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Taxation Laws Amendment (Excise Arrangements) Act 2001 (25 of 2001)

Schedule 1 Amendment of the Excise Act 1901 relating to search and seizure

1 After Division 1 of Part IX

Insert:

Division 1A - Search and seizure

Subdivision A - Preliminary

107AA Definitions

In this Division, unless the contrary intention appears:

container includes:

(a) a trailer or other like receptacle, whether with or without wheels, that is used for the movement of goods from one place to another; and

(b) any other thing that is or could be used for the carriage of goods, whether or not designed for that purpose.

Note: Container is defined differently in the rest of the Act.

evidential material , in relation to an offence, whether the offence is indictable or summary, means a thing relevant to the offence, including such a thing in electronic form.

executing officer , in relation to a search warrant or to a seizure warrant, means:

(a) an officer named in the warrant by the judicial officer issuing it as being responsible for executing the warrant; or

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

forfeited goods means goods described as forfeited to the Crown under:

(a) section 116 of this Act; or

(b) section 26 of the Coal Excise Act 1949; or

(d) section 17 of the Spirits Act 1906.

frisk search means:

(a) a search of a person conducted by quickly running the hands over the person’s outer garments; and

(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.

judicial officer , in relation to a search warrant or to a seizure warrant, means:

(a) a magistrate; or

(b) a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants.

magistrate means a magistrate who is remunerated by salary or otherwise.

occupier , in relation to premises that are a conveyance or a container, means the person having charge of the conveyance or container.

offence means an offence against:

(a) this Act; or

(b) the Coal Excise Act 1949; or

(d) the Spirits Act 1906.

ordinary search means a search of a person or of articles in the possession of a person that may include:

(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes or hat; and

(b) an examination of those items.

person assisting , in relation to a search warrant or to a seizure warrant, means:

(a) an officer who is assisting in the execution of the warrant; or

(b) a police officer who is assisting in the execution of the warrant; or

(c) a person whose name has not been written in the warrant and who has been authorised by the CEO to assist in executing the warrant.

premises includes a place, a conveyance or a container.

search warrant means a warrant issued under section 107BA.

seizure notice means a notice of the kind referred to in section 107FC.

seizure warrant means a warrant issued under section 107CA.

warrant premises means premises in relation to which a search warrant or a seizure warrant is in force.

107AB Law relating to legal professional privilege not affected

This Division does not affect the law relating to legal professional privilege.

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

107BA When search warrants can be issued

(1) A judicial officer may issue a warrant to search premises if the judicial officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or within the next 72 hours there will be, any evidential material, other than evidential material that is also a forfeited good, on or in the premises.

(2) If:

(a) the person applying for the warrant has, at any time previously, applied for a warrant relating to the search of, or the seizure of goods that are on or in, the same premises; and

(b) the premises are not an excise place;

the person must state particulars of those applications and their outcome in the information.

(3) If a judicial officer issues a warrant, the judicial officer is to state in the warrant:

(a) the offence to which the warrant relates; and

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

(d) the name of the officer who, unless he or she inserts the name of another officer in the warrant, is to be responsible for executing the warrant; and

(e) the period for which the warrant remains in force, which must not be more than 7 days; and

(f) whether the warrant may be executed at any time or only during particular hours.

(4) The judicial officer is also to state in the warrant:

(a) that it authorises the seizure of things (other than evidential material of the kind referred to in paragraph (3)(c)) found on or in the premises in the course of the search that the executing officer or a person assisting believes on reasonable grounds:

(i) to be evidential material in relation to an offence to which the warrant relates or to another offence; and

(ii) not to be forfeited goods;

if the executing officer or person assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and

(b) whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed, if the executing officer or a person assisting suspects on reasonable grounds that the person has any evidential material in his or her possession.

(5) Paragraph (3)(e) does not prevent the issue of successive warrants in relation to the same premises.

(6) If the application for the warrant is made under section 107DG, this section applies as if:

(a) subsection (1) referred to 48 hours rather than 72 hours; and

(b) paragraph (3)(e) referred to 48 hours rather than 7 days.

(7) A judicial officer of a particular State or Territory may issue a warrant in respect of the search of premises in another State or Territory.

(8) This section is not to be taken to limit any power of search granted to an officer under any other provision of an Excise Act.

107BB 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 a person assisting:

(a) to enter the warrant premises; and

(b) to search for and to record fingerprints found on or in the premises, and take samples of things (other than human biological fluid or tissue) found on or in the premises for forensic purposes; and

(c) to search the premises for the kind of evidential material specified in the warrant, and to seize things of that kind found on or in the premises; and

(d) to seize other things found on or in the premises in the course of the search that the executing officer or a person assisting believes on reasonable grounds:

(i) to be evidential material in relation to an offence to which the warrant relates or to another offence; and

(ii) not to be forfeited goods;

(e) if the warrant so allows:

(i) to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or a person assisting suspects on reasonable grounds that the person has any evidential material in his or her possession; and

(ii) to seize any such material found in the course of the search.

(2) Without limiting the generality of the powers conferred by a warrant issued in respect of premises that are not a conveyance or a container, the warrant extends to every conveyance or container on the premises.

(3) Without limiting the generality of the powers conferred by a warrant issued in respect of premises that are a conveyance, the warrant:

(a) permits entry of the conveyance, wherever it is; and

(b) extends to every container on the conveyance.

(4) A warrant issued in respect of premises that are a container permits entry of the container, wherever it is, to the extent that it is of a size permitting entry.

(5) If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.

(6) If the warrant authorises an ordinary search or a frisk search of a person, a search of the person different to that so authorised must not be done under the warrant.

107BC Use of equipment to examine or process things

(1) The executing officer or a person assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of things found on or in the premises in order to determine whether they are things that may be seized under the warrant.

(2) If:

(a) it is not practicable to examine or process the things on or in the warrant premises; or

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

the things may be moved to another place so that the examination or processing can be carried out in order to determine whether they are things that may be seized under the warrant.

(3) If things are moved to another place for the purpose of examination or processing under subsection (2), 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.

(4) The executing officer or a person assisting may operate equipment already on or in the warrant premises to carry out the examination or processing of a thing found on or in the premises in order to determine whether it is a thing that may be seized under the warrant if the executing officer or person assisting believes on reasonable grounds that:

(a) the equipment is suitable for the examination or processing; and

(b) the examination or processing can be carried out without damage to the equipment or the thing.

107BD Use of electronic equipment on or in premises

(1) The executing officer or a person assisting may operate electronic equipment on or in the premises to see whether evidential material is accessible by doing so if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

(2) If the executing officer or a person assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:

(a) seize the equipment and any disk, tape or other associated device; or

(b) if the material can, by using facilities on or in the premises, be put in documentary form - operate the facilities to put the material in that form and seize the documents so produced; or

(i) is brought to the premises; or

(ii) is on or in the premises and the use of which for that purpose has been agreed to in writing by the occupier of the premises;

operate the equipment to copy the material to the storage device and take the storage device from the premises.

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

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

(a) evidential material may be accessible by operating electronic equipment on or in the premises; and

(b) expert assistance is required to operate the equipment; and

(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;

he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.

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

(6) The equipment may be secured:

(a) for a period not exceeding 24 hours; or

(b) until the equipment has been operated by the expert;

whichever first occurs.

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

(8) The executing officer or a person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.

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

107BE Compensation for damage to equipment or data

(1) This section applies if:

(a) damage is caused to equipment as a result of it being operated as mentioned in section 107BC or 107BD; or

(b) the data recorded on the equipment is damaged or programs associated with its use are damaged or corrupted;

because:

(d) 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 they 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 and his or her 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) In this section:

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

107BF Copies of seized things to be provided

(1) Subject to subsection (2), if the executing officer or a person assisting seizes, under a warrant relating to premises:

(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;

the executing officer or person assisting must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the document, film, computer file, thing or information to that person as soon as practicable after the seizure.

(2) Subsection (1) does not apply if:

(a) the thing that has been seized was seized under paragraph 107BD(2)(b) or (c); or

(b) possession by the occupier of the document, film, computer file, thing or information could constitute an offence.

Subdivision C - Seizure of goods believed to be forfeited goods

107CA When seizure warrants can be issued

(1) A judicial officer may issue a warrant to seize goods on or in particular premises if the judicial officer is satisfied by information on oath that an officer:

(a) has reasonable grounds for suspecting that the goods:

(i) are forfeited goods; and

(ii) are, or within the next 72 hours will be, on or in the premises; and

(b) has demonstrated the necessity, in all the circumstances, for seizure of the goods.

(2) In considering whether the officer has demonstrated the necessity, in all the circumstances, for seizure of the goods, the judicial officer may have regard to, but is not limited to, consideration of the following factors:

(a) the seriousness or otherwise of any offence because of the commission of which the goods are believed to be forfeited goods;

(b) the circumstances in which any such offence is believed to have been committed;

(d) the nature, quality, quantity and estimated value of the goods;

(e) whether administrative penalties might be imposed in respect of the goods;

(f) the inconvenience or cost to any person having a legal or equitable interest in the goods if they were seized.

(3) If:

(a) the person applying for the warrant has, at any time previously, applied for a warrant relating to the search of, or seizure of goods that are on or in, the same premises; and

(b) the premises are not an excise place;

the person must state particulars of those applications and their outcome in the information.

(4) If a judicial officer issues a warrant, the judicial officer is to state in the warrant:

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

(b) a description of the premises on or in which the goods are believed to be located; and

(c) the name of the officer who, unless that officer inserts the name of another officer in the warrant, is to be responsible for executing the warrant; and

(d) the period for which the warrant remains in force, which must not be more than 7 days; and

(e) whether the warrant may be executed at any time or only during particular hours.

(5) The judicial officer is also to state in the warrant whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed, if the executing officer or a person assisting suspects on reasonable grounds that the person has any forfeited goods of the kind referred to in paragraph (4)(a) in his or her possession.

(6) Paragraph (4)(d) does not prevent the issue of successive warrants in relation to the same premises.

(7) If the application for the warrant is made under section 107DG, this section applies as if:

(a) subsection (1) referred to 48 hours rather than 72 hours; and

(b) paragraph (4)(d) referred to 48 hours rather than 7 days.

(8) A judicial officer of a particular State or Territory may issue a warrant in respect of the seizure of goods on or in premises in another State or Territory.

107CB The things that are authorised by seizure warrants

(1) A seizure warrant that is in force in relation to premises authorises the executing officer or a person assisting:

(a) to enter the warrant premises; and

(b) to search for the goods described in the warrant; and

(d) if the warrant so allows:

(ii) to seize any such goods found in the course of that search.

(3) Without limiting the generality of the powers conferred by a warrant issued in respect of premises that are a conveyance, the warrant:

(a) permits entry of the conveyance, wherever it is; and

(b) extends to every container on the conveyance.

(4) A warrant issued in respect of premises that are a container permits entry of the container, wherever it is, to the extent that it is of a size permitting entry.

(5) If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.

(6) If the warrant authorises an ordinary search or a frisk search of a person, a search of the person different to that so authorised must not be done under the warrant.

Subdivision D - Provisions applicable both to search and seizure warrants

107DA Conduct of ordinary searches and frisk searches

An ordinary search or a frisk search of a person under this Division must, if practicable, be conducted by a person of the same sex as the person being searched.

107DB Announcement before entry

(1) The executing officer must, before any person enters premises under a search warrant or a seizure warrant:

(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) 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:

(a) the safety of a person (including the executing officer); or

(b) that the effective execution of the warrant is not frustrated.

107DC Details of warrant to be given to occupier

(1) If:

(a) a search warrant or a seizure warrant in relation to premises is being executed; and

(b) the occupier of the premises or another person who apparently represents the occupier is present at the place where the warrant is executed;

the executing officer or a person assisting must make available to that person a copy of the warrant.

(2) If a person is searched under a warrant in relation to premises, the executing officer or a person assisting must show the person a copy of the warrant.

(3) The executing officer must identify himself or herself to the person at the place where the warrant is executed.

(4) At the time of executing the warrant, the executing officer or a person assisting:

(a) is not required to have in his or her possession or under his or her immediate control the original warrant; but

(b) must have in his or her possession or under his or her immediate control a copy of the warrant.

(5) In this section:

a copy of the warrant means:

(a) in relation to a warrant issued under section 107BA or 107CA - a copy that includes the signature of the judicial officer who issued the warrant and the seal of the relevant court; and

(b) in relation to a warrant issued under section 107DG - a completed form of warrant that includes the name of the judicial officer who issued the warrant.

107DD Occupier entitled to be present during search or seizure

(1) If:

(a) a search warrant or a seizure warrant in relation to premises is being executed; and

(b) the occupier of the premises or another person who apparently represents the occupier is present at the place where the warrant is executed;

the person is, subject to Part 1C of the Crimes Act 1914, entitled to observe the search or seizure being conducted.

(2) The right to observe the search or seizure being conducted ceases if the person impedes the search or seizure.

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

107DE Availability of assistance and use of force in executing a warrant

In executing a search warrant or a seizure warrant:

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

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

as is necessary and reasonable in the circumstances.

107DF Specific powers available to executing officers

(1) In executing a search warrant or a seizure warrant in relation to premises, the executing officer or a person assisting may:

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

(b) if the occupier of the premises consents in writing;

take photographs or video recordings of the premises or of things on or in the premises.

(2) If a search warrant or a seizure warrant in relation to premises is being executed, the executing officer and the persons assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:

(a) for not more than one hour; or

(b) for a longer period if the occupier of the premises consents in writing.

(3) If:

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

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

the execution of the warrant may be completed.

(4) If:

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

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

the court revoking or reversing the order may reissue the warrant for a further period not exceeding 7 days.

(5) The court must not exercise the power under subsection (4) unless it is satisfied of the matters set out in subsection 107BA(1) or 107CA(1).

107DG Warrants by telephone or other electronic means

(1) An officer may apply to a judicial officer for a search warrant or for a seizure warrant by telephone, fax or other electronic means:

(a) in an urgent case; or

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

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

(3) An application under this section must include all information required to be provided in an ordinary application for a search warrant or for a seizure warrant, but the application may, if necessary, be made before the information is sworn.

(4) If an application is made to a judicial officer under this section and the judicial officer, after considering the information and having received and considered such further information (if any) as the judicial officer required, is satisfied that:

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

(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;

the judicial officer may complete and sign the same form of warrant that would be issued under section 107BA or 107CA.

(5) If the judicial officer decides to issue the warrant, the judicial officer is to inform the applicant, by telephone, fax or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.

(6) The applicant must then complete a form of warrant in terms substantially corresponding to those given by the judicial officer, stating on the form the name of the judicial officer and the day on which and the time at which the warrant was signed.

(7) The applicant must, not later than the day after:

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

(b) the day on which the warrant was executed;

whichever is the earlier, give or transmit to the judicial officer the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn.

(8) The judicial officer must:

(a) attach to the documents provided under subsection (7) the form of warrant signed by the judicial officer; and

(b) give or transmit to the applicant the attached documents.

(9) If:

(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and

(b) the form of warrant signed by the judicial officer is not produced in evidence;

the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.

107DH Receipts for things seized under warrant

(1) If a thing is seized under a search warrant or a seizure warrant, the executing officer or a person assisting must provide a receipt for the thing.

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

107DI Offence for making false statements in warrants

A person must not make, in an application for a search warrant or for a seizure warrant, a statement if the person knows that the statement:

(a) is false or misleading in a material particular; or

(b) omits any matter or thing without which the statement is misleading.

Penalty: Imprisonment for 2 years.

107DJ Offences relating to telephone warrants

A person must not:

(a) state in a document that purports to be a form of warrant under section 107DG the name of a judicial officer unless that judicial officer issued the warrant; or

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

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

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

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

(d) give to a judicial officer a form of warrant under that section that is not the form of warrant that the person purported to execute.

Penalty: Imprisonment for 2 years.

Subdivision E - Dealing with things seized as evidential material under a search warrant or section 9 of the Crimes Act 1914

107EA Retention of things seized under a search warrant etc.

(1) Subject to any law of the Commonwealth, a State or a Territory permitting the retention, destruction or disposal of a thing seized as evidential material by an officer under a search warrant or section 9 of the Crimes Act 1914, the officer in charge of the investigation 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) 120 days after its seizure:

(i) proceedings in respect of which the thing may afford evidence have not been started; and

(ii) an order permitting the thing to be retained has not been made under section 107EB; and

(iii) an order of a court of the Commonwealth or of a State or Territory permitting the retention, destruction or disposal of the thing has not been made;

whichever first occurs.

(2) For the purposes of this section, the return of a thing requires its return to the person reasonably believed to be the owner of the thing in a condition as near as practicable to the condition in which it was seized.

107EB Magistrate may permit a thing seized under a search warrant etc. to be retained

(1) If a thing is seized as evidential material by an officer under a search warrant or section 9 of the Crimes Act 1914, and:

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

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

proceedings in respect of which the thing may afford evidence have not been started, an officer may apply to a magistrate for an order that the thing be retained.

(2) If the magistrate is satisfied:

(a) that it is necessary for the retention of the thing to be continued:

(i) for the purposes of an investigation as to whether an offence has been committed; or

(ii) to enable evidence of an offence to be assembled for the purposes of a prosecution; and

(b) that there has been no avoidable delay in conducting the investigation or assembling the evidence concerned;

the magistrate may order that the thing be retained for a period specified in the order.

(3) Before making the application, the officer 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 officer believes to have such an interest of the proposed application.

Subdivision F - Dealing with forfeited goods seized under a seizure warrant or section 9 of the Crimes Act 1914

107FA Seized goods to be secured

(1) In this section:

storage place , in relation to goods, means a place approved by a Collector as a place for the storage of goods of that kind.

(2) If an officer seizes any goods under a seizure warrant, the officer must, as soon as practicable, take those goods to a storage place.

(3) If a person assisting under a seizure warrant (other than an officer) seizes any forfeited goods under the warrant, the person must, as soon as practicable, deliver the goods into the custody of an officer.

(4) If a police officer seizes any forfeited goods under section 9 of the Crimes Act 1914, the police officer must, as soon as practicable, deliver the goods into the custody of an officer.

(5) If goods are delivered to an officer under subsection (3) or (4), the officer must:

(a) if paragraph (b) does not apply - as soon as practicable, deliver the goods to a storage place; or

(b) if the goods are delivered to the officer at a storage place - leave the goods at that place.

107FB Requirement to serve seizure notices

(1) After goods have been seized under a seizure warrant or section 9 of the Crimes Act 1914, the officer in charge of the investigation must serve, within 7 days after the seizure, a seizure notice on:

(a) the owner of the goods; or

(b) if the owner cannot be identified after reasonable inquiry - the person in whose possession or under whose control the goods were when they were seized.

(2) Subsection (1) applies whether or not a claim for the return of the goods seized has been made under section 107FD.

(3) The notice must be in writing and must be served:

(a) personally or by post; or

(b) if no person of the kind referred to in subsection (1) can be identified after reasonable inquiry - by publishing a copy of the notice in a newspaper circulating in the location in which the goods were seized.

(4) A seizure notice may be served on a person who is outside Australia.

107FC Matters to be dealt with in seizure notices

A seizure notice must set out the following:

(a) a statement identifying the goods;

(b) the day on which they were seized;

(d) a statement that, if a claim for the return of the goods has not already been made, and is not made within 30 days after the day the notice is served, the goods will be taken to be condemned as forfeited to the Crown;

(e) if:

(i) the notice is to be served in a foreign country; and

(ii) the person served has not yet made such a claim;

a statement that the person served may not make such a claim unless he or she has first appointed in writing an agent in Australia with authority to accept service of documents, including process in any proceedings arising out of the matter.

107FD Claim for return of goods seized

(1) If forfeited goods are seized under a seizure warrant or section 9 of the Crimes Act 1914, the owner of the goods may, whether or not a seizure notice has yet been served on the owner, make a claim to the CEO for the return of the goods.

(2) A claim:

(a) must be in writing in an approved form; and

(b) must specify the grounds on which the claim is made; and

(i) appoint an agent in Australia with authority to accept service of documents, including process in any proceedings, arising out of the matter; and

(ii) specify the address of the agent for service; and

(iii) be accompanied by the written consent of the agent, signed by the agent, agreeing to act as agent.

107FE Treatment of goods seized if no claim for return is made

If:

(a) forfeited goods are seized under a seizure warrant or section 9 of the Crimes Act 1914; and

(b) a seizure notice has been served; and

the goods are taken to be condemned as forfeited to the Crown.

107FF Treatment of goods seized if a claim for return is made

(1) This section applies if:

(a) forfeited goods are seized under a seizure warrant or section 9 of the Crimes Act 1914; and

(b) not later than 30 days after the day the seizure notice was served, a claim is made under section 107FD for return of the goods.

(2) The officer in charge of the investigation must, subject to any law of the Commonwealth, a State or a Territory permitting their retention, destruction or disposal, return the goods unless:

(a) the goods have been dealt with under section 107FJ; or

(b) each of the following applies:

(i) not later than 120 days after the claim for their return is made, proceedings in respect of an offence involving the goods have been commenced;

(ii) on completion of the proceedings, a court has made an order for condemnation of the goods as forfeited to the Crown; or

(i) not later than 120 days after the claim for their return is made, an order permitting the goods to be retained for a specified period has been made under section 107FG;

(ii) before the end of that specified period, proceedings in respect of an offence involving the goods have been commenced;

(iii) on completion of the proceedings, a court has made an order for condemnation of the goods as forfeited to the Crown; or

(d) each of the following applies:

(i) not later than 120 days after the claim for their return is made, an order permitting the goods to be retained for a specified period has been made under section 107FG;

(ii) before the end of that specified period, proceedings have been commenced before a court of summary jurisdiction for a declaration that the goods are special forfeited goods;

(iii) on completion of the proceedings, a court has made an order for condemnation of the goods as forfeited to the Crown; or

(e) if the goods were seized as special forfeited goods:

(i) not later than 120 days after the claim for their return is made, proceedings before a court of summary jurisdiction for a declaration that the goods are special forfeited goods have been commenced; and

(ii) on completion of the proceedings, a court has made an order for condemnation of the goods as forfeited to the Crown.

(3) If:

(a) forfeited goods seized under a seizure warrant or section 9 of the Crimes Act 1914 have not been dealt with under section 107FJ; and

(b) proceedings of the kind referred to in paragraph (2)(b) or (c) are commenced in respect of an offence involving the goods; and

(i) finds that the offence is proved; and

(ii) is satisfied, in all the circumstances of the case, that it is appropriate that an order be made for condemnation of the goods as forfeited to the Crown;

the court must make an order to that effect.

(4) If:

(a) forfeited goods seized under a seizure warrant or section 9 of the Crimes Act 1914 have not been dealt with under section 107FJ; and

(b) proceedings of the kind referred to in paragraph (2)(b) or (c) are commenced in respect of an offence involving the goods; and

the court must make an order for condemnation of the goods as forfeited to the Crown, whether or not the court finds the offence proved.

(5) Subject to subsection (6), if:

(a) goods seized as special forfeited goods have not been dealt with under section 107FJ; and

(b) proceedings of the kind referred to in paragraph (2)(d) or (e) are commenced in respect of the goods; and

the court must declare the goods to be special forfeited goods and make an order for condemnation of the goods as forfeited to the Crown.

(6) A court must not make an order for condemnation of goods under subsection (5) if proceedings for an offence involving the goods have been commenced.

(7) If the finding of a court in proceedings under paragraph (2)(b), (c), (d) or (e) in respect of goods that have not been dealt with under section 107FJ may be taken on appeal to another court, the goods are not to be returned under subsection (2), or disposed of under section 107FM:

(a) while that appeal may be made, or

(b) if it is made, until the completion of that appeal.

(8) For the purposes of this section, the return of goods requires their return to the person reasonably believed to be the owner of the goods in a condition as near as practicable to the condition in which they were seized.

(9) In this section:

offence means an offence against any law of the Commonwealth, a State or a Territory.

special forfeited goods means:

(a) goods that are forfeited under a paragraph of section 73 of the Distillation Act 1901 other than paragraph 73(iv); and

(b) goods that are forfeited under section 17 of the Spirits Act 1906.

(10) In this section, a reference to completion of proceedings includes a reference to completion of any appeal process arising from those proceedings.

107FG Magistrate may permit goods seized under a seizure warrant or section 9 of the Crimes Act 1914 to be retained

(1) If forfeited goods are seized under a seizure warrant or section 9 of the Crimes Act 1914 and:

(a) before the end of 120 days after the making of a claim for their return; or

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

proceedings of the kind referred to in paragraph 107FF(2)(b) have not been started, an officer may apply to a magistrate for an order that the goods be retained.

(2) If the magistrate is satisfied that it is necessary:

(a) that the retention of the goods continue while evidence of the offence to which the proceedings referred to in paragraph 107FF(2)(b) relate is assembled; and

(b) that there has been no avoidable delay in assembling that evidence;

the magistrate may order that the goods be retained for a period specified in the order.

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

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

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

107FH Right of compensation in certain circumstances for goods disposed of or destroyed

(1) Despite the disposal or destruction of goods taken to be condemned as forfeited to the Crown because no claim for their return was made, a person may apply to a court of competent jurisdiction under this section for compensation.

(2) A right to compensation exists if:

(a) the goods are not special forfeited goods within the meaning of section 107FF; and

(b) the goods were not used or otherwise involved in the commission of an offence; and

(i) that he or she is the rightful owner of the goods; and

(ii) that there were circumstances providing a reasonable excuse for the failure to claim the goods not later than 30 days after the day the seizure notice was served.

(3) If a right to compensation exists under subsection (2), the court must order the payment by the Commonwealth to the person of an amount equal to:

(a) if the goods have been sold - the proceeds of the sale; and

(b) if the goods have been destroyed - the market value of the goods at the time of their destruction.

107FI Effect of forfeiture

When goods are, or are taken to be, condemned as forfeited to the Crown, the title to the goods immediately vests in the Commonwealth to the exclusion of all other interests in the goods, and the title cannot be called into question.

107FJ Immediate disposal of certain goods

(1) If:

(a) goods are seized under a seizure warrant or section 9 of the Crimes Act 1914; and

(b) the goods are perishable goods; and

the CEO may cause the goods to be dealt with in such manner as he or she considers appropriate (including the destruction of the goods).

(2) As soon as practicable, but not later than 7 days after the goods referred to in subsection (1) have been dealt with, the CEO must give or publish a notice in accordance with subsection (4).

(3) The notice must be in writing and must be served:

(a) personally or by post on the owner of the goods or, if the owner cannot be identified after reasonable inquiry, on the person in whose possession or under whose control the goods were when they were seized; or

(b) if no person of the kind referred to in paragraph (a) can be identified after reasonable inquiry - by publishing a copy of the notice in a newspaper circulating in the location in which the goods were seized.

(4) The notice must:

(a) identify the goods; and

(b) state that the goods have been seized under a seizure warrant or section 9 of the Crimes Act 1914 (as the case may be) and give the reason for the seizure; and

(c) state that the goods have been dealt with under subsection (1) and specify the manner in which they have been so dealt with and the reason for doing so; and

(d) set out the terms of subsection (5).

(5) If goods are dealt with in accordance with subsection (1), the owner of the goods may bring an action against the Commonwealth in a court of competent jurisdiction for the recovery of the market value of the goods at the time they were so dealt with.

(6) A right to recover the market value of the goods at the time they were dealt with in accordance with subsection (1) exists if:

(a) the goods are not special forfeited goods within the meaning of section 107FF; and

(b) the goods were not used or otherwise involved in the commission of an offence; and

(c) the owner of the goods establishes, to the satisfaction of the Court, that the circumstances for them to be so dealt with did not exist.

(7) If a person establishes a right to recover the market value of the goods at the time they were dealt with, the Court must order the payment by the Commonwealth of an amount equal to that value at that time.

107FK Release of goods on security

(1) This section applies to goods:

(a) that have been seized under a seizure warrant or section 9 of the Crimes Act 1914; and

(b) that are not taken to be forfeited to the Crown under section 107FE; and

(2) The owner of the goods may apply to a court of summary jurisdiction for an order that the goods be released to the owner on provision to the CEO of security for an amount determined by the court in accordance with subsection (4).

(3) In determining whether or not to order the release of the goods on provision of a security, the court may have regard to:

(a) the impact that the continued retention of the goods would have on the economic interests of third parties; and

(b) any other like matters that the court considers relevant.

(4) For the purposes of this section, the security to be provided in respect of the goods is security for an amount determined by the court that does not exceed the sum of:

(a) the market value of the goods at the time when the order is made; and

(b) the costs incurred for storage of the goods from the time of their seizure until the time of their release under this section;

reduced by the amount of any duty that has been paid on the goods.

(5) If the security is given, the CEO is to release the goods to the applicant.

107FL Service by post

Either:

(a) a seizure notice under section 107FB; or

(b) a notice under subsection 107FG(3);

posted as a letter addressed to a person at the last address of the person known to the sender is taken to be properly addressed for the purposes of section 29 of the Acts Interpretation Act 1901.

107FM Disposal of forfeited goods

All goods seized under a seizure warrant or section 9 of the Crimes Act 1914 that are taken to be condemned as forfeited to the Crown under section 107FE or that are condemned under section 107FF shall be dealt with and disposed of in accordance with the directions of the CEO.

107FN Destruction or concealment of evidential material or forfeited goods

(1) A person must not engage in conduct if:

(a) the conduct:

(i) destroys, or renders incapable of identification, a document or thing that is, or may be, evidential material or a forfeited good; or

(ii) renders illegible or indecipherable such a document or thing; or

(iii) places or conceals on his or her body, or in any clothing worn by the person, such a document or thing; and

(b) the conduct is engaged in with the intention of preventing it from being seized by an officer in the exercise of the person’s powers under a search warrant or a seizure warrant.

Penalty: Imprisonment for 2 years.

(2) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

Subdivision G - Miscellaneous

107GA Nature of functions of magistrate under sections 107EB and 107FG

(1) A function of making an order conferred on a magistrate by section 107EB or 107FG is conferred on the magistrate in a personal capacity and not as a court or a member of a court.

(2) Without limiting the generality of subsection (1), an order made by a magistrate under section 107EB or 107FG has effect only by virtue of this Act and is not taken, by implication, to be made by a court.

(3) A magistrate performing a function of, or connected with, making an order under section 107EB or 107FG has the same protection and immunity as if he or she were performing that function as, or as a member of, a court (being the court of which the magistrate is a member).

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Taxation Laws Amendment (Excise Arrangements) Act 2001 (25 of 2001)

Schedule 1 Amendment of the Excise Act 1901 relating to search and seizure

1 After Division 1 of Part IX

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