The execution of a Crimes Act 1914 (Cth) (Crimes Act) search warrant by the Australian Federal Police (AFP), ASIC, the ACCC, the ATO or the Australian Crime Commission can be disruptive and damaging to your clients’ businesses. It is critical for businesses and their advisors to be aware of their rights during the execution of a warrant, in order to protect the reputation of the business, its directors, officers and employees.

Importantly for clients who conduct business internationally, in 2013 the AFP joined the International Foreign Bribery Taskforce (IFBT) together with the United States’ Federal Bureau of Investigation, the Royal Canadian Mounted Police and the National Crime Agency of the United Kingdom. The IFBT meets annually to discuss emerging trends in what is now a globalised industry of bribery and corruption, and actively shares information with its international counterparts to assist investigations and prosecutions.

In order to best protect your clients’ interests, it is important to understand the terms on which government authorities can obtain a search warrant, the scope of the search warrant, and how the search warrant might be challenged.

The Nature and Scope of Search Warrants under the Crimes Act

The AFP may apply for search warrants under section 3E of the Crimes Act. This section enables an issuing officer (often a magistrate or registrar of a Supreme Court of a state or territory) to issue a search warrant, when satisfied by information provided on oath or affirmation that there are reasonable grounds for suspecting that there is, or will be within the next 72 hours, evidential material at the premises.

The issuing officer is not acting in their capacity as a Magistrate of the Victorian Magistrates’ Court, for example, but in their individual capacity, and the decision is an administrative one, and is not a judicial act. The challenge to the validity of a search warrant is therefore an administrative law judicial review.

The search warrant must state the offence to which the warrant relates. The inclusion of the offence in the warrant does not amount to an allegation of the commission of the offence, neither does it go so far as to amount to a suspicion that an offence has been committed. Issuing a search warrant is evidence only of the issuing officers’ acceptance that the executing officer believes that evidence will be suspected to be present at the premises.

The nature of the offence(s) must be detailed adequately in the search warrant, so as to inform the executing officer of the scope of the search. A failure to do so may render the warrant invalid on the basis that the executing officer cannot determine any practical limits to their search.

Practical guidance

An ‘aggrieved person’ may challenge the scope or validity of the search warrant by way of a judicial review of the decision by the issuing officer to issue the search warrant in the first place. An aggrieved person is someone whose interests are adversely affected by the decision to issue the search warrant. This does not limit the ability to apply for judicial review to just the owner of the searched premises, but extends standing to the business itself, and its directors, officers and employees. For example, Mercedes Corby, sister of Schapelle Corby, together with Seven West Media, was held to be an aggrieved person and successfully challenged the validity of a search warrant executed by the AFP at Seven West Media’s premises, and others, in relation to offences under the Proceeds of Crime Act.

The review proceedings may be issued by the aggrieved person in the Federal Court of Australia or the Supreme Court of the relevant state or territory.

Grounds for review are set out in section 5 and 6 of the AD(JR) Act and also in the Judiciary Act. Common grounds of review include procedural unfairness, improper exercise of power, an error of law or that there was no evidence to justify the making of the decision to issue the search warrant.

Successfully challenging a decision to issue a search warrant can be of great significance to your client, most importantly that the search warrant may be deemed to be invalid, and any documents or files seized under the warrant must be returned and/or destroyed.