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Regulatory Powers (Standard Provisions) Bill 2014

Part 2 Monitoring

Division 1 Outline and operation of this Part

6   Simplified outline

                   The following is a simplified outline of this Part:

This Part creates a framework for monitoring whether the provisions of an Act or a legislative instrument have been, or are being, complied with.

It also creates a framework for monitoring whether information given in compliance, or purported compliance, with a provision of an Act or a legislative instrument is correct.

For this Part to operate, a provision or information must be made subject to monitoring under this Part. This is to be done by another Act.

An authorised person may enter premises for the purpose of monitoring.

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

An authorised person who enters premises may exercise monitoring powers. The authorised person may be assisted by other persons if that assistance is necessary and reasonable and another Act empowers the authorised person to do so.

An occupier’s consent to an authorised person entering premises for the purposes of monitoring must be voluntary. Authorised persons must abide by the terms of that consent.

An authorised person who enters premises under a monitoring warrant must give details of the warrant to the occupier of the premises.

The occupier of the premises may observe the execution of a monitoring warrant and must provide reasonable facilities and assistance for the effective execution of the warrant.

7   Purpose and operation of this Part

             (1)  The principal purpose of this Part is to create a framework for monitoring whether:

                     (a)  provisions of an Act or a legislative instrument have been, or are being, complied with; and

                     (b)  information given in compliance, or purported compliance, with a provision of an Act or a legislative instrument is correct.

             (2)  However, for this Part to operate, either or both of the following must apply:

                     (a)  a provision of an Act or a legislative instrument must be made subject to monitoring under this Part;

                     (b)  information given in compliance, or purported compliance, with a provision of an Act or a legislative instrument must be made subject to monitoring under this Part.

8   Provisions subject to monitoring

                   A provision of an Act or a legislative instrument is subject to monitoring under this Part if an Act provides that the provision is subject to monitoring under this Part.

9   Information subject to monitoring

                   Information given in compliance, or purported compliance, with a provision of an Act or a legislative instrument is subject to monitoring under this Part if an Act provides that the information is subject to monitoring under this Part.

10   Related provisions

             (1)  A provision is related to a provision that is subject to monitoring under this Part (the monitored provision ) if an Act provides that the provision is related to the monitored provision.

             (2)  A provision is related to information that is subject to monitoring under this Part if an Act provides that the provision is related to the information.

11   Authorised applicant

             (1)  A person is an authorised applicant for the purposes of exercising powers under this Part to determine whether:

                     (a)  a provision subject to monitoring under this Part has been, or is being, complied with; or

                     (b)  information subject to monitoring under this Part is correct;

if an Act provides that the person is an authorised applicant in relation to that provision or information for the purposes of this Part.

             (2)  A person who is an authorised applicant for the purpose of exercising powers mentioned in subsection (1) is also an authorised applicant for the purposes of:

                     (a)  exercising other powers under this Part; or

                     (b)  performing functions or duties under this Part;

that are incidental to the powers mentioned in subsection (1).

             (3)  Without limiting subsection (1), an Act may provide that a person is an authorised applicant in relation to a provision or information for the purposes of this Part by:

                     (a)  providing that a person of a specified class is an authorised applicant in relation to the provision or information for the purposes of this Part; or

                     (b)  authorising another person to specify that a person, or a person of a specified class, is an authorised applicant in relation to the provision or information for the purposes of this Part.

12   Authorised person

             (1)  A person is an authorised person for the purposes of exercising powers under this Part to determine whether:

                     (a)  a provision subject to monitoring under this Part has been, or is being, complied with; or

                     (b)  information subject to monitoring under this Part is correct;

if an Act provides that the person is an authorised person in relation to that provision or information for the purposes of this Part.

             (2)  A person who is an authorised person for the purpose of exercising powers mentioned in subsection (1) is also an authorised person for the purposes of:

                     (a)  exercising other powers under this Part; or

                     (b)  performing functions or duties under this Part;

that are incidental to the powers mentioned in subsection (1).

             (3)  Without limiting subsection (1), an Act may provide that a person is an authorised person in relation to a provision or information for the purposes of this Part by:

                     (a)  providing that a person of a specified class is an authorised person in relation to the provision or information for the purposes of this Part; or

                     (b)  authorising another person to specify that a person, or a person of a specified class, is an authorised person in relation to the provision or information for the purposes of this Part.

13   Identity card

                   Identity card , in relation to a person who is an authorised person in relation to a provision or information for the purposes of this Part, means a card issued to the person under section 35 by the relevant chief executive in relation to that provision or information.

14   Issuing officer

             (1)  A judicial officer is an issuing officer for the purposes of exercising powers under this Part to determine whether:

                     (a)  a provision subject to monitoring under this Part has been, or is being, complied with; or

                     (b)  information subject to monitoring under this Part is correct;

if an Act provides that the judicial officer is an issuing officer in relation to that provision or information for the purposes of this Part.

             (2)  A judicial officer who is an issuing officer for the purpose of exercising powers mentioned in subsection (1) is also an issuing officer for the purposes of exercising other powers under this Part that are incidental to the powers mentioned in subsection (1).

             (3)  Without limiting subsection (1), an Act may provide that a judicial officer is an issuing officer in relation to a provision or information for the purposes of this Part by:

                     (a)  providing that a judicial officer of a specified class is an issuing officer in relation to the provision or information for the purposes of this Part; or

                     (b)  authorising another person to specify that a judicial officer, or a judicial officer of a specified class, is an issuing officer in relation to the provision or information for the purposes of this Part.

15   Relevant chief executive

             (1)  A person is the relevant chief executive for the purposes of exercising powers under this Part that relate to an authorised person in relation to a provision or information for the purposes of this Part, if an Act provides that the person is the relevant chief executive for the purposes of this Part in relation to the provision or information.

             (2)  A person who is the relevant chief executive for the purpose of exercising powers mentioned in subsection (1) is also the relevant chief executive for the purposes of:

                     (a)  exercising other powers under this Part; or

                     (b)  performing functions or duties under this Part;

that are incidental to the powers mentioned in subsection (1).

             (3)  Without limiting subsection (1), an Act may provide that a person is the relevant chief executive in relation to a provision or information for the purposes of this Part by:

                     (a)  providing that a person who holds a specified office is the relevant chief executive in relation to the provision or information for those purposes; or

                     (b)  authorising another person to specify that a person, or a person who holds a specified office, is the relevant chief executive in relation to the provision or information for those purposes.

16   Relevant court

                   A court is a relevant court in relation to a matter that arises because of:

                     (a)  the exercise of powers by a person under this Part to determine whether:

                              (i)  a provision subject to monitoring under this Part has been, or is being, complied with; or

                             (ii)  information subject to monitoring under this Part is correct; or

                     (b)  the exercise of powers, or the performance of functions or duties, under this Part that are incidental to the powers mentioned in paragraph (a);

if an Act provides that the court is a relevant court in relation to that provision or information for the purposes of this Part.

17   Privileges not abrogated

Self-incrimination

             (1)  Nothing in this Part affects the right of a person to refuse to answer a question, give information, or produce a document, on the ground that the answer to the question, the information, or the production of the document, might tend to incriminate him or her or make him or her liable to a penalty.

Legal professional privilege

             (2)  Nothing in this Part affects the right of a person to refuse to answer a question, give information, or produce a document, on the ground that:

                     (a)  the answer to the question or the information would be privileged from being given on the ground of legal professional privilege; or

                     (b)  the document would be privileged from being produced on the ground of legal professional privilege.

Other legislation not affected

             (3)  The fact that this section is included in this Part does not imply that the privilege against self-incrimination or legal professional privilege is abrogated in any other Act.

Division 2 Powers of authorised persons

Subdivision A Monitoring powers

18   Entering premises by consent or under a warrant

             (1)  An authorised person may enter any premises and exercise the monitoring powers for either or both of the following purposes:

                     (a)  determining whether a provision subject to monitoring under this Part has been, or is being, complied with;

                     (b)  determining whether information subject to monitoring under this Part is correct.

Note:          The monitoring powers are set out in sections 19, 20, 21 and 22.

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

                     (a)  the occupier of the premises has consented to the entry; or

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

Note:          If entry to the premises is with the occupier’s consent, the authorised person must leave the premises if the consent ceases to have effect (see section 25).

19   General monitoring powers

                   The following are the monitoring powers that an authorised person may exercise in relation to premises under section 18:

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

                     (b)  the power to examine or observe 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 authorised person requires for the purpose of exercising powers in relation to the premises;

                     (h)  the powers set out in subsections 20(1) and (4), 21(2) and 22(1).

20   Operating electronic equipment

             (1)  The monitoring powers include the power to:

                     (a)  operate electronic equipment on the premises; and

                     (b)  use 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.

             (2)  The monitoring powers include the powers mentioned in subsection (4) if relevant data is found in the exercise of the power under subsection (1).

             (3)  Relevant data means information relevant to determining whether:

                     (a)  a provision that is subject to monitoring under this Part has been, or is being, complied with; or

                     (b)  information subject to monitoring under this Part is correct.

             (4)  The powers are as follows:

                     (a)  the power to operate electronic equipment on the premises to put the relevant data 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 relevant data 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.

             (5)  An authorised person may operate electronic equipment as mentioned in subsection (1) or (4) only if the authorised person believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

Note:          For compensation for damage to electronic equipment, see section 29.

21   Securing electronic equipment to obtain expert assistance

             (1)  This section applies if an authorised person enters premises under a monitoring warrant.

Securing equipment

             (2)  The monitoring powers include the power to secure any electronic equipment that is on the premises if the authorised person suspects on reasonable grounds that:

                     (a)  there is relevant data on the premises; and

                     (b)  the relevant data may be accessible by operating the equipment; and

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

                     (d)  the relevant data may be destroyed, altered or otherwise interfered with, if the authorised person does not take action under this subsection.

The equipment may be secured by locking it up, placing a guard or any other means.

             (3)  The authorised person must give notice to the occupier of the premises, or another person who apparently represents the occupier, of:

                     (a)  the authorised person’s intention to secure the equipment; and

                     (b)  the fact that the equipment may be secured for up to 24 hours.

Period equipment may be secured

             (4)  The equipment may be secured until the earlier of the following happens:

                     (a)  the 24-hour period ends;

                     (b)  the equipment has been operated by the expert.

Note:          For compensation for damage to electronic equipment, see section 29.

Extensions

             (5)  The authorised person may apply to an issuing officer for an extension of the 24-hour period if the authorised person believes on reasonable grounds that the equipment needs to be secured for longer than that period.

             (6)  Before making the application, the authorised person 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 24-hour period may be extended more than once.

Note:          For the process by which an issuing officer may extend the period, see section 33.

22   Securing evidence of the contravention of a related provision

             (1)  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 authorised person believes on reasonable grounds that:

                              (i)  a related provision has been contravened with respect to the thing; or

                             (ii)  the thing affords evidence of the contravention of a related provision; or

                            (iii)  the thing is intended to be used for the purpose of contravening a related provision; and

                     (c)  the authorised person believes on reasonable grounds that:

                              (i)  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

                             (ii)  it is necessary to secure the thing without a warrant because the circumstances are serious and urgent.

The equipment may be secured by locking it up, placing a guard or any other means.

Extensions

             (2)  The authorised person may apply to an issuing officer for an extension of the 24-hour period if the authorised person believes on reasonable grounds that the thing needs to be secured for more than that period.

             (3)  Before making the application, the authorised person 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.

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

Note:          For the process by which an issuing officer may extend the period, see section 33.

23   Persons assisting authorised persons

Authorised persons may be assisted by other persons

             (1)  An authorised person may be assisted by other persons in exercising powers or performing functions or duties under this Part, if:

                     (a)  that assistance is necessary and reasonable; and

                     (b)  another Act empowers the authorised person to be assisted.

A person giving such assistance is a person assisting the authorised person.

Powers, functions and duties of a person assisting

             (2)  A person assisting the authorised person:

                     (a)  may enter the premises; and

                     (b)  may exercise powers under this Part for the purposes of assisting the authorised person to determine whether:

                              (i)  a provision subject to monitoring under this Part has been, or is being, complied with; or

                             (ii)  information subject to monitoring under this Part is correct; and

                     (c)  may exercise powers and perform functions and duties under this Part that are incidental to the powers mentioned in paragraph (b); and

                     (d)  must do so in accordance with a direction given to the person assisting by the authorised person.

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

             (4)  A function or duty performed by a person assisting the authorised person as mentioned in subsection (2) is taken for all purposes to have been performed by the authorised person.

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

Subdivision B Powers to ask questions and seek production of documents

24   Asking questions and seeking production of documents

Application

             (1)  This section applies if an authorised person enters premises for the purposes of determining whether:

                     (a)  a provision subject to monitoring under this Part has been, or is being, complied with; or

                     (b)  information subject to monitoring under this Part is correct.

Entry with consent

             (2)  If the entry is authorised because the occupier of the premises consented to the entry, the authorised person may ask the occupier to answer any questions, and produce any document, relating to:

                     (a)  the operation of the provision; or

                     (b)  the information.

Entry under a monitoring warrant

             (3)  If the entry is authorised by a monitoring warrant, the authorised person may require any person on the premises to answer any questions, and produce any document, relating to:

                     (a)  the operation of the provision; or

                     (b)  the information.

             (4)  A person is not subject to a requirement under subsection (3) if:

                     (a)  the person does not possess the information or document required; and

                     (b)  the person has taken all reasonable steps available to the person to obtain the information or document required and has been unable to obtain it.

Offence

             (5)  A person commits an offence if:

                     (a)  the person is subject to a requirement under subsection (3); and

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

Penalty for contravention of this subsection:        30 penalty units.

Division 3 Obligations and incidental powers of authorised persons

25   Consent

             (1)  Before obtaining the consent of an occupier of premises for the purposes of paragraph 18(2)(a), an authorised person must 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 authorised person entered premises because of the consent of the occupier of the premises, the authorised person, and any person assisting the authorised person, must leave the premises if the consent ceases to have effect.

             (6)  If:

                     (a)  an authorised person enters premises because of the consent of the occupier of the premises; and

                     (b)  the authorised person has not shown the occupier his or her identity card before entering the premises;

the authorised person must do so on, or as soon as is reasonably practicable after, entering the premises.

26   Announcement before entry under warrant

                   Before entering premises under a monitoring warrant, an authorised person must:

                     (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.

27   Authorised person to be in possession of warrant

                   An authorised person executing a monitoring warrant must be in possession of the warrant or a copy of the warrant.

28   Details of warrant etc. to be given to occupier

             (1)  An authorised person must comply with subsection (2) 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.

             (2)  The authorised person must, as soon as practicable:

                     (a)  make a copy of the warrant available to the occupier or other person; and

                     (b)  inform the occupier or other person in writing of the rights and responsibilities of the occupier or other person under Division 4.

29   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 a relevant 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 or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

Division 4 Occupier’s rights and responsibilities

30   Right to observe execution of warrant

             (1)  The occupier of premises to which a monitoring warrant relates, or another person who apparently represents the occupier, is entitled to observe the execution of the monitoring warrant if the occupier or other person is present at the premises while the warrant is being executed.

             (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.

31   Responsibility to provide 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 authorised person executing the warrant; and

                     (b)  any person assisting the authorised person;

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 for contravention of this subsection:        30 penalty units.

Division 5 Monitoring warrants

32   Monitoring warrants

Application for warrant

             (1)  An authorised applicant may apply to an issuing officer for a warrant under this section in relation to premises.

Issue of warrant

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

                     (a)  a provision that is subject to monitoring under this Part has been, or is being, complied with; or

                     (b)  information subject to monitoring under this Part is correct.

             (3)  However, the issuing officer must not issue the warrant unless the authorised applicant or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer 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 the purpose for which the warrant is issued; and

                     (d)  authorise one or more authorised persons (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 this Part in relation to the premises; and

                     (e)  state whether 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 3 months after the issue of the warrant) on which the warrant ceases to be in force.

Division 6 Extension of periods in which things secured

33   Extension of periods in which things secured

Application

             (1)  This section applies where an authorised person applies to an issuing officer under subsection 21(5) or 22(2) for an extension of the period during which a thing may be secured.

Granting extension

             (2)  The issuing officer may, by order, grant an extension of the period if the issuing officer is satisfied, by information on oath or affirmation, that:

                     (a)  where the thing is secured under section 21—it is necessary to secure the thing to ensure that relevant data is not destroyed, altered or otherwise interfered with; or

                     (b)  where the thing is secured under section 22—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.

             (3)  However, the issuing officer must not grant the extension unless the authorised person or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the extension is being sought.

Content of order

             (4)  The order extending the period must:

                     (a)  describe the thing to which the order relates; and

                     (b)  state the period for which the extension is granted; and

                     (c)  state that the order is made under this section; and

                     (d)  state that the authorised person is authorised to secure the thing for that period.

Division 7 Powers of issuing officers

34   Powers of issuing officers

Powers conferred personally

             (1)  A power conferred on an issuing officer by this Part is conferred on the issuing officer:

                     (a)  in a personal capacity; and

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

Powers need not be accepted

             (2)  The issuing officer need not accept the power conferred.

Protection and immunity

             (3)  An issuing officer exercising a power conferred by this Part has the same protection and immunity as if the issuing officer were exercising the power:

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

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

Division 8 Identity cards

35   Identity cards

             (1)  The relevant chief executive must issue an identity card to an authorised person.

Form of identity card

             (2)  The identity card must:

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

                     (b)  contain a photograph that is no more than 1 year old of the authorised person.

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 authorised person; and

                     (c)  the person does not return the identity card to the relevant chief executive within 14 days after ceasing to be an authorised person.

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 .

Exception—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 .

Authorised person must carry card

             (6)  An authorised person must carry his or her identity card at all times when exercising powers under this Part as an authorised person.