Search warrants - guidelines

Requests for AFP assistance in executing search warrants should be sent to the AFP National Operations State Service Centre (NOSSC) in the State or Territory where the requested service is to be provided at least 14 days before the warrant is intended to be executed, although where circumstances permit the AFP will give urgent Requests priority; by submitting the Request for Investigative Service Form (DOCX, 100KB).

Requests for Investigative Service are not intended to:

affect AFP decisions in relation to matters a Report of a Crime submitted to the AFP for investigation;
interfere with agreements which may exist between the Department or Agency and the AFP; and

Search warrant provisions

The principle Commonwealth search warrant provision is section 3E of the Crimes Act 1914, although while this provision is capable of applying to all Commonwealth offences the warrant may only be executed by a police officer.

Specific search warrant provisions existing in other Acts may be more appropriate in some circumstances, particularly where the legislation provides a mechanism for the forfeiture of items seized or they relate to particular set of offences for example Customs Act 1901 or the ASIC Act 2001.

However section 3D (2) of the Crimes Act 1914 provides that search warrant powers may be used even though another law of the Commonwealth provides search warrant provisions.

In accordance with s3ZQU of the Crimes Act 1914 items seized under s3E warrant can be made available to officers of other state and Commonwealth agencies if necessary to prevent, investigate or prosecute an offence related to the items In accordance with section 3F(5) of the Crimes Act 1914 if items are seized under warrant, the warrant authorises the Executing Officer to make them available to officers of other Departments or Agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the items relate.

In determining whether the AFP will facilitate the Request from an Agency to provide assistance in the execution of a search warrant, the following factors may be taken into account:

AFP capacity/resources to provide the assistance at the time and place requested;
the Agency's clear intention to undertake a criminal prosecution;
the Agency's capacity to comply with the Australian Government Investigation Standards (AGIS), particularly in relation to agency investigator qualifications, exhibit control, storage, security and disposal procedures;
the Agency's agreement to provide appropriate resources whether human, material or financial;
whether the Agency has already used all other methods reasonably available to it, without success, in an effort to obtain evidence; and
whether the execution of a search warrant is the most appropriate course of action to pursue at the time.

Any AFP requests for further information or other relevant instructions must be met before the Request can be considered.

Preparation of search warrants

The Agency case officer will hold a Certificate IV in Government (Fraud Control Investigations) in accordance with the Commonwealth Fraud Control Guidelines.

The Agency case officer should draft the search warrants and 3LA orders in accordance with the current Commonwealth Director of Public Prosecutions (DPP) Search Warrants Manual prior to submitting a Request for Investigative Service to the AFP.

The Agency case officer should consult with the AFP Executing Officer prior to obtaining the warrant, however, 3LA orders can only be applied for by a constable. Warrants obtained without prior consultation may not be executed by the AFP.

Execution of search warrants

The planning and execution of the search warrant is the primary responsibility of the nominated AFP Executing Officer. The AFP Executing Officer will at all times be responsible for the search warrant execution, seizure of evidential material/items and control of the warrant and premises.

Where possible, the role of the AFP should be limited to that of Executing Officer and will provide sufficient AFP members to ensure safety and containment at the premises. The AFP, however, will not typically perform the role of property officer or searchers. The AFP Executing Officer will assist determine the number of agency representatives required to execute the search warrant and ensure they are authorised as a Constable Assisting [s.3C(1)(b) Crimes Act 1914] for the search warrant. Execution of the search warrant will be in accordance with the AFP Search Warrant Standard, Better Practice Guide on Search Warrants and other relevant AFP procedures.

Exhibit management

Upon completion of the execution of a search warrant, the AFP will transfer possession of the seized items to the agency in accordance with section 3ZQU of the Crimes Act 1914. The AFP will generally retain currency, firearms, drugs and hazardous items. Upon transfer of possession by the AFP, the Agency is legally responsible for the control, storage, security and disposal of the seized items in accordance with AGIS and any Agency handling procedures.

The Agency is responsible for ensuring that all seized material in its possession is maintained in original condition and used for the purposes of criminal proceedings or any other lawful purpose set out in section 3ZQU of the Crimes Act 1914.

Where the Agency has retained possession of seized material, the Agency is responsible for the final disposal of the material in accordance with any court order, relevant legislation and Agency exhibit handling guidelines. The AFP Commissioner has delegated Commonwealth Officers performing the role of Agency Exhibit Registrars the authority to dispose of property in accordance with section 3ZQX of the Crimes Act 1914.

Where the AFP has retained possession of seized material, the AFP is responsible for the final disposal of the material. The AFP will consult with the Agency where the disposal may raise contentious issues or require disposal consents from parties who may have interests in the property.

Operational and administrative costs

The execution of search warrants may incur substantial costs. These include:

travel to remote locations;
specialist assistance and equipment including computer forensics;
large scale copying and other administrative costs; and
transportation, storage and maintenance for seized items.

The AFP and the Department or Agency should seek to negotiate cost sharing arrangements at an early stage to ensure such expenses are met.

The AFP Better Practice Guide on Search warrant assistance provides additional information.

Media

Consultation and coordination of any media response if appropriate concerning the execution of search warrants should be made between the AFP and the relevant Department or Agency.

Where a joint media response is to be provided all agencies should ensure any material provided is in accordance with pre-trial publicity requirements and adequately reflects 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 its release and content by the departments and agencies involved.

Privacy and confidentiality requirements

The AFP and the Department or 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.

The AFP and the department or agency will ensure that information is appropriately classified in accordance with the requirements of the Protective Security Manual (PSM). All information received from other agencies will be accessed, handled, and stored in accordance with PSM.