Customs Act 1901

PART XII - OFFICERS  

Division 1 - Powers of officers  

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

SECTION 199   THE THINGS THAT ARE AUTHORISED BY A SEARCH WARRANT RELATING TO PREMISES  

199(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, or to be evidential material (within the meaning of the Proceeds of Crime Act 2002 ) or tainted property (within the meaning of that Act); 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

(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 or seizable items in his or her possession; and

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

199(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.

199(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.

199(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.

199(4A)    

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

(a) to use:

(i) a computer, or data storage device, found in the course of a search authorised under the warrant; or

(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or

(iii) any other electronic equipment; or

(iv) a data storage device;

for the purpose of obtaining access to data (the relevant data ) that is held in the computer or device mentioned in subparagraph (i) at any time when the warrant is in force, in order to determine whether the relevant data is evidential material of a kind specified in the warrant; and

(b) if necessary to achieve the purpose mentioned in paragraph (a) - to add, copy, delete or alter other data in the computer or device mentioned in subparagraph (a)(i); and

(c) if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so:

(i) to use any other computer or a communication in transit to access the relevant data; and

(ii) if necessary to achieve that purpose - to add, copy, delete or alter other data in the computer or the communication in transit; and

(d) to copy any data to which access has been obtained, and that:

(i) appears to be relevant for the purposes of determining whether the relevant data is evidential material of a kind specified in the warrant; or

(ii) is evidential material of a kind specified in the warrant; and

(e) to do any other thing reasonably incidental to any of the above.

Note:

As a result of the warrant, a person who, by means of a telecommunications facility, obtains access to data stored in a computer etc. will not commit an offence under Part 10.7 of the Criminal Code or equivalent State or Territory laws (provided that the person acts within the authority of the warrant).

199(4B)    

Subsection (4A) does not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:

(a) materially interfere with, interrupt or obstruct:

(i) a communication in transit; or

(ii) the lawful use by other persons of a computer;

unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified in the warrant; or

(b) cause any other material loss or damage to other persons lawfully using a computer.

199(4C)    

It is immaterial whether a thing mentioned in subsection (4A) is done:

(a) at the warrant premises; or

(b) at any other place.

199(5)    
If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.

199(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.