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Law Enforcement Integrity Commissioner Bill 2006

Part 9 Integrity Commissioner’s powers in conducting investigations and public inquiries

Division 1 Requiring people to give information and produce documents or things

Subdivision A Requests by Integrity Commissioner

75   Request to staff member of law enforcement agency

             (1)  For the purposes of investigating a corruption issue, the Integrity Commissioner may request a staff member of a law enforcement agency:

                     (a)  to give the Integrity Commissioner the information specified in the request; or

                     (b)  to produce to the Integrity Commissioner the documents or things specified in the request.

The Integrity Commissioner may require that information to be provided under paragraph (a) is to be provided in writing.

             (2)  The Integrity Commissioner’s request must be:

                     (a)  served on the staff member of the law enforcement agency; and

                     (b)  in writing and signed by the Integrity Commissioner.

             (3)  The Integrity Commissioner may make the request without holding a hearing.

             (4)  The staff member must comply with the request as soon as is reasonably practicable.

Note 1:       Failure to comply with a request is an offence: see section 78.

Note 2:       See also subsection 150(2) in relation to section 149 certified information.

76   Request to person other than staff member of law enforcement agency

             (1)  For the purposes of investigating a corruption issue, the Integrity Commissioner may request a person (other than a staff member of a law enforcement agency):

                     (a)  to give the Integrity Commissioner the information specified in the request; or

                     (b)  to produce to the Integrity Commissioner the documents or things specified in the request.

             (2)  The Integrity Commissioner’s request must:

                     (a)  be served on the person; and

                     (b)  be in writing and signed by the Integrity Commissioner; and

                     (c)  specify the period within which the person must comply with the request.

The period specified under paragraph (c) must be at least 14 days starting on the day on which the request is served on the person.

             (3)  The Integrity Commissioner may make the request without holding a hearing.

             (4)  The person must:

                     (a)  give the information in writing; or

                     (b)  produce the documents or things;

within the time specified in the request, or within such further time as the Integrity Commissioner allows.

Note 1:       Failure to comply with a request is an offence: see section 78.

Note 2:       See also subsection 150(2) in relation to section 149 certified information.

77   Integrity Commissioner may retain documents and things

             (1)  If a document or thing is produced to the Integrity Commissioner in accordance with a request under section 75 or 76, the Integrity Commissioner:

                     (a)  may take possession of, and may make copies of, the document or thing, or take extracts from the document; and

                     (b)  may retain possession of the document or thing for such period as is necessary for the purposes of the investigation to which the document or thing relates.

             (2)  While the Integrity Commissioner retains the document or thing, he or she must allow a person who would otherwise be entitled to inspect the document or view the thing to do so at the times that the person would ordinarily be able to do so.

Subdivision B Offence and related provisions

78   Failure to comply with Integrity Commissioner’s request

                   A person commits an offence if:

                     (a)  the person is given a request under section 75 or 76; and

                     (b)  the person fails to comply with the request.

Penalty:  Imprisonment for 2 years.

Note 1:       A legal practitioner may refuse to produce a document or thing in certain circumstances: see section 79.

Note 2:       This section is not subject to the privilege against self-incrimination but there are limits on the uses to which the evidence the person gives may be put: see section 80.

79   Legal practitioner not required to disclose privileged communications

             (1)  A legal practitioner may refuse:

                     (a)  to give information to the Integrity Commissioner; or

                     (b)  to produce a document or thing to the Integrity Commissioner;

when requested to do so under section 76 if the information would disclose, or the document contains, a privileged communication made by the legal practitioner (or to the legal practitioner) in his or her capacity as a legal practitioner.

             (2)  Subsection (1) has effect subject to paragraph 80(5)(c).

             (3)  Subsection (1) does not apply if the person to whom the communication was made (or by whom the communication was made) agrees to the legal practitioner:

                     (a)  giving the information; or

                     (b)  producing the document or thing.

             (4)  If the legal practitioner refuses:

                     (a)  to give the information; or

                     (b)  to produce the document or thing;

he or she must, if required by the Integrity Commissioner, give the Integrity Commissioner the name and address of the person to whom the communication was made (or by whom the communication was made).

             (5)  This section does not affect the law relating to legal professional privilege.

80   Self-incrimination etc.

Self-incrimination

             (1)  A person is not excused from:

                     (a)  giving information; or

                     (b)  producing a document or thing;

when requested to do so under section 75 or 76 on the ground that doing so would tend to incriminate the person or expose the person to a penalty.

Use indemnity

             (2)  Subsection (4) applies if:

                     (a)  the person:

                              (i)  gives the information (whether orally or in writing); or

                             (ii)  produces the document or thing;

                            and, before doing so, claims that giving the information or producing the document or thing, might tend to incriminate the person or expose the person to a penalty; or

                     (b)  the person gives the information in writing and claims, in a written statement accompanying the information, that giving the information might tend to incriminate the person or expose the person to a penalty; or

                     (c)  the person produces the document or thing and claims, in a written statement accompanying the document or thing, that producing the document or thing might tend to incriminate the person or expose the person to a penalty.

             (3)  Subsection (4) does not apply to the production of a document that is, or forms part of, a record of an existing or past business.

             (4)  None of the following:

                     (a)  the information given;

                     (b)  the document or thing produced;

is admissible in evidence against the person in criminal proceedings, or any other proceedings for the imposition or recovery of a penalty, other than:

                     (c)  proceedings for an offence against section 78; or

                     (d)  confiscation proceedings; or

                     (e)  proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (which deals with false or misleading information or documents) that relates to this Act; or

                      (f)  proceedings for an offence against section 149.1 of the Criminal Code (which deals with obstruction of Commonwealth public officials) that relates to this Act; or

                     (g)  disciplinary proceedings against the person if the person is a staff member of a law enforcement agency.

Public interest grounds

             (5)  A person is not excused from:

                     (a)  giving information; or

                     (b)  producing a document or thing;

when requested to do so under section 75 or 76 on the ground that doing so:

                     (c)  would disclose one of the following:

                              (i)  legal advice given to a Minister or a Commonwealth government agency;

                             (ii)  a communication between an officer of a Commonwealth government agency and another person or body, being a communication protected against disclosure by legal professional privilege; or

                     (d)  would breach a secrecy provision other than:

                              (i)  a taxation secrecy provision; or

                             (ii)  a law enforcement secrecy provision; or

                     (e)  would be otherwise contrary to the public interest.

Note:          See also subsection 150(2) in relation to section 149 certified information.

             (6)  The fact that a person is not excused under subsection (5) from:

                     (a)  giving information; or

                     (b)  producing a document or thing;

does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or thing.

             (7)  A person does not commit an offence, and is not liable to any penalty, under the provisions of any other enactment (other than a taxation secrecy provision or a law enforcement secrecy provision) because the person gives information, or produces a document or thing, when required to do so under section 75 or 76.

81   Protection of person required to give information and produce documents

             (1)   A person who gives information, or produces a document or thing, to the Integrity Commissioner in response to a request under section 75 or 76 has the same protection as a witness in proceedings in the High Court.

             (2)  Subsection (3) applies if it appears to the Integrity Commissioner that, because a person:

                     (a)  is to give information, or produce a document or thing; or

                     (b)  has given information, or produced a document or thing;

to the Integrity Commissioner in response to a request under section 75 or 76, either:

                     (c)  the safety of the person or any other person may be prejudiced; or

                     (d)  the person or any other person may be subjected to intimidation or harassment.

             (3)  The Integrity Commissioner may make such arrangements as are necessary:

                     (a)  to protect the safety of any person mentioned in paragraph (2)(c); or

                     (b)  to protect any person mentioned in paragraph (2)(d) from intimidation or harassment.

             (4)  For the purpose of subsection (3), the arrangements that the Integrity Commissioner may make include arrangements with:

                     (a)  the Minister; or

                     (b)  members of the AFP; or

                     (c)  members of the police force of a State or Territory.

             (5)  This section does not affect the Witness Protection Act 1994 .



 

Division 2 Conducting hearings

Subdivision A General provisions

82   Integrity Commissioner may hold hearings

Commissioner may hold hearings for investigations or public inquiries

             (1)  The Integrity Commissioner may hold a hearing for the purpose of:

                     (a)  investigating a corruption issue; or

                     (b)  conducting a public inquiry.

             (2)  Subject to subsections (3), (4) and (5), a hearing may be conducted in such manner as the Integrity Commissioner thinks fit.

Hearing in relation to an investigation of a corruption issue

             (3)  The Integrity Commissioner may decide to hold the whole (or a part) of a hearing in relation to an investigation of corruption issue either in public or in private.

             (4)  In deciding under subsection (3) whether a hearing (or a part of a hearing) is to be held in public or in private, the Integrity Commissioner must have regard to the following:

                     (a)  whether evidence that may be given, or a matter that may arise, during the hearing (or that part of the hearing) is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence;

                     (b)  any unfair prejudice to a person’s reputation that would be likely to be caused if the hearing (or that part of the hearing) took place in public;

                     (c)  whether it is in the public interest that the hearing (or that part of the hearing) take place in public;

                     (d)  any other relevant matter.

Note:          If the hearing is to be held in public, a witness may request that his or her evidence be taken in private: see section 89.

Hearing in relation to a public inquiry

             (5)  A hearing in relation to a public inquiry must be held in public. However, a part of a hearing in relation to a public inquiry may be held in private if the Integrity Commissioner so directs.

Note:          Certain evidence must be given in private, and a witness may request that his or her evidence be taken in private: see section 89.

Record of hearing

             (6)  The Integrity Commissioner must make a record of a hearing.

             (7)  If the Integrity Commissioner is conducting a public inquiry, the record of the hearing must include:

                     (a)  any document produced to the Integrity Commissioner at the hearing; or

                     (b)  a description of any thing (other than a document) produced to the Integrity Commissioner at the hearing;

unless the Integrity Commissioner directs otherwise.

Direction is not a legislative instrument

             (8)  A direction given under this section is not a legislative instrument.

83   Integrity Commissioner may summon person

             (1)  The Integrity Commissioner may summon a person to attend a hearing at a time and place specified in the summons:

                     (a)  to give evidence; or

                     (b)  to produce documents or things specified in the summons.

Note 1:       In certain cases, disclosing the existence of a summons, or any information about it, is an offence: see section 92.

Note 2:       Failure to comply with a summons is an offence: see section 93.

Note 3:       See also subsection 150(3) in relation to section 149 certified information.

Note 4:       A person may apply for legal and financial assistance in respect of his or her attendance: see section 103.

             (2)  A summons must:

                     (a)  be in writing and signed by the Integrity Commissioner; and

                     (b)  be served on the person required to attend a hearing.

             (3)  If the hearing is held for the purpose of investigating a corruption issue, a summons requiring a person to give evidence must set out, so far as is reasonably practicable, the general nature of the matters in relation to which the Integrity Commissioner intends to question the person.

             (4)  Subsection (3) does not prevent the Integrity Commissioner from questioning the person in relation to:

                     (a)  any aspect of the corruption issue to which the hearing relates; or

                     (b)  another corruption issue.

             (5)  Subsection (3) does not apply if the Integrity Commissioner is satisfied that complying with that subsection is likely to prejudice:

                     (a)  the investigation to which the hearing relates or another corruption investigation; or

                     (b)  any action taken as a result of an investigation referred to in paragraph (a).

             (6)  A person summoned to appear as a witness at a hearing is entitled to be paid by the Commonwealth any allowances for travelling and other expenses that are prescribed by the regulations.

84   Integrity Commissioner may take evidence outside Australia

                   If arrangements have been made between Australia and another country in relation to the taking of evidence in that country by the Integrity Commissioner for a hearing held under this Division, the Integrity Commissioner may:

                     (a)  take evidence on oath or by affirmation; and

                     (b)  use any evidence taken in that country in accordance with those arrangements;

for the purpose of performing any function, or exercising any power, under this Act.

Subdivision B Procedure at hearing

85   Who may be represented at a hearing

             (1)  A person giving evidence at a hearing may be represented by a legal practitioner.

             (2)  A person who is not giving evidence may be represented at a hearing by a legal practitioner if:

                     (a)  special circumstances exist; and

                     (b)  the Integrity Commissioner consents to the person being so represented.

86   Who may be present at a hearing

Who may be present

             (1)  The Integrity Commissioner may determine who may be present during all or part of a hearing held in private.

             (2)  The Integrity Commissioner must allow the following persons to be present when evidence is being given:

                     (a)  a legal practitioner representing the person giving evidence;

                     (b)  a legal practitioner representing a person who:

                              (i)  is not giving evidence; but

                             (ii)  has the Integrity Commissioner’s consent to being present at that time.

Opportunity to comment on a person’s presence

             (3)  If:

                     (a)  a person (the witness ) is giving evidence at a hearing; and

                     (b)  another person is present at the hearing at that time; and

                     (c)  the other person is not:

                              (i)  a staff member of ACLEI; or

                             (ii)  a legal practitioner representing a person at the hearing;

the Integrity Commissioner must:

                     (d)  inform the witness that the person is present; and

                     (e)  give the witness an opportunity to comment on the person’s presence.

             (4)  To avoid doubt, a person is still entitled to be present during all or part of the hearing even if:

                     (a)  the Integrity Commissioner fails to comply with subsection (3); or

                     (b)  a witness comments adversely on the person’s presence under paragraph (3)(e).

Offence

             (5)  A person commits an offence if:

                     (a)  the person is present while evidence is being given in private at a hearing; and

                     (b)  the person is none of the following:

                              (i)  the person giving evidence;

                             (ii)  a person whom the Integrity Commissioner must, under subsection (2), allow to be present while the evidence is being given;

                            (iii)  a person who may be present at the hearing in accordance with a determination under subsection (1).

Penalty:  Imprisonment for 12 months.

Determination of who may be present not a legislative instrument

             (6)  If the determination of who may be present at a hearing is made in writing, the determination is not a legislative instrument.

Subdivision C Taking evidence at hearing

87   Evidence on oath or by affirmation

             (1)  At a hearing, the Integrity Commissioner may:

                     (a)  require a witness to either take an oath or make an affirmation; and

                     (b)  administer an oath or affirmation to the witness.

Note 1:       Failure to take an oath or make an affirmation is an offence: see section 93.

Note 2:       This means that a hearing is a judicial proceeding for the purposes of Part III of the Crimes Act 1914 , which creates various offences in relation to judicial proceedings.

             (2)  The Integrity Commissioner may administer an oath or affirmation to a person appearing as a witness in another country, but must do so in accordance with:

                     (a)  any provision of the arrangements made between Australia and that other country, as referred to in section 84; and

                     (b)  the laws of that other country.

             (3)  The oath or affirmation is an oath or affirmation that the evidence the person will give will be true.

             (4)  The Integrity Commissioner may allow a person attending a hearing who has been sworn, or who has made an affirmation, to give evidence by tendering a written statement and verifying it by oath or affirmation.

88   Examination and cross-examination of witnesses

                   At a hearing, the following persons may, so far as the Integrity Commissioner thinks appropriate, examine or cross-examine any witness on any matter that the Integrity Commissioner considers relevant:

                     (a)  counsel assisting the Integrity Commissioner generally or in relation to the investigation or public inquiry to which the hearing relates;

                     (b)  a person summoned, or otherwise authorised, to appear before the Integrity Commissioner;

                     (c)  any legal practitioner representing a person at the hearing.

89   Giving evidence in private

Certain evidence must be given in private

             (1)  A person giving evidence at a hearing held in public must give particular evidence in private if the evidence:

                     (a)  would disclose one of the following:

                              (i)  legal advice given to a Minister or a Commonwealth government agency;

                             (ii)  a communication between an officer of a Commonwealth government agency and another person or body, being a communication protected against disclosure by legal professional privilege; or

                     (b)  would breach a secrecy provision other than:

                              (i)  a taxation secrecy provision; or

                             (ii)  a law enforcement secrecy provision.

Note:          If the evidence involves section 149 certified information, the evidence may need to be given in private in order to comply with the terms of the certificate. In some circumstances the terms of the section 149 certificate may mean that the evidence may not be able to be given at all.

Person may request that certain evidence be given in private

             (2)  A person giving evidence at a hearing held in public may request that he or she give particular evidence in private on the grounds that:

                     (a)  the evidence relates to the profits or financial position of any person; and

                     (b)  the taking of evidence in public would be unfairly prejudicial to the interests of the person referred to in paragraph (a).

             (3)  The Integrity Commissioner may, if he or she considers it appropriate, allow the evidence to be given in private.

90   Directions in relation to confidentiality

Prohibition or limitation on publication

             (1)  The Integrity Commissioner may direct that:

                     (a)  particular evidence given at a hearing; or

                     (b)  the contents of a particular document, or a description of any thing, produced to the Integrity Commissioner at the hearing; or

                     (c)  particular information that might enable a person who has given evidence at the hearing to be identified; or

                     (d)  the fact that a particular person has given or may be about to give evidence at the hearing;

must not be published, or must not be published except in such manner, and to such persons, as the Integrity Commissioner specifies.

Note:          Failure to comply with a direction is an offence: see subsection (6).

             (2)  If the hearing is held in private, the Integrity Commissioner must give a direction under subsection (1) if the Commissioner is satisfied that the failure to give a such a direction:

                     (a)  might prejudice:

                              (i)  a person’s safety or reputation; or

                             (ii)  the fair trial of a person who has been, or may be, charged with an offence; or

                     (b)  might lead to the publication of section 149 certified information.

             (3)  The Integrity Commissioner may vary or revoke a direction in writing. However, the Integrity Commissioner must not vary or revoke a direction if the Integrity Commissioner is satisfied that doing so:

                     (a)  might prejudice:

                              (i)  a person’s safety or reputation; or

                             (ii)  the fair trial of a person who has been, or may be, charged with an offence; or

                     (b)  might lead to the publication of section 149 certified information.

Court certificate in relation to evidence in respect of which a direction has been given

             (4)  If:

                     (a)  a person has been charged with an offence before a federal court or a court of a State or Territory; and

                     (b)  the court considers that it may be desirable in the interests of justice that particular evidence given at a hearing, in respect of which the Integrity Commissioner has given a direction under subsection (1), be made available to the person or to a legal practitioner representing the person;

the court may give to the Integrity Commissioner a certificate to that effect. If the court does so, the Integrity Commissioner must make the evidence available to the court.

             (5)  If:

                     (a)  the Integrity Commissioner makes evidence available to a court under subsection (4); and

                     (b)  the court, after examining the evidence, is satisfied that the interests of justice so require;

the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.

Offence

             (6)  A person commits an offence if:

                     (a)  the person is given a direction by the Integrity Commissioner under subsection (1); and

                     (b)  the person contravenes the direction.

Penalty:  Imprisonment for 12 months.

Direction is not a legislative instrument

             (7)  A direction given to a person under subsection (1) is not a legislative instrument.

Subdivision D Prohibitions against disclosing information about a summons

91   Disclosure of summons may be prohibited

Application

             (1)  This section applies if:

                     (a)  a summons is served on a person (the person served ) under section 83 to attend a hearing; and

                     (b)  the hearing is to be held in private.

Notation prohibiting disclosure of information about summons

             (2)  The Integrity Commissioner may include a notation in the summons to the effect that disclosure of information about:

                     (a)  the summons; or

                     (b)  any official matter connected with the summons;

is prohibited except in the circumstances (if any) specified in the notation.

             (3)  The Integrity Commissioner must include a notation in the summons if the Integrity Commissioner is satisfied that failure to do so would reasonably be expected to prejudice:

                     (a)  a person’s safety or reputation; or

                     (b)  the fair trial of a person who has been, or may be, charged with an offence; or

                     (c)  the investigation to which the hearing relates or another corruption investigation; or

                     (d)  any action taken as a result of an investigation referred to in paragraph (c).

             (4)  The Integrity Commissioner may include a notation in the summons if the Integrity Commissioner is satisfied that:

                     (a)  failure to do so might prejudice:

                              (i)  a person’s safety or reputation; or

                             (ii)  the fair trial of a person who has been, or may be, charged with an offence; or

                            (iii)  the investigation to which the hearing relates or another corruption investigation; or

                            (iv)  any action taken as a result of an investigation referred to in subparagraph (iii); or

                     (b)  failure to do so might otherwise be contrary to the public interest.

             (5)  The Integrity Commissioner must not include a notation in the summons in any other case.

Written statement to accompany notation

             (6)  If a notation is included in the summons, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by section 92 on the person served.

Cancellation of notation

             (7)  A notation included in the summons is cancelled by this subsection if:

                     (a)  the Integrity Commissioner concludes the investigation to which the hearing relates; and

                     (b)  any criminal proceedings or civil penalty proceedings resulting from the investigation are commenced.

             (8)  If a notation is cancelled by subsection (7), the Integrity Commissioner must advise the person served, in writing, of the cancellation.

Relationship of notation with Privacy Act 1988

             (9)  If:

                     (a)  a notation has been included in the summons in relation to the disclosure of information about the summons or any official matter connected with the summons; and

                     (b)  the notation has not been cancelled; and

                     (c)  apart from this subsection, a credit reporting agency (within the meaning of section 11A of the Privacy Act 1988 ) would be required, under subsection 18K(5) of the Privacy Act 1988 , to make a note about the disclosure of the information;

such a note must not be made until the notation is cancelled.

92   Offences of disclosure

             (1)  A person commits an offence if:

                     (a)  the person is served with a summons under section 83; and

                     (b)  the summons includes a notation under section 91; and

                     (c)  the person discloses the existence of, or any information about:

                              (i)  the summons; or

                             (ii)  any official matter connected with the summons; and

                     (d)  when the disclosure is made:

                              (i)  the notation has not been cancelled by subsection 91(7); and

                             (ii)  the period of 5 years after the summons is served under section 83 has not ended.

Penalty:  Imprisonment for 12 months.

             (2)  In proceedings for an offence against subsection (1), it is a defence if the person makes the disclosure:

                     (a)  in the circumstances, if any, permitted by the terms of the notation; or

                     (b)  to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the summons; or

                     (c)  to a legal aid officer for the purpose of obtaining assistance under section 103 in relation to the summons; or

                     (d)  if the person is a body corporate—to an officer or agent of the body corporate for the purpose of ensuring compliance with the summons; or

                     (e)  if the person is a legal practitioner—for the purpose of obtaining the agreement of another person under subsection 95(2) to the legal practitioner answering a question or producing a document or thing at the hearing.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2): see subsection 13.3(3) of the Criminal Code .

             (3)  A person commits an offence if:

                     (a)  a disclosure is made to a person about:

                              (i)  a summons under section 83 that includes a notation under section 91; or

                             (ii)  any official matter connected with a summons under section 83 that includes a notation under section 91; and

                     (b)  the disclosure is permitted under subsection (2) or (4) because the person is a person of a particular kind; and

                     (c)  while the person is a person of that kind, the person discloses the existence of, or any information about:

                              (i)  the summons; or

                             (ii)  any official matter connected with the summons; and

                     (d)  when the disclosure by the person is made:

                              (i)  the notation has not been cancelled by subsection 91(7); and

                             (ii)  the period of 5 years after the summons is served under section 83 has not ended.

Penalty:  Imprisonment for 12 months.

             (4)  In proceedings for an offence against subsection (3), it is a defence if the person discloses the information:

                     (a)  if the person is an officer or agent of a body corporate referred to in paragraph (2)(d):

                              (i)  to another officer or agent of the body corporate for the purpose of ensuring compliance with the summons; or

                             (ii)  to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the summons; or

                            (iii)  to a legal aid officer for the purpose of obtaining assistance under section 103 in relation to the summons; or

                     (b)  if the person is a legal practitioner—for the purpose of giving legal advice, making representations, or obtaining assistance under section 103, in relation to the summons; or

                     (c)  if the person is a legal aid officer—for the purpose of obtaining legal advice or representation in relation to the summons.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (4): see subsection 13.3(3) of the Criminal Code .

             (5)  A person commits an offence if:

                     (a)  a disclosure is made to a person about:

                              (i)  a summons under section 83 that includes a notation under section 91; or

                             (ii)  any official matter connected with a summons under section 83 that includes a notation under section 91; and

                     (b)  the disclosure is permitted under subsection (2) or (4) because the person is a person of a particular kind; and

                     (c)  when the person is no longer a person of that kind, the person:

                              (i)  makes a record of the summons; or

                             (ii)  discloses the existence of the summons; or

                            (iii)  discloses any information about the summons or the existence of it; and

                     (d)  when the record, or disclosure, is made by the person:

                              (i)  the notation has not been cancelled by subsection 91(7); and

                             (ii)  the period of 5 years after the summons is served under section 83 has not ended.

Penalty:  Imprisonment for 12 months.

             (6)  A reference in this section to disclosing something’s existence includes disclosing information from which a person could reasonably be expected to infer its existence.

Subdivision E Offences in relation to hearings

93   Offences

Failure to attend hearing

             (1)  A person commits an offence if:

                     (a)  the person is served with a summons to attend a hearing; and

                     (b)  the person:

                              (i)  fails to attend as required by the summons; or

                             (ii)  fails to appear and report from day to day unless excused or released from further attendance by the Integrity Commissioner.

Penalty:  Imprisonment for 12 months.

Note:          A defendant bears an evidential burden in relation to the excuse or release from further attendance referred to in subparagraph (b)(ii): see subsection 13.3(3) of the Criminal Code .

Failure to swear an oath, make an affirmation or answer a question

             (2)  A person commits an offence if:

                     (a)  the person is served with a summons to attend a hearing; and

                     (b)  the person fails:

                              (i)  to be sworn or to make an affirmation at the hearing; or

                             (ii)  to answer a question at the hearing that the Integrity Commissioner requires the person to answer.

Penalty:  Imprisonment for 2 years.

Note 1:       A legal practitioner may refuse to answer a question in certain circumstances: see section 95.

Note 2:       This subsection is not subject to the privilege against self-incrimination but there are limits on the uses to which the evidence the person gives may be put: see section 96.

             (3)  Subsection (2) has effect subject to section 150 (which deals with section 149 certified information).

Failure to produce a document or thing

             (4)  A person commits an offence if:

                     (a)  the person is served with a summons to produce a document or thing specified in the summons; and

                     (b)  the person fails to produce the document or thing that the person was required to produce.

Penalty:  Imprisonment for 2 years.

Note 1:       A legal practitioner may refuse to produce a document or thing in certain circumstances: see section 95.

Note 2:       This subsection is not subject to the privilege against self-incrimination but there are limits on the uses to which the evidence the person gives may be put: see section 96.

             (5)  Subsection (4) has effect subject to section 150 (which deals with section 149 certified information).

94   Contempt

             (1)  A person commits an offence if:

                     (a)  the person insults, disturbs or uses insulting language towards another person; and

                     (b)  the person knows that:

                              (i)  the other person is the Integrity Commissioner; and

                             (ii)  the other person is holding a hearing in the performance of his or her functions, or the exercise of his or her powers, as Integrity Commissioner.

Penalty:  Imprisonment for 6 months.

             (2)  A person commits an offence if:

                     (a)  the person creates a disturbance, or takes part in creating or continuing a disturbance, in or near a place; and

                     (b)  the person knows that the place is a place where a hearing is being held for the purpose of:

                              (i)  investigating a corruption issue; or

                             (ii)  conducting a public inquiry.

Penalty:  Imprisonment for 6 months.

             (3)  A person commits an offence if:

                     (a)  the person interrupts a hearing that is being held for the purpose of:

                              (i)  investigating a corruption issue; or

                             (ii)  conducting a public inquiry; or

                     (b)  the person does any other act or thing that would, if the hearing were held in a court of record, constitute a contempt of that court.

Penalty:  Imprisonment for 6 months.

95  Legal practitioner not required to disclose privileged communications

             (1)  A legal practitioner may refuse:

                     (a)  to answer a question asked by the Integrity Commissioner at a hearing; or

                     (b)  to produce a document or thing to the Integrity Commissioner at a hearing;

if the answer to the question would disclose, or the document or thing contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner.

             (2)  Subsection (1) has effect subject to paragraph 96(5)(d).

             (3)  Subsection (1) does not apply if the person to whom or by whom the communication was made agrees to the legal practitioner:

                     (a)  answering the question; or

                     (b)  producing the document or thing.

             (4)  If the legal practitioner refuses:

                     (a)  to answer the question; or

                     (b)  to produce the document or thing;

he or she must, if required by the Integrity Commissioner, give the Integrity Commissioner the name and address of the person to whom or by whom the communication was made.

             (5)  This section does not affect the law relating to legal professional privilege.

96   Self-incrimination etc.

Self-incrimination

             (1)  A person is not excused from:

                     (a)  answering a question; or

                     (b)  producing a document or thing;

when summoned, under section 83, to attend a hearing to do so on the ground that doing so would tend to incriminate the person or expose the person to a penalty.

Use indemnity

             (2)  Subsection (4) applies if:

                     (a)  the person:

                              (i)  answers the question (whether orally or in writing); or

                             (ii)  produces the document or thing;

                            and, before doing so, claims that answering the question, or producing the document or thing, might tend to incriminate the person or expose the person to a penalty; or

                     (b)  the person answers the question in writing and claims, in a written statement accompanying the answer, that answering the question might tend to incriminate the person or expose the person to a penalty; or

                     (c)  the person produces the document or thing and claims, in a written statement accompanying the document or thing, that producing the document or thing might tend to incriminate the person or expose the person to a penalty.

             (3)  Subsection (4) does not apply to the production of a document that is, or forms part of, a record of an existing or past business.

             (4)  Neither of the following:

                     (a)  the answer given;

                     (b)  the document or thing produced;

is admissible in evidence against the person in criminal proceedings, or any other proceedings for the imposition or recovery of a penalty, other than:

                     (c)  proceedings for an offence against section 93; or

                     (d)  confiscation proceedings; or

                     (e)  proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (which deals with false or misleading information or documents) that relates to this Act; or

                      (f)  proceedings for an offence against section 149.1 of the Criminal Code (which deals with obstruction of Commonwealth public officials) that relates to this Act; or

                     (g)  disciplinary proceedings against the person if the person is a staff member of a law enforcement agency.

Public interest grounds

             (5)  A person is not excused from:

                     (a)  answering a question; or

                     (b)  producing a document or thing;

when summoned, under section 83, to attend a hearing to do so on the ground that doing so:

                     (c)  would disclose one of the following:

                              (i)  legal advice given to a Minister or a Commonwealth government agency;

                             (ii)  a communication between an officer of a Commonwealth government agency and another person or body, being a communication protected against disclosure by legal professional privilege; or

                     (d)  would breach a secrecy provision other than:

                              (i)  a taxation secrecy provision; or

                             (ii)  a law enforcement secrecy provision; or

                     (e)  would be otherwise contrary to the public interest.

Note:          See also subsection 150(3) in relation to section 149 certified information.

             (6)  The fact that a person is not excused under subsection (5) from:

                     (a)  answering a question; or

                     (b)  producing a document or thing;

does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that answer, document or thing.

             (7)  A person who is served with a summons under section 83 does not commit an offence, and is not liable to any penalty, under the provisions of any other enactment (other than a taxation secrecy provision or a law enforcement secrecy provision) because the person:

                     (a)  answers a question at a hearing that the Integrity Commissioner requires the person to answer; or

                     (b)  produces a document or thing that the person is required to produce in accordance with the summons.

Subdivision F Court orders for delivery of witness’s passport and witness’s arrest

97   Integrity Commissioner may apply for order that witness deliver his or her passport

             (1)  The Integrity Commissioner may apply to a Judge of the Federal Court for an order that a person deliver his or her passport to the Integrity Commissioner if:

                     (a)  either of the following apply:

                              (i)  a summons under section 83 has been issued requiring the person to attend a hearing (whether or not the summons has been served) in relation to a corruption investigation or public inquiry; or

                             (ii)  the person has appeared at a hearing in relation to a corruption investigation or public inquiry to give evidence or to produce documents or things; and

                     (b)  there are reasonable grounds for believing that the person may be able:

                              (i)  to give evidence, or further evidence, that is relevant to the investigation or public inquiry; or

                             (ii)  to produce documents or things, or further documents or things, that are relevant to the investigation or public inquiry; and

                     (c)  there are reasonable grounds for suspecting that the person:

                              (i)  intends to leave Australia; and

                             (ii)  has in his or her possession, custody or control a passport issued to him or her.

             (2)  The Integrity Commissioner must give the Judge information on oath, or by affirmation, in support of the grounds for the application.

98   Court orders

Court order for witness to appear before the Court

             (1)  If a Judge of the Federal Court, sitting in Chambers, is satisfied, on the evidence, that the requirements of paragraphs 97(1)(a), (b) and (c) are met, the Judge may make an order:

                     (a)  requiring the person to appear before the Federal Court on a date, and at a time and place, specified in the order; and

                     (b)  requesting the person to show cause why he or she should not be ordered to deliver the passport to the Integrity Commissioner.

Offence

             (2)  A person commits an offence if:

                     (a)  the person leaves Australia; and

                     (b)  an order has been made in relation to the person under subsection (1); and

                     (c)  a copy of the order has been served on the person.

Penalty:  Imprisonment for 2 years.

             (3)  In proceedings for an offence against subsection (2), it is a defence if:

                     (a)  the person has appeared before the Federal Court as required by the order referred to in paragraph (2)(b); and

                     (b)  if the Court makes an order in relation to the person under paragraph (4)(a)—the person has complied with the terms of the order and any passport delivered to the Integrity Commissioner in accordance with the order has been returned to the person.

Court order that witness deliver passport to Integrity Commissioner

             (4)  If the person appears before the Federal Court as required by the order made under subsection (1), the Court may, if it thinks fit, make an order:

                     (a)  requiring the person to deliver to the Integrity Commissioner any passport:

                              (i)  issued to him or her; and

                             (ii)  in his or her possession, custody or control; and

                     (b)  authorising the Integrity Commissioner to retain the passport until the end of the period (not exceeding one month) that is specified in the order.

Extension of period that Integrity Commissioner may retain passport

             (5)  The Federal Court may, upon application by the Integrity Commissioner, extend for a further period (of not more than one month), or further periods (of not more than one month in each case), the period for which the Integrity Commissioner is authorised to retain a passport. However, the total period for which the Integrity Commissioner is authorised to retain the passport must not exceed 3 months.

Revocation of court order

             (6)  If the Federal Court makes an order authorising the Integrity Commissioner to retain a passport issued to a person, the person may apply to the Federal Court for the order to be revoked.

             (7)  If the Federal Court revokes the order, the Integrity Commissioner must return the passport to the person immediately.

Jurisdiction of the Federal Court

             (8)  The Federal Court has jurisdiction with respect to matters arising under this section.

Definition

             (9)  In this section:

Australia includes the external Territories.

99   Applying for a warrant to arrest witness

             (1)  An authorised officer may apply to a Judge of the Federal Court of Australia, or of the Supreme Court of a State or Territory, for a warrant to arrest a person if the authorised officer has reasonable grounds to believe that:

                     (a)  the person:

                              (i)  has been ordered to deliver his or her passport to the Integrity Commissioner (whether or not the person has complied with the order); and

                             (ii)  is likely to leave Australia for the purpose of avoiding giving evidence at a hearing before the Integrity Commissioner; or

                     (b)  the person has been served with a summons under section 83 and:

                              (i)  has absconded or is likely to abscond; or

                             (ii)  is otherwise attempting, or likely to attempt, to evade service of the summons; or

                     (c)  the person has committed an offence under subsection 93(1) or is likely to do so.

             (2)  An authorised officer must give the Judge information on oath, or by affirmation, in support of the grounds for the application.

100   Warrant for arrest

Issue of warrant

             (1)  If a Judge, sitting in Chambers, is satisfied, on the evidence, that there are reasonable grounds for believing that paragraph 99(1)(a), (b) or (c) is met, the Judge may issue a warrant authorising the authorised officer to arrest the person.

Execution of warrant

             (2)  For the purpose of executing a warrant, if the authorised officer executing the warrant (or an assisting officer) believes on reasonable grounds that the person is on any premises, the authorised officer (or the assisting officer) may break into and enter those premises.

             (3)  However, the authorised officer executing the warrant (or an assisting officer) must not enter a dwelling house at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the authorised officer (or the assisting officer) believes on reasonable grounds that it would not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time.

             (4)  The authorised officer executing the warrant (or an assisting officer) must not, in the course of arresting the person, use more force, or subject the other person to greater indignity, than is necessary and reasonable:

                     (a)  to make the arrest; or

                     (b)  to prevent the escape of the person after the arrest.

             (5)  The warrant may be executed even if the authorised officer does not have a copy of the warrant in his or her possession at the time it is executed.

             (6)  The authorised officer executing the warrant (or an assisting officer who arrests the person) must inform the person, at the time of the arrest, of the reason for which he or she is being arrested.

             (7)  It is sufficient if the person is informed of the substance of the reason and it is not necessary that this be done in language of a precise or technical nature.

             (8)  Subsection (6) does not apply to the arrest of the person if:

                     (a)  the person should, in the circumstances, know the substance of the reason for which he or she is being arrested; or

                     (b)  the person’s actions make it impracticable for the authorised officer executing the warrant (or an assisting officer making the arrest) to inform the person of the reason for which he or she is being arrested.

             (9)  Nothing in this section prevents the arrest of a person in accordance with any other law.

Definitions

           (10)  In this section:

dwelling house includes a conveyance, and a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.

Judge means:

                     (a)  a Judge of the Federal Court of Australia; or

                     (b)  a Judge of the Supreme Court of a State or Territory.

101   Powers of Judge in relation to person arrested

             (1)  A person arrested under a warrant issued under section 100 must be brought, as soon as practicable, before a Judge.

             (2)  The Judge may:

                     (a)  grant the person bail:

                              (i)  on such security as the Judge thinks fit; and

                             (ii)  on such conditions as the Judge thinks are necessary to ensure that the person appears as a witness at a hearing before the Integrity Commissioner; or

                     (b)  order that the person continue to be detained for the purpose of ensuring that the person appears as a witness at a hearing before the Integrity Commissioner; or

                     (c)  order that the person be released.

             (3)  A person who is detained under paragraph (2)(b) must be brought before a Judge:

                     (a)  within 14 days after he or she was brought, or last brought, before a Judge; or

                     (b)  within such shorter or longer time as a Judge fixed on the person’s last previous appearance before a Judge;

and the Judge may exercise any of the powers under subsection (2).

             (4)  In this section:

Judge means:

                     (a)  a Judge of the Federal Court of Australia; or

                     (b)  a Judge of the Supreme Court of a State or Territory.

Subdivision G Miscellaneous

102   Integrity Commissioner may retain documents or things

             (1)  If a document or thing is produced to the Integrity Commissioner in accordance with a summons under section 83, the Integrity Commissioner:

                     (a)  may take possession of, and may make copies of, the document or thing, or take extracts from the document; and

                     (b)  may retain possession of the document or thing for such period as is necessary for the purposes of the investigation or public inquiry to which the document or thing relates.

             (2)  While the Integrity Commissioner retains the document or thing, he or she must allow a person who would otherwise be entitled to inspect the document or view the thing to do so at the times that the person would ordinarily be able to do so.

103   Person may apply for legal and financial assistance

             (1)  A person who is summoned under section 83 to attend a hearing before the Integrity Commissioner may apply to the Attorney-General for assistance in respect of:

                     (a)  his or her attendance at the hearing; or

                     (b)  his or her representation at the hearing by a legal practitioner.

Note 1:       A person summoned to appear as a witness at a hearing is entitled to be paid allowances for travelling and other expenses prescribed by regulations: see subsection 83(5).

Note 2:       A person may also apply for assistance in respect of an application to the Federal Court or the Federal Magistrates Court under the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of a matter arising under this Act: see section 221.

             (2)  A person who:

                     (a)  is not giving evidence at a hearing before the Integrity Commissioner; and

                     (b)  is being represented at the hearing by a legal practitioner with the consent of the Integrity Commissioner;

may apply to the Attorney-General for assistance in respect of that representation.

Note:          A person may also apply for assistance in respect of an application to the Federal Court or the Federal Magistrates Court under the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of a matter arising under this Act: see section 221.

             (3)  If a person applies under subsection (1) or (2), the Attorney-General may, if he or she is satisfied that:

                     (a)  it would involve substantial hardship to the person to refuse the application; or

                     (b)  the circumstances of the case are of such a special nature that the application should be granted;

authorise the Commonwealth to provide the person with legal or financial assistance, determined by the Attorney-General, in respect of:

                     (c)  the person’s attendance at the hearing; or

                     (d)  the person’s representation at the hearing by a legal practitioner.

             (4)  Legal or financial assistance may be given:

                     (a)  unconditionally; or

                     (b)  subject to such conditions as the Attorney-General determines.

             (5)  An instrument that determines the conditions on which legal or financial assistance may be given is not a legislative instrument.

104   Protection of Integrity Commissioner etc.

             (1)  The Integrity Commissioner has, in exercising his or her power to hold a hearing, the same protection and immunity as a Justice of the High Court.

             (2)  A legal practitioner assisting the Integrity Commissioner, or representing a person at a hearing, has the same protection and immunity as a barrister appearing for a party in proceedings in the High Court.

             (4)  To avoid doubt, this section does not limit the powers of the Ombudsman under the Ombudsman Act 1976 to investigate issues of administrative practice in relation to a hearing that been held under this Division.

             (5)  A reference in this section to the Integrity Commissioner includes a reference to an Assistant Integrity Commissioner who exercises the power to hold a hearing under an authorisation under section 219.

104A   Protection of witnesses etc.

             (1)  A person who:

                     (a)  gives evidence at a hearing conducted under this Act; or

                     (b)  produces a document or thing at a hearing conducted under this Act; or

                     (c)  makes a submission to the Integrity Commissioner in relation to a public inquiry;

has the same protection as a witness in proceedings in the High Court.

             (2)  Subsection (3) applies if it appears to the Integrity Commissioner that, because a person:

                     (a)  is to give evidence, or produce a document or thing, at a hearing under this Act; or

                     (b)  has given evidence, or produced a document or thing, at a hearing under this Act; or

                     (c)  is to make, or has made, a submission to the Integrity Commissioner in relation to a public inquiry;

either:

                     (d)  the safety of the person or any other person may be prejudiced; or

                     (e)  the person or any other person may be subjected to intimidation or harassment.

             (3)  The Integrity Commissioner may make such arrangements as are necessary:

                     (a)  to protect the safety of any person mentioned in paragraph (2)(d); or

                     (b)  to protect any person mentioned in paragraph (2)(e) from intimidation or harassment.

             (4)  For the purpose of subsection (3), the arrangements that the Integrity Commissioner may make include arrangements with:

                     (a)  the Minister; or

                     (b)  members of the AFP; or

                     (c)  members of the police force of a State or Territory.

             (5)  This section does not affect the Witness Protection Act 1994 .



 

Division 3 Entering certain places during an investigation without a search warrant

105   Power to enter places occupied by law enforcement agencies

             (1)  For the purposes of investigating a corruption issue, the Integrity Commissioner (or an authorised officer) may:

                     (a)  enter any place occupied by a law enforcement agency at any reasonable time of the day; and

                     (b)  carry on the investigation of the corruption issue at that place; and

                     (c)  inspect any documents relevant to the investigation that are kept at that place; and

                     (d)  make copies of, or take extracts from, any documents so inspected; and

                     (e)  for the purpose of making a copy of, or taking an extract from, a document, remove the document from that place; and

                      (f)  seize things found at that place if the Integrity Commissioner (or the authorised officer) believes on reasonable grounds that:

                              (i)  the thing is relevant to an indictable offence; and

                             (ii)  seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an indictable offence.

             (2)  While the Integrity Commissioner (or authorised officer) retains a document or thing, he or she must allow a person who would otherwise be entitled to inspect the document or view the thing to do so at the times that the person would ordinarily be able to do so.

             (3)  Subsection (1) does not authorise a person to enter, or carry on an investigation at:

                     (a)  a place referred to in paragraph 80(c) of the Crimes Act 1914 ; or

                     (b)  a place that is a prohibited place for the purposes of the Defence (Special Undertakings) Act 1952 under section 7 of that Act; or

                     (c)  an area of land or water, or an area of land and water, that is declared under section 14 of the Defence (Special Undertakings) Act 1952 to be a restricted area for the purposes of that Act;

unless:

                     (d)  the Minister administering that Act (or another Minister acting for and on behalf of that Minister) has approved the person entering the place or area; and

                     (e)  the person complies with any conditions imposed by the Minister giving the approval in relation to:

                              (i)  his or her entering that place or area; and

                             (ii)  the manner in which his or her investigation is to be conducted at that place or area.

             (4)  If the Attorney-General is satisfied that conducting an investigation at a place might prejudice the security or defence of the Commonwealth, the Attorney-General may, by written notice to the Integrity Commissioner, declare the place to be a place to which this subsection applies.

             (5)  While the declaration is in force, subsection (1) does not authorise a person to do anything at the place unless:

                     (a)  a Minister specified in the declaration (or another Minister acting for and on behalf of that Minister) has approved the person entering the place; and

                     (b)  the person complies with any conditions imposed by the Minister giving the approval in relation to:

                              (i)  his or her entering that place; and

                             (ii)  the manner in which his or her investigation is to be conducted at that place.

             (6)  A declaration by the Attorney-General under this section is not a legislative instrument.

106   Receipts of things seized under warrant

             (1)  If a thing is seized, or removed from a place, under section 105, the Integrity Commissioner (or an authorised officer) must provide a receipt for the thing.

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



 

Division 4 Search warrants

Subdivision A Preliminary

107   Application to things under the control of a person

                   This Division applies to a person (the possessor ) who has a thing under his or her control in any place (whether for the use or benefit of the possessor or another person), even if another person has the actual possession or custody of the thing, as if the possessor has possession of the thing.

Subdivision B Applying for a search warrant

108   Authorised officer may apply for a search warrant

Application for warrant to search premises (investigation warrant)

             (1)  An authorised officer may apply to an issuing officer for an investigation warrant to search premises if the authorised officer:

                     (a)  has reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material on the premises; and

                     (b)  has reasonable grounds for believing that, if a person was served with a summons to produce the evidential material, the material might be concealed, lost, mutilated or destroyed.

Note:          In special circumstances and urgent cases, an application may be made by telephone, fax, email or other electronic means: see section 111.

Application for warrant to search premises (offence warrant)

             (2)  An authorised officer may apply to an issuing officer for an offence warrant to search premises if the authorised officer has reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material on the premises.

Note:          In special circumstances and urgent cases, an application may be made by telephone, fax, email or other electronic means: see section 111.

Application for a warrant to search person (investigation warrant)

             (3)  An authorised officer may apply to an issuing officer for an investigation warrant to carry out an ordinary search or a frisk search of a person if the authorised officer:

                     (a)  has reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material; and

                     (b)  has reasonable grounds for believing that, if the person was served with a summons to produce the evidential material, the material might be concealed, lost, mutilated or destroyed.

Note:          In special circumstances and urgent cases, an application may be made by telephone, fax, email or other electronic means: see section 111.

Application for a warrant to search person (offence warrant)

             (4)  An authorised officer may apply to an issuing officer for an offence warrant to carry out an ordinary search or a frisk search of a person if the authorised officer has reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material.

Note:          In special circumstances and urgent cases, an application may be made by telephone, fax, email or other electronic means: see section 111.

Information in support of application

             (5)  An authorised officer must give the issuing officer information on oath or by affirmation to support the grounds for an application under subsection (1), (2), (3) or (4).

             (6)  If an authorised officer applying for a search warrant suspects that, in executing the warrant, it will be necessary to use firearms, the authorised officer must state that suspicion, and the grounds for it, in the information given under subsection (5).

             (7)  If the authorised officer applying for a search warrant (or another authorised officer who will be an assisting officer in relation to the search warrant) has, at any time previously, applied for a search warrant under this Act or another Act in relation to the same person or premises, the authorised officer must state particulars of those applications, and their outcome, in the information given under subsection (5).

Subdivision C Issue of a search warrant

109   When search warrants may be issued

Issue of a warrant to search premises (investigation warrant)

             (1)  If:

                     (a)  an authorised officer makes an application to an issuing officer under subsection 108(1); and

                     (b)  the issuing officer is satisfied, on the information given under subsection 108(5), that:

                              (i)  there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, evidential material on the premises in relation to which the application is made; and

                             (ii)  there are reasonable grounds for believing that, if a person was served with a summons to produce the evidential material, the material might be concealed, lost, mutilated or destroyed;

the issuing officer may issue an investigation warrant authorising the authorised officer to search the premises.

Issue of a warrant to search premises (offence warrant)

             (2)  If:

                     (a)  an authorised officer makes an application to an issuing officer under subsection 108(2); and

                     (b)  the issuing officer is satisfied, on the information given under subsection 108(5), that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, evidential material on the premises in relation to which the application is made;

the issuing officer may issue an offence warrant authorising the authorised officer to search the premises.

Issue of a warrant to search a person (investigation warrant)

             (3)  If:

                     (a)  an authorised officer makes an application to an issuing officer under subsection 108(3); and

                     (b)  the issuing officer is satisfied, on the information given under subsection 108(5), that:

                              (i)  there are reasonable grounds for suspecting that the person in relation to whom the application is made has in his or her possession, or will within the next 72 hours have in his or her possession, evidential material; and

                             (ii)  there are reasonable grounds for believing that, if the person was served with a summons to produce the evidential material, the material might be concealed, lost, mutilated or destroyed;

the issuing officer may issue an investigation warrant authorising the authorised officer to carry out an ordinary search or a frisk search of the person.

Issue of a warrant to search a person (offence warrant)

             (4)  If:

                     (a)  an authorised officer makes an application to an issuing officer under subsection 108(4); and

                     (b)  the issuing officer is satisfied, on the information given under subsection 108(5), that there are reasonable grounds for suspecting that the person in relation to whom the application is made has in his or her possession, or will within the next 72 hours have in his or her possession, evidential material;

the issuing officer may issue an offence warrant authorising the authorised officer to carry out an ordinary search or a frisk search of the person.

Issue of a warrant by State/Territory issuing officers

             (5)  An issuing officer in a State or internal Territory may:

                     (a)  issue a search warrant in relation to premises or a person in that State or Territory; or

                     (b)  issue a search warrant in relation to premises or a person in an external Territory; or

                     (c)  issue a search warrant in relation to premises or a person in another State or internal Territory (including the Jervis Bay Territory) if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate; or

                     (d)  issue a search warrant in relation to a person wherever the person is in Australia or in an external Territory if he or she is satisfied that it is not possible to predict where the person may be.

             (6)  An issuing officer in New South Wales or the Australian Capital Territory may issue a search warrant in relation to premises or a person in the Jervis Bay Territory.

             (7)  Subsections (5) and (6) do not apply if the issuing officer is:

                     (a)  a Judge of the Federal Court of Australia; or

                     (b)  a Federal Magistrate.

Issue of a warrant by issuing officers

             (8)  The function of issuing a search warrant is conferred on an issuing officer in a personal capacity and not as a court or a member of a court. The issuing officer need not accept the function conferred.

             (9)  An issuing officer performing a function of, or connected with, issuing a search warrant has the same protection and immunity as if he or she were performing that function as, or as a member of, the court of which the issuing officer is a member.

110   Content of warrants

General contents of warrant

             (1)  If an issuing officer issues a search warrant under section 109, the issuing officer is to state in the warrant:

                     (a)  either:

                              (i)  if the warrant is an investigation warrant—the corruption issue or public inquiry to which the warrant relates; or

                             (ii)  if the warrant is an offence warrant—the offence to which the warrant relates; and

                     (b)  a description of the premises to which the warrant relates or the name or a description of a person to whom it relates; and

                     (c)  the kinds of evidential material that are to be searched for under the warrant; and

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

                     (e)  the time at which the warrant expires; and

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

             (2)  The time stated in the warrant as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.

Example:    If a warrant is issued at 3 pm on a Monday, the expiry time specified in the warrant must not be later than midnight on Monday in the following week.

Additional matters for warrant in relation to premises

             (3)  If the search warrant relates to premises, the issuing officer is also to state:

                     (a)  that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (1)(c)) found at the premises in the course of the search that the authorised officer or an assisting officer believes on reasonable grounds to be:

                              (i)  if the warrant is an investigation warrant—evidential material in relation to the corruption issue or public inquiry to which the warrant relates; or

                             (ii)  if the warrant is an offence warrant—a thing relevant to the offence to which the warrant relates; or

                            (iii)  in any case—evidential material (within the meaning of the Proceeds of Crime Act 2002 ) or tainted property (within the meaning of that Act); or

                            (iv)  in any case—a thing relevant to an indictable offence;

                            if the authorised officer or the assisting officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its 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 authorised officer or an assisting officer suspects on reasonable grounds that the person has in his or her possession:

                              (i)  in the case of an investigation warrant—any evidential material in relation to the corruption issue or public inquiry to which the warrant relates; or

                             (ii)  in the case of an offence warrant—a thing relevant to the offence to which the warrant relates; or

                            (iii)  in any case—evidential material (within the meaning of the Proceeds of Crime Act 2002 ) or tainted property (within the meaning of that Act); or

                            (iv)  in any case—a thing relevant to an indictable offence; or

                             (v)  in any case—any eligible seizable items.

Additional matters for warrant in relation to person

             (4)  If the search warrant relates to a person, the issuing officer is also to state:

                     (a)  the kind of search (ordinary or frisk) of the person that the warrant authorises; and

                     (b)  that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (1)(c)) found, in the course of the search, in the possession of the person or in, or on, an aircraft, vehicle or vessel that the person had operated or occupied at any time within 24 hours before the search began, being a thing that the authorised officer or an assisting officer believes on reasonable grounds to be:

                              (i)  in the case of an investigation warrant—evidential material in relation to the corruption issue or public inquiry to which the warrant relates; or

                             (ii)  in the case of an offence warrant—a thing relevant to the offence to which the warrant relates; or

                            (iii)  in any case—evidential material (within the meaning of the Proceeds of Crime Act 2002 ) or tainted property (within the meaning of that Act); or

                            (iv)  in any case—a thing relevant to an indictable offence;

                            if the authorised officer or the assisting officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.

Successive warrants

             (5)  Paragraph (1)(e) does not prevent the issue of successive warrants in relation to the same premises or person.

111   Application by telephone etc. and issue of warrant

             (1)  An authorised officer may apply to an issuing officer for a search warrant by telephone, fax, email 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 issuing officer:

                     (a)  may require communication by voice to the extent that is practicable in the circumstances; and

                     (b)  may make a recording of the whole or any part of any such communication by voice.

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

             (4)  If an application is made under this section:

                     (a)  sections 108 and 109 apply as if subsections 108(1), (2), (3) and (4) and 109(1), (2), (3) and (4) referred to 48 hours rather than 72 hours; and

                     (b)  section 110 applies as if subsection 110(2) referred to the end of the 48th hour rather than the end of the seventh day.

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

                     (a)  a search 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 issuing officer may complete and sign the same form of search warrant that would be issued under section 109.

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

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

             (8)  The applicant must give or transmit to the issuing officer:

                     (a)  the form of search warrant completed by the applicant; and

                     (b)  if the information referred to in subsection (3) was not sworn or affirmed—that information duly sworn or affirmed.

             (9)  The applicant must do so not later than the day after the warrant expires or the day after the day on which the search warrant was executed, whichever is the earlier.

           (10)  The issuing officer is to attach to the documents provided under subsection (8) the form of search warrant he or she has completed.

           (11)  If:

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

                     (b)  the form of search warrant signed by the issuing 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.

           (12)  In this section:

applicant means the authorised officer who applied for the search warrant.

112   The things authorised by a search warrant in relation to premises

                   A search warrant in force in relation to premises authorises the authorised officer executing the warrant or an assisting officer to do any of the following:

                     (a)  to enter the premises;

                     (b)  to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes;

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

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

                              (i)  in the case of an investigation warrant—evidential material in relation to the corruption issue or public inquiry to which the warrant relates; or

                             (ii)  in the case of an offence warrant—a thing relevant to the offence to which the warrant relates; or

                            (iii)  in any case—evidential material (within the meaning of the Proceeds of Crime Act 2002 ) or tainted property (within the meaning of that Act); or

                            (iv)  in any case—a thing relevant to an indictable offence;

                            if the authorised officer or the assisting officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence;

                     (e)  to seize other things found at the premises in the course of the search that the authorised officer or the assisting officer believes on reasonable grounds to be eligible seizable items;

                      (f)  if the warrant so allows—to conduct an ordinary search or a frisk search of a person at or near the premises if the authorised officer or the assisting officer suspects on reasonable grounds that the person has in his or her possession:

                              (i)  in the case of an investigation warrant—any evidential material in relation to the corruption issue or public inquiry to which the warrant relates; or

                             (ii)  in the case of an offence warrant—a thing relevant to the offence to which the warrant relates; or

                            (iii)  in any case—evidential material (within the meaning of the Proceeds of Crime Act 2002 ) or tainted property (within the meaning of that Act); or

                            (iv)  in any case—a thing relevant to an indictable offence; or

                             (v)  in any case—any eligible seizable items.

113   The things authorised by a search warrant in relation to a person

             (1)  A search warrant in force in relation to a person authorises the authorised officer executing the warrant or an assisting officer to do any of the following:

                     (a)  to search:

                              (i)  the person as specified in the warrant and things found in the possession of the person; and

                             (ii)  any aircraft, vehicle or vessel that the person had operated or occupied at any time within 24 hours before the search began, for things specified in the warrant;

                     (b)  to:

                              (i)  seize things of that kind; or

                             (ii)  record fingerprints from things; or

                            (iii)  take forensic samples from things;

                            found in the course of the search;

                     (c)  to seize other things found on, or in, the possession of the person or in the aircraft, vehicle or vessel referred to in subparagraph (a)(ii) in the course of the search that the authorised officer or the assisting officer believes on reasonable grounds to be:

                              (i)  in the case of an investigation warrant—evidential material in relation to the corruption issue or public inquiry to which the warrant relates; or

                             (ii)  in the case of an offence warrant—a thing relevant to the offence to which the warrant relates; or

                            (iii)  in any case—evidential material (within the meaning of the Proceeds of Crime Act 2002 ) or tainted property (within the meaning of that Act); or

                            (iv)  in any case—a thing relevant to an indictable offence;

                            if the authorised officer or the assisting officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence;

                     (d)  to seize other things found in the course of the search that the authorised officer or the assisting officer believes on reasonable grounds to be eligible seizable items.

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

114   Restrictions on personal searches

                   A search warrant may not authorise a strip search or a search of a person’s body cavities.

115   When warrant may be executed etc.

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

             (2)  If things are seized under a search warrant, the warrant authorises the authorised officer executing the warrant to make the things available to officers of other government agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate.

Subdivision D General provisions about executing a search warrant

116   Announcement before entry

             (1)  An authorised officer executing the search warrant must, before any person enters premises under the 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)  An authorised 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:

                     (a)  to ensure the safety of a person (including an authorised officer or assisting officer); or

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

117   Availability of assistance and use of force in executing a warrant

             (1)  In executing a search warrant, the authorised officer executing the warrant may:

                     (a)  obtain the assistance that is necessary and reasonable in the circumstances; and

                     (b)  use the force against persons and things that is necessary and reasonable in the circumstances.

             (2)  In executing a search warrant:

                     (a)  if an assisting officer is also an authorised officer—the assisting officer may use the force against persons and things that is necessary and reasonable in the circumstances; and

                     (b)  if an assisting officer is not an authorised officer—the assisting officer may use the force against things that is necessary and reasonable in the circumstances.

             (3)  A person who is not an authorised officer must not take part in searching a person.

Subdivision E Specific provisions about executing a warrant in relation to premises

118   Application

                   This Subdivision applies if a search warrant in relation to premises is being executed.

119   Copy of warrant to be shown to occupier etc.

             (1)  If the occupier of the premises, or another person who apparently represents the occupier, is present at the premises, the authorised officer executing the search warrant or an assisting officer must make a copy of the warrant available to the person.

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

             (3)  The authorised officer must identify himself or herself to the person at the premises.

             (4)  The copy of the search warrant need not include the signature of the issuing officer who issued it.

120   Occupier entitled to watch search

             (1)  The occupier of the premises, or another person who apparently represents the occupier, who is present at the premises, is entitled to watch the search.

             (2)  Subsection (1) is subject to Part IC of the Crimes Act 1914 .

             (3)  The right to watch the search being conducted ceases if the person impedes the search.

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

121   Specific powers available to person executing a warrant

             (1)  The authorised officer executing the search warrant or an assisting officer may take photographs or video recordings of the premises or things on the premises:

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

                     (b)  with the written consent of the occupier of the premises.

             (2)  The authorised officer executing the search warrant and all assisting officers may, if the warrant is still in force, finish executing the warrant after all of them temporarily stop executing it and leave the premises:

                     (a)  for not more than one hour; or

                     (b)  for a longer period with the written consent of the occupier of the premises.

             (3)  The execution of a search warrant that is stopped by an order of a court may be completed if:

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

                     (b)  the warrant is still in force.

122   Use of equipment to examine or process things

             (1)  The authorised officer executing the search warrant or an assisting officer may bring to the premises any equipment (including electronic equipment) reasonably necessary to examine or process things found at the premises in order to determine whether they are things that may be seized under the warrant.

             (2)  A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if:

                     (a)  both of the following apply:

                              (i)  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;

                             (ii)  there are reasonable grounds to believe that the thing contains or constitutes evidential material; or

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

             (3)  If things are moved to another place for the purpose of examination or processing, the authorised 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 thing may be moved to another place for examination or processing for no longer than 72 hours.

             (5)  An authorised officer may apply to an issuing officer for one or more extensions of that time if the authorised officer believes on reasonable grounds that the thing cannot be examined or processed within 72 hours or that time as previously extended.

             (6)  The authorised officer must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard in relation to the application.

             (7)  The authorised officer executing the search warrant or an assisting officer may operate equipment (including electronic equipment) already on the premises to examine or process a thing found on the premises in order to determine whether it may be seized under the warrant, if the authorised officer or the assisting officer 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 damaging the equipment or thing.

             (8)  A notice of the application given to the occupier of the premises is not a legislative instrument.

123   Use of electronic equipment at premises without expert assistance

             (1)  The authorised officer executing the search warrant or an assisting officer may operate electronic equipment on the premises to access data (including data not held at the premises) if he or she believes on reasonable grounds that:

                     (a)  the data might constitute evidential material; and

                     (b)  the equipment can be operated without damaging it.

Note:          An authorised officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 125.

             (2)  If the authorised officer or the assisting officer believes on reasonable grounds that any data accessed by operating the electronic equipment might constitute evidential material, he or she may:

                     (a)  copy the data to a disk, tape or other associated device brought to the premises; or

                     (b)  if the occupier of the premises agrees in writing—copy the data to a disk, tape or other associated device at the premises;

and take the device from the premises.

             (3)  If:

                     (a)  the authorised officer or the assisting officer takes the device from the premises; and

                     (b)  the Integrity Commissioner is satisfied that the data is not required (or is no longer required) for:

                              (i)  investigating a corruption issue; or

                             (ii)  conducting a public inquiry; or

                            (iii)  judicial proceedings or administrative review proceedings; or

                            (iv)  investigating or resolving AFP conduct or practices issues under Part V of the Australian Federal Police Act 1979 ;

the Integrity Commissioner must arrange for:

                     (c)  the removal of the data from any device in the control of ACLEI; and

                     (d)  the destruction of any other reproduction of the data in the control of ACLEI.

             (4)  However, the Integrity Commissioner must not do so if the data is evidence that he or she must deal with in accordance with Part 10.

             (5)  If the authorised officer or the assisting officer, 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 at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents so produced.

             (6)  A person may seize equipment under paragraph (5)(a) only if:

                     (a)  it is not practicable to put the material in documentary form as referred to in paragraph (5)(b); or

                     (b)  possession of the equipment by the occupier could constitute an offence.

124   Use of electronic equipment at premises with expert assistance

             (1)  If the authorised officer executing the search warrant or an assisting officer believes on reasonable grounds that:

                     (a)  evidential material may be accessible by operating electronic equipment at 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.

             (2)  The authorised officer or the assisting officer must notify the occupier of the premises, in writing, of:

                     (a)  his or her intention to secure the equipment; and

                     (b)  the fact that the equipment may be secured for up to 24 hours.

             (3)  The equipment may be secured for up to 24 hours to allow the equipment to be operated by an expert.

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

             (5)  The authorised officer or the assisting officer must notify 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.

             (6)  The provisions of this Division in relation to the issuing of search warrants apply, with such modifications as are necessary, to the issuing of an extension.

             (7)  A notification given to the occupier of the premises under this section is not a legislative instrument.

125   Person with knowledge of a computer or a computer system to assist access etc.

             (1)  The authorised officer executing the search warrant may apply to an issuing officer for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer or an assisting officer or to do one or more of the following:

                     (a)  access data held in a computer, or accessible from a computer, that is on premises in relation to which the warrant is in force;

                     (b)  copy the data to a data storage device;

                     (c)  convert the data into documentary form.

             (2)  The issuing officer may grant the order if he or she is satisfied that:

                     (a)  there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer; and

                     (b)  the specified person is:

                              (i)  in the case of an investigation warrant—reasonably suspected of having, or having access to, data that may be relevant to the corruption issue or public inquiry to which the warrant relates; or

                             (ii)  in the case of an offence warrant—reasonably suspected of having committed the offence stated in the warrant; or

                            (iii)  the owner or lessee of the computer; or

                            (iv)  an employee of the owner or lessee of the computer; and

                     (c)  the specified person has relevant knowledge of:

                              (i)  the computer or a computer network of which the computer forms a part; or

                             (ii)  measures applied to protect data held in, or accessible from, the computer.

             (3)  A person commits an offence if the person fails to comply with the order.

Penalty:  Imprisonment for 6 months.

126   Accessing data held on other premises—notification to occupier of those premises

             (1)  If:

                     (a)  data that is held on premises (other than the premises in relation to which the warrant is in force) is accessed under subsection 123(1); and

                     (b)  it is practicable to notify the occupier of the other premises that the data has been accessed under a warrant;

the authorised officer executing the search warrant must:

                     (c)  do so as soon as practicable; and

                     (d)  if the authorised officer has arranged, or intends to arrange, for continued access to the data under subsection 123(2) or (5)—include that information in the notification.

             (2)  A notification under subsection (1) must include sufficient information to allow the occupier of the other premises to contact the authorised officer.

127   Compensation for damage to electronic equipment

             (1)  This section applies if:

                     (a)  as a result of equipment being operated as mentioned in section 122, 123 or 124:

                              (i)  damage is caused to the equipment; or

                             (ii)  the data recorded on the equipment is damaged; 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 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, or the occupier’s employees or agents, if they were available at the time, had 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 purpose of subsection (1):

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

128   Copies of seized things to be provided

             (1)  If the authorised officer executing the search warrant or an assisting officer seizes:

                     (a)  a document, film, computer file or other thing that can be readily copied; or

                     (b)  a device storing information that can be readily copied;

the authorised officer or the assisting officer 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 thing or the information to that person as soon as practicable after the seizure.

             (2)  However, subsection (1) does not apply if:

                     (a)  the thing that has been seized was seized under subsection 123(2) or paragraph 123(5)(a); or

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

129   Receipts of things seized under warrant

             (1)  If a thing is seized under a search warrant or moved under subsection 122(2), the authorised officer executing the warrant or an assisting officer must provide a receipt for the thing.

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

Subdivision F Specific provisions about executing a warrant in relation to a person

130   Copy of warrant to be shown to person

             (1)  If a search warrant in relation to a person is being executed, the authorised officer executing the warrant or an assisting officer must make a copy of the warrant available to that person.

             (2)  The authorised officer must identify himself or herself to the person being searched.

             (3)  The copy of the warrant need not include the signature of the issuing officer who issued it.

131   Conduct of an ordinary search or a frisk search

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

Subdivision G Offences

132   Making false statements in warrants

                   A person commits an offence if:

                     (a)  the person makes a statement in applying for a search warrant; and

                     (b)  the person knows that the statement is false or misleading in a material particular.

Penalty:  Imprisonment for 2 years.

133   Offence for stating incorrect names in telephone warrants

                   A person commits an offence if:

                     (a)  the person states a name of an issuing officer in a document; and

                     (b)  the document purports to be a form of search warrant under section 111; and

                     (c)  the name is not the name of the issuing officer who issued the search warrant.

Penalty:  Imprisonment for 2 years.

134   Offence for unauthorised form of warrant

                   A person commits an offence if:

                     (a)  the person states a matter in a form of search warrant under section 111; and

                     (b)  the person knows that the matter departs in a material particular from the form authorised by the issuing officer.

Penalty:  Imprisonment for 2 years.

135   Offence for executing etc. an unauthorised form of warrant

                   A person commits an offence if:

                     (a)  the person executes or presents a document to another person; and

                     (b)  the document purports to be a form of search warrant under section 111; and

                     (c)  the person knows that the document:

                              (i)  has not been approved by an issuing officer under that section; or

                             (ii)  departs in a material particular from the terms authorised by an issuing officer under that section.

Penalty:  Imprisonment for 2 years.

136   Offence for giving unexecuted form of warrant

                   A person commits an offence if:

                     (a)  the person gives an issuing officer a form of search warrant under section 111; and

                     (b)  the document is not the form of search warrant that the person executed.

Penalty:  Imprisonment for 2 years.

Subdivision H Miscellaneous

137   Other laws about search, arrest etc. not affected

             (1)  This Division is not intended to limit or exclude the operation of another law of the Commonwealth relating to:

                     (a)  the search of persons or premises; or

                     (b)  arrest and related matters; or

                     (c)  the seizure of things.

             (2)  To avoid doubt, even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Division may be used despite the existence of the power under the other law.

138   Law relating to legal professional privilege not affected

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



 

Division 5 Powers of arrest

139   Authorised officers may exercise powers of arrest

                   For the purposes of investigating a corruption issue, an authorised officer who is not a constable (within the meaning of the Crimes Act 1914 ) has the same powers and duties under Divisions 4 and 5 of Part IAA of the Crimes Act 1914 as a constable as if the authorised officer were a constable.



 

Division 6 Authorised officers

140   Appointment of authorised officers

             (1)  The Integrity Commissioner may, in writing, authorise a person to be an authorised officer for the purposes of this Part.

             (2)  The person must be:

                     (a)  a staff member of ACLEI:

                              (i)  who the Integrity Commissioner considers has suitable qualifications or experience; or

                             (ii)  who is also a member of the Australian Federal Police; or

                            (iii)  who is also a member of the police force of a State or Territory; or

                     (b)  a member of the Australian Federal Police.

             (3)  The Integrity Commissioner may authorise a person referred to in subparagraph (2)(a)(ii) or paragraph (2)(b) only if the Commissioner of the AFP agrees to the appointment.

             (4)  The Integrity Commissioner may authorise a person referred to in subparagraph (2)(a)(iii) only if the head (however described) of the police force of the State or Territory concerned agrees to the appointment.

             (5)  In exercising powers as an authorised officer, an authorised officer must comply with any directions given by the Integrity Commissioner.

             (6)  If the Integrity Commissioner gives a direction under subsection (5) in writing, the direction is not a legislative instrument.

141   Identity cards

Issue of identity card

             (1)  The Integrity Commissioner must issue an identity card to a person who is an authorised officer for the purposes of this Part.

Form of identity card

             (2)  An identity card:

                     (a)  must be in the form prescribed by the regulations; and

                     (b)  must contain a recent photograph of the authorised officer.

Identity card to be carried and produced on request

             (3)  An authorised officer must carry the identity card at all times when exercising powers as an authorised officer in accordance with this Part.

             (4)  An authorised officer is not entitled to exercise any powers under this Part in relation to premises if:

                     (a)  the occupier of the premises requires the authorised officer to produce his or her identity card for inspection by the occupier; and

                     (b)  the authorised officer fails to comply with the requirement.

             (5)  An authorised officer is not entitled to exercise any powers under this Part in relation to a person if:

                     (a)  the person requires the authorised officer to produce his or her identity card for inspection by the person; and

                     (b)  the authorised officer fails to comply with the requirement.

Offence

             (6)  A person commits an offence if:

                     (a)  the person has been issued with an identity card; and

                     (b)  the person ceases to be an authorised officer; and

                     (c)  the person does not return the identity card to the Integrity Commissioner immediately after ceasing to be an authorised officer.

Penalty:  1 penalty unit.