Search warrants on commercial premises
Search warrants on commercial premises
Police and other investigating officials can obtain a warrant to search premises if the issuing officer, that is a magistrate or registrar, is satisfied that there are reasonable grounds for suspecting that there is or that there will be evidence located at the premises in the next 72 hours. This includes business premises.
There are a number of things you should keep in mind if police or other government investigators arrive at your business premises to conduct a search warrant.
The search warrant
There are a number of conditions that need to be met for the warrant to be valid which include adequate descriptions of:
The offence to which the warrant relates
The premises at which the search is to be conducted
The kinds of evidential material the police are looking for
The time the warrant expires
Whether the warrant may be executed at any time or between certain hours.
A valid search warrant issued under the Crimes Act 1914 (Cth) or the Customs Act 1901 (Cth) permits the officer authorised to execute the warrant and any constable assisting to:
Enter the premises
To search for and take fingerprints and take other samples of things found for forensics purposes
To search the premises for evidential material specified in the warrant and to seize those items. This includes data held electronically.
To seize other items which the officer believes on reasonable grounds to be evidential material to which the warrant relates, or which relates to another indictable offence, or is evidential material or tainted property as defined in the Proceeds of Crime Act 2002 (Cth), if the officer believes that it is necessary to prevent their concealment, loss or destruction or use to commit an offence.
Your rights
As the occupier of the premises or business owner/operator, you have certain rights in relation to a search warrant, including:
The officers must identify themselves
You must be given a copy of the search warrant (it need not be the signed copy) or an occupier’s notice
If officers locate electronic data, they must copy the data on site. The device storing the data cannot be seized unless it is not practicable to copy the data or produce it in hard copy or if possession of that data by you could constitute an offence.
Commercially sensitive or privileged material
Commercially sensitive material can be seized under a valid search warrant provided it falls within the description of the evidential material the police or other investigating officials are authorised to look for.
Material to which legal professional privilege is attached cannot be seized under a search warrant. This type of material includes all confidential communications made for the dominant purpose of giving or receiving advice or for the use in existing or anticipated litigation. There are two exceptions to this rule:
1. Where privilege is expressly or impliedly waived, or
2. Where the communications between lawyer and client facilitate a crime or a fraud.
As the occupier or recipient of the search warrant, you are entitled to claim privilege over this type of material during the search warrant.
If investigators arrive at your premises to conduct a search warrant and you are in any doubt about it, the best thing to do is obtain legal advice. Our team at Kingston Fox Lawyers can help.
This article contains general information about search warrants and does not constitute legal advice.
