Interlocutory proceedings in the Federal Court in October 2009, relating to search warrants, provides a useful reminder in relation to the permissible scope of search warrants. The broader proceedings in Zhang v Commissioner, Australian Federal Police (2009) 260 ALR 580 (Zhang) concerned challenges to the manner in which particular search warrants were issued and executed. The interlocutory application sought to prevent the inspection of documents that were seized in the search until the main proceedings had been determined.

Sections 3E and 3F of the Crimes Act 1914 (Cth) set the limits on the power conferred by search warrants relating to criminal offences in the federal jurisdiction. In respect of the degree of specificity required of a search warrant, sections 3E(5)(a) and (c) require the "issuing officer ... to state in the warrant" both "the offence to which the warrant relates" and "the kinds of evidential material that are to be searched for under the warrant". That is, the search warrant must disclose the nature of the offence so as to set bounds to the area of the search (Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 75 FCR 145 at 152).

Similarly, the conduct of the search officers is limited by section 3F which provides that they may only seize a particular item if they believe on reasonable grounds that the item is evidential material in relation to an offence to which the warrant relates (or another offence that is an indictable offence). Short of the executing officer forming such a belief on reasonable grounds, a warrant confers no authority to seize anything.

The alleged offences in Zhang involved almost 40 companies suspected of defrauding the Australian Taxation Office of approximately $75 million through the falsification of Business Activity Statements. The Applicants' complaints in relation to the search warrant and the search officers' conduct included that:

  • the search warrant gave rise to some 36,288 permutations of documents or things that could be seized as evidence
  • when searching computers, the search officers performed "key word" searches, and if any of the key words were found on the computer, an image of the entire hard drive was taken, and
  • when searching lever arch folders, search officers would often look at the cover and spine only, or at other times only one document in it, before seizing the whole folder.

  • During and after the search, the Applicants' solicitor took urgent steps to protect the seized documents from inspection. At the application, the solicitor tendered an affidavit into court detailing his complaints regarding the search officers' conduct.

Justice Flick granted the interlocutory relief sought on the basis that "a serious question arises as to whether [the search warrants] have been executed in accordance with their terms". While his Honour did not express any view regarding the validity of the warrants (preferring to leave that issue to be determined at trial), he emphasised the importance of presenting to the person whose premises are being searched, a warrant that fully and usefully informs them of the area of the search.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.