection 3ZQZB(3), or

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the Commissioner has applied for such an order and the application has not been determined.

New subsection 3ZQZB(3) is outlined in detail in the description of item 39 below.

Item 31

Sections 3ZQX, 3ZQY, 3ZQZ, 3ZQZA and 3ZQZB in Division 4C of Part IAA set out when material seized under different provisions in that Part must be returned, but do not currently address the return of documents produced under Division 4B.

Division 4B allows an authorised AFP officer to:

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require information or documents relevant to a matter that relates to the doing of a terrorist act from an operator of an aircraft or ship

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issue a person with a notice to produce documents that are relevant to, and that will assist, the investigation of a serious terrorism offence, and

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apply to a Federal Magistrate for a notice requiring a person to produce documents that are relevant to, and that will assist, the investigation of a serious offence.

The document must relate to one of the matters set out in section 3ZQP. Among the matters listed are determining whether an account is held by a specified person with a specified institution and determining whether assets have been transferred to or from a specified person between specified dates.

Authorised AFP officer is defined in section 3ZQL to mean the Commissioner, a Deputy Commissioner or a senior executive AFP employee who is both a member of the AFP and authorised in writing by the Commissioner for the purpose of the definition. Serious terrorism offence and serious offence are both defined in subsection 3C(1).

This item will insert new provisions to apply the same return requirements to documents produced under Division 4B as currently apply to things seized under a Division 2 search warrant or arrest related search and seizure powers in Division 4.

Subsection 3ZQX(3)

This subsection will place a general obligation on the Commissioner to take reasonable steps to return a document once he or she is satisfied that it is not required, or is no longer required, for a purpose referred to in section 3ZQU, or for other judicial or administrative review proceedings. It will require the document to be returned to the person who produced the document under Division 4B or to the owner, if the person who produced it is not entitled to possess it. This is consistent with current provisions relating to things seized under Divisions 2 and 4.

Section 3ZQU provides that originals and copies of documents produced under Division 4B of Part IAA and things seized under that Part may be used or shared by constables and Commonwealth officers for a range of purposes. Among the purposes for which something may used are preventing, investigating or prosecuting an offence, proceedings for the forfeiture of the thing under a law of the Commonwealth and proceedings for Commonwealth control orders or preventative detention orders.

The reference to judicial or administrative review proceedings, consistent with current provisions of this Part, is important as documents obtained under Division 4B may be needed for proceedings outside the scope of uses listed in section 3ZQU. For example, where a challenge to a notice to produce is brought before a court it may be necessary to provide documents produced as evidence in those proceedings as proof that they were properly obtained.

Subsection 3ZQX(4))

This subsection will outline exceptions to the general obligation to take steps to return a document imposed under subsection 3ZQX(3).

Under paragraph 3ZQX(4)(a), the Commissioner will not need to take reasonable steps to return a document produced under Division 4B if:

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the document may be retained, destroyed or otherwise disposed of, or is forfeited to the Commonwealth, because of an order under subsection 3ZQZB(3), or

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the Commissioner has applied for such an order and the application has not been determined.

New subsection 3ZQZB(3) will be inserted by item 39, and is outlined in detail in the description of that item below.

Under paragraphs 3ZQX(4)(b) and (c), the Commissioner will not need to take reasonable steps to return a document produced under Division 4B if:

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it may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth, or a State or Territory, or

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it is forfeited or forfeitable to the Commonwealth, or is the subject of a dispute as to ownership.

These are the same exceptions that apply to the general obligation to return a thing seized under Division 2 or 4.

Item 32

This Part will amend Division 4C of Part IAA to streamline provisions governing orders that may be made in relation to things seized under Part IAA. Current Subdivisions B, C and D will be consolidated into a single Subdivision. Accordingly, this item will repeal the heading for Subdivision C.

Item 33

Section 3ZQY governs when a thing seized under Division 3 must to be returned to the person from whom it was seized, or to the owner of the thing if that person is not entitled to possess it. Subsection 3ZQY(1) places a general obligation on the Commissioner to take reasonable steps to return a thing when he or she is satisfied that it is not required, or is no longer required, for a purpose set out in section 3ZQU, or for other judicial or administrative review proceedings.

Subsection 3ZQY(2) outlines exceptions to the general obligation to take steps to return a thing imposed under subsection 3ZQY(1). Paragraph 3ZQY(2)(b) provides that the Commissioner does not need to take reasonable steps to return a thing if the thing may be retained because of an order under section 3ZQZ. Item 34 will repeal section 3ZQZ, as orders currently available under that section will now be made under new section 3ZQZB, inserted by item 39.

Item 39 will repeal existing section 3ZQZB and replace it with a new section to cover all orders in relation to things and documents produced under Part IAA. New subsection 3ZQZB(3) will allow orders currently only available under subsection 3ZQZB(4) in relation to things seized under Division 3A to be made in relation to any thing seized or document produced under Part IAA.

As a consequence of amendments made by item 39, this item will repeal and replace paragraph 3ZQY(2)(b). New paragraph 3ZQY(2)(b) will provide that the Commissioner does not need to take reasonable steps to return a thing if:

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the thing may be retained, sold, destroyed or otherwise disposed of, or is forfeited to the Commonwealth, because of an order under subsection 3ZQZB(2) or (3), or

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the Commissioner has applied for such an order and the application has not been determined.

New section 3ZQZB is outlined in detail in the description of item 39 below.

Item 34

This item will repeal section 3ZQZ, as orders currently available under that section will now be made under new section 3ZQZB, inserted by item 39.

Item 35

This Part will amend Division 4C of Part IAA to streamline provisions governing orders that may be made in relation to things seized under Part IAA. Current Subdivisions B, C and D will be consolidated into a single Subdivision. Accordingly, this item will repeal the heading for Subdivision D.

Item 36

Section 3ZQZA governs when a thing seized under Division 3A must to be returned. Subsection 3ZQZA(1) places a general obligation on the Commissioner to take reasonable steps to return a thing if the owner requests its return. Subsection 3ZQZA(2) outlines exceptions to the general obligation to take steps to return a thing imposed under subsection 3ZQZA(1). It provides that the Commissioner does not need to take reasonable steps to return a thing if he or she:

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suspects on reasonable grounds that if the thing is returned to the owner, the thing is likely to be used by the owner or another person in the commission of a terrorist act, a terrorism offence or a serious offence, or

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is satisfied that the thing is being used, or is required to be used, for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings.

Despite these general exceptions, subsection 3ZQZA(3) requires the Commissioner to either take reasonable steps to return the thing or to apply to a magistrate for an order under section 3ZQZB if the owner requests the return of a thing within a certain period. Orders under section 3ZQZB may currently only be sought if subsection 3ZQZA(3) applies.

This item will insert three new exceptions to the general obligation to return a thing seized under Division 3A into subsection 3ZQZA(2). Paragraph 3ZQZA(2)(c) will provide that the Commissioner does not need to take reasonable steps to return a thing if:

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the thing may be retained, sold, destroyed or otherwise disposed of, or is forfeited to the Commonwealth, because of an order under subsection 3ZQZB(2) or (3), or

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the Commissioner has applied for such an order and the application has not been determined.

Section 3ZQZB will be repealed and replaced by item 39 so that it covers all orders in relation to things and documents produced under Part IAA. New section 3ZQZB is outlined in detail in the description of item 39 below.

Paragraphs 3ZQZA(2)(d) and (e) will provide that the Commissioner does not need to take reasonable steps to return a thing if:

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it may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or a State or Territory, or

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it is forfeited or forfeitable to the Commonwealth, or is the subject of a dispute as to ownership.

These exceptions are consistent with those that apply to the general obligation to return a thing seized under Division 2, 3 or 4 and those that will apply to documents produced under Division 4B under amendments made by item 31.

This item, with item 39, will also allow the Commissioner to apply for an order under section 3ZQZB, as amended by item 39, whether or not the owner of a thing seized under Division 3A has requested its return within the requisite period. This will enable orders to be sought so that a thing can be finally dealt with instead of being retained indefinitely where such a request has not been made but it would not be appropriate to return the thing to the owner.

Item 37

This item will clarify the existing application of subsection 3ZQZA(3) by providing that the obligations under that subsection apply despite the general exceptions to the obligation to return a thing seized under Division 3A set out in subsection 3ZQZA(2).

Item 38

This item will repeal subsection 3ZQZA(4), which provides a definition of terrorist act for the purposes of section 3ZQZA. Item 24 will insert an identical definition in subsection 3(1), which contains definitions of general application throughout the Crimes Act.

Item 39

Subsection 3ZQZB(1) currently allows the Commissioner to apply to a magistrate for an order in relation to a thing seized under Division 3A of Part IAA, which provides powers to stop, question and search persons in relation to terrorist acts, if subsection 3ZQZA(3) applies.

Under subsection 3ZQZB(4), if satisfied that there are reasonable grounds to suspect that, if the thing were returned to the owner, it would be likely to be used in the commission of a terrorist act, terrorism offence or serious offence, the magistrate may make an order:

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that the thing be retained for a specified period

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that the thing is forfeited to the Commonwealth

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that the thing is to be sold and the proceeds given to the owner, or

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that the thing is to be otherwise sold or disposed of.

There is currently no mechanism to apply for such an order in relation to a thing seized under Division 2, 3 or 4 or a document produced under Division 4B. However, things may be seized or produced under those Divisions for which such an order would be appropriate. Items that could be used in a terrorism offence or a serious offence are more likely to be seized under Division 2 powers to search under warrant than the limited stop and search powers available under Division 3A. To address this gap, and to streamline provisions relating to orders in Division 4C, this item will repeal existing section 3ZQZB and replace it with a new section to cover the making of orders in relation to any thing seized or document produced under Part IAA.

New subsection 3ZQZB(1) will allow a magistrate, on application by the Commissioner, to make an order as outlined in subsection (2) or (3) in relation to a thing seized or a document produced under Part IAA. Amendments to subsection 3C(1) and section 3CA by items 25 and 26 will make it clear that a function of making an order under section 3ZQZB is conferred on a magistrate in a personal capacity and not as a court or a member of a court.

Orders for retention for a purpose mentioned in section 3ZQU or certain other proceedings

New subsection 3ZQZB(2) will allow an order to be made for a thing to be retained for a specified period if the magistrate is satisfied that the thing is being used, or is required to be used, for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings. These orders will only be relevant to things seized under Division 3 or 3A. This is because, under subsection 3ZQX(1), the Commissioner is only required to return a thing seized under Division 2 or 4 if he or she is satisfied that it is not required, or is no longer required, for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings. Item 31 will insert an equivalent provision that will apply to documents produced under Division 4B. As Divisions 3 and 3A provide powers to stop, search and seize material from conveyances or persons without a warrant and outside the context of an arrest, additional restrictions apply to the retention of things seized under those Divisions.

Section 3ZQU allows things seized under Part IAA and documents produced under Division 4B to be used and shared by constables and Commonwealth officers for a range of purposes. Among the purposes for which something may be used are preventing, investigating or prosecuting an offence, proceedings for the forfeiture of the thing under a law of the Commonwealth and proceedings for Commonwealth control orders or preventative detention orders. The reference to judicial or administrative review proceedings is necessary as things seized may sometimes be needed for judicial or administrative review proceedings outside the scope of uses listed in section 3ZQU. For example, a thing seized during the execution of a warrant may be needed in proceedings if there is a challenge to the execution of the warrant brought before a court. In that instance, it may be necessary to produce the things seized as evidence in the proceedings as proof that they were properly seized under the warrant.

Orders to prevent use in a terrorist act, terrorism offence or serious offence

New subsections 3ZQZB(3) and (4) will allow certain orders to be made if the magistrate is satisfied that there are reasonable grounds to suspect that, if the thing or document were returned to the owner, the person from whom the thing was seized or the person who produced the document under Division 4B, it would be likely to be used in the commission of a terrorist act, terrorism offence or serious offence. For a thing seized an order may be made:

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that the thing be retained for a specified period

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that the thing is forfeited to the Commonwealth

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that the thing be sold and the proceeds given to the owner or sold in some other way, or

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the thing is to be destroyed or otherwise disposed of.

These orders are consistent with those that may currently be made only in relation to things seized under Division 3A. An example of where a seized thing might be appropriately sold is where laboratory equipment that was to be used in making explosives for a terrorist act has been seized. While it may not be appropriate to return the equipment to the person from whom it was seized, it would be able to be sold to a reputable laboratory and put to legitimate use.

For a document seized under Part IAA or produced under Division 4B, an order may be made:

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that the document be retained for a specified period

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that the document is forfeited to the Commonwealth, or

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the document is to be destroyed or otherwise disposed of.

This is because it would not be appropriate or desirable for a document to be disposed of by being sold.

Safeguards

New subsection 3ZQZB(5) will require that if an application is made for an order under subsection (2) or (3) and the magistrate is not satisfied of the relevant matters, he or she must make an order that the thing or document be returned:

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in the case of a thing seized under Division 2, 3 or 4 -to the person from whom the thing was seized

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in the case of a document produced under Division 4B - to the person who produced the document, or

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if the person from whom the thing was seized or who produced the document is not entitled to possess it - to the owner of the thing or document.

New subsections 3ZQZB(6) and (7) will require certain things of the Commissioner and a magistrate determining an application under section 3ZQZB to ensure that the rights of persons with an interest in a thing or document for which an order is sought are protected. New subsection 3ZQZB(6) will require the Commissioner, before making an application, to:

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take reasonable steps to discover who has an interest in the thing or document, and

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if it is practicable to do so, to notify each person who the Commissioner believes to have such an interest of the proposed application.

New subsection 3ZQZB(7) will require a magistrate to allow a person who has an interest in the thing or document to appear and be heard in determining the application. These subsections are based on obligations that currently exist only in relation to certain orders or on a more limited basis.

Restriction on applications for orders in relation to things seized under Division 3

New subsection 3ZQZB(8) will provide that an application for an order under section 3ZQZB may only be made within 60 days of seizure or before the end of a period previously specified in an order in relation to the thing under that section. This provision replicates a restriction on the retention of items seized under Division 3 that currently applies under section 3ZQZ, which will be repealed by item 34.

Item 40

This item is an application provision that will provide that the changes made by items 30 to 39 of this Schedule will apply to a thing seized or document produced under Part IAA, whether before or after the Schedule commences. This provision is retrospective in application but does not create retrospective criminal liability. It provides that the amendments to Division 4C concerning return of documents and orders in relation to things and documents apply from commencement regardless of when the thing or document was seized or produced. This is necessary to allow police to deal appropriately with evidence that they have lawfully acquired prior to the commencement of these amendments. In the absence of such a provision, police would be required to separate material seized pre-amendment and post-amendment, which would impose a considerable and impractical burden on the storage of evidence.

Item 41

This item will insert numbering to allow a new subsection to be included in section 3ZW by item 42 below.

Item 42

Section 3ZW provides that the Commissioner may delegate any or all of the Commissioner's powers, function or duties under Part IAA to a constable. Constable is defined in subsection 3(1) to include a member or special member of the AFP or a member of the police force or service of a State or Territory.

This item will enable the Commissioner to delegate responsibilities under Division 4C of Part IAA relating to returning things seized and documents produced to Commonwealth officers. This is consistent with the use and sharing provisions in section 3ZQU, which allow seized material and documents produced to be shared with a constable or a Commonwealth officer for a range of purposes. Commonwealth officer is defined in subsection 3(1) to mean a person holding office under, or employed by, the Commonwealth and certain other classes of persons.

The AFP routinely executes search warrants under Part IAA on behalf of Commonwealth agencies such as Centrelink, the Australian Taxation Office and the Australian Securities and Investments Commission. Where the AFP is satisfied that an agency has exhibit handling capacity consistent with AFP's guidelines, it may allow the agency to take possession of seized items for the purposes of an investigation. However, at present, the AFP still retains responsibility for retention and return of those items. Where another agency is leading an investigation, it is appropriate for an officer of that agency to be responsible for the retention and return of things seized or documents produced that are relevant to that investigation.

The Commissioner will only be able to make this delegation if he or she is satisfied on reasonable grounds that the officer is able to properly exercise the relevant powers, functions or duties. This would include considering whether the relevant agency has procedures in place for property handling and storage and disposal of exhibits sufficient to meet relevant obligations under the Crimes Act, and would be subject to the existence of appropriate administrative arrangements between the agency and the AFP. 'Reasonable grounds' is an appropriate level of satisfaction as it reflects a practical and realistic approach to the information likely to be available to the Commissioner in exercising his or her power of delegation.

Part 3- Amendment relating to fingerprints and photographs

Crimes Act 1914

Section 3ZJ outlines police powers relating to the taking of identification material such as fingerprints, photographs, handwriting samples and voice recordings from persons who are in lawful custody in respect of a Commonwealth offence.

Currently, subsection 3ZJ(3) provides that a constable who is of the rank of sergeant or above, or who is in charge of the police station at the relevant time, can take, or cause another person to take, identification material if:

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the person consents in writing, or

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the constable believes on reasonable grounds that it is necessary to do so to:

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establish who the person is, or

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identify the person as the person who committed the offence, or

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provide evidence of, or relating to the offence, or

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the constable suspects on reasonable grounds that the person has committed another offence and the identification material is to be taken for the purpose of identifying the person as the person who committed the other offence or of providing evidence of, or relating to, the other offence.

The existing provision poses a number of challenges for police in trying to confirm the identity of arrested persons and keep accurate records of arrests. The provision does not permit officers to fingerprint or photograph a person for the purpose of providing an identifying record of that person's arrest, which may be problematic if the person escapes from custody or if there is a question about who was arrested (for example, because the person provides a false name).

This Part will amend subsection 3ZJ(3) to include an additional standing power for police officers to take fingerprints or photographs, purely as an adjunct to an arrest. The purpose of this amendment is to provide police with a fast and practical way to establish the identity of arrested persons, which will in turn assist police to prove matters relating to identity in court proceedings and maintain accurate records of arrests.

Item 43

This item will insert a new paragraph into subsection 3ZJ(3) that will provide police with an additional basis for the taking of identification material. This item will allow police to take identification material, or cause identification material to be taken, from a person in lawful custody if the material is fingerprints or photographs (including video recordings) of the person and the offence is punishable by imprisonment for a period of 12 months or more.

The purpose of this item is to provide police with a fast and practical way of confirming the identity of arrested persons in order to improve processes for establishing and maintaining identifying records of arrests. This will increase certainty in criminal prosecutions based on fingerprint or photographic evidence by reducing delays caused by challenges to such evidence by defendants arguing that there was not a belief on reasonable grounds that it was necessary to take the fingerprint or photograph at the time it was taken.

The ability to take fingerprint and photographic records at the time a person is processed will also assist in maintaining the accuracy of the criminal records of repeat offenders, thereby ensuring that these records are admissible in sentencing proceedings.

This item will specify that police may only take fingerprints or photographs from a person if he or she has been arrested in relation to an offence which is punishable by imprisonment for a period of 12 months or more.

The term 'offence' is defined in subsection 3C(1) of the Crimes Act to include an offence against the law of the Commonwealth, an offence against a law of a Territory, or a State offence which has a federal aspect. It is appropriate that the power to take fingerprints and photographs is not limited to Commonwealth offences, but will also apply in relation to State and Territory offences within Commonwealth Constitutional power as the Crimes Act and the AFP Act enable the AFP to investigate and make arrests for such offences.

The restriction of this provision to offences punishable by imprisonment for a period of 12 months or more will ensure that fingerprints and photographs can only be taken in respect of offences which are generally considered to be serious or indictable offences, and not in relation to minor offences.

The statement in this item that 'photographs' includes of video recordings will provide police with flexibility in making identifying records of an arrests. This approach is also consistent with other references to 'photographs' in the Crimes Act, including in the definition of 'identification material' in subsection 3ZJ(1) and in provisions relating to the execution of search warrants (section 3J).

This item will not affect existing provisions relating to the taking of identification material in Division 4, Part IAA of the Crimes Act. The existing requirements in subsection 3ZJ(3)-that the person must be in lawful custody, and that the taking of fingerprints or photographs must be authorised by an officer of the level of sergeant of above-will also apply to this item.

The proposed amendments would not affect existing provisions in 3ZK of the Crimes Act, which require police to destroy identification material taken under this section after 12 months if proceedings have not been instituted or have been discontinued. The identification material must also be destroyed as soon as possible if a person is acquitted or is found to have committed an offence but no conviction is recorded. This provision protects defendants by ensuring that any identification material taken at the time of arrest is not kept indefinitely and is destroyed if a person is not charged with an offence.

Item 44

This item is an application provision that provides that the amendment made by this Part will apply to any person who is taken into lawful custody in respect of an offence that is punishable by imprisonment for a period of 12 months or more after the Part commences.