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Corporations (Aboriginal and Torres Strait Islander) Bill 2006

Part 10-3 Enforcement

Division 444 Introduction

444-1   What this Part is about

This Part deals with enforcement powers.

Division 447 deals with the appointment of authorised officers.

Division 450 deals with the purposes for which the powers under this Part may be exercised.

Division 453 deals with the powers to examine books and ask people questions.

Division 456 deals with warrants which may be sought if books asked for have not been produced. Warrants may be applied for in person or by telephone.



 

Division 447 Authorised officers

447-1   Appointment of authorised officers

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

                     (a)  an officer or employee of the Department; or

                     (b)  any other suitably qualified person;

to be an authorised officer for the purposes of this Part.

             (2)  In exercising powers or performing functions as an authorised officer, an authorised officer must comply with any directions of the Registrar.

447-5   Identity cards

             (1)  The Registrar must issue an identity card to an authorised officer in the form prescribed by the regulations. The identity card must contain a recent photograph of the authorised officer.

             (2)  A person commits an offence if:

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

                     (b)  the person ceases to be an authorised officer; and

                     (c)  the person does not, within 7 days after so ceasing, return the identity card to the Registrar.

Penalty:  1 penalty unit.

             (3)  However, the person does not commit the offence if the identity card was lost or destroyed.

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

             (4)  An authorised officer must carry the identity card at all times when exercising powers or performing functions as an authorised officer.

             (5)  An identity card is not a legislative instrument.



 

Division 450 Purposes for which powers under this Part may be exercised

450-1   Purposes for which power under this Part may be exercised

                   A power conferred by this Part may only be exercised:

                     (a)  for the purposes of the performance or exercise of any of the Registrar’s functions and powers under this Act; or

                     (b)  for the purpose of ensuring compliance with this Act; or

                     (c)  in relation to:

                              (i)  an alleged or suspected contravention of this Act; or

                             (ii)  an alleged or suspected contravention of a law of the Commonwealth, or of a State or Territory, being a contravention that concerns the management or examinable affairs of an Aboriginal and Torres Strait Islander corporation or a related body corporate; or

                            (iii)  an alleged or suspected contravention of a law of the Commonwealth, or of a State or Territory, being a contravention that involves fraud or dishonesty and relates to an Aboriginal and Torres Strait Islander corporation or a related body corporate.



 

Division 453 Examination of books and persons

453-1   Examination of books

             (1)  The Registrar may, at any time, cause an authorised officer to examine the books of an Aboriginal and Torres Strait Islander corporation, or a related body corporate, and to report to the Registrar on the results of that examination, drawing attention to any or all of the following matters:

                     (a)  if the corporation has failed to comply with a provision of this Act or the corporation’s constitution;

                     (b)  an alleged or suspected contravention of a law of the Commonwealth, or of a State or Territory, being a contravention that concerns the management or examinable affairs of an Aboriginal and Torres Strait Islander corporation or a related body corporate, or involves fraud or dishonesty and relates to an Aboriginal and Torres Strait Islander corporation or a related body corporate;

                     (c)  if there has been an irregularity in the operations or examinable affairs of the corporation;

                     (d)  if circumstances exist that constitute, or may constitute, grounds for appointing a special administrator for the corporation;

                     (e)  if circumstances are likely to occur or develop and that, if they were to occur or develop, may constitute grounds for appointing a special administrator for the corporation.

             (2)  The authorised officer is entitled, at all reasonable times, to full and free access to the books of the corporation and any related body corporate.

             (3)  The authorised officer may make copies, or take extracts from, any such books.

             (4)  The authorised officer may require any person to produce such books of the corporation, or a related body corporate, in the possession of the person, or to which the person has access, as the authorised officer considers necessary for the purposes of this section.

             (5)  A person who fails to comply with a requirement under subsection (4) commits an offence.

Penalty:  10 penalty units.

             (6)  An offence against subsection (5) is an offence of strict liability.

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

             (7)  A report under subsection (1) is not a legislative instrument.

453-5   Production of books or attendance to answer questions

             (1)  The Registrar may, by notice given to a person whom the Registrar, on reasonable grounds, believes to have some knowledge of the examinable affairs of an Aboriginal and Torres Strait Islander corporation, require the person:

                     (a)  to provide the Registrar or an authorised officer with information concerning the corporation or its examinable affairs; or

                     (b)  to produce to the Registrar or an authorised officer books of the corporation, or a related body corporate or connected entity, in the custody or under the control of the person; or

                     (c)  to appear before the Registrar or an authorised officer to answer questions about the corporation or its examinable affairs.

             (2)  Subject to subsection (3), the notice:

                     (a)  must be in writing; and

                     (b)  may be given personally or by post; and

                     (c)  must specify:

                              (i)  when and how the person is to provide the information or produce the documents; or

                             (ii)  when and where the person is to appear before the Registrar or an authorised officer.

             (3)  The person must not be required to provide the information, produce the documents or appear to answer questions within a period of less than 14 days after the notice is given.

             (4)  The Registrar may require the person to give or verify the information or answers:

                     (a)  on oath or affirmation; and

                     (b)  either orally or in writing.

The Registrar, or an authorised officer to whom the information or answers are given, may administer such an oath or affirmation to the person.

             (5)  A person must not fail to comply with a notice under subsection (1).

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

             (6)  An offence against subsection (5) is an offence of strict liability.

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

             (7)  A person does not commit an offence against subsection (5) to the extent to which the person is not capable of complying with the notice.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ).

 

453-10   Remuneration of authorised officer

             (1)  An authorised officer who examines the books of an Aboriginal and Torres Strait Islander corporation, or a related body corporate, and reports to the Registrar on the results of that examination is to receive such remuneration (if any) as the Registrar determines in writing.

             (2)  A determination under subsection (1) is not a legislative instrument.

             (3)  Subject to subsection (4), the authorised officer’s remuneration, charges and expenses are to be borne by the Commonwealth.

             (4)  The Registrar:

                     (a)  may determine, in writing, that some or all of the authorised officer’s remuneration, charges or expenses are to be borne by the corporation or a related body corporate; and

                     (b)  may charge some or all of the remuneration, charges or expenses referred to in paragraph (a) on the property of the corporation or a related body corporate in such order of priority in relation to any existing charges on that property as the Registrar thinks fit.

             (5)  This section does not apply to an authorised officer who is an APS employee or a Commonwealth officer.

             (6)  In this section:

Commonwealth officer includes a person who:

                     (a)  is in the service or employment of the Commonwealth or an authority of the Commonwealth; or

                     (b)  holds or performs the duties of any office or position under a law of the Commonwealth; or

                     (c)  is a member of the Australian Defence Force.



 

Division 456 Warrants for books not produced

Subdivision 456-A Warrants applied for in person

456-1   Application for warrant to seize books not produced

             (1)  If the Registrar or an authorised officerhas reasonable grounds to suspect that there are, or may be within the next 3 days, on particular premises in Australia, books:

                     (a)  whose production has been required under section 453-1 or 453-5; and

                     (b)  that have not been produced in compliance with that requirement;

the Registrar or authorised officer may:

                     (c)  lay before a magistrate an information on oath or affirmation setting out those grounds; and

                     (d)  apply for the issue of a warrant to search the premises for those books.

             (2)  On an application under this section, the magistrate may require further information to be given, either orally or by affidavit, in connection with the application.

456-5   Grant of warrant

             (1)  This section applies if, on an application under section 456-1, the magistrate is satisfied that there are reasonable grounds to suspect that there are, or may be within the next 3 days, on particular premises, particular books:

                     (a)  whose production has been required under section 453-1 or 453-5; and

                     (b)  that have not been produced in compliance with that requirement.

             (2)  The magistrate may issue a warrant authorising an authorised officer, whether or not named in the warrant, together with any person named in the warrant, with such assistance, and by such force, as is necessary and reasonable:

                     (a)  to enter on or into the premises; and

                     (b)  to search the premises; and

                     (c)  to break open and search anything, whether a fixture or not, in or on the premises; and

                     (d)  to take possession of, or secure against interference, books that appear to be any or all of those books.

             (3)  If the magistrate issues such a warrant, he or she must set out on the information laid before him or her under subsection 456-1(1) for the purposes of the application:

                     (a)  which of the grounds set out in the information; and

                     (b)  particulars of any other grounds;

he or she has relied on to justify the issue of the warrant.

             (4)  A warrant under this section must:

                     (a)  specify the premises and books referred to in subsection (1); and

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

                     (c)  state that the warrant ceases to have effect on a specified day that is not more than 7 days after the day of issue of the warrant.

             (5)  The function of issuing a warrant is conferred on the magistrate in a personal capacity and not as a court or a member of a court. The magistrate need not accept the function conferred.

456-10   Powers where books produced or seized

             (1)  This section applies if:

                     (a)  books of an Aboriginal and Torres Strait Islander corporation are produced to an authorised officer under section 453-1 or section or 453-5; or

                     (b)  under a warrant issued under this Division, an authorised officer:

                              (i)  takes possession of books of an Aboriginal and Torres Strait Islander corporation; or

                             (ii)  secures books of an Aboriginal and Torres Strait Islander corporation against interference; or

                     (c)  by virtue of a previous application of subsection (8) of this section, books are delivered into a person’s possession.

             (2)  If paragraph (1)(a) applies, the authorised officer may take possession of any of the books.

             (3)  The authorised officer may inspect, and may make copies of, or take extracts from, any of the books.

             (4)  The authorised officer may use, or permit the use of, any of the books for the purposes of a proceeding (including a proceeding under a law of the Commonwealth, or of a State or Territory).

             (5)  The authorised officer may retain possession of any of the books for so long as is necessary:

                     (a)  for the purposes of exercising a power conferred by this section (other than this subsection and subsection (7)); or

                     (b)  for any of the purposes referred to in paragraphs 450-1(a), (b) or (c); or

                     (c)  to determine if there is a matter in relation to the corporation that is specified in subsection 453-1(1) as a matter that should be drawn attention to; or

                     (d)  for a decision to be made about whether or not a proceeding (including a proceeding under a law of the Commonwealth, or of a State or Territory) to which the books concerned would be relevant should be begun; or

                     (e)  for such a proceeding to be begun and carried on.

             (6)  No-one is entitled, as against the authorised officer, to claim a lien on any of the books, but such a lien is not otherwise prejudiced.

             (7)  While the books are in the authorised officer’s possession, the officer:

                     (a)  must permit another person to inspect, at all reasonable times, such (if any) of the books as the other person would be entitled to inspect if they were not in the authorised officer’s possession; and

                     (b)  may permit another person to inspect any of the books.

             (8)  Unless subparagraph (1)(b)(ii) applies, the authorised officer may deliver any of the books into the possession of the Registrar or a person approved by the Registrar to receive them.

             (9)  If paragraph (1)(a) or (b) applies, the authorised officer, the Registrar or an approved person into whose possession the authorised officer delivers any of the books under subsection (8), may require:

                     (a)  if paragraph (1)(a) applies—a person who so produced any of the books; or

                     (b)  in any case—a person who was a party to the compilation of any of the books;

to explain any matter about the compilation of any of the books or to which any of the books relate.

           (10)  Subsection (9) does not apply to the extent that the person has explained the matter to the best of his or her knowledge or belief.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code ).

           (11)  A person must not intentionally or recklessly fail to comply with a requirement under subsection (9).

Penalty:  100 penalty units or imprisonment for 2 years, or both.

           (12)  Subsection (11) does not apply to the extent to which the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (12) (see subsection 13.3(3) of the Criminal Code ).

Subdivision 456-B Warrants by telephone or other electronic means

456-15   Applying for warrants by telephone or other electronic means

             (1)  The Registrar or an authorised officer may apply to a magistrate for a warrant by telephone, fax or other electronic means:

                     (a)  in an urgent case; or

                     (b)  if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

             (2)  An application under subsection (1):

                     (a)  must include all information that would be required in an ordinary application for a warrant; and

                     (b)  if necessary, may be made before the information is sworn or affirmed.

             (3)  The magistrate may require:

                     (a)  communication by voice to the extent that it is practicable in the circumstances; and

                     (b)  any further information.

             (4)  The function of issuing a warrant is conferred on the magistrate in a personal capacity and not as a court or a member of a court. The magistrate need not accept the function conferred.

456-20   Issuing warrants by telephone etc.

             (1)  The magistrate may complete and sign the same form of warrant that would be issued under section 456-5 if satisfied that:

                     (a)  a warrant in the terms of the application should be issued urgently; or

                     (b)  the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

             (2)  If the magistrate issues the warrant, he or she must inform the applicant, by telephone, fax or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.

             (3)  The applicant must then:

                     (a)  complete a form of warrant in terms substantially corresponding to those given by the magistrate; and

                     (b)  state on the form:

                              (i)  the name of the magistrate; and

                             (ii)  the day on which the warrant was signed; and

                            (iii)  the time at which the warrant was signed.

             (4)  The applicant must give the magistrate:

                     (a)  the form of warrant completed by the applicant; and

                     (b)  if the information was unsworn under paragraph 456-15(2)(b)—the sworn information;

by the end of the day after whichever first occurs:

                     (c)  the warrant expires; or

                     (d)  the warrant is executed.

             (5)  The magistrate must attach the form of warrant completed by the magistrate to the documents provided under subsection (4).

456-25   Unsigned warrants by telephone etc. in court proceedings

                   If:

                     (a)  it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this Division was duly authorised; and

                     (b)  the form of warrant signed by the magistrate is not produced in evidence;

the court must assume that the exercise of the power was not duly authorised unless the contrary is proved.

Subdivision 456-C Offences relating to warrants by telephone or other electronic means

456-30   Offence for stating incorrect names in warrants by telephone etc.

                   A person commits an offence if:

                     (a)  the person states a name of a magistrate in a document; and

                     (b)  the document purports to be a form of warrant under section 456-20; and

                     (c)  the name is not the name of the magistrate who issued the warrant.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

456-35   Offence for unauthorised form of warrant

                   A person commits an offence if:

                     (a)  the person states a matter in a form of warrant under section 456-20; and

                     (b)  the matter departs in a material particular from the form authorised by the magistrate.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

456-40   Offence for execution etc. of unauthorised form of warrant

                   A person commits an offence if:

                     (a)  the person executes a document or presents a document to a person; and

                     (b)  the document purports to be a form of warrant under section 456-20; and

                     (c)  the document:

                              (i)  has not been approved by a magistrate under that section; or

                             (ii)  departs in a material particular from the terms authorised by the magistrate under that section.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

456-45   Offence for giving unexecuted form of warrant

                   A person commits an offence if:

                     (a)  the person gives a magistrate a form of warrant under section 456-20; and

                     (b)  the document is not the form of warrant that the person executed.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

Subdivision 456-D Warrant details to be given to occupier

456-50   Details of warrant to be given to occupier etc.

             (1)  If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the authorised officer executing the warrant must make available to that person a copy of the warrant.

             (3)  The authorised officer must identify himself or herself to the person at the premises.

             (4)  The copy of the warrant referred to in subsection (1) need not include the signature of the issuing magistrate or the seal of the relevant court.