Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 (4 of 2010)

Schedule 2   Search warrants

Part 1   Seized things

Crimes Act 1914

9   After Division 4B of Part IAA

Insert:

Division 4C - Using, sharing and returning things seized and documents produced

Subdivision A - Using and sharing things seized and documents produced

3ZQU Purposes for which things and documents may be used and shared

Use and sharing of thing or document by constable or Commonwealth officer

(1) A constable or Commonwealth officer may use, or make available to another constable or Commonwealth officer to use, a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for the purpose of any or all of the following if it is necessary to do so for that purpose:

(a) preventing, investigating or prosecuting an offence;

(b) proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002;

(c) proceedings under a corresponding law (within the meaning of either of the Acts mentioned in paragraph (b)) that relate to a State offence that has a federal aspect;

(d) proceedings for the forfeiture of the thing under a law of the Commonwealth;

(e) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104 or 105 of the Criminal Code;

(f) investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part;

(g) investigating or resolving an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979) under Part V of that Act;

(h) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988;

(i) investigating or inquiring into a corruption issue under the Law Enforcement Integrity Commissioner Act 2006;

(j) proceedings in relation to a complaint, allegation or issue mentioned in paragraph (f), (g), (h) or (i);

(k) deciding whether to institute proceedings, to make an application or request, or to take any other action, mentioned in any of the preceding paragraphs of this subsection;

(l) the performance of the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979.

(2) A constable or Commonwealth officer may use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any other use that is required or authorised by or under a law of a State or a Territory.

(3) A constable or Commonwealth officer may make available to another constable or Commonwealth officer to use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any purpose for which the making available of the thing or document is required or authorised by a law of a State or Territory.

(4) To avoid doubt, this section does not limit any other law of the Commonwealth that:

(a) requires or authorises the use of a document or other thing; or

(b) requires or authorises the making available (however described) of a document or other thing.

Sharing thing or document for use by State, Territory or foreign agency

(5) A constable or Commonwealth officer may make a thing seized under this Part, or the original or a copy of a document produced under Division 4B, available to:

(a) a State or Territory law enforcement agency; or

(b) an agency that has responsibility for:

(i) law enforcement in a foreign country; or

(ii) intelligence gathering for a foreign country; or

(iii) the security of a foreign country;

to be used by that agency for a purpose mentioned in subsection (1), (2) or (3) and the purpose of any or all of the following (but not for any other purpose):

(c) preventing, investigating or prosecuting an offence against a law of a State or Territory;

(d) proceedings under a corresponding law (within the meaning of the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002);

(e) proceedings for the forfeiture of the thing under a law of a State or Territory;

(f) deciding whether to institute proceedings or to take any other action mentioned in any of paragraphs (1)(a) to (l) (inclusive), subsection (2) or (3) or paragraph (c), (d) or (e) of this subsection.

Ministerial arrangements for sharing

(6) This Division does not prevent the Minister from making an arrangement with a Minister of a State or Territory for:

(a) the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (3) and (5), of things seized under this Part and originals and copies of documents produced under Division 4B; and

(b) the disposal by the agency of such things, originals and copies when they are no longer of use to that agency for those purposes.

Note: This subsection does not empower the Minister to make such an arrangement.

Definition

(7) In this section:

State or Territory law enforcement agency means:

(a) the police force or police service of a State or Territory; or

(b) the New South Wales Crime Commission constituted by the New South Wales Crime Commission Act 1985 of New South Wales; or

(c) the Independent Commission Against Corruption constituted by the Independent Commission Against Corruption Act 1988 of New South Wales; or

(d) the Police Integrity Commission constituted by the Police Integrity Commission Act 1996 of New South Wales; or

(e) the Office of Police Integrity continued by the Police Integrity Act 2008 of Victoria; or

(f) the Crime and Misconduct Commission of Queensland; or

(g) the Corruption and Crime Commission established by the Corruption and Crime Commission Act 2003 of Western Australia.

3ZQV Operating seized electronic equipment

(1) This section applies to electronic equipment seized under this Part or moved from warrant premises under section 3K.

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

(3) The data referred to in subsection (2) includes, but is not limited to, the following:

(a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized;

(b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.

(4) If the electronic equipment was seized under a warrant or moved under section 3K, the electronic equipment may be operated before or after the expiry of the warrant.

(5) This section does not limit the operation of other provisions of this Part that relate to dealing with items seized under this Part or moved under section 3K.

Note: For example, this section does not affect the operation of the time limits in section 3K on examination or processing of a thing removed under that section from warrant premises.

3ZQW Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of equipment being operated as mentioned in section 3ZQV:

(i) damage is caused to the equipment; or

(ii) damage is caused to data recorded on the equipment or data access to which was obtained from the operation of the equipment; or

(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.

(4) If the equipment was seized or moved from premises, then, in determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier's employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

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

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

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

Subdivision B - Returning things seized under Division 2 or 4

3ZQX When things seized under Division 2 or 4 must be returned

(1) If the Commissioner is satisfied that a thing seized under Division 2 or 4 is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the Commissioner must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.

(2) However, the Commissioner does not have to take those steps if:

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

(b) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

Subdivision C - Returning things seized under Division 3

3ZQY When things seized under Division 3 must be returned

(1) If:

(a) the Commissioner is satisfied that a thing seized under Division 3 is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings; or

(b) the period of 60 days after the thing's seizure ends;

the Commissioner must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.

(2) However, the Commissioner does not have to take those steps if:

(a) proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or

(b) the thing may be retained because of an order under section 3ZQZ; or

(c) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or

(d) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

3ZQZ Magistrate may permit a thing seized under Division 3 to be retained

(1) The Commissioner may apply to a magistrate for an order under this section that a thing seized under Division 3 may be retained for a period if the application is made:

(a) before the end of 60 days after the seizure; or

(b) before the end of a period previously specified in an order in relation to the thing under this section.

(2) 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, the magistrate may order that the thing may be retained for the period specified in the order.

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

Subdivision D - Returning things seized under Division 3A

3ZQZA Owner may request return of thing

(1) The Commissioner must take reasonable steps to return a thing seized under Division 3A if the owner requests the return of the thing.

(2) However, the Commissioner does not have to take those steps if:

(a) the Commissioner 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

(b) the Commissioner 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.

(3) If:

(a) the owner of a thing requests the return of the thing:

(i) within 90 days after the date of the seizure notice served under section 3UF in relation to the thing; or

(ii) if subsection 3UF(2) applied in relation to the thing so that a seizure notice was not served - within 90 days after the day on which the thing was seized; and

(b) the thing has not been returned to the owner by the end of the 90th day;

the Commissioner must, before the end of the 95th day:

(c) take reasonable steps to return the thing to the owner; or

(d) apply to a magistrate for an order under section 3ZQZB.

(4) In this section:

terrorist act has the same meaning as in subsection 100.1(1) of the Criminal Code.

3ZQZB Magistrate may permit a thing seized under Division 3A to be retained, forfeited etc.

(1) If subsection 3ZQZA(3) applies, the Commissioner may apply to a magistrate for an order in relation to the thing.

(2) The magistrate must, in determining an application by the Commissioner under subsection (1), allow the owner of the thing to appear and be heard.

(3) 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, the magistrate may order that the thing may be retained for the period specified in the order.

(4) If the magistrate is satisfied that there are reasonable grounds to suspect 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, the magistrate may make any of the following orders:

(a) that the thing may be retained for the period specified in the order;

(b) that the thing is forfeited to the Commonwealth;

(c) that the thing is to be sold and the proceeds given to the owner;

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

(5) If the magistrate is not satisfied as mentioned in subsection (3) or (4), the magistrate must order that the thing be returned to the owner.

(6) In this section:

terrorist act has the same meaning as in subsection 100.1(1) of the Criminal Code.