Search warrants - Guidelines

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Search warrant guidelines

On this page:

• Purpose
• Background
• Application
• Search warrant provisions
• Media
• Politically sensitive matters
• Disputes
• Involvement of other agencies
• Privacy and confidentiality requirements
• Operational and administrative costs
• Management of incidents, legal proceedings and monetary claims

Purpose

The purpose of these Guidelines is to provide a practical framework within which requests by Australian Government Departments and Agencies for assistance from the AFP in the execution of search warrants, particularly in relation to fraud and general crime related matters, can be properly assessed and, where appropriate, actioned.

Background

Departments and Agencies have a responsibility for the investigation of matters which may be minor, routine or involve issues particular to the programs they administer. This responsibility is articulated in guideline 4.6 of the Commonwealth Fraud Control Guidelines (Commonwealth Fraud Control Guidelines May 2002 - issued by the Minister for Justice and Customs as Fraud Control Guidelines under Regulation 19 of the Financial Management and Accountability Regulations 1997).

Matters referred to the AFP are assessed in accordance with the AFP's Case Categorisation and Prioritisation Model (CCPM). The CCPM assists in determining whether matters should be referred to the AFP. Departments/Agencies are encouraged to seek guidance from the AFP about the CCPM and to discuss possible referrals with the AFP where there is any doubt about whether it is appropriate to refer a particular matter.

It is against this background and having regard to the AFP aim to deliver high quality policing services and enhance closer working relationships with Departments and Agencies that requests to the AFP for assistance in the execution of search warrants should be considered.

Application

These Guidelines:

1. relate only to requests for assistance in the execution of search warrants by Departments/Agencies concerning criminal investigations conducted by those Departments/Agencies;
2. are not intended to:
   1. affect AFP decisions made in relation to matters formally referred to the AFP for investigation;
   2. interfere with secondment or outpost agreements which may exist between Departments/Agencies and the AFP; and
3. do not apply to requests for the execution of Proceeds of Crime Act 2002 warrants where different considerations apply.

In accordance with section 3F(5) of the Crimes Act 1914 if things are seized under warrant, the warrant authorises the executing officer to make the things available to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate.

Search warrant provisions

Search warrant provisions are contained in:

1. Crimes Act 1914 - The principal Commonwealth search warrant provision is section 3E of the Crimes Act 1914. While this provision is capable of applying to all Commonwealth offences the warrant may only be executed by a police officer.
2. Other Acts - Specific search warrant provisions existing in other Acts may be considered more appropriate in some circumstances, particularly where the legislation provides a mechanism for the forfeiture of items seized.

It should be noted, however, that section 3D(2) of the Crimes Act 1914 provides that search warrant powers under the Crimes Act may be used where applicable despite the fact that the search may be within specific search warrant provisions existing in other legislation.

Media

Responsibility for any media releases/responses concerning execution of search warrants under these Guidelines should be settled during early consultative stages between the AFP and the Department/Agency concerned.

The organisation accepting responsibility for media releases should ensure that they will be/are in accordance with pre-trial publicity guidelines and adequately reflect the contribution of each organisation.

No information is to be provided to the media in relation to the search warrant or its execution without agreement on release and content by both parties.

Politically Sensitive matters

Where execution of a search warrant is likely to have politically sensitive implications the Department/Agency must ensure that the matter is raised with the Minister responsible for the AFP by the relevant Minister or Department in the first instance, rather than being referred directly by them to the AFP, in accordance with the Commonwealth Fraud Control Guidelines.

Disputes

Should conflict arise between the AFP and the Department/Agency over any matter related to these Guidelines, the AFP and the Department/Agency will seek to resolve the issue at an operational level. Should this negotiation fail, the matter shall be referred to the AFP Office Manager and the relevant Department/Agency head/regional office.

Involvement of other agencies

Any necessity to involve other agencies in the execution of search warrants should be raised and discussed at an early stage. Any final decision, however, remains with the AFP executing officer.

Privacy and confidentiality requirements

The AFP and the Department/Agency will acknowledge and protect the integrity of information and intelligence exchanged between them. The requirements of the Privacy Act 1988, the Australian Federal Police Act 1979, the Crimes Act 1914, Social Security legislation and other relevant Acts will be observed at all times.

Both the AFP and the Department/Agency will ensure that information is appropriately classified in ccordance with the requirements of the Protective Security Manual (PSM) and that all information received from the other agency will be accessed, handled, and stored in accordance with PSM.

Operational and administrative costs

The AFP and the Department/Agency both have responsibilities in the investigation of Commonwealth offences. The AFP and the Department/Agency should be aware that the execution of search warrants may incur substantial additional costs including:

• travel to remote locations;
• specialist assistance and equipment including purchasing of CDs for computer forensics and hard drives;
• large scale copying and other administrative costs; and
• the transport, storage and maintenance of seized items. The AFP and the Department/Agency should therefore seek to negotiate cost sharing arrangements in order to meet such costs.

The AFP will meet all costs associated with salary, overtime and composites for AFP members.

The AFP may negotiate with the Department/Agency to meet additional operational and administrative expenses arising from the execution of a search warrant including;

1. specialist and technical assistance and equipment provided by third parties;
2. costs of seizing, transportation, storage, maintenance and disposal of exhibits;
3. costs associated with travel to remote locations including accommodation, meals, airfares and vehicle hire.

Cost sharing arrangements must be in writing and settled prior to the acceptance of the referral. Any cost sharing arrangements should be on a cost-neutral recover basis i.e. including only direct costs and excluding overheads. Charges should be kept to a minimum and applied in a coherent, consistent and objective manner.

As far as possible, any costs that are the responsibility of the Department/Agency will be paid directly by the Department/Agency in the first instance. In cases where this is not possible, the Department/Agency will reimburse the AFP for any expenses. In such circumstances the AFP case officer must complete the Debtor Invoice - Request to Raise Debtor Invoice form. All supporting documentation should be attached and forwarded to the case officers relevant LBSG.

The following are a number of examples of possible cost sharing arrangements.

Example 1

A referral to execute multiple warrants in a remote location utilising large AFP teams may incur substantial travel costs. The AFP may negotiate with the client to have the travel costs met by the referring agency. This agreement should be in writing and should be settled prior to the acceptance of the referral. Preferably, travel costs would be paid directly by the client and not reimbursed to the AFP. Travel costs include airfares, accommodation, meals & vehicle hire.

Example 2

A referral to execute a search warrant involving the seizure of large items requiring specialist removal and/or storage and maintenance such as motor vehicles, boats, houses etc may incur long term storage costs. These costs should be met by the referring agency. This agreement should be in writing and should be settled prior to the acceptance of the referral. Preferably, these costs would be paid directly by the client and not reimbursed to the AFP.

Example 3

A referral to execute a search warrant involves the use of specialist equipment or requires large quantities of photocopying, scanning and stationery. The AFP may negotiate with the agency to provide the required equipment and any other resources necessary to assist with the copying of documents.

Example 4

In the course of executing a search warrant on behalf of a Department/Agency the AFP commence other investigations that do not relate to the client Department/Agency's investigation. All costs associated with the AFP investigation will be born by the AFP. The Department/Agency will not be liable for any costs associated with investigations conducted by the AFP.

Management of incidents, legal proceedings and monetary claims

The parties acknowledge that the execution of search warrants by their employees may result in incidents of a liability nature or which may result in legal proceedings. These may include claims for loss or damage arising from the execution of the warrant, retention of property seized or collateral attacks on the validity of the warrant or its execution.

Each party agrees to notify the other party as soon as possible of the relevant details of any such incident and to cooperate in relation to the investigation and handling of the matter.

The parties will ensure any claims or litigation are handled with due consideration of the Legal Services Directions and any relevant insurance requirements (e.g. Comcover).

The AFP will be responsible for legal costs it incurs in meeting any legal claim from damages incurred in the manner of execution of the warrant. These include unreasonable or excessive damage to property (save for damage which was anticipated in the planning stages), alleged assaults upon occupiers or loss/damage to seized property while in AFP possession.

The AFP will be responsible for routine expenses it incurs in the criminal prosecution process (such as officers attending court as prosecution witnesses)

The Department/Agency will be responsible for any legal expenses that may be incurred by the AFP as a result of any action arising in connection with execution of a search warrant including any:

1. collateral attack on the validity of the warrant or technical aspects of its issuing or execution;
2. privilege claim made by the occupier or owner over property which is subject to seizure;
3. the scope of any seizure; or
4. privilege claim made in respect of Commonwealth documents or interests which may arise in later court proceedings

The Department/Agency will also be responsible for any legal expenses that may be incurred by the AFP as a result of any action arising in connection with seized property in the Department/Agency's possession or the actions of the agency's officers, employees or agents.

Other situations involving legal action will be negotiated between the parties in good faith in reference to the responsibilities and action of the respective officers.