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Regulatory Powers (Standard Provisions) Bill 2014

Part 3 Investigation

Division 1 Outline and operation of this Part

36   Simplified outline

                   The following is a simplified outline of this Part:

This Part creates a framework for gathering material that relates to the contravention of offence provisions and civil penalty provisions.

For this Part to operate, an offence provision or a civil penalty provision must be made subject to investigation under this Part. This is to be done by another Act.

An authorised person may enter premises if the authorised person suspects on reasonable grounds that there may be material on the premises related to the contravention of an offence provision or a civil penalty provision that is subject to investigation under this Part.

Entry must be with the consent of the occupier of the premises or under an investigation warrant.

An authorised person who enters premises may exercise investigation 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 investigation must be voluntary. Authorised persons must abide by the terms of that consent.

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

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

37   Purpose and operation of this Part

             (1)  The principal purpose of this Part is to create a framework for gathering material that relates to the contravention of offence provisions and civil penalty provisions.

             (2)  However, for this Part to operate, an offence provision or a civil penalty provision must be made subject to investigation under this Part.

38   Provisions subject to investigation

             (1)  An offence against an Act or a legislative instrument is subject to investigation under this Part if an Act provides that the offence is subject to investigation under this Part.

             (2)  A civil penalty provision under an Act or a legislative instrument is subject to investigation under this Part if an Act provides that the civil penalty provision is subject to investigation under this Part.

39   Evidential material

                   Evidential material means any of the following:

                     (a)  a thing with respect to which an offence provision or a civil penalty provision subject to investigation under this Part has been contravened or is suspected, on reasonable grounds, to have been contravened;

                     (b)  a thing that there are reasonable grounds for suspecting will afford evidence as to the contravention of such an offence provision or a civil penalty provision;

                     (c)  a thing that there are reasonable grounds for suspecting is intended to be used for the purpose of contravening such an offence provision or a civil penalty provision.

40   Related provisions

                   A provision is related to evidential material if an Act provides that the provision is related to the evidential material for the purposes of this Part.

41   Authorised applicant

             (1)  A person is an authorised applicant for the purposes of exercising powers under this Part in relation to evidential material if an Act provides that the person is an authorised applicant in relation to evidential material 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 evidential material for the purposes of this Part by:

                     (a)  providing that a person of a specified class is an authorised applicant in relation to the evidential material 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 evidential material for the purposes of this Part.

42   Authorised person

             (1)  A person is an authorised person for the purposes of exercising powers under this Part in relation to evidential material if an Act provides that the person is an authorised person in relation to the evidential material 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 evidential material for the purposes of this Part by:

                     (a)  providing that a person of a specified class is an authorised person in relation to the evidential material for those purposes; 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 evidential material for those purposes.

43   Identity card

                   Identity card , in relation to a person who is an authorised person in relation to evidential material for the purposes of this Part, means a card issued to the person under section 76 by the relevant chief executive in relation to that evidential material.

44   Issuing officer

             (1)  A judicial officer is an issuing officer for the purposes of exercising powers under this Part in relation to evidential material, if an Act provides that the judicial officer is an issuing officer in relation to the evidential material 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 evidential material 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 evidential material 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 evidential material for the purposes of this Part.

45   Relevant chief executive

             (1)  A person is the relevant chief executive for the purposes of exercising powers under this Part in relation to evidential material, if an Act provides that the person is the relevant chief executive in relation to the evidential material for the purposes of this Part.

             (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 evidential material 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 evidential material 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 evidential material for those purposes.

46   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 in relation to evidential material; 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 evidential material for the purposes of this Part.

47   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 Investigation powers

48   Entering premises by consent or under a warrant

             (1)  If an authorised person suspects on reasonable grounds that there may be evidential material on any premises, the authorised person may:

                     (a)  enter the premises; and

                     (b)  exercise the investigation powers.

Note:          The investigation powers are set out in sections 49, 50, 51 and 52.

             (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 an investigation 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 55).

49   General investigation powers

                   The following are the investigation powers that an authorised person may exercise in relation to premises under section 48:

                     (a)  if entry to the premises is with the occupier’s consent—the power to search the premises and any thing on the premises for the evidential material the authorised person suspects on reasonable grounds may be on the premises;

                     (b)  if entry to the premises is under an investigation warrant:

                              (i)  the power to search the premises and any thing on the premises for the kind of evidential material specified in the warrant; and

                             (ii)  the power to seize evidential material of that kind if the authorised person finds it on the premises;

                     (c)  the power to inspect, examine, take measurements of or conduct tests on evidential material referred to in paragraph (a) or (b);

                     (d)  the power to make any still or moving image or any recording of the premises or evidential material referred to in paragraph (a) or (b);

                     (e)  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;

                      (f)  the powers set out in subsections 50(1) and (2), subsection 51(2) and section 52.

50   Operating electronic equipment

             (1)  The investigation 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;

if an authorised person suspects on reasonable grounds that the electronic equipment, disk, tape or other storage device is or contains evidential material.

             (2)  The investigation powers include the following powers in relation to evidential material found in the exercise of the power under subsection (1):

                     (a)  if entry to the premises is under an investigation warrant—the power to seize the equipment and the disk, tape or other storage device referred to in that subsection;

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

                     (c)  the power to operate electronic equipment on the premises to transfer the evidential material 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.

             (3)  An authorised person may operate electronic equipment as mentioned in subsection (1) or (2) 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 61.

             (4)  An authorised person may seize equipment or a disk, tape or other storage device as mentioned in paragraph (2)(a) only if:

                     (a)  it is not practicable to put the evidential material in documentary form as mentioned in paragraph (2)(b) or to transfer the evidential material as mentioned in paragraph (2)(c); or

                     (b)  possession of the equipment or the disk, tape or other storage device by the occupier could constitute an offence against a law of the Commonwealth.

51   Securing electronic equipment to obtain expert assistance

             (1)  This section applies if an authorised person enters premises under an investigation warrant to search for evidential material.

Securing equipment

             (2)  The investigation 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 evidential material of the kind specified in the warrant on the premises; and

                     (b)  the evidential material may be accessible by operating the electronic equipment; and

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

                     (d)  the evidential material 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 61.

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 the authorised person’s 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 74.

52   Seizing evidence of related provisions

             (1)  This section applies if an authorised person enters premises under an investigation warrant to search for evidential material.

             (2)  The investigation powers include seizing a thing that is not evidential material of the kind specified in the warrant if:

                     (a)  in the course of searching for the kind of evidential material specified in the warrant, the authorised person finds the thing; and

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

                              (i)  the thing is evidential material of another kind; or

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

                            (iii)  the thing is evidence of the contravention of a related provision; or

                            (iv)  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 it is necessary to seize the thing in order to prevent its concealment, loss or destruction.

53   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 in relation to evidential material; 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

54   Asking questions and seeking production of documents

Application

             (1)  This section applies if an authorised person enters premises to search for evidential material.

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 evidential material.

Entry under an investigation warrant

             (3)  If the entry is authorised by an investigation warrant, the authorised person may require any person on the premises to answer any questions, and produce any document, relating to evidential material of the kind specified in the warrant.

             (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

55   Consent

             (1)  Before obtaining the consent of an occupier of premises for the purposes of paragraph 48(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.

56   Announcement before entry under warrant

             (1)  Before entering premises under an investigation 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.

             (2)  However, an authorised person is not required to comply with subsection (1) if the authorised person 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 authorised person 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 authorised person must, as soon as practicable after entering the premises, show his or her identity card to the occupier or other person.

57   Authorised person to be in possession of warrant

                   An authorised person executing an investigation warrant must be in possession of:

                     (a)  the warrant issued by the issuing officer under section 70, or a copy of the warrant as so issued; or

                     (b)  the form of warrant completed under subsection 71(6), or a copy of the form as so completed.

58   Details of warrant etc. to be given to occupier

             (1)  An authorised person must comply with subsection (2) if:

                     (a)  an investigation 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 executing the warrant must, as soon as practicable:

                     (a)  do one of the following:

                              (i)  if the warrant was issued under section 70—make a copy of the warrant available to the occupier or other person (which need not include the signature of the issuing officer who issued it);

                             (ii)  if the warrant was signed under section 71—make a copy of the form of warrant completed under subsection 71(6) 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.

59   Completing execution after temporary cessation

             (1)  This section applies if an authorised person, and all persons assisting, who are executing an investigation warrant in relation to premises temporarily cease its execution and leave the premises.

             (2)  The authorised person, and persons assisting, may complete the execution of the warrant if:

                     (a)  the warrant is still in force; and

                     (b)  the authorised person and persons assisting are absent from the premises:

                              (i)  for not more than 1 hour; or

                             (ii)  if there is an emergency situation, for not more than 12 hours or such longer period as allowed by an issuing officer under subsection (5); or

                            (iii)  for a longer period if the occupier of the premises consents in writing.

Application for extension in emergency situation

             (3)  An authorised person, or person assisting, may apply to an issuing officer for an extension of the 12-hour period mentioned in subparagraph (2)(b)(ii) if:

                     (a)  there is an emergency situation; and

                     (b)  the authorised person or person assisting believes on reasonable grounds that the authorised person and the persons assisting will not be able to return to the premises within that period.

             (4)  If it is practicable to do so, before making the application, the authorised person or person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension.

Extension in emergency situation

             (5)  An issuing officer may extend the period during which the authorised person and persons assisting may be away from the premises if:

                     (a)  an application is made under subsection (3); and

                     (b)  the issuing officer is satisfied, by information on oath or affirmation, that there are exceptional circumstances that justify the extension; and

                     (c)  the extension would not result in the period ending after the warrant ceases to be in force.

60   Completing execution of warrant stopped by court order

                   An authorised person, and any persons assisting, may complete the execution of a warrant that has been stopped by an order of a court if:

                     (a)  the order is later revoked or reversed on appeal; and

                     (b)  the warrant is still in force when the order is revoked or reversed.

61   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

62   Right to observe execution of warrant

             (1)  The occupier of premises to which an investigation warrant relates, or another person who apparently represents the occupier, is entitled to observe the execution of the investigation 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.

63   Responsibility to provide facilities and assistance

             (1)  The occupier of premises to which an investigation 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 General provisions relating to seizure

64   Copies of seized things to be provided

             (1)  This section applies if:

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

                     (b)  an authorised person seizes one or more of the following from the premises under this Part:

                              (i)  a document, film, computer file or other thing that can be readily copied;

                             (ii)  a storage device, the information in which can be readily copied.

             (2)  The occupier of the premises, or another person who apparently represents the occupier and who is present when the warrant is executed, may request the authorised person to give a copy of the thing or the information to the occupier or other person.

             (3)  The authorised person must comply with the request as soon as practicable after the seizure.

             (4)  However, the authorised person is not required to comply with the request if possession of the document, film, computer file, thing or information by the occupier or other person could constitute an offence against a law of the Commonwealth.

65   Receipts for seized things

             (1)  The authorised person must provide a receipt for a thing that is seized under this Part.

             (2)  One receipt may cover 2 or more things seized.

66   Return of seized things

             (1)  The relevant chief executive must take reasonable steps to return a thing seized under this Part when the earliest of the following happens:

                     (a)  the reason for the thing’s seizure no longer exists;

                     (b)  it is decided that the thing is not to be used in evidence;

                     (c)  the period of 60 days after the thing’s seizure ends.

Note:          For exceptions to this rule, see subsections (2) and (3).

Exceptions

             (2)  Subsection (1):

                     (a)  is subject to any contrary order of a court; and

                     (b)  does not apply if the thing:

                              (i)  is forfeited or forfeitable to the Commonwealth; or

                             (ii)  is the subject of a dispute as to ownership.

             (3)  The relevant chief executive is not required to take reasonable steps to return a thing because of paragraph (1)(c) if:

                     (a)  proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and those proceedings (and any appeal from those proceedings) have not been completed; or

                     (b)  the thing may continue to be retained because of an order under section 67; or

                     (c)  the Commonwealth or the relevant chief executive is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the thing.

Return of thing

             (4)  A thing that is required to be returned under this section must be returned to the person from whom it was seized (or to the owner if that person is not entitled to possess it).

67   Issuing officer may permit a thing to be retained

             (1)  The relevant chief executive may apply to an issuing officer for an order permitting the retention of a thing seized under this Part for a further period if proceedings in respect of which the thing may afford evidence have not commenced before the end of:

                     (a)  60 days after the seizure; or

                     (b)  a period previously specified in an order of an issuing officer under this section.

             (2)  Before making the application, the relevant chief executive must:

                     (a)  take reasonable steps to discover who has an interest in the retention of the thing; and

                     (b)  if it is practicable to do so, notify each person whom the relevant chief executive believes to have such an interest of the proposed application.

             (3)  Any person notified under paragraph (2)(b) is entitled to be heard in relation to the application.

Order to retain thing

             (4)  The issuing officer may order that the thing may continue to be retained for a period specified in the order if the issuing officer is satisfied that it is necessary for the thing to continue to be retained:

                     (a)  for the purposes of an investigation as to whether an offence provision or a civil penalty provision that is subject to investigation under this Part has been contravened; or

                     (b)  for the purposes of an investigation as to whether a related provision has been contravened; or

                     (c)  to enable evidence of a contravention mentioned in paragraph (a) or (b) to be secured for the purposes of a prosecution or an action to obtain a civil penalty order.

             (5)  The period specified must not exceed 3 years.

68   Disposal of things

             (1)  The relevant chief executive may dispose of a thing seized under this Part if:

                     (a)  the relevant chief executive has taken reasonable steps to return the thing to a person; and

                     (b)  either:

                              (i)  the relevant chief executive has been unable to locate the person; or

                             (ii)  the person has refused to take possession of the thing.

             (2)  The relevant chief executive may dispose of the thing in such manner as the relevant chief executive thinks appropriate.

69   Compensation for acquisition of property

             (1)  If the operation of section 68 would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a relevant court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

Division 6 Investigation warrants

70   Investigation 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 there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, evidential material on the premises.

             (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)  state the offence provision or offence provisions, or civil penalty provision or civil penalty provisions, to which the warrant relates; and

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

                     (c)  state that the warrant is issued under this Division; and

                     (d)  specify the kinds of evidential material to be searched for under the warrant; and

                     (e)  state that evidential material of the kind specified may be seized under the warrant; and

                      (f)  state that the person executing the warrant may seize any other thing found in the course of executing the warrant if the person believes on reasonable grounds that:

                              (i)  the thing is evidential material of a kind not specified in the warrant; or

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

                            (iii)  the thing is evidence of the contravention of a related provision; or

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

                     (g)  name one or more authorised persons; and

                     (h)  authorise the authorised persons named in the warrant:

                              (i)  to enter the premises; and

                             (ii)  to exercise the powers set out in this Part in relation to the premises; and

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

                      (j)  specify the day (not more than 1 week after the issue of the warrant) on which the warrant ceases to be in force.

71   Investigation warrants by telephone, fax etc.

Application for warrant

             (1)  An authorised applicant may apply to an issuing officer by telephone, fax or other electronic means for a warrant under section 70 in relation to premises:

                     (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)  The issuing officer:

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

                     (b)  may make a recording of the whole or any part of any such communication by voice.

             (3)  Before applying for the warrant, the authorised applicant must prepare an information of the kind mentioned in subsection 70(2) in relation to the premises that sets out the grounds on which the warrant is sought. If it is necessary to do so, the authorised applicant may apply for the warrant before the information is sworn or affirmed.

Issuing officer may complete and sign warrant

             (4)  The issuing officer may complete and sign the same warrant that would have been issued under section 70 if, after considering the terms of the information and receiving such further information (if any) that the issuing officer requires, the issuing officer is satisfied that:

                     (a)  the warrant 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.

             (5)  After completing and signing the warrant, the issuing officer must inform the authorised applicant, by telephone, fax or other electronic means, of:

                     (a)  the terms of the warrant; and

                     (b)  the day on which, and the time at which, the warrant was signed.

Obligations on authorised applicant

             (6)  The authorised applicant must then do the following:

                     (a)  complete a form of warrant in the same terms as the warrant completed and signed by the issuing officer;

                     (b)  state on the form the following:

                              (i)  the name of the issuing officer;

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

                     (c)  send the following to the issuing officer:

                              (i)  the form of warrant completed by the authorised applicant;

                             (ii)  the information referred to in subsection (3), which must have been duly sworn or affirmed.

             (7)  The authorised applicant must comply with paragraph (6)(c) by the end of the day after the earlier of the following:

                     (a)  the day on which the warrant ceases to be in force;

                     (b)  the day on which the warrant is executed.

Issuing officer to attach documents together

             (8)  The issuing officer must attach the documents provided under paragraph (6)(c) to the warrant signed by the issuing officer.

72   Authority of warrant

             (1)  A form of warrant duly completed under subsection 71(6) is authority for the same powers as are authorised by the warrant signed by the issuing officer under subsection 71(4).

             (2)  In any proceedings, a court is to assume (unless the contrary is proved) that an exercise of power was not authorised by a warrant under section 71 if:

                     (a)  it is material, in those proceedings, for the court to be satisfied that the exercise of power was authorised by that section; and

                     (b)  the warrant signed by the issuing officer authorising the exercise of the power is not produced in evidence.

73   Offence relating to warrants by telephone, fax etc.

                   An authorised applicant must not:

                     (a)  state in a document that purports to be a form of warrant under section 71 the name of an issuing officer unless that issuing officer signed the warrant; or

                     (b)  state on a form of warrant under that section a matter that, to the authorised applicant’s knowledge, departs in a material particular from the terms of the warrant signed by the issuing officer under that section; or

                     (c)  purport to execute, or present to another person, a document that purports to be a form of warrant under that section that the authorised applicant knows departs in a material particular from the terms of a warrant signed by an issuing officer under that section; or

                     (d)  purport to execute, or present to another person, a document that purports to be a form of warrant under that section where the authorised applicant knows that no warrant in the terms of the form of warrant has been completed and signed by an issuing officer; or

                     (e)  give to an issuing officer a form of warrant under that section that is not the form of warrant that the authorised applicant purported to execute.

Penalty:  Imprisonment for 2 years.

Division 7 Extension of periods in which things secured

74   Extension of periods in which things secured

Application

             (1)  This section applies where an authorised person applies to an issuing officer under subsection 51(5) 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 it is necessary to secure the thing in order to prevent evidential material from being destroyed, altered or otherwise interfered with.

             (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 8 Powers of issuing officers

75   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 9 Identity cards

76   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.