Wire taps and search warrants: ASIC's new powers

Search warrant powers

The previous powers, and what is new

While ASIC already had some warrant powers available to it in the various Acts it administers, it relied almost exclusively on the warrant powers in s 3E of the Crimes Act. Of almost 200 warrants used by ASIC between January 2011 and June 2017, all but two were Crimes Act warrants.

ASIC developed this reliance on the Crimes Act powers because:

• they enabled ASIC to search and seize a far broader category of materials than was possible under the old ASIC warrant powers;
• they provided far more flexibility in practice (in terms of what could be “seized” when a “search” was being conducted) than was allowed by the old ASIC powers; and
• they are supported by a range of regularly reviewed and updated “ancillary powers” which ensure the powers retain their effectiveness in the modern era (for example, by providing powers to copy and search electronic materials) when the old ASIC powers were not. 

The new ASIC powers introduced by the Stronger Regulators Act address these differences, and largely give ASIC clearer access in its own Acts to what was already in the Crimes Act.  However, the big development is that the new ASIC powers allow ASIC to use seized materials in administrative, civil or criminal proceedings (as opposed to just criminal proceedings).  This could see a marked shift away from Crimes Act warrants.

Below, we examine the four main features of the new ASIC warrant powers and their practical implications. 

Wider range of materials – but only when investigating indictable offences 

The type of material that can now be seized under the new ASIC powers is now in line with the Crimes Act, but the type of investigation which enlivens the new ASIC powers is narrower than the Crimes Act: 

• ASIC’s new powers enable ASIC to search and seize "evidentiary materials", which extends to any “thing” relevant (or which may be suspected to be relevant) to the commission of an indictable offence. The "any thing" part of the power is far broader than what was available under ASIC’s old powers, which were limited to specified “particular books”.
• However, the evidentiary materials must be relevant (or suspected to be relevant) to an indictable offence.  ASIC's new powers do not extend to investigations of summary offences, while the Crimes Act powers do. 

As touched on below – once materials are seized under the new ASIC powers they can be used in a broad range of proceedings, not just criminal prosecutions of indicatable offences.

The upshot is likely to be that ASIC would now only use the Crimes Act powers if investigating a summary offence and it did not think its other information gathering powers were sufficient.  While there are hundreds of summary offences in the Corporations Act and ASIC has shown in recent times a real interest in prosecuting them, the new legislation might suggest that ASIC shouldn't really be using search warrant powers to do that. 

The new powers provide ASIC with greater flexibility to seize relevant material that is discovered during the execution of a warrant 

ASIC’s new powers are now consistent with what was available under the Crimes Act.  They enable it to seize materials identified during the execution of a warrant that were unknown to ASIC prior to the search, so long as the materials are relevant to the offence being investigated or another indictable offence. 

This is a far more flexible approach than was allowed under ASIC’s old powers, which limited the materials which ASIC could seize to the exact "books" specified in the warrant, meaning that any book discovered during the course of a search, even if highly relevant to an offence to which the warrant related (let alone another indictable offence), could not be seized unless it was specified in the warrant. 

"Ancillary provisions" relating to electronic materials 

Again, ASIC’s new warrant powers incorporate many of the "ancillary powers" which already attached to a Crimes Act warrant, enabling ASIC to: 

• take photographs and make video recordings of the search; 
• operate electronic equipment on the premises to access data;
• move devices to another place for processing to determine if the devices contain evidential material; and
• operate seized devices to access data.

These ancillary powers are aimed at ensuring that the warrant powers remain effective in the modern era.

Because ASIC’s old powers had no equivalent ancillary powers, they effectively limited ASIC to a search and seizure of hard-copy documents. 

ASIC can use the 'evidential material' seized in all forms of proceedings – administrative, civil & criminal

This is the key development.

Provided ASIC obtains the materials while investigating an indictable offence, ASIC's new warrant powers allow it to use the materials "seized" under a validly issued warrant in either administrative, civil or criminal proceedings. 

This is to be contrasted with the Crimes Act powers, which allow ASIC to "seize" materials relating to suspected indictable or summary offences, but restrict ASIC's use of the materials seized to criminal proceedings only.

ASIC's new wire intercept powers

The Stronger Regulators Act also enhances ASIC's power to access and receive regulated "telecommunications" under the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act).