This article will outline the issue of search warrants under the Migration Act 1958. Search warrants are legal documents that authorise a person to enter premises in search of evidence of a crime. A judge or magistrate usually issues search warrants and they must specify the following:
- Premises to be searched;
- Evidence to be sought; and
- Powers that the authorised person has.
In the context of migration law, officers can use search warrants to search evidence about:
- Sponsorship-related offences, such as providing false or misleading information on a visa application.
- Work-related offences, such as working without a valid visa or working in breach of a visa condition.
- Other offences that may be relevant to a person’s visa status, such as drug trafficking or money laundering.
Read on to learn more about provisions about issue of search warrants.
Section 487ZC: Issue of Search Warrants
Section 487ZC outlines the following:
1. Application for a search warrant
An authorised officer can apply to a judge for a search warrant for premises. This if they have reasonable grounds to suspect that there is, or may be within the next 72 hours,:
- Evidential material on the premises related to a sponsorship-related offence;
- Sponsorship-related provision;
- Work-related offence; or
- Work-related provision.
2. Issue of search warrants
The judge can issue search warrants if they believe that the authorised officer has reasonable grounds for their suspicion. However, the judge cannot issue the warrant until the authorised officer or another individual has provided the judge with any additional information the judge needs.
3. Content of a search warrant
The search warrant must state:
- The sponsorship-related offence, sponsorship-related provision, work-related offence, or work-related provision to which the warrant relates.
- The premises to which the warrant relates.
- That the authority issues the warrant under this section of the Migration Act.
- The kind of evidential material that is to be searched for under the warrant.
- That the evidential material specified, and any other evidential material found in the course of executing the warrant, may be seized under the warrant.
- The name of one or more authorised officers.
- That the authorised officers named in the warrant are authorised to enter the premises and exercise the powers set out in this section of the Migration Act in relation to the premises.
- Whether entry is authorised to be made at any time of the day or during specified hours of the day.
- The day (not more than one week after the issue of the warrant) on which the warrant ceases to be in force.
Section 487ZD: Search Warrants by Telephone, Fax Etc.
Section 487ZD outlines the following about the issue of search warrants:
1. Application for a search warrant by phone, fax, or other electronic means
An authorised officer can apply for a search warrant for premises by phone, fax, or other electronic means:
- In an urgent case; or
- If the delay of applying in person would frustrate the effective execution of the warrant.
The issuing officer may require the authorised officer to speak to them directly, if possible. Before applying for the warrant, the authorised officer must prepare a document that sets out the grounds on which they seek the warrant. Moreover, the authorised officer can apply for the warrant before the document is sworn or affirmed.
2. Issuing officer may complete and sign the search warrant
The issuing officer can complete and sign the search warrant if they are satisfied that there are reasonable grounds to do so. However, they must first consider the terms of the document and any further information that the authorised officer provides. After completing and signing the warrant, the issuing officer must inform the authorised officer of the:
- Terms of the warrant; and
- Date and time it was signed.
3. Obligations on the authorised officer
The issue of search warrants also requires its completion. It must be in the same terms as the warrant completed and signed by the issuing officer. The authorised officer must also state the name of the issuing officer and the date and time the search warrant was signed. The authorised officer must send that to the issuing officer by the day after either:
- the search warrant expires,
- the search warrant is executed.
The issuing officer must attach the documents provided by the authorised officer to the search warrant signed by the issuing officer.
Section 487ZE: Authority of Search Warrant
Section 487ZE states that a search warrant signed by an authorised officer is just as valid as a search warrant signed by a judge. However, the court must assume that the officer did not exercise the power under the warrant if:
- It is important in court that the officer exercised power under a search warrant; and
- The signed warrant from the judge is not produced.
Section 487ZF: Offence Relating To Search Warrants by Telephone, Fax Etc.
Section 487ZF outlines offences under provisions about issue of search warrants. Specifically, authorised officers cannot:
- State the name of an issuing officer on a search warrant unless that issuing officer signed the warrant.
- State information on a search warrant application form that differs materially from the conditions of the warrant signed by the issuing officer.
- Pretend to have a search warrant that they do not actually have, or present a fake search warrant to someone.
- Give a judge a search warrant that is different from the search warrant that they executed.
The penalty for this offence is imprisonment for up to 2 years.
Seeking Legal Advice About the Issue of Search Warrants
If you are facing a search warrant matter, it is important to seek legal advice as soon as possible. JB Solicitors have migration lawyers who can help you understand your rights and options. Our lawyers can:
- Advise you on your rights and how to cooperate with the search.
- Challenge the validity of warrants in court.
- Represent you in court and fight to defend your rights.
Contact us today for more information about the issue of search warrants.
