Division 4Division 4 Provisions relating generally to warrants and notices to produce documents
(1) This Division applies to the following warrants:(a) search warrants issued to executing officers under Division 2,(b) search warrants issued under a provision specified in Schedule 2,(c) crime scene warrants issued under Part 7,(d) warrants issued under Division 1 of Part 11,(e) search warrants issued under a provision of, or a provision made under, an Act, being a provision that provides that this Division applies to a search warrant issued under that provision.(2) This Division (other than sections 67, 67B and 68 and sections 61 (5)–(8) and 73A (6) (e), to the extent they require an occupier’s notice) applies to notices to produce documents issued under Division 3 in the same way as it applies to warrants.(3) This Division (other than sections 67, 67B and 68 and sections 61 (5)–(8) and 73A (6) (e), to the extent they require an occupier’s notice) applies to warrants issued under Part 6 and Division 2 of Part 11.(4) Sections 60 (2), (3) and (4), 61 (2)–(8), 63–66, 75 and 76 apply to detention warrants issued under Part 9.
60 Application for warrant in person
(cf Search Warrants Act 1985, s 11)
(1) An application for a warrant must be in writing in the form prescribed by the regulations and must be made by the applicant in person.(2) An eligible issuing officer must not issue a warrant unless the information given by the applicant in or in connection with the application is verified before the eligible issuing officer on oath or affirmation or by affidavit.(3) An eligible issuing officer may administer an oath or affirmation or take an affidavit for the purposes of an application for a warrant.(4) This section does not apply to a telephone warrant.
(cf Search Warrants Act 1985, s 12)
(1) A person may apply by telephone for a warrant.Note. Telephone includes radio, facsimile and any other communication device.(2) An eligible issuing officer must not issue a warrant on an application made by telephone unless the eligible issuing officer is satisfied that the warrant is required urgently and that it is not practicable for the application to be made in person.(3) An application must be made by facsimile if the facilities to do so are readily available for that purpose.(4) If it is not practicable for an application for a warrant to be made by telephone directly to an eligible issuing officer, the application may be transmitted to the eligible issuing officer by another person on behalf of the applicant.(5) An eligible issuing officer who issues a warrant on an application made by telephone must:(a) complete and sign the warrant, and(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 the person of the terms of the occupier’s notice.(6) If a warrant is issued on an application made by telephone, the applicant:(a) in a case where the applicant was not furnished with the warrant—must complete a form of warrant in the terms indicated by the eligible issuing officer under subsection (5) and write on it the name of that eligible issuing officer 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—must complete a form of occupier’s notice in the terms indicated by the eligible issuing officer under subsection (5).(7) A form of warrant and a form of occupier’s notice so completed is taken to be a warrant issued, and an occupier’s notice prepared and furnished, in accordance with this Act.(8) A warrant or occupier’s notice is to be furnished by an eligible issuing officer 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.
62 Information in, and consideration of, application for warrant
(cf Search Warrants Act 1985, s 12A, former LEPRA, s 62)
(1) An eligible issuing officer must not issue a warrant unless the application for the warrant includes the following information:(a) the name of the applicant and details of the authority of the applicant to make the application for the warrant,(b) particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved,(c) the address or other description of the subject premises,(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 the warrant is required to search for a kind of thing—a description of the kind of thing,(f) if a previous application for the same warrant was refused—details of the refusal and any additional information required by section 64,(g) any other information required by the regulations.(2) In addition, an eligible issuing officer must not issue a covert search warrant unless the application for the warrant includes the following information:(a) the name of the following persons:(i) the occupier (if known) of the subject premises,(ii) any person believed to have committed, or to be intending to commit, the searchable offence in respect of which the application is made,(b) whether the occupier is believed to be knowingly concerned with the commission of that searchable offence,(c) if it is proposed that premises adjoining or providing access to the subject premises be entered for the purposes of entering the subject premises—the address or other description of the premises that adjoin or provide such access and particulars of the grounds on which entry to those premises is required,(d) any powers proposed to be exercised on entry to the subject premises that are sought to be authorised by the warrant under section 47A (2) (d),(e) details of any covert search warrant that has previously been issued in respect of the subject premises.(2A) In addition, an eligible issuing officer must not issue a criminal organisation search warrant unless the application for the warrant includes the following information:(a) the name of the following persons:(i) the occupier (if known) of those premises,(ii) any person believed to have committed, or to be intending to commit, the searchable offence in respect of which the application is made,(b) whether the occupier is believed to be knowingly concerned with the commission of the searchable offence.(3) An eligible issuing officer, when determining whether there are reasonable grounds to issue a 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.(4) In addition, an eligible issuing officer, when determining whether there are reasonable grounds to issue a covert search warrant, is to consider the following matters:(a) the extent to which it is necessary for the entry and search of those premises to be conducted without the knowledge of any occupier of the premises,(b) the nature and gravity of the searchable offence in respect of which the application is made,(c) the extent to which the privacy of a person who is not believed to be knowingly concerned in the commission of the searchable offence is likely to be affected if the warrant is issued,(d) whether any conditions should be imposed by the eligible issuing officer in relation to the execution of the warrant,(e) if it is proposed that premises adjoining or providing access to the subject premises be entered for the purposes of entering the subject premises:(i) whether this is reasonably necessary in order to enable access to the subject premises, or(ii) whether this is reasonably necessary in order to avoid compromising the investigation of the searchable offence or other offence.(5) The applicant must provide (either orally or in writing) such further information as the eligible issuing officer requires concerning the grounds on which the warrant is being sought.(6) Nothing in this section requires an applicant for a 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.
63 False or misleading information in applications
(cf Search Warrants Act 1985, s 12B)
(1) A person must not, in or in connection with an application for a warrant, give information to an eligible issuing officer 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.
(1A) A person must not, in or in connection with a report or an occupier’s notice given in relation to a search warrant, give information to an eligible issuing officer 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.
64 Further application for warrant after refusal
(cf Search Warrants Act 1985, s 12C)
(1) If an application by a person for a warrant is refused by an eligible issuing officer, 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 eligible issuing officer unless the further application provides additional information that justifies the making of the further application.(2) However, in the case of a warrant other than a covert search warrant, a further application may be made to a Magistrate following a refusal to issue the warrant by an eligible issuing officer 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.
65 Record of proceedings before eligible issuing officer
(cf Search Warrants Act 1985, s 13)
(1) An eligible issuing officer who issues a warrant must cause a record to be made of all relevant particulars of the grounds the eligible issuing officer has relied on to justify the issue of the warrant.(1A) An eligible issuing officer who refuses to issue a warrant must cause a record to be made of all relevant particulars of the grounds the eligible issuing officer has relied on to justify the refusal to issue 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 warrants, and(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 must not be recorded pursuant to this section if the eligible issuing officer is satisfied that to do so might jeopardise the safety of any person.
(cf Search Warrants Act 1985, s 14)
(1) A warrant is to be in the form prescribed by the regulations.(2) Without limiting subsection (1), a covert search warrant must specify the following:(a) the address or other description of any premises that adjoin or provide access to the subject premises that may be entered under the warrant for the purposes of entering the subject premises,(b) the name of the following persons:(i) the occupier (if known) of the subject premises,(ii) any person believed to have committed, or to be intending to commit, the searchable offence to which the warrant relates,(c) whether the occupier is believed to be knowingly concerned with the commission of that searchable offence,(d) any conditions imposed in relation to the execution of the warrant,(e) a description of the kinds of things that may be placed in substitution for a seized thing,(f) any other matter required by the regulations.
67 Notice to occupier of premises entered pursuant to warrant
(cf Search Warrants Act 1985, s 15)
(1) An eligible issuing officer is to prepare and give an occupier’s notice to the person to whom the eligible issuing officer issues a warrant.(2) An occupier’s notice:(a) is to be in the form prescribed by the regulations, and(b) must specify the following:(i) the name of the person who applied for the warrant,(ii) (Repealed)(iii) the date and the time when the warrant was issued,(iv) the address or other description of the premises the subject of the warrant, and(c) must contain a summary of the nature of the warrant and the powers conferred by the warrant.(3) An occupier’s notice under this section may be served personally or in such other manner as the eligible issuing officer who issued the warrant may direct.(4) Time for service of notice—warrant other than a covert search warrant
A person executing a warrant other than a covert search warrant must:(a) on entry into or onto the premises or as soon as practicable after entry, 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 within 48 hours after executing the warrant.(5) If an occupier’s notice cannot practicably be served on a person in accordance with subsection (4) (b), the eligible issuing officer who issued the warrant may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the occupier’s notice to the attention of the occupier.(6) An order under subsection (5) may direct that the occupier’s notice be taken to have been served on the occupier on the happening of a specified event or on the expiry of a specified time.(7) Service in accordance with an order under subsection (5) is taken to constitute personal service for the purposes of subsection (4).(8) Time for service of notice—covert search warrant
A person executing a covert search warrant must serve the occupier’s notice on the person who was the occupier of the subject premises at the time the covert search warrant was executed as soon as practicable after the warrant is executed, unless the service of the notice is postponed under section 67A.
67A Postponement of service of occupier’s notice—covert search warrant
(1) Service of an occupier’s notice relating to a covert search warrant may be postponed for a period of up to 6 months by the eligible issuing officer who issued the covert search warrant if that eligible issuing officer is satisfied that there are reasonable grounds for the postponement.(2) Service of an occupier’s notice may be postponed on more than one occasion, but must not be postponed on any one occasion for a period exceeding 6 months or for more than 3 years in total.(3) The eligible issuing officer must not postpone service of an occupier’s notice for periods exceeding 18 months in total unless satisfied that there are exceptional grounds that justify the postponement.
67B Notice to adjoining occupiers of execution of covert search warrant
(1) The person to whom a covert search warrant is issued is to prepare a notice under this section (an adjoining occupier’s notice) if the execution of the warrant will involve entering premises adjoining or providing access to the subject premises (adjoining premises) without the knowledge of the occupier of the adjoining premises.(2) Before the covert search warrant is executed, the adjoining occupier’s notice is to be provided to the eligible issuing officer who issued the warrant for that officer’s approval.(3) The adjoining occupier’s notice:(a) must specify the following:(i) the name of the person who applied for the covert search warrant,(ii) the date when the warrant was issued,(iii) the address or other description of the subject premises, and(b) is to specify or contain any other matters required by the regulations.(4) The adjoining occupier’s notice must be served on the person who was the occupier of the adjoining premises at the time the covert search warrant was executed, on (or as soon as practicable after) service of the occupier’s notice on the occupier of the subject premises under section 67 unless the eligible issuing officer directs that service of the notice may be dispensed with.(5) The adjoining occupier’s notice may be served personally or in such other manner as the eligible issuing officer who issued the covert search warrant may direct.(6) In this section:adjoining premises does not include common property within the meaning of the Strata Schemes Management Act 1996.
(cf Search Warrants Act 1985, s 15A)
(1) One of the persons executing a warrant must, before any of the persons executing the warrant enters the premises:(a) announce that the person is authorised by the warrant to enter the premises, and(b) give any person then in or on the premises an opportunity to allow entry into or onto the premises.(2) A person executing a warrant is not required to comply with this section if the warrant is a covert search warrant or 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 warrant is not frustrated.
(cf Search Warrants Act 1985, s 16)
A person executing a warrant other than a covert search warrant must produce the warrant for inspection by an occupier of the premises if requested to do so by that occupier.
70 Use of force etc to enter and search premises
(cf Search Warrants Act 1985, s 17)
(1) A person authorised to enter premises pursuant to a warrant may use such force as is reasonably necessary for the purpose of entering the premises.(1A) An executing officer authorised to enter premises pursuant to a warrant may, if it is reasonably necessary to do so for the purpose of entering those premises, do any of the following:(a) disable any alarm, camera or surveillance device at the premises,(b) pacify any guard dog at the premises.(2) A person authorised to search premises pursuant to a 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.(3) An executing officer authorised to search premises pursuant to a warrant may do anything that it is reasonably necessary to do for the purpose of preventing the loss or destruction of, or damage to, any thing connected with an offence that the executing officer believes on reasonable grounds to be at those premises, including by blocking any drains at or used in connection with the premises.(4) A person authorised to search premises pursuant to a warrant may do anything that it is reasonably necessary to do to render safe any dangerous article found in or on the premises.
71 Use of assistants to execute warrant
(cf Search Warrants Act 1985, s 18)
A person may execute a warrant with the aid of such assistants as the person considers necessary.
72 Execution of warrant by day or night
(cf Search Warrants Act 1985, s 19)
(1A) A covert search warrant may be executed by day or by night.(1) A warrant (other than a covert search warrant) may be executed by day, but must not be executed by night unless the eligible issuing officer, by the warrant, authorises its execution by night.(2) An eligible issuing officer is not to authorise the execution of a 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 that 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 by night,(c) an occupier is likely to be on the premises only at night to allow entry without the use of force.(3) In this section: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.
(1) A warrant ceases to have effect, unless it is sooner withdrawn or extended, as follows:(a) in the case of any warrant (other than a telephone warrant or crime scene warrant)—when it has been executed, or at the time specified in it for its expiry, whichever first occurs,(b) in the case of a telephone warrant (other than a telephone crime scene warrant)—when it has been executed, or at the expiry of 24 hours after the time of its issue, whichever first occurs,(c) in the case of a crime scene warrant (other than a telephone crime scene warrant)—at the time specified in it for its expiry,(d) in the case of a telephone crime scene warrant—at the expiry of 24 hours after the time of its issue.(2) An eligible issuing officer who issues a warrant (other than a telephone warrant) must specify in the warrant the time when the warrant is to expire.(2A) The time so specified for a covert search warrant is the date that is 10 days after the date on which the warrant is issued.(2B) The time so specified for a criminal organisation search warrant is the date that is 7 days after the date on which the warrant is issued.(3) The time so specified for a warrant other than a covert search warrant or a criminal organisation search warrant is to be 72 hours after the issue of the warrant or, if the issue of the warrant for a period exceeding 72 hours is permitted by this section, at any time within a further period not exceeding 72 hours.(4) The issue of a warrant for a period exceeding 72 hours is permitted by this section if:(a) in the case of a warrant issued under Division 2 of Part 11—the eligible issuing officer is satisfied that the purpose for which the warrant was issued cannot be satisfied within 72 hours, or(b) in any other case—the eligible issuing officer is satisfied that the warrant cannot be executed within 72 hours.(5) If no time of expiry is specified in a warrant (other than a telephone warrant, a covert search warrant or a criminal organisation search warrant), the warrant expires 72 hours after issue.(6) If no time of expiry is specified in a covert search warrant, the warrant expires 10 days after issue.(7) If no time of expiry is specified in a criminal organisation search warrant, the warrant expires 7 days after issue.
(1) A warrant (other than a covert search warrant, a criminal organisation search warrant or a telephone warrant) that expires 72 hours after its issue may be extended by the eligible issuing officer who issued the warrant:(a) in the case of a warrant issued under Division 2 of Part 11—if the eligible issuing officer is satisfied that the purpose for which the warrant was issued cannot be satisfied within 72 hours, and(b) in any other case—if the eligible issuing officer is satisfied that the warrant cannot be executed within 72 hours.(2) A telephone crime scene warrant may be extended, for up to 60 hours at a time, by the eligible issuing officer who issued the warrant.(3) Any other telephone warrant may not be extended.(4) The time for expiry of a warrant that can be extended (other than a telephone crime scene warrant) may be extended only once.(5) The time for expiry of a telephone crime scene warrant may be extended twice.(6) Any extension of a warrant under this section:(a) must not extend the period for which the warrant has effect beyond 144 hours after its issue, except as provided by subsection (7), and(b) must 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) must be made on a written application made in person, unless it is impractical for the applicant to appear before an eligible issuing officer before the warrant expires, and(d) must be made before the expiry of the warrant, and(e) must be made by issuing a replacement warrant (specifying the new time for expiry of the warrant) and replacement occupier’s notice.(7) A crime scene warrant may be extended so that it has effect for a period of up to 720 hours after its issue if:(a) the offence in connection with which the warrant was issued is a terrorism offence, and(b) the eligible issuing officer who issued the warrant is satisfied that there are reasonable grounds for extending the warrant beyond a period of 144 hours after its issue.Note. 720 hours is equivalent to 30 days.(8) In this section:terrorism offence means an offence under Part 6B of the Crimes Act 1900 or an offence under Division 101, 102 or 103 of the Criminal Code of the Commonwealth.
74 Report to eligible issuing officer on execution of warrant other than covert search warrant
(cf Search Warrants Act 1985, s 21)
(1) The person to whom a warrant other than a covert search warrant is issued must furnish a report in writing to the eligible issuing officer who issued the warrant:(a) stating whether or not the warrant was executed, and(b) if the warrant was executed—setting out briefly the result of the execution of the warrant (including a brief description of anything seized), and(c) if the warrant was not executed—setting out briefly the reasons why the warrant was not executed, and(d) in the case of a search warrant—stating whether or not an occupier’s notice has been served in connection with the execution of the warrant, and(e) in the case of a telephone warrant—containing a copy of the form of warrant and, in the case of a search warrant, 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 by the regulations.(2) The report must be furnished within 10 days after the execution of the warrant or the expiry of the warrant, whichever first occurs.
74A Report to eligible issuing officer on execution of covert search warrant
(1) An executing officer for a covert search warrant must provide a report in writing to the eligible issuing officer who issued the warrant:(a) stating the address or other description of the subject premises, and(b) stating whether or not the warrant was executed, and(c) if the warrant was executed:(i) stating the date on which the warrant was executed, and(ii) stating the name (or code-name) of the person in charge when the warrant was executed, and(iii) stating the name (or code-name) of any person who entered the subject premises to assist in the execution of the warrant and the nature of the assistance provided, and(iv) stating the powers that were exercised under the warrant, and(v) setting out briefly the result of the execution of the warrant (including a brief description of anything seized, placed in substitution for a seized thing or examined and any data accessed under section 75B), and(d) if the warrant was not executed—setting out briefly the reasons why the warrant was not executed, and(e) containing such other particulars as may be prescribed by the regulations.(2) The report must be provided within 10 days after the execution of the warrant or the expiry of the warrant, whichever first occurs.(3) If premises are entered for the purposes of returning or retrieving a thing under section 49A, a report must also be provided in writing to the eligible issuing officer who issued the warrant:(a) stating the address or other description of the premises, and(b) stating the date on which the premises were re-entered, and(c) stating the name (or code-name) of any person who entered the premises for the purposes of the return or retrieval, and(d) stating the name (or code-name) of any person who re-entered the subject premises to assist in the return or retrieval of the thing and the nature of the assistance provided, and(e) setting out a brief description of the thing, and(f) if the thing was not returned or retrieved—setting out the reasons why the thing was not returned or retrieved, and(g) containing such other particulars as may be prescribed by the regulations.(4) The report is to be provided within 10 days after the entry to the premises for the purposes of retrieving or returning the thing under section 49A.(5) The Commissioner of Police, Commissioner for the New South Wales Crime Commission or Commissioner for the Police Integrity Commission is to ensure that a copy of any report provided under this section is given to the Attorney General.(6) A person may be referred to by a code-name in a report required under this section only if:(a) the person who provides the report believes on reasonable grounds that use of the code-name is necessary to protect the safety of the person referred to, and(b) a record of the person’s actual name and reasons for use of the code-name is kept by the authority in which the person is employed.(7) If an executing officer for a covert search warrant has died or is absent the report may be provided by another person from the authority in which the executing officer was or is employed who is authorised to make an application for a covert search warrant.
75 Death, absence of eligible issuing officer who issued warrant
(cf Search Warrants Act 1985, s 22, former LEPRA, s 75)
If the eligible issuing officer who issued a warrant has died, has ceased to be an eligible issuing officer or is absent:(a) a report required to be provided to that eligible issuing officer under section 74 or 74A, or(b) a power exercisable by that eligible issuing officer under section 67 (5), 67A (1), 67B (4) and (5), 73 (4), 73A or 75A (2) or (4),must be provided to, or may be exercised by, as the case may be, any other eligible issuing officer.
75A Operation of electronic and other equipment at premises and removal of things from premises for examination
(1) A person executing or assisting in the execution of a warrant to which this Division applies may:(a) bring to the premises the subject of the warrant any electronic and other equipment reasonably necessary for the examination of a thing found at the premises, and(b) operate any such equipment (or equipment already at those premises) to examine a thing found at the premises in order to determine whether it is or contains a thing that may be seized under the warrant, and(c) move a thing found at the premises to another place (for up to 7 working days) for examination in order to determine whether it is or contains a thing that may be seized under the warrant if the occupier of the premises consents or if:(i) it is significantly more practicable to do so having regard to the timeliness and cost of examining the thing at another place and the availability of expert assistance, and(ii) there are reasonable grounds to suspect it is or contains a thing that may be seized under the warrant.(2) If a thing is moved to another place for examination under this section, an eligible issuing officer may authorise the removal of the thing for an additional period (not exceeding 7 working days at any one time) if satisfied that the additional period is required to determine whether it is or contains a thing that may be seized under the warrant.(3) The person executing the warrant must advise the occupier that the occupier may make submissions to the eligible issuing officer on the matter and is to give the occupier a reasonable opportunity to do so (except in the case of a covert search warrant).(4) The eligible issuing officer may authorise the removal of a thing for a period exceeding a total of 28 days only if satisfied that it is justified on the basis that there are exceptional circumstances in the case.(5) The limitation imposed by this section on the period that a thing may be removed to another place ceases when it is determined that it is or contains a thing that may be seized under the warrant.(6) This section does not authorise the operation of equipment already at the premises the subject of the warrant to examine a thing unless the person operating the equipment has reasonable grounds to believe that the examination can be carried out without damaging the equipment or the thing.
75B Access to and downloading of data from computers (including access to computers outside premises the subject of a warrant)
(1) The person executing or assisting in the execution of a warrant to which this Division applies may operate equipment at the premises the subject of the warrant to access data (including data held at premises other than the subject premises) if the person believes on reasonable grounds that the data might be data that could be seized under the warrant.Note. Under section 49, data may be seized under a warrant if connected with an offence. Section 46 (3) provides that a thing is connected with an offence if, for example, it will provide evidence of the commission of the offence.(2) The person executing or assisting in the execution of the warrant may:(a) copy any accessed data to a disk, tape or other data storage device brought to the premises, and(b) with the approval of the occupier of the premises, copy any accessed data to a disk, tape or other data storage device already at the premises, and(c) take the disk, tape or other data storage device from the premises to examine the accessed data to determine whether it (or any part of it) is data that could be seized under the warrant.(3) The person executing or assisting in the execution of the warrant may operate the equipment to put any data that could be seized in documentary form and seize the document so produced.(4) The person executing or assisting in the execution of the warrant may seize the equipment and any disk, tape or other data storage device:(a) if it is not practicable to exercise the powers referred to in subsection (2) or (3) in relation to the data, or(b) if possession by the occupier of the equipment or device could constitute an offence.(5) This section does not authorise the operation of equipment already at the premises the subject of the warrant to access data unless the person operating the equipment has reasonable grounds to believe that the equipment can be operated without damaging the equipment or the data.(6) The responsible officer for an authority must arrange for the removal of any data obtained by the exercise of a power referred to in this section by a member of the authority from any device under the control of the authority and the destruction of any other reproduction of the data in the control of the authority if the responsible officer is satisfied that the data is data that could not be seized under the warrant.(7) Subsection (6) does not require the destruction of court records.(8) In this section, responsible officer for an authority means the following:(a) in relation to data obtained by a police officer—the Commissioner of Police,(b) in relation to data obtained by a member of staff of the Police Integrity Commission—the Commissioner for the Police Integrity Commission,(c) in relation to data obtained by a member of staff of the New South Wales Crime Commission—the Commissioner for the New South Wales Crime Commission,(d) in relation to data obtained in execution of a search warrant issued under a provision of an Act specified in Schedule 2—the person prescribed by the regulations.
(cf Search Warrants Act 1985, s 23)
A warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular.