Australian Federal Police

To begin in understanding what you should do and what rights are available to you when being approached by a member of the Australian Federal Police (AFP) in an event where you are to be questioned, detained or searched you must first understand what power and authority its members have.

The AFP was established by an act of Parliament in 1979 that act being the Australian Federal Police Act 1979 [CTH]. This Act empowers and authorises AFP members within its law enforcement agency and body.

AFP criminal matters and police powers are generally governed and identified within the Crimes Act 1914 [CTH] (the Act) and the Criminal Code 1995 [CTH].

The Act applies throughout the whole of the Commonwealth and the Territories and also applies beyond the Commonwealth and the Territories without limiting or excluding the operation of another law of the Commonwealth (including other provisions of the Act) in relation of the stopping, detaining or searching of conveyances or persons.[1]

Search warrants on premises’ or persons are issued on information provided on oath or affirmation to an issuing officer being satisfied that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours evidentiary material or possession of such material leading to or forming any part of a criminal investigation.

The issuing officer must state the following information within the search warrant:

• the offence to which the warrant relates; and
• a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and
• the kinds of evidential material that are to be searched for under the warrant; and
• the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and
• the time at which the warrant expires (see subsection (5A)); and
• whether the warrant may be executed at any time or only during particular hours.[2]

A search warrant relating to a premises or a person must also to state:

a. that the warrant authorises the seizure of a thing found at the premises in the course of the search or of a thing found on or in the possession of the person or in a recently used conveyance, being a thing that police believe on reasonable grounds to be:

1. evidential material in relation to an offence to which the warrant relates; or
2. a thing relevant to another offence that is an indictable offence; or
3. evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); if the officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

b. whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the officer suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.

While a search warrant on a premises is in force it authorises the police; to enter the premises and, search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; to seize other things found at the premises in the course of the search that on reasonable grounds are deemed to be evidentiary material.

While a search warrant on a person is in forces it authorises the police to search the person as specified in the warrant and things found in the possession of the person specified in the warrant and to seize things of that kind or record fingerprints from the seized things or to take forensic samples from things found in the course of the search.

AFP officers are authorised to use force and or firearms and or all other electronic devices and equipment in the execution of a search warrant if the information contained within the search warrant states the suspicion and the grounds for that suspicion.

Police are also authorised to seize all electronic data, account and financial based data and electronic equipment during the course of a search warrant and retain such data or equipment as evidentiary material during the course of their criminal investigations and or criminal proceedings.

That being said police are not authorised to add, delete or alter retained or seized data or do anything that is likely to materially interfere with, interrupt or obstruct a communication in transit or the lawful use by other persons of a computer unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified in the warrant or cause any other material loss or damage to other persons lawfully using a computer.