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Carbon Pollution Reduction Scheme Bill 2009

Part 19 Monitoring powers

Division 1 Simplified outline

305   Simplified outline

                   The following is a simplified outline of this Part:

•      An inspector may enter premises for the purpose of:

               (a)     determining whether this Act or the associated provisions have been complied with; or

              (b)     substantiating information provided under this Act or the associated provisions.

•      Entry must be with the consent of the occupier of the premises or under a monitoring warrant.

•      An inspector who enters premises may exercise monitoring powers. The inspector may be assisted by other persons if that assistance is necessary and reasonable.

•      The occupier of the premises has certain rights and responsibilities.



 

Division 2 Appointment of inspectors and issue of identity cards

306   Appointment of inspectors

             (1)  The Authority may, in writing, appoint:

                     (a)  a member of the staff of the Authority who:

                              (i)  is an SES employee or acting SES employee; or

                             (ii)  holds or performs the duties of an APS Executive Level 1 or 2 position or an equivalent position; or

                     (b)  a member or special member of the Australian Federal Police;

as an inspector for the purposes of this Act.

             (2)  The Authority must not appoint a person as an inspector unless the Authority is satisfied that the person has suitable qualifications and experience to properly exercise the powers of an inspector.

             (3)  An inspector must, in exercising powers as an inspector, comply with any directions of the Authority.

             (4)  If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.

307   Identity cards

             (1)  The Authority must issue an identity card to an inspector.

Form of identity card

             (2)  The identity card must:

                     (a)  be in the form prescribed by the regulations; and

                     (b)  contain a recent photograph of the inspector.

Offence

             (3)  A person commits an offence if:

                     (a)  the person has been issued with an identity card; and

                     (b)  the person ceases to be an inspector; and

                     (c)  the person does not, as soon as practicable after so ceasing, return the identity card to the Authority.

Penalty:  1 penalty unit.

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

Defence—card lost or destroyed

             (5)  Subsection (3) does not apply if the identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code .

Inspector must carry card

             (6)  An inspector must carry his or her identity card at all times when exercising powers as an inspector.



 

Division 3 Powers of inspectors

Subdivision A Monitoring powers

308   Inspector may enter premises by consent or under a warrant

             (1)  For the purpose of:

                     (a)  determining whether this Act or the associated provisions have been, or are being, complied with; or

                     (b)  substantiating information provided under this Act or the associated provisions;

an inspector may:

                     (c)  enter any premises; and

                     (d)  exercise the monitoring powers set out in section 309.

             (2)  However, an inspector is not authorised to enter the premises unless:

                     (a)  the occupier of the premises has consented to the entry and the inspector has shown his or her identity card if required by the occupier; or

                     (b)  the entry is made under a monitoring warrant.

Note:          If entry to the premises is with the occupier’s consent, the inspector must leave the premises if the consent ceases to have effect: see section 313.

309   Monitoring powers of inspectors

             (1)  The following are the monitoring powers that an inspector may exercise in relation to premises under section 308:

                     (a)  the power to search the premises and any thing on the premises;

                     (b)  the power to examine any activity conducted on the premises;

                     (c)  the power to inspect, examine, take measurements of or conduct tests on any thing on the premises;

                     (d)  the power to make any still or moving image or any recording of the premises or any thing on the premises;

                     (e)  the power to inspect any document on the premises;

                      (f)  the power to take extracts from, or make copies of, any such document;

                     (g)  the power to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises;

                     (h)  the powers set out in subsections (2), (3) and (5).

Operating electronic equipment

             (2)  The monitoring powers include the power to operate electronic equipment on the premises to see whether:

                     (a)  the equipment; or

                     (b)  a disk, tape or other storage device that:

                              (i)  is on the premises; and

                             (ii)  can be used with the equipment or is associated with it;

contains information that is relevant to:

                     (c)  determining whether this Act or the associated provisions have been, or are being, complied with; or

                     (d)  substantiating information provided under this Act or the associated provisions.

             (3)  The monitoring powers include the following powers in relation to information described in subsection (2) found in the exercise of the power under that subsection:

                     (a)  the power to operate electronic equipment on the premises to put the information in documentary form and remove the documents so produced from the premises;

                     (b)  the power to operate electronic equipment on the premises to transfer the information to a disk, tape or other storage device that:

                              (i)  is brought to the premises for the exercise of the power; or

                             (ii)  is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises;

                            and remove the disk, tape or other storage device from the premises.

             (4)  An inspector may operate electronic equipment as mentioned in subsection (2) or (3) only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

Securing things if entry to premises is under a monitoring warrant

             (5)  If entry to the premises is under a monitoring warrant, the monitoring powers include the power to secure a thing for a period not exceeding 24 hours if:

                     (a)  the thing is found during the exercise of monitoring powers on the premises; and

                     (b)  an inspector believes on reasonable grounds that:

                              (i)  the thing affords evidence of the commission of an offence against this Act or of an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act; and

                             (ii)  it is necessary to secure the thing in order to prevent it from being concealed, lost or destroyed before a warrant to seize the thing is obtained; and

                            (iii)  the circumstances are serious and urgent.

             (6)  If an inspector believes on reasonable grounds that the thing needs to be secured for more than 24 hours, he or she may apply to a magistrate for an extension of that period.

             (7)  The inspector must give notice to the occupier of the premises, or another person who apparently represents the occupier, of his or her intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application.

             (8)  The provisions of this Part relating to the issue of monitoring warrants apply, with such modifications as are necessary, to the issue of an extension.

             (9)  The 24 hour period may be extended more than once.

310   Persons assisting inspectors

Inspectors may be assisted by other persons

             (1)  An inspector may, in entering premises under section 308 and in exercising monitoring powers in relation to the premises, be assisted by other persons if that assistance is necessary and reasonable. A person giving such assistance is a person assisting the inspector.

Powers of a person assisting the inspector

             (2)  A person assisting the inspector may:

                     (a)  enter the premises; and

                     (b)  exercise monitoring powers in relation to the premises, but only in accordance with a direction given to the person by the inspector.

             (3)  A power exercised by a person assisting the inspector as mentioned in subsection (2) is taken for all purposes to have been exercised by the inspector.

             (4)  If a direction is given under paragraph (2)(b) in writing, the direction is not a legislative instrument.

Subdivision B Powers of inspectors to ask questions and seek production of documents

311   Inspector may ask questions and seek production of documents

Entry with consent

             (1)  If an inspector is authorised to enter premises because the occupier of the premises consented to the entry, the inspector may ask the occupier to:

                     (a)  answer any questions relating to the operation of this Act or the associated provisions that are put by the inspector; and

                     (b)  produce any document relating to the operation of this Act or the associated provisions that is requested by the inspector.

Entry under a monitoring warrant

             (2)  If an inspector is authorised to enter premises by a monitoring warrant, the inspector may require any person on the premises to:

                     (a)  answer any questions relating to the operation of this Act or the associated provisions that are put by the inspector; and

                     (b)  produce any document relating to the operation of this Act or the associated provisions that is requested by the inspector.

Offence

             (3)  A person commits an offence if:

                     (a)  the person is subject to a requirement under subsection (2); and

                     (b)  the person fails to comply with the requirement.

Penalty:  Imprisonment for 6 months or 30 penalty units, or both.

312   Self-incrimination

             (1)  A person is not excused from giving an answer or producing a document under section 311 on the ground that the answer or the production of the document might tend to incriminate the person or expose the person to a penalty.

             (2)  However, in the case of an individual:

                     (a)  the answer given or the document produced; or

                     (b)  giving the answer or producing the document; or

                     (c)  any information, document or thing obtained as a direct or indirect consequence of giving the answer or producing the document;

is not admissible in evidence against the individual:

                     (d)  in civil proceedings for the recovery of a penalty (other than proceedings for the recovery of a penalty under section 133, 135, 287 or 288); or

                     (e)  in criminal proceedings (other than proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Part).



 

Division 4 Obligations and incidental powers of inspectors

313   Consent

             (1)  An inspector must, before obtaining the consent of an occupier of premises for the purposes of paragraph 308(2)(a), inform the occupier that the occupier may refuse consent.

             (2)  A consent has no effect unless the consent is voluntary.

             (3)  A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.

             (4)  A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.

             (5)  If an inspector entered premises because of the consent of the occupier of the premises, the inspector, and any person assisting the inspector, must leave the premises if the consent ceases to have effect.

314   Announcement before entry under warrant

             (1)  An inspector must, before entering premises under a monitoring warrant:

                     (a)  announce that he or she is authorised to enter the premises; and

                     (b)  show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and

                     (c)  give any person at the premises an opportunity to allow entry to the premises.

             (2)  However, an inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required:

                     (a)  to ensure the safety of a person; or

                     (b)  to ensure that the effective execution of the warrant is not frustrated.

             (3)  If:

                     (a)  an inspector does not comply with subsection (1) because of subsection (2); and

                     (b)  the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;

the inspector must, as soon as practicable after entering the premises, show his or her identity card to the occupier or other person.

315   Inspector to be in possession of warrant

                   If a monitoring warrant is being executed in relation to premises, an inspector executing the warrant must be in possession of the warrant or a copy of the warrant.

316   Details of warrant etc. to be given to occupier

                   If:

                     (a)  a monitoring warrant is being executed in relation to premises; and

                     (b)  the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;

an inspector executing the warrant must, as soon as practicable:

                     (c)  make a copy of the warrant available to the occupier or other person (which need not include the signature of the magistrate who issued it); and

                     (d)  inform the occupier or other person of the rights and responsibilities of the occupier or other person under Division 5.

317   Expert assistance to operate electronic equipment

             (1)  This section applies to premises to which a monitoring warrant relates.

Securing equipment

             (2)  If an inspector believes on reasonable grounds that:

                     (a)  there is on the premises information that is relevant to:

                              (i)  determining whether this Act or the associated provisions have been, or are being, complied with; or

                             (ii)  substantiating information provided under this Act or the associated provisions;

                            and that may be accessible by operating electronic equipment on the premises; and

                     (b)  expert assistance is required to operate the equipment; and

                     (c)  if he or she does not take action under this subsection, the information may be destroyed, altered or otherwise interfered with;

he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or other means.

             (3)  The inspector must give notice to the occupier of the premises, or another person who apparently represents the occupier, of his or her intention to secure the equipment and of the fact that the equipment may be secured for up to 24 hours.

Period equipment may be secured

             (4)  The equipment may be secured:

                     (a)  until the 24 hour period ends; or

                     (b)  until the equipment has been operated by the expert;

whichever happens first.

Extensions

             (5)  If an inspector believes on reasonable grounds that the equipment needs to be secured for more than 24 hours, he or she may apply to a magistrate for an extension of that period.

             (6)  The inspector must give notice to the occupier of the premises, or another person who apparently represents the occupier, of his or her intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application.

             (7)  The provisions of this Part relating to the issue of monitoring warrants apply, with such modifications as are necessary, to the issue of an extension.

             (8)  The 24 hour period may be extended more than once.

318   Compensation for damage to electronic equipment

             (1)  This section applies if:

                     (a)  as a result of electronic equipment being operated as mentioned in this Part:

                              (i)  damage is caused to the equipment; or

                             (ii)  the data recorded on the equipment is damaged; or

                            (iii)  programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

                     (b)  the damage or corruption occurs because:

                              (i)  insufficient care was exercised in selecting the person who was to operate the equipment; or

                             (ii)  insufficient care was exercised by the person operating the equipment.

             (2)  The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

             (3)  However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court for such reasonable amount of compensation as the Court determines.

             (4)  In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

             (5)  In this section:

damage , in relation to data, includes damage by erasure of data or addition of other data.



 

Division 5 Occupier’s rights and responsibilities

319   Occupier entitled to observe execution of warrant

             (1)  If:

                     (a)  a monitoring warrant is being executed in relation to premises; and

                     (b)  the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;

the occupier or other person is entitled to observe the execution of the warrant.

             (2)  The right to observe the execution of the warrant ceases if the occupier or other person impedes that execution.

             (3)  This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time.

320   Occupier to provide inspector with facilities and assistance

             (1)  The occupier of premises to which a monitoring warrant relates, or another person who apparently represents the occupier, must provide:

                     (a)  an inspector executing the warrant; and

                     (b)  any person assisting the inspector;

with all reasonable facilities and assistance for the effective exercise of their powers.

             (2)  A person commits an offence if:

                     (a)  the person is subject to subsection (1); and

                     (b)  the person fails to comply with that subsection.

Penalty:  30 penalty units.



 

Division 6 Monitoring warrants

321   Monitoring warrants

Application for warrant

             (1)  An inspector may apply to a magistrate for a warrant under this section in relation to premises.

Issue of warrant

             (2)  The magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that it is reasonably necessary that one or more inspectors should have access to the premises for the purpose of:

                     (a)  determining whether this Act or the associated provisions have been, or are being, complied with; or

                     (b)  substantiating information provided under this Act or the associated provisions.

             (3)  However, the magistrate must not issue the warrant unless the inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.

Content of warrant

             (4)  The warrant must:

                     (a)  describe the premises to which the warrant relates; and

                     (b)  state that the warrant is issued under this section; and

                     (c)  state that the warrant is issued for the purpose of:

                              (i)  determining whether this Act or the associated provisions have been, or are being, complied with; or

                             (ii)  substantiating information provided under this Act or the associated provisions; and

                     (d)  authorise one or more inspectors (whether or not named in the warrant) from time to time while the warrant remains in force:

                              (i)  to enter the premises; and

                             (ii)  to exercise the powers set out in Divisions 3 and 4 in relation to the premises; and

                     (e)  state whether the entry is authorised to be made at any time of the day or during specified hours of the day; and

                      (f)  specify the day (not more than 6 months after the issue of the warrant) on which the warrant ceases to be in force.



 

Division 7 Powers of magistrates

322   Powers of magistrates

Powers conferred personally

             (1)  A power conferred on a magistrate by this Part is conferred on the magistrate:

                     (a)  in a personal capacity; and

                     (b)  not as a court or a member of a court.

Powers need not be accepted

             (2)  The magistrate need not accept the power conferred.

Protection and immunity

             (3)  A magistrate exercising a power conferred by this Part has the same protection and immunity as if he or she were exercising the power:

                     (a)  as the court of which the magistrate is a member; or

                     (b)  as a member of the court of which the magistrate is a member.