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Search Warrants in the Australian Capital Territory

Written by Michelle Makela

Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.

In the ACT, search warrants involve the right of police to enter someone’s home and search the premises for the purpose of investigating matters. In most circumstances, the police do not have a right to enter someone’s property without being invited in, and even if they are allowed in, that invitation can be revoked at any point. Part 10 of the Crimes Act 1900 regulates police searches and search warrants in the Australian Capital Territory.

In the ACT, search warrants involve the right of police to enter someone's home and search the premises for the purpose of investigating matters.

Police right of entry

Police officers can, under the Crimes Act, enter premises when invited by the occupier in relation to crimes about a breach of the peace, if they suspect someone’s safety is in imminent danger, or to protect life or property. They can also enter in cases of emergency to prevent the same. Otherwise, the police need to have a warrant issued by a magistrate.

Search warrants

Search warrants are issued by magistrates on the basis of information provided on oath by police officers. There are two kinds of search warrants issued in the ACT; preventative search warrants and general search warrants. Preventative search warrants are issued where the magistrate reasonably believes that the police need to enter the premises to prevent a person being injured or to assist an injured person. Police then have 24 hours to use the warrant, and can use reasonable force to do so.

General search warrants are a little different, and issued in situations where the matter is less urgent. They are issued for the purpose of obtaining evidence in relation to criminal investigations and can relate to searching premises or a person (strip searches and cavity searches are not allowed). The Act states that there must already be evidence at the premises (or on the person), but also if they believe there will be within the next 72 hours. Police also need to state whether they believe it is necessary to use firearms in executing the warrant and on what basis.

Details of warrants

Warrants are documents which need to be specific in terms of their details. The details every search warrant in the A.C.T. must include are:

  • The offence the warrant relates to
  • A description of the premises or the person to which it relates
  • What sort of evidence the police are looking for
  • Who the police officer responsible for carrying out the search is (that may not necessarily be the person who carries out the search- they can delegate this duty to someone else)
  • How long the warrant is effective for (up to seven days)
  • When the warrant can be executed
  • What can be seized (this will normally need to be related to the offence in question, but police may also be able to seize other evidence of serious crimes as well)

What the police can do and must do during searches

Generally the police’s powers will be dictated by the terms of the warrant, but some general rules apply. The police can usually take photographs and items can be seized from the premises. The police can also use any necessary equipment which is reasonably necessarily to examine relevant items found during the search. Police do however need to be careful not to overstep their authority, as this could prejudice a case unnecessarily. Police also need to ensure that the occupier of the premises (or someone who they reasonably think is representing them) a copy of the warrant. The police also need to identify themselves as well.

If police enter with a search warrant

If you are an occupier or owner of premises, in the ACT, which are being subjected to a search, it is important to make sure you view the warrant and are given a copy. Under the Crimes Act, as the occupier or a representative of the occupier, you have a general right to observe the search taking place, and it is advisable that you do so. It is also advisable that you do not hinder police as this could mean you will lose the right to observe the search and it may also result in other charges in addition to any the police may be intending to lay in relation to the search.

You should take note of what the police remove from the premises and provide this information to your solicitor at a later time. The police are obliged to provide you with a receipt for anything they take from the premises and in certain cases, and where possible (for example, in relation to films, documents etc) you may also be able to request a copy of something that is seized (unless it is a crime to have the thing in the first place, for example, child pornography).

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