Part 3Provisions relating to search
warrants under Part 2 and certain other Acts
10Definitions
In this Part:
occupier’s notice means an
occupier’s notice referred to in section 15.
search
warrant means a search warrant issued under any of the
following provisions:
Part 2 of this Act,
section 41 of the Agricultural
Industry Services Act 1998,
section 51 of the Animal Research
Act 1985,
section 68 of the Apprenticeship
and Traineeship Act 2001,
section 22 of the Canned Fruits Marketing Act
1979,
section 29 of the Charitable
Fundraising Act 1991,
section 233 of the Children and Young Persons (Care and Protection) Act
1998,
section 16 of the Children
(Interstate Transfer of Offenders) Act
1988,
section 128 of the Chiropractors Act
2001,
section 63 of the Chiropractors and
Osteopaths Act 1991,
section 55 of the Classification
(Publications, Films and Computer Games) Enforcement Act
1995,
section 18 of the Community
Services (Complaints, Reviews and Monitoring) Act
1993,
section 36 of the Confiscation of
Proceeds of Crime Act 1989,
section 10 of the Consumer Credit
Administration Act 1995,
section 84 of the Contaminated Land
Management Act 1997,
section 381 of the Co-operatives Act
1992,
sections 357EA and 578D of the Crimes Act 1900,
section 154 of the Dental
Practice Act 2001,
section 25 of the Dental
Technicians Registration Act 1975,
section 13 of the Restricted
Premises Act 1943,
section 38 of the Drug Trafficking
(Civil Proceedings) Act 1990,
section 52 or 53 of the Egg Industry Act
1983,
section 69 of the Egg Industry (Repeal and Deregulation)
Act 1989,
sections 21I and 27I of the Electricity Act
1945,
section 63 of the Electricity
Supply Act 1995,
section 58 of the Entertainment
Industry Act 1989,
section 46 of the Environmentally
Hazardous Chemicals Act 1985,
section 42 of the Exhibited Animals
Protection Act 1986,
section 48 of the Exotic Diseases
of Animals Act 1991,
section 19A of the Fair
Trading Act 1987,
section 76 of the Fines Act
1996,
section 260 of the Fisheries Management Act
1994,
section 12 of the Fitness Services
(Pre-paid Fees) Act 2000,
section 39 of the Food Act
2003,
section 42 of the Game and Feral
Animal Control Act 2002,
section 184 of the Gaming
Machines Act 2001,
section 64 of the Gas Supply Act
1996,
section 29 of the Gene Technology
(GM Crop Moratorium) Act 2003,
section 87 of the Grain Marketing
Act 1991,
sections 12 and 102 of the Guardianship Act
1987,
section 34 of the Health Care
Complaints Act 1993,
section 126 of the Home
Building Act 1989,
section 33G of the Human
Tissue Act 1983,
section 388 of the Industrial Relations Act
1996,
section 151 of the Liquor
Act 1982,
section 201 of the Local
Government Act 1993,
section 21E of the Lotteries and Art Unions Act
1901,
section 138 of the Marketing of Primary Products Act
1983,
section 125 of the Medical Practice Act
1992,
section 164 of the National Parks and Wildlife Act
1974,
section 11 of the New South Wales
Crime Commission Act 1985,
section 24 of the Non-Indigenous
Animals Act 1987,
section 52 of the Noxious Weeds Act
1993,
section 77B of the Nurses
and Midwives Act 1991,
section 58 of the Occupational
Health and Safety Act 2000,
section 132 of the Optometrists Act
2002,
section 128 of the Osteopaths Act 2001,
section 19 of the Ozone Protection
Act 1989,
section 46V of the Passenger Transport Act
1990
section 104 of the Petroleum (Onshore) Act
1991,
section 129 of the Physiotherapists Act
2001,
section 45 of the Police Integrity
Commission Act 1996,
section 8 of the Police Powers
(Drug Detection Dogs) Act 2001
section 5 of the Police Powers
(Drug Premises) Act 2001,
section 16 of the Poultry Meat
Industry Act 1986,
section 27 of the Prevention of
Cruelty to Animals Act 1979,
section 128 of the Psychologists Act
2001,
section 73 of the Public Health Act
1991,
section 72 of the Public Lotteries
Act 1996,
section 16 of the Radiation Control
Act 1990,
section 90 of the Rail Safety Act
2002,
section 24 of the Road and Rail
Transport (Dangerous Goods) Act 1997,
sections 157 and 228 of the Road
Transport (General) Act 2005,
section 174 of the Roads
Act 1993,
section 196 of the Rural
Lands Protection Act 1998,
section 16 of the Smoke-free
Environment Act 2000,
section 33 of the Stock (Artificial
Breeding) Act 1985,
section 51 of the Stock Medicines
Act 1989,
section 21 of the Summary Offences
Act 1988,
section 29 of the Swimming Pools
Act 1992,
section 95 of the Totalizator Act
1997,
section 22 of the Trade Measurement
Administration Act 1989,
section 39 of the Unclaimed Money
Act 1995,
section 36 of the Valuers Act
2003,
section 34 of the Wool, Hide and
Skin Dealers Act 2004,
section 238A of the Workplace Injury Management and Workers Compensation Act
1998,
any other provision of, or made under, an Act, being a
provision which provides that this Part applies to a search warrant issued
under that provision.
telephone
search warrant means a search warrant referred to in section
12.
s 10: Am 1985 No 118,
Sch 4; 1985 No 124, Sch 2; 1985 No 198, sec 3; 1986 No 77, sec 3; 1986 No 102,
sec 3; 1986 No 124, sec 3; 1986 No 160, sec 3; 1986 No 216, Sch 1; 1987 No 58,
Sch 3; 1987 No 63, Sch 2; 1987 No 80, sec 4; 1987 No 86, sec 22; 1987 No 93,
sec 84; 1987 No 94, sec 77; 1987 No 166, sec 30; 1987 No 262, Sch 1; 1988 No
25, sec 39; 1988 No 85, sec 23; 1988 No 115, sec 4; 1989 No 11, Sch 1; 1989 No
79, Sch 1; 1989 No 99, sec 83; 1989 No 147, Sch 5; 1989 No 182, sec 68; 1989
No 208, sec 35; 1989 No 230, Sch 4; 1989 No 231, Sch 4; 1989 No 232, sec 127;
1989 No 234, sec 29; 1990 No 13, sec 42; 1990 No 23, sec 68; 1990 No 31, sec
36; 1990 No 123, Sch 2 (am 1991 No 94, Sch 2); 1991 No 7, sec 66; 1991 No 15,
Sch 4; 1991 No 34, Sch 3; 1991 No 63, Sch 2; 1991 No 69, Sch 1; 1991 No 73,
sec 80; 1991 No 84, sec 141; 1991 No 92, Sch 1 (4); 1992 No 18, Sch 7; 1992 No
49, Sch 2; 1993 No 2, Sch 2; 1993 No 11, Sch 3; 1993 No 28, sec 4 (am 1993 No
108, Sch 1); 1993 No 29, sec 4; 1993 No 33, Sch 1; 1993 No 50, Sch 3; 1993 No
105, Sch 3; 1993 No 108, Sch 2; 1994 No 5, sec 7; 1994 No 12, sec 4; 1994 No
38, Sch 8; 1995 No 11, Sch 1.116; 1995 No 49, Sch 2.3; 1995 No 63, Sch 3.3;
1995 No 69, Sch 1.4; 1995 No 75, Sch 1.8; 1995 No 94, Sch 5.10; 1995 No 102,
Sch 6.8; 1996 No 17, Sch 5.12; 1996 No 29, Sch 6.5; 1996 No 38, Sch 1.12; 1996
No 86, Sch 1.3; 1996 No 99, Sch 2.15; 1996 No 122, Sch 7.12; 1997 No 11, Sch
1.15; 1997 No 45, Sch 1.4; 1997 No 74, Sch 2; 1997 No 109, Sch 1.7; 1997 No
113, Sch 1.7; 1997 No 140, Sch 1.6; 1998 No 45, Sch 3.7; 1998 No 113, Sch
2.14; 1998 No 128, Sch 4.5; 1998 No 143, Sch 6.23; 1998 No 158, Sch 2.25; 1999
No 19, Sch 2.41; 1999 No 80, Sch 3.7; 1999 No 85, Sch 2.59; 2000 No 40, Sch
2.10; 2000 No 54, Sch 1.5; 2000 No 69, sec 24; 2000 No 87, Sch 15.2; 2000 No
95, Sch 2.3; 2001 No 15, Sch 6.6; 2001 No 16, Sch 6.5; 2001 No 30, Sch 5.2;
2001 No 58, Sch 3.9; 2001 No 64, Sch 6.6; 2001 No 67, Sch 6.8; 2001 No 69, Sch
6.3; 2001 No 80, Sch 3.7; 2001 No 115, sec 12; 2001 No 127, Sch 5.6
[1]–[3]; 2002 No 30, Sch 6.8; 2002 No 42, Sch 4.10; 2002 No 64, Sch 3.5;
2002 No 96, Sch 7.5; 2002 No 108, Sch 8; 2002 No 131, Sch 2.3; 2003 No 4, Sch
1.9; 2003 No 12, Sch 2.4; 2003 No 18, Sch 3.4; 2003 No 38, Sch 2.22; 2003 No
43, Sch 1.7; 2003 No 45, Sch 2.19; 2003 No 65, Sch 9; 2004 No 7, Sch 2.2; 2004
No 16, Sch 2.11; 2004 No 21, Sch 2.2; 2005 No 11, Sch 3.39.
11Application for warrant in
person
(1)
An application for a search warrant must be in
writing in the form prescribed by the regulations and must be made by the
applicant in person.
(2)
An authorised justice must not issue a search
warrant unless the information given by the applicant in or in connection with
the application is verified before the authorised justice on oath or
affirmation or by affidavit.
(3)
An authorised justice may administer an oath or
affirmation or take an affidavit for the purposes of an application for a
search warrant.
(4)
This section does not apply to a telephone search
warrant.
s 11: Am 1991 No 92,
Sch 1 (5).
12Telephone search
warrant
(1)
In this section, telephone includes radio, facsimile
and any other communication device.
(2)
A person may make an application by telephone for
a search warrant.
(3)
An authorised justice must not issue a search
warrant on an application made by telephone unless the authorised justice is
satisfied that the warrant is required urgently and that it is not practicable
for the application to be made in person.
(4)
An application under this section must be made by
facsimile if the facilities to do so are readily available for that
purpose.
(5)
If it is not practicable for an application for a
search warrant to be made by telephone directly to an authorised justice, the
application may be transmitted to the authorised justice by another person on
behalf of the applicant.
(6)
An authorised justice who issues a search warrant
upon an application made by telephone is to:
(a)
complete and sign the
warrant,
(b)
furnish the warrant to the person who made the
application or inform that person of the terms of the warrant and of the date
and time when it was signed, and
(c)
prepare and furnish an occupier’s notice to
the person who made the application or inform that person of the terms of an
occupier’s notice.
(7)
If a search warrant is issued on an application
made by telephone, the applicant:
(a)
in a case where the applicant was not furnished
with the search warrant—is to complete a form of search warrant in the
terms indicated by the authorised justice under subsection (6) and write on it
the name of that authorised justice and the date and time when the warrant was
signed, and
(b)
in a case where the applicant was not furnished
with an occupier’s notice—is to complete a form of
occupier’s notice in the terms indicated by the authorised justice under
subsection (6).
(8)
A form of search warrant and a form of
occupier’s notice so completed is taken to be a search warrant issued,
and an occupier’s notice prepared and furnished, in accordance with this
Act.
(9)
A search warrant or occupier’s notice is to
be furnished by an authorised justice by transmitting it by facsimile, if the
facilities to do so are readily available, and the copy produced by that
transmission is taken to be the original document.
(10)
In this section, a reference to facsimile
includes a reference to any electronic communication device which transmits
information in a form from which written material is capable of being
reproduced with or without the aid of any other device or
article.
s 12: Subst 1991 No
92, Sch 1 (6).
12AInformation in application for
warrant
(1)
An authorised justice must not issue a search
warrant unless the application for the warrant includes the following
information:
(a)
details of the authority of the applicant to make
the application for the search warrant,
(b)
the grounds on which the warrant is being
sought,
(c)
the address or other description of the premises
the subject of the application,
(d)
if the warrant is required to search for a
particular thing, a full description of that thing and, if known, its
location,
(e)
if a previous application for the same warrant
was refused—details of the refusal and any additional information
required by section 12C,
(f)
any other information required by the
regulations.
(2)
An authorised justice when determining whether
there are reasonable grounds to issue a search warrant is to consider (but is
not limited to considering) the following matters:
(a)
the reliability of the information on which the
application is based, including the nature of the source of the
information,
(b)
if the warrant is required to search for a thing
in relation to an alleged offence—whether there is sufficient connection
between the thing sought and the offence.
(3)
The applicant must provide (either orally or in
writing) such further information as the authorised justice requires
concerning the grounds on which the warrant is being
sought.
(4)
Nothing in this section requires an applicant for
a search warrant to disclose the identity of a person from whom information
was obtained if the applicant is satisfied that to do so might jeopardise the
safety of any person.
s 12A: Ins 1991 No
92, Sch 1 (7).
12BFalse or misleading
information in applications
(1)
A person must not, in or in connection with an
application for a search warrant, give information to an authorised justice
that the person knows to be false or misleading in a material
particular.
Maximum penalty: 100 penalty units or
imprisonment for 2 years, or both.
(2)
This section applies to an application by
telephone as well as in person.
(3)
This section applies whether or not the
information given is also verified on oath or affirmation or by
affidavit.
s 12B: Ins 1991 No
92, Sch 1 (7).
12CFurther application for
warrant after refusal
(1)
If an application by a person for a search
warrant is refused by an authorised justice, that person (or any other person
who is aware of the application) may not make a further application for the
same warrant to that or any other authorised justice unless the further
application provides additional information that justifies the making of the
further application.
(2)
However, a further application may be made to a
Magistrate following a refusal to issue the warrant by an authorised justice
who is not a Magistrate whether or not additional information is provided in
the further application. Only one such further application may be made in any
particular case.
s 12C: Ins 1991 No
92, Sch 1 (8).
13Record of proceedings before
authorised justice
(1)
An authorised justice who issues a search warrant
shall cause a record to be made of all relevant particulars of the grounds the
authorised justice has relied on to justify the issue of the
warrant.
(2)
The regulations may make provision for or with
respect to:
(a)
the keeping of records in connection with the
issue and execution of search warrants,
(b)
the inspection of any such records,
and
(c)
any other matter in connection with any such
records.
(3)
Any matter that might disclose the identity of a
person shall not be recorded pursuant to this section if the authorised
justice is satisfied that the safety of any person might thereby be
jeopardised.
14Form of
warrant
A search warrant shall be in or to the effect of
the prescribed form.
15Notice to occupier of premises
entered pursuant to warrant
(1)
An authorised justice shall prepare and furnish
an occupier’s notice to the person to whom the authorised justice issues
a search warrant.
(2)
An occupier’s notice furnished in relation
to a search warrant:
(a)
shall be in or to the effect of the prescribed
form,
(b)
shall specify:
(i)
the name of the person who applied for the
warrant,
(ii)
the name of the authorised justice who issued the
warrant,
(iii)
the date and the time when the warrant was
issued, and
(iv)
the address or other description of the premises
the subject of the warrant, and
(c)
shall contain a summary of the nature of the
warrant and the powers conferred by the warrant.
(3)
A person executing a search warrant shall:
(a)
upon entry into or onto the premises or as soon
as practicable thereafter, serve the occupier’s notice on a person who
appears to be an occupier of the premises and to be of or above the age of 18
years, or
(b)
if no such person is then present in or on the
premises, serve the occupier’s notice on the occupier of the premises,
either personally or in such other manner as the authorised justice who issued
the warrant may direct, as soon as practicable after executing the
warrant.
(4)
Service of an occupier’s notice pursuant to
subsection (3) (b) may be postponed by the authorised justice who issued the
search warrant if that authorised justice is satisfied that there are
reasonable grounds for the postponement.
(5)
Service of an occupier’s notice pursuant to
subsection (3) (b) may be postponed on more than one occasion, but shall not
be postponed on any one occasion for a period exceeding 6
months.
15AAnnouncement prior to
entry
(1)
One of the persons executing a search warrant
must, before any of the persons executing the warrant enters the
premises:
(a)
announce that the person is authorised by the
search warrant to enter the premises, and
(b)
give any person then on the premises an
opportunity to allow entry into or onto the
premises.
(2)
A person executing a search warrant is not
required to comply with this section if the person believes on reasonable
grounds that immediate entry is required to ensure the safety of any person or
to ensure that the effective execution of the search warrant is not
frustrated.
s 15A: Ins 1991 No
92, Sch 1 (9).
16Duty to show
warrant
A person executing a search warrant shall produce
the warrant for inspection by an occupier of the premises if requested to do
so by that occupier.
17Use of force to enter premises
etc
(1)
A person authorised to enter premises pursuant to
a search warrant may use such force as is reasonably necessary for the purpose
of entering the premises.
(2)
A person authorised to search premises pursuant
to a search warrant may, if it is reasonably necessary to do so, break open
any receptacle in or on the premises for the purposes of that
search.
18Use of assistants to execute
warrant
A person may execute a search warrant with the
aid of such assistants as the person considers
necessary.
19Execution of warrant by day or
night
(1)
A search warrant may be executed by day, but
shall not be executed by night unless the authorised justice, by the warrant,
authorises its execution by night.
(1A)
An authorised justice is not to authorise the
execution of a search warrant by night unless satisfied that there are
reasonable grounds for doing so. Those grounds include (but are not limited
to) the following:
(a)
the execution of the warrant by day is unlikely
to be successful because, for example, it is issued to search for a thing
which is likely to be on the premises only at night or other relevant
circumstances will only exist at night,
(b)
there is likely to be less risk to the safety of
any person if it is executed at night,
(c)
an occupier is likely to be on the premises only
at night to allow entry without the use of force.
(2)
In subsection (1):
by
day means during the period between 6 am and 9 pm on any
day.
by
night means during the period between 9 pm on any day and 6
am on the following day.
s 19: Am 1991 No 92,
Sch 1 (10).
20Expiry of
warrant
(1)
A search warrant ceases to have effect:
(a)
except in the case of a telephone search
warrant—at the time specified in the warrant for its
expiry,
(b)
in the case of a telephone search
warrant—on the expiration of the period of 24 hours after its
issue,
(c)
if it is withdrawn by the authorised justice who
issued the warrant, or
(d)
when it is executed,
whichever first occurs.
(2)
An authorised justice who issues a search warrant
(other than a telephone search warrant) must specify the time when the warrant
is to expire.
(3)
The time so specified is to be 72 hours after the
issue of the search warrant or, if the authorised justice is satisfied that
the warrant cannot be executed within 72 hours, any time within a further
period not exceeding 72 hours.
(4)
A search warrant which expires 72 hours after its
issue may be extended by the authorised justice who issued the warrant if the
authorised justice is satisfied that the warrant cannot be executed within 72
hours.
(5)
The time for expiry of a search warrant may only
be extended once.
(6)
Any such extension:
(a)
may not extend the period for which the warrant
has effect beyond 144 hours after its issue, and
(b)
may be made on the application of the person to
whom the warrant was issued or any other person who is authorised to execute
the warrant, and
(c)
is to be made before the expiry of the warrant,
and
(d)
is to be made by issuing a replacement search
warrant and occupier’s notice.
(7)
If no time of expiry is specified in a search
warrant, the warrant expires 72 hours after its issue.
s 20: Am 1991 No 92,
Sch 1 (11).
21Report to authorised justice
on execution of warrant etc
(1)
The person to whom a search warrant is issued
shall furnish a report in writing to the authorised justice who issued the
warrant:
(a)
stating whether or not the warrant was
executed,
(b)
if the warrant was executed—setting out
briefly the result of the execution of the warrant (including a brief
description of anything seized),
(c)
if the warrant was not executed—setting out
briefly the reasons why the warrant was not executed,
(d)
stating whether or not an occupier’s notice
has been served in connection with the execution of the
warrant,
(e)
in the case of a telephone search
warrant—containing a copy of the form of search warrant and the form of
occupier’s notice if those documents were not furnished to the person,
and
(f)
containing such other particulars as may be
prescribed.
(2)
A report with respect to a search warrant shall
be made within 10 days after the execution of the warrant or the expiry of the
warrant, whichever first occurs.
s 21: Am 1991 No 92,
Sch 1 (12).
22Death, absence etc of
authorised justice who issued warrant
Where the authorised justice who issued a search
warrant has died, has ceased to be an authorised justice or is absent:
(a)
a report required to be furnished to that
authorised justice pursuant to section 21, or
(b)
a power exercisable by that authorised justice
under section 15 (3) (b) or (4),
shall be furnished to, or may be exercised by, as the
case may be, any other authorised justice.
23Defects in
warrants
A search warrant is not invalidated by any
defect, other than a defect which affects the substance of the warrant in a
material particular.