Search warrants - guidelines

Purpose

These guidelines should provide Australian Government departments and agencies with a practical framework for making requests of the AFP in relation to the execution of search warrants, particularly for fraud and general crime-related matters. The guidelines will help to ensure that such requests can be properly assessed and, where appropriate, actioned.

Background

Departments and agencies have a responsibility to investigate 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 the AFP in determining whether it will accept the request. Departments and agencies are encouraged to seek guidance from the AFP about the CCPM, and to discuss possible referrals with the AFP, if there is any doubt about whether it is appropriate to refer a particular matter.

The AFP aims to deliver high quality policing services while enhancing its relationships with other departments and agencies. It is against this background 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 or agencies concerning criminal investigations conducted by the department or agency
  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 the department or aency and the AFP
  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 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.

Search warrant provisions

Search warrant provisions are contained in:

  1. The principle Commonwealth search warrant provision can be found in 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
  2. 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

However it should be noted 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 response concerning the execution of search warrants under these guidelines should be settled during early consultation between the AFP and the relevant department or agency.

The organisation accepting responsibility for the media response should ensure that 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.

Politically Sensitive matters

All matters where the execution of a search warrant may have politically sensitive implications (not limited to fraud) should be raised with the Minister responsible for the AFP by the relevant Minister or Department at the time of referral. This enables the Government to be informed at the earliest juncture of potentially politically contentious matters that may require investigation by the AFP, in accordance with the Commonwealth Fraud Control Guidelines.

Under present arrangements, the Minister for Home Affairs is responsible for the AFP.

Disputes

Should conflict arise between the AFP and the department or agency over any matter related to these guidelines, attempts should be made to resolve the issue at an operational level. If this fails, the matter should be referred to the AFP Office Manager and the relevant department or agency head, or the organisation's 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. However the final decision remains with the AFP Executing Officer.

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.

Operational and administrative costs

Australian Government departments and agencies, as well as the AFP, have responsibilities in the investigation of Commonwealth offences. The execution of search warrants in the course of such investigations may incur substantial costs.

These include:

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

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

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

The AFP may negotiate with the department or agency to meet additional operational and administrative expenses arising from the execution of a search warrant.

These may include:

  • specialist and technical assistance and equipment provided by third parties
  • the costs associated with seizing, transporting, storing, maintaining and disposing of exhibits
  • 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 AFP's acceptance of the referral. Any cost sharing arrangements should be on a cost-neutral recovery basis so they include only direct costs and exclude 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 or agency will be paid directly by the department or agency in the first instance. In cases where this is not possible, the department or agency will reimburse the AFP for any expenses.

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

Example one:

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 department or 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 and vehicle hire.

Example two:

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 three:

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 four

In the course of executing a search warrant on behalf of a department or agency material is found which leads the AFP to begin a separate investigation. All costs associated with the AFP investigation will be born by the AFP. The department or agency will not be liable for any costs associated with separate 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 such as 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 or damage to seized property while in the AFP's 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 or 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:

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

The department or 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 or agency's possession, or the actions of the department or 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.

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