Part IV of the Cybercrime Code Act 2016 contains the investigation powers. Division 1 begins with search.
Section 32(1)
Where a member of the Police Force believes that there are reasonable grounds for suspecting that there is in a private place, a data or thing that may provide evidence of the commission of an offence, he may, under a warrant issued under Subsection (2), enter the private place and —
(a) search the private place; or
(b) seize any such data or thing.
The power in subsection (1) is expressly conditioned on a warrant issued under subsection (2). There is no power in section 32 to enter and search a private place without one.
That is the central protection in Division 1, and it corresponds to the acknowledgement in section 1(2) that the Act restricts the right to freedom from arbitrary search and entry under section 44 of the Constitution and the right to privacy under section 49.
The threshold
| Element | What it requires |
|---|---|
| Reasonable grounds for suspecting | Suspicion, not belief in guilt — but grounded in objective material capable of supporting it |
| A private place | The place to be entered and searched |
| Data or thing | Either is enough — the section is expressly framed to reach intangible data |
| May provide evidence | A low threshold — the material need only be capable of providing evidence |
| Of the commission of an offence | Note: an offence, not an offence under this Act |
Sections 32 and 33 speak of evidence of the commission of an offence, without limitation. By contrast, section 41 is expressly confined to “an investigation of an offence under this Act”.
Read literally, the search powers in sections 32 and 33 are available in any criminal investigation where the evidence sought is data or a thing — which is now most investigations. That is a considerable extension of ordinary search powers, achieved by a statute directed at cybercrime.
“Data or thing”
An ordinary search warrant authorises the seizure of things — physical objects. Data is not a thing in that sense: it can be copied without being removed, it may be stored elsewhere, and seizing the device that displays it is not the same as seizing it.
Section 2 defines data, and the drafting of Part IV consistently pairs it with thing so that both are covered.
Section 33 then supplies the practical powers — operating the device, accessing data held elsewhere, copying to a storage device — that make a search for data workable.
Section 32 and the general search law
Section 33 provides its powers “in addition to the powers under the Search Act (Chapter 341)”.
The Search Act (Chapter 341) is not currently available on PacLII, so no link is given here.
The Cybercrime Code Act does not replace the general law of search. It supplements it. A police officer executing a warrant has the powers under the Search Act and those in section 33.
It follows that the safeguards of the general law — on the form of a warrant, the manner of execution, and the treatment of seized property — continue to apply alongside sections 32 to 34.
If police attend with a warrant
- Ask to see the warrant. Section 32(2) requires it to be issued by a Magistrate and to name a member of the Police Force, or to be directed to all members.
- Check the time. Section 32(3) requires execution by day unless the Magistrate specifically authorised night execution.
- Note what is taken. Section 32(4) requires seized data or things to be taken before a Magistrate and allows a Magistrate to detain them.
- Understand the assistance power. Section 34 allows police to require assistance from a person who is not a suspect. Section 33(a) and (b) allow an officer to direct an occupant to operate a device.
- Get legal advice. Section 57 of the Constitution allows application to the National Court for enforcement of guaranteed rights where a search exceeds what a warrant authorises.
See also what to do if you are accused of a cybercrime.
Sources
- Cybercrime Code Act 2016 — ss 1, 2, 32, 33, 34, 41
- Constitution — ss 44, 49, 57
- 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.