This article will discuss search powers under the Migration Act 1958. The Migration Act 1958 gives authorised officers broad powers to:
- Search premises; and
- Seize evidence in relation to suspected breaches of the Act.
These powers are subject to a number of safeguards, including the requirement for:
- A search warrant is to be issued by a magistrate or judge; and
- The authorised officer to produce the warrant to the occupier of the premises before they enter the premises.
Read on to know more about provisions of search powers under the Migration Act.
Section 487D: Authorised Officer May Enter Premises by Consent or Under a Search Warrant
Section 487D allows an authorised officer to enter the premises and exercise the search powers. This is the case if they reasonably suspect that there may be evidential material on any premises. They may only exercise such powers if:
- The occupier of the premises has consented to the entry and the authorised officer has shown their identity card if required.
- The entry is made under a search warrant.
- If the entry is made with the occupier’s consent, the authorised officer must leave the premises if the consent ceases to have effect.
Section 487E: Search Powers of Authorised Officers
Section 487E outlines the search powers of authorised officers. This is in relation to premises under Section 487D:
1. If entry to the premises is with the occupier’s consent, the authorised officer may search the premises and any thing on the premises for the evidential material that the authorised officer reasonably suspects may be on the premises.
2. If entry to the premises is under a search warrant, the authorised officer may:
- Search the premises and any thing on the premises for the kind of evidential material specified in the warrant.
- Seize evidential material of that kind if the authorised officer finds it on the premises.
3. The authorised officer may also:
- Inspect
- Examine
- Take measurements of
- Conduct tests on or take samples of evidential material
- Make any still or moving image or any recording of the premises or evidential material; and
- Take onto the premises such equipment and materials as the authorised officer requires
Additionally, the authorised officer may also use reasonable force to enter and search the premises, and to seize evidential material.
Section 487F: Powers Relating to Electronic Equipment
Section 487F of search powers provisions discusses powers relating to electronic equipment. An authorised officer who has search powers under Section 487D may also operate electronic equipment on the premises. Furthermore, this is the case if the authorised officer reasonably suspects that the following contains evidential material:
- Equipment or a disk
- Tape or other storage device
The authorised officer may:
1. Put the evidential material in documentary form and remove the documents produced from the premises.
2. Transfer the evidential material to a disk, tape or other storage device that is brought to:
- The premises for the exercise of the power; or
- The premises and the use of which for that purpose have been agreed to in writing by the occupier of the premises.
3. Seize the equipment and the disk, tape or other storage device if it is not practicable to:
- Put the evidential material in documentary form; or
- Transfer the evidential material
4. Seize the equipment if possession by the occupier is an offence against the law of the Commonwealth.
The authorised officer may only operate electronic equipment under one condition. Furthermore, this is if the authorised officer reasonably believes that the operation of the equipment can be carried out without damage to the equipment.
What if the authorised officer seizes equipment or a disk, tape or other storage device? The occupier of the premises is entitled to compensation for any damage to the equipment.
Section 487G: Seizing Evidence of the Contravention of Related Provisions Etc.
Section 487G outlines search powers that seize a thing that is not evidential material of the kind specified in the warrant if:
1. The authorised officer finds the thing in the course of searching for the kind of evidential material specified in the warrant.
2. The authorised officer reasonably believes that:
- A related provision has been contravened with respect to the thing.
- The thing is evidence of the contravention of a related provision.
- The thing is intended to be used for the purpose of contravening a related provision.
3. The authorised officer reasonably believes that it is necessary to seize the thing in order to prevent its concealment, loss or destruction.
Additionally, a “related provision” is a provision of a law of the Commonwealth that relates to the contravention of the Migration Act 1958.
Section 487H: Persons Assisting Authorised Officers
Section 487H of search powers provisions state that authorised officers may be assisted by other persons in:
- Exercising powers; or
- Performing functions or duties under this Division
However, the assistance must be necessary and reasonable. The person giving such assistance is the person assisting the authorised officer. A person assisting an authorised officer may:
- Enter the premises.
- Exercise powers and perform functions and duties under this Division in relation to evidential material.
- Do so in accordance with a direction given to the person assisting by the authorised officer.
A power exercised by a person assisting an authorised officer is taken for all purposes to have been exercised by the authorised officer.
A function or duty performed by a person assisting an authorised officer is taken for all purposes to have been performed by the authorised officer. A direction given under paragraph (2)(c) in writing is not a legislative instrument.
Section 487J: Use of Force in Executing a Search Warrant
Section 487J states that an authorised officer, or a person assisting an authorised officer, may use force against things as is necessary and reasonable in the circumstances. Furthermore, this means that an authorised officer or a person assisting an authorised officer may use force to:
- Break down a door
- Open a container; or
- Remove anything that is obstructing them from executing the search warrant.
However, the force must be necessary and reasonable in the circumstances.
The Importance of Seeking Legal Advice About Search Powers
JB Solicitors is a law firm that specialises in migration law. Moreover, they have a team of experienced lawyers who can provide you with legal advice about search warrants. Do you have any questions about the search powers under the Migration Act? Do you believe that your rights have been violated during a search warrant?
Contact us today for legal advice for various migration matters.
