Search warrant under section 130 of the Bankruptcy Act 1966 (Form B18)

Section 130 of the Bankruptcy Act 1966 lets the trustee of a bankrupt's estate apply to an eligible judge for a warrant where the trustee has reasonable grounds for suspecting that premises contain property of the bankrupt, property connected with the bankrupt's examinable affairs, or relevant books. The judge may issue a warrant authorising a constable, with any other person named, to enter and search the premises, break open receptacles, seize or secure the property and deliver it to the trustee (s 130(2)). Rule 12.03 of the Federal Court (Bankruptcy) Rules 2016 says the warrant may be in accordance with Form B18. An eligible judge is a judge declared by the Minister under section 129A(2).

When you need it

• You are a bankruptcy trustee with reasonable grounds to suspect that property or books connected with the bankrupt are at particular premises.
• You are preparing the draft warrant to accompany the application and affidavit to an eligible judge.
• You have been served with or are affected by a section 130 warrant and want to know what it allows.

1. 1

   Heading

   Fill in the District Registry. The Division is General and the matter is titled in the name of the bankrupt estate. The warrant is addressed to all constables.

2. 2

   Recitals

   These record that the person is bankrupt, the trustee applied, an affidavit setting out the grounds was furnished, any further information was given, and the judge is satisfied there are reasonable grounds (s 130(3)).

3. 3

   Premises and hours

   Describe the premises precisely, saying whether garages, storage rooms, outbuildings or vehicles are included. Choose entry at any time of the day or night or between specified hours (s 130(5)(a)).

4. 4

   Other authorised persons and delivery

   Name any other persons authorised to accompany the constable, and the person (the trustee or someone the trustee authorises in writing) to whom seized property is delivered.

5. 5

   Duration and signature

   Insert the day the warrant ceases to have effect, which must be not later than 7 days after issue (s 130(5)(b)). The eligible judge dates and signs.

• The trustee applies to an eligible judge with an affidavit setting out the grounds, and gives any further information the judge requires (s 130(3)).
• If the judge issues the warrant, the judge notes on the affidavit which grounds were relied on (s 130(4)).
• The warrant is executed by a constable, meaning a member or special member of the Australian Federal Police or a State or Territory police officer, within the hours and period it states.

• A person cannot claim a lien over seized property against the trustee, but the lien is not otherwise prejudiced (s 130(6)).
• Books seized can be copied, kept as long as needed for inspection, and those involved in compiling them can be required to explain them (s 130(7)).
• Section 130 powers are in addition to other powers conferred by law (s 130(8)).