Section 33 of the Cybercrime Code Act 2016 is what makes a search for electronic evidence practical.
When the powers apply
In addition to the powers under the Search Act (Chapter 341), where a member of the Police Force suspects, on reasonable grounds, that a thing may provide evidence of the commission of an offence, he may, in executing a warrant, exercise the following powers.
The Search Act (Chapter 341) is not currently available on PacLII, so no link is given here.
In addition to — the general law of search continues to apply. Section 33 supplements it.
Reasonable grounds — the officer must suspect that a thing may provide evidence.
In executing a warrant — the powers are exercisable only in the execution of a warrant. There is no free-standing power under section 33.
The seven powers
| Para | Power | Condition |
|---|---|---|
| (a) | Operate the device, or direct an occupant to operate it, to determine whether it holds seizable data or a thing | — |
| (b) | Operate it, or direct an occupant to operate it, to access data — including data on a separate storage device or data not held at the private place | Reasonable belief that it might be seizable |
| (c) | Copy seizable data or a thing to a storage device and take that device away | — |
| (d) | Copy it in documentary form and seize the documents produced | — |
| (e) | Move a device or thing to another place for examination | Two conditions — see below |
| (f) | Do anything reasonably necessary to prevent loss, destruction or damage to anything connected with the offence | — |
| (g) | Use other officers or persons authorised under the warrant as reasonably necessary | — |
Paragraph (b) — data not held at the place
Paragraph (b) authorises access to “data (including data stored on a separate storage device or data not held at the private place)”.
In practice that means a warrant to search premises carries with it authority to reach:
- A cloud account signed in on the device;
- Email held on a provider’s servers;
- A network drive at another office;
- A backup stored elsewhere.
The territorial question is not addressed. Data reachable from a device at the searched premises may physically sit on a server in another country. Section 33(b) does not say whether the power extends there, and the answer is likely to depend on Part VI and on the general principles limiting the extraterritorial reach of domestic warrants.
The condition is a belief on reasonable grounds that the data might be data that could be seized — a low threshold.
Directing an occupant to operate the device
Both allow an officer to direct an occupant of the private place to operate the device.
The section does not confine that to a person who is not a suspect — unlike section 34, which is expressly limited to “a person who is not a suspect”.
That contrast raises a real question. Section 37 of the Constitution protects the right not to be compelled to give evidence against oneself, and section 42(2) requires a person under arrest to be informed of the right to remain silent. Directing a suspect to unlock a device may engage those protections.
Section 33 also states no penalty for refusing a direction, and creates no offence of non-compliance.
Paragraph (f) — preventing destruction
An officer may “do anything reasonably necessary to prevent loss, destruction or damage to anything connected with the offence”.
In an electronic search that is essential — a running system can be wiped remotely, an encrypted volume can be locked, a session can time out. Paragraph (f) supports isolating a device from the network, preventing shutdown, and securing the scene. It complements expedited preservation under section 36, which addresses data held by third parties.
In practice
- Section 33 depends on a valid warrant. If the warrant is bad, so is everything done under section 33.
- Ask what is being accessed. Paragraph (b) reaches well beyond the premises.
- Copies may be taken instead of devices. Paragraphs (c) and (d) allow imaging, which is often less disruptive than removal under paragraph (e).
- Removal has conditions. See whether police can take your computer away.
- Third parties can be required to assist. See section 34.
Sources
- Cybercrime Code Act 2016 — ss 2, 32, 33, 34, 36, 46, 47
- Constitution — ss 37, 42, 44, 49
- Search Act (Chapter 341)
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.