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Contents (2002 - 115)
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Terrorism (Police Powers) Act 2002 No 115
Current version for 28 November 2018 to date (accessed 10 April 2020 at 10:12)
Part 3 Division 4
Division 4 Execution of covert search warrant and provisions applying after warrant executed
27O   Powers conferred by covert search warrant
(1)  A covert search warrant authorises an eligible person:
(a)  to enter, without any occupier’s knowledge, the subject premises, and
(b)  to impersonate another person for the purposes of executing the warrant, and
(c)  to use such force as is reasonably necessary for the purposes of entering the subject premises, and
(d)  if the warrant authorises entry to premises adjoining or providing access to the subject premises—to enter premises adjoining or providing access to the subject premises, using such force as is reasonably necessary, for the purposes of entering the subject premises, and
(e)  to search the subject premises for any kind of thing described in the warrant, and
(f)  to break open any receptacle in or on the subject premises for the purposes of that search if it is reasonably necessary to do so, and
(g)  if the warrant authorises the seizure of a kind of thing—to seize and detain a thing of that kind and any relevant thing that the person finds in the course of executing the warrant, and
(h)  to seize and detain any other thing that the person finds in the course of executing the warrant and that is connected with a serious indictable offence, and
(i)  if the warrant authorises the placing of a kind of thing in substitution for a seized thing—to place a thing of that kind on the subject premises in substitution for a thing seized under paragraph (g), and
(j)  if the warrant authorises the copying, photographing or recording of a kind of thing—to copy, photograph or otherwise record a thing of that kind and any relevant thing that the person finds in the course of executing the warrant, and
(k)  if the warrant authorises the operation of a kind of electronic equipment:
(i)  to operate any electronic equipment of that kind and any relevant electronic equipment that the person finds in the course of executing the warrant, and
(ii)  to print, copy or otherwise record from that equipment information that is of a kind that the warrant authorises to be printed, copied or recorded and any relevant information that the person finds in the course of executing the warrant, and
(l)  if the warrant authorises the testing of a kind of thing—to test a thing of that kind and any relevant thing that the person finds in the course of executing the warrant, and
(m)  to do anything else that is reasonable for the purpose of concealing anything done in the execution of the warrant from the occupier of the premises.
(2)  A reference in this section to an eligible person, in relation to a warrant, is a reference to an eligible police officer if the applicant for the warrant was an eligible police officer.
(3)  A reference in this section to a relevant thing (including electronic equipment and information) found by an eligible person is a reference to a thing that the person has reasonable grounds to suspect or believe will substantially assist in responding to or preventing a terrorist act.
(4)  For the purposes of this section, a thing is connected with a serious indictable offence only if it is:
(a)  a thing with respect to which there are reasonable grounds for suspecting or believing the offence has been, is being, or will be committed, or
(b)  a thing that there are reasonable grounds for suspecting or believing will provide evidence of the commission or intended commission of the offence, or
(c)  a thing that there are reasonable grounds for suspecting or believing has been, is being, or is intended to be used, in or in connection with the offence.
27OA   Operation of electronic and other equipment at premises and removal of things from premises for examination
(1)  An eligible person (within the meaning of section 27O) executing or assisting in the execution of a warrant 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 contains or constitutes a thing that may be seized under the warrant.
(2)  If a thing is moved to another place for examination under this section, an authorised 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 authorised officer may only authorise the removal of a thing for a period exceeding a total of 28 days if satisfied that it is justified on the basis that there are exceptional circumstances in the case.
(4)  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.
(5)  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.
27OB   Access to and downloading of data from computers (including access to computers outside premises the subject of a warrant)
(1)  An eligible person (within the meaning of section 27O) executing or assisting in the execution of a warrant may operate equipment at the premises the subject of the warrant to access data (including data not held at the premises the subject of the warrant) if the person believes on reasonable grounds that the data might be data that could be seized under the warrant.
(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 such data 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.
27P   Use of assistants to execute warrant
A person who is authorised under section 27O to execute a warrant may do so with the aid of such assistants as the person considers necessary.
27Q   Expiry of covert search warrant
Subject to section 27R, a covert search warrant ceases to have effect:
(a)  on the expiry date specified in the warrant, or
(b)  if it is withdrawn by the eligible Judge who issued the warrant—when it is withdrawn, or
(c)  when it is executed,
whichever occurs first.
27R   Return or retrieval of a thing seized or placed
(1)  A covert search warrant may authorise the return of a thing seized under section 27O (1) (g), or the retrieval of a thing placed under section 27O (1) (i), if the warrant expressly authorises such a return or retrieval.
(2)  If the warrant authorises the return or retrieval of a thing, the subject premises may be re-entered by a person authorised under section 27O to execute the warrant, but only for the purpose of returning or retrieving the thing (as the case may be) and any such re-entry must occur within 7 days of the first entry under the warrant (or such longer period as is allowed, prior to the expiration of the 7-day period, by an eligible Judge).
(3)  A person authorised to re-enter premises and return or retrieve a thing under this section may do so with the aid of such assistants as the person considers necessary.
27S   Report to eligible Judge on execution of warrant
(1)  A person who executes a covert search warrant must provide a report in writing to the eligible Judge 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 of any person who executed the warrant, and
(iii)  stating the name of any police officer or intelligence gathering officer who assisted in the execution of the warrant and the nature of the assistance provided, and
(iv)  stating the name of any person believed to be knowingly concerned in the commission of the terrorist act in respect of which the warrant was executed and, if no such person is an occupier of the premises, any occupier (if known) of the premises at which the warrant was executed, and
(v)  stating the powers that were exercised under the warrant, and
(vi)  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, copied, photographed, recorded, operated, printed or tested), and
(vii)  if a thing was found in the course of executing the warrant and, under section 27O, that thing was (but was not of a kind expressly authorised by the warrant to be) copied, photographed, recorded, operated, printed or tested—specifying particulars of the grounds on which the thing was believed to be a relevant thing or connected with a serious indictable offence (as the case may be),
(viii)  if a thing was tested or was seized for the purposes of testing—including a description of the thing and the type of information obtained (or proposed to be obtained) by testing, and
(ix)  stating whether or not the execution of the warrant assisted in the prevention of, or response to, the terrorist act in respect of which the warrant was executed and, if so, how it assisted, and
(x)  stating whether or not the execution of the warrant assisted in the prevention of, or response to, any other terrorist act or any serious indictable offence and, if so, how it assisted, 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:
(a)  if the warrant was executed—within 10 days after it was executed, or
(b)  if the warrant was not executed—within 10 days after:
(i)  the expiry date specified in the warrant, or
(ii)  the date the warrant was withdrawn by the eligible Judge who issued the warrant.
(3)  If premises are entered for the purposes of returning or retrieving a thing under section 27R, a report must also be provided in writing to the eligible Judge 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 of any person who entered the premises for the purposes of the return or retrieval, and
(d)  stating the name of any other police officer or intelligence gathering officer who assisted in the re-entry of the premises or the return or retrieval of the thing and the nature of any 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 27R.
(5)  The Commissioner of Police is to ensure that a copy of any report provided under this section is given to the Attorney General.
(6)  In this section:
intelligence gathering officer means a person employed by or in the Australian Security Intelligence Organisation or any other intelligence gathering agency prescribed for the purposes of this definition.
police officer means a member of:
(a)  the NSW Police Force, or
(b)  the Australian Federal Police, or
(c)  a police force or police service (however described) of another State, a Territory or another country.
27T   Defects in covert search warrants
A covert search warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular.
27U   Notice to occupiers of execution of covert search warrant
(1)  A person who executes a covert search warrant is to cause an occupier’s notice to be prepared under this section.
(2)  The occupier’s notice:
(a)  is to specify the name of the person who applied for the warrant, and
(b)  is to specify the name of the eligible Judge who issued the warrant, and
(c)  is to specify the date when the warrant was issued, and
(d)  is to specify the date when the warrant was executed, and
(e)  is to specify the address or other description of the subject premises, and
(f)  is to specify the number of police officers or intelligence gathering officers who entered the subject premises for the purposes of executing, or assisting in the execution of, the warrant, and
(g)  is to contain a summary of the nature of the warrant (including the grounds on which a covert search warrant may be issued) and the powers conferred and exercised under the warrant, and
(h)  is to describe any thing seized or placed in substitution for a seized thing, and
(i)  is to describe any thing returned or retrieved under section 27R and the date on which the thing was returned or retrieved, and
(j)  if the occupier was not, at the time that the warrant was executed, believed to be knowingly concerned in the commission of the terrorist act in respect of which the warrant was executed—is to state this, and
(k)  is to specify or contain any other matters required by the regulations.
(3)  Within 6 months of executing the covert search warrant, the person who executed the warrant is to provide the occupier’s notice to the eligible Judge who issued the warrant for that Judge’s approval.
(4)  The person must provide such further information (either orally or in writing) as the eligible Judge requires for the purposes of assisting the Judge in determining whether to approve the occupier’s notice.
(5)  As soon as practicable after the eligible Judge approves the occupier’s notice, the person who executed the warrant is to cause the notice to be given to:
(a)  any person who, at the time the warrant was executed, occupied the subject premises and was believed to be knowingly concerned in the commission of the terrorist act in respect of which the warrant was executed, and
(b)  if no such person was an occupier of the subject premises when the warrant was executed—a person of or above the age of 18 years known to have occupied the premises at the time the warrant was executed.
(6)  If no such person is known, or the person’s whereabouts are unknown to the person who executed the warrant, the person who executed the warrant is to report back to the eligible Judge who issued the warrant and the Judge may give such directions about the giving of the occupier’s notice as the Judge thinks fit.
(7)  The giving of an occupier’s notice under this section may be postponed by the eligible Judge who issued the warrant if that eligible Judge is satisfied that there are reasonable grounds for that postponement.
(8)  Directions under subsection (6) may be given at the same time as a postponement is granted.
(9)  The giving of an occupier’s notice under this section may be postponed on more than one occasion, but:
(a)  must not be postponed on any one occasion for a period exceeding 6 months, and
(b)  must not be postponed for a total period of more than 18 months unless the eligible Judge is satisfied that there are exceptional circumstances justifying the postponement.
(10)  In this section:
intelligence gathering officer and police officer have the same meanings as in section 27S.
(11)  A reference in this section and in section 27V to a person who executes a warrant includes a reference to another eligible police officer (if the person was an eligible police officer), but only if the person who executed the warrant:
(a)  has died, or
(b)  has ceased to be an eligible police officer, or
(c)  is absent from duty.
27V   Notice to adjoining occupiers of execution of covert search warrant
(1)  A person who executes a covert search warrant is to cause an occupier’s notice to be prepared under this section if the execution of the warrant involved entering under section 27O (1) (d) premises (the adjoining premises) adjoining or providing access to the subject premises.
(2)  The occupier’s notice:
(a)  is to specify or state the matters set out in section 27U (2) (a)–(e), and
(b)  is to specify or contain any other matters required by the regulations.
(3)  The occupier’s notice is to be provided to the eligible Judge who issued the warrant for that Judge’s approval at the same time as the occupier’s notice prepared under section 27U in relation to the execution of the warrant is provided under section 27U (3).
(4)  As soon as practicable after the eligible Judge approves the occupier’s notice under this section, the person who executed the warrant is to cause the notice to be given to a person of or above the age of 18 years known to have occupied the adjoining premises.
(5)  The provisions of section 27U apply in relation to an occupier’s notice prepared under this section as follows:
(a)  section 27U (4) and (6)–(9) apply as if a reference in those provisions to an occupier’s notice were a reference to an occupier’s notice prepared under this section,
(b)  section 27U (6) applies as if a reference in that provision to a person referred to in section 27U (5) were a reference to an occupier referred to in subsection (4).
27W   (Repealed)