305   Simplified outline

                   The following is a simplified outline of this Part:

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.

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.

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.

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.

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.