The use of search and seizure powers by various government agencies (DERM, QPS, ASIC, ATO etc.) puts businesses at risk of significant penalties and brand damage. The way a business responds, by providing either too little or too much cooperation to these agencies, can have a significant effect on the ability to minimise the impact of an investigation.
Business information and documents are very sensitive in a commercial sense and as such it’s important they are not provided to agencies other than through the appropriate use of a search warrant. To assist employees to remember the most important aspects of the search warrant process and the right way to respond, we have set out below a user-friendly checklist of key actions if the Government comes knocking.
Ask to see the search warrant and make a copy
Check that the warrant applies to the correct premises and time, specifies the responsible inspector or agent and sets out the kind of evidential material and relevant contraventions. If the warrant is deficient, the agency may not enter without permission.
Check the identity of the Investigators
Check that the Investigator is the person named in the warrant and record the names and position titles of each person executing the warrant (which can include Police Officers or IT consultants).
Show the investigators to a meeting room or area that does not contain any files or documents
You must provide all reasonable facilities and assistance for the effective execution of the search. A boardroom or meeting room is a good location to take the investigators. The investigators should be accompanied at all times and never left alone.
Ask for time for your external lawyers to arrive
The investigators may agree to provide a reasonable opportunity for your external lawyers to attend, including if you provide an undertaking that documents will not be removed or destroyed in the meantime. If they refuse then you must permit them to enter and conduct their search.
Appoint a liaison officer to handle contact with the investigators
This person is required to answer questions and manage the production of evidential material to which the warrant relates. This person should be the most senior manager available. The liaison office may later hand over the role to a lawyer.
That said, there is no obligations on any person to answer any questions put to them by investigators save than to provide name and address. It is best, if at all possible to avoid discussion, even idle conversation.
Assemble the key individuals responsible for dealing with the investigation
The response team should include the most senior manager available, a senior internal and external lawyer, a senior IT specialist, administrative staff and a note taker to keep a full record of all discussions with the agency and documents seized. The role of the response team is to shadow the investigators, ensure that staff do not destroy documents or otherwise obstruct investigators and maintain a written record of the search.
Brief staff at the earliest convenient opportunity
Staff should be made aware that a search is in progress. Staff should be reminded that under no circumstances should they destroy documents or information, they should provide reasonable assistance to the investigators and they should keep the fact of and details of the search confidential.
Monitor what materials the investigator demands and seizes, and make copies
You are entitled to observe the raid being conducted provided you do not hinder or impede the process in any way. Investigators must limit their requests to evidential material specified in the warrant and cannot go on a ‘fishing expedition’.
Supervise operations on the IT system
Investigators are allowed to operate their own electronic equipment and your electronic equipment during the search and an IT specialist should be on hand to provide access and unlock accounts as requested. They should also monitor and record all key word searches conducted by the investigators and supervise what the investigators are doing on the system.
Do not provide copies of legal advice or communications with legal advisors
You are not required to and should not provide information or material which contains or relates to legal advice or material which contains legal advice on actual or anticipated proceedings. Try to agree to pre-check documents for legal privilege. If investigators take large numbers of documents or electronic files, inform the investigators that the material may contain privileged documents and that privilege has not been waived.
Request copies of material seized by the Government
You should request copies of material seized by the agency. If requested, the agency must provide copies of material seized as soon as practicable after the seizure. The investigators must also provide a receipt for all material seized.
Coordinate an end of day meeting
Coordinate to meet with the investigators at the end of the day to determine what information is being seized or copied and to settle any outstanding disputes concerning relevance and privilege. Do not sign any minutes of the meeting until any points of contention are documented.
This checklist provides an overview of the key issues arising from searches in Australia.