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National Vocational Education and Training Regulator Bill 2010 [2011]

Part 5 Investigative powers

Division 1 Requiring people to give information and produce documents or things

Subdivision A Requests by National VET Regulator

62   Request to person who is, or was, connected with a registered training organisation

             (1)  For the purposes of this Act, the National VET Regulator may request a person who is, or was, connected with an NVR registered training organisation or former registered training organisation:

                     (a)  to give the Regulator the information specified in the request; or

                     (b)  to produce to the Regulator the documents or things specified in the request;

if the Regulator has reason to believe that the person is capable of giving the information or producing the documents or things.

             (2)  The National VET Regulator may require that information to be provided under paragraph (1)(a) is to be provided in writing.

             (3)  The National VET Regulator’s request must:

                     (a)  be served on the person; and

                     (b)  be in writing and signed by the Chief Commissioner; and

                     (c)  specify the period within which the person must comply with the request.

             (4)  The period specified under paragraph (3)(c) must be at least 14 days after the notice is served on the person, or within such shorter period (but not less than 24 hours) as the National VET Regulator considers reasonably necessary.

             (5)  The person must:

                     (a)  give the information; or

                     (b)  produce the documents or things;

within the time specified in the request, or within such further time as the National VET Regulator allows.

Note:          Failure to comply with a request is an offence, see section 64.

63   National VET Regulator may retain documents and things

             (1)  If a document or thing is produced to the National VET Regulator in accordance with a request under section 62, the Regulator:

                     (a)  may take possession of, and may make copies of, the document or thing, or take extracts from the document; and

                     (b)  may retain possession of the document or thing for such period as is necessary:

                              (i)  for the purposes of this Act; or

                             (ii)  for the purposes of an investigation to which the document or thing relates; or

                            (iii)  to enable evidence to be secured for the purposes of a prosecution or civil penalty proceedings.

             (2)  While the National VET Regulator retains the document or thing, the Regulator must allow a person who would otherwise be entitled to inspect the document or view the thing to do so at the times that the person would ordinarily be able to do so.

Subdivision B Offence and related provisions

64   Failure to comply with National VET Regulator’s request

                   A person commits an offence if:

                     (a)  the person is given a request under section 62; and

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

Penalty:  30 penalty units.

65   Self-incrimination etc.

             (1)  A person is not excused from:

                     (a)  giving information; or

                     (b)  producing a document or thing;

when requested to do so under section 62 on the ground that doing so might tend to incriminate the person or expose the person to a penalty.

             (2)  However, in the case of an individual, none of the following:

                     (a)  the information given;

                     (b)  the document or thing produced;

                     (c)  the giving of the information or the producing of the document or thing;

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

is admissible in evidence against the individual in:

                     (e)  criminal proceedings, other than:

                              (i)  proceedings for an offence against section 64; or

                             (ii)  proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (which deals with false or misleading information or documents) that relates to this Act; or

                            (iii)  proceedings for an offence against section 149.1 of the Criminal Code (which deals with obstruction of Commonwealth public officials) that relates to this Act; and

                      (f)  civil proceedings for a contravention of a civil penalty provision.



 

Division 2 Searches of premises

Subdivision A Exercising monitoring or enforcement powers

66   Authorised officer may enter premises by consent or under a warrant

             (1)  For the purpose of finding out whether this Act has been, or is being, complied with or assessing the correctness of information provided under this Act, an authorised officer may:

                     (a)  enter any premises; and

                     (b)  exercise the monitoring powers set out in section 67.

             (2)  If an authorised officer has reasonable grounds for suspecting that there may be evidential material on any premises, the authorised officer may:

                     (a)  enter the premises; and

                     (b)  exercise the enforcement powers set out in section 68.

             (3)  However, an authorised officer is not authorised to enter the premises under this section unless:

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

                     (b)  the entry is made under a warrant.

Note:          If entry to the premises is with the occupier’s consent, the authorised officer must leave the premises if the consent ceases to have effect, see section 72.

67   Monitoring powers of authorised officers

             (1)  The following are the monitoring powers that an authorised officer may exercise in relation to premises under section 66:

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

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

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

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

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

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

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

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

Operating electronic equipment

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

                     (a)  the equipment; or

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

                              (i)  is on the premises; and

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

contains information that is relevant to determining whether there has been compliance with this Act or to assessing the correctness of information provided under this Act.

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

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

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

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

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

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

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

Securing things if entry to premises is under a monitoring warrant

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

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

                     (b)  an authorised officer believes on reasonable grounds that the thing affords evidence of:

                              (i)  the commission of an offence against this Act or the contravention of a civil penalty provision or both; or

                             (ii)  an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act; and

                     (c)  the authorised officer 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)  the circumstances are serious and urgent.

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

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

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

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

68   Enforcement powers of authorised officers

             (1)  The following are the enforcement powers that an authorised officer may exercise in relation to premises under section 66:

                     (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 officer has reasonable grounds for suspecting may be on the premises;

                     (b)  if entry to the premises is under an enforcement 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 officer finds it on the premises;

                     (c)  the power to inspect, examine, take measurements of, conduct tests on or take samples of 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 officer requires for the purpose of exercising powers in relation to the premises;

                      (f)  the powers set out in subsections (2), (3) and (6).

Powers relating to electronic equipment

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

                     (a)  the equipment; or

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

                              (i)  is on the premises; and

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

contains evidential material referred to in paragraph (1)(a) or (b).

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

                     (a)  if entry to the premises is under an enforcement 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.

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

             (5)  An authorised officer may seize equipment or a disk, tape or other storage device as mentioned in paragraph (3)(a) only if:

                     (a)  it is not practicable to put the evidential material in documentary form as mentioned in paragraph (3)(b) or to transfer the evidential material as mentioned in paragraph (3)(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.

Seizing other evidential material

             (6)  If:

                     (a)  entry to the premises is under an enforcement warrant; and

                     (b)  the authorised officer, in the course of searching for the kind of evidential material specified in the warrant, finds a thing that the authorised officer believes on reasonable grounds to be other evidential material; and

                     (c)  the authorised officer believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss or destruction;

then the enforcement powers include seizing the thing.

69   Persons assisting authorised officers

Authorised officers may be assisted by other persons

             (1)  An authorised officer may, in entering premises under section 66 and in exercising monitoring powers or enforcement powers in relation to the premises, be assisted by other persons if that assistance is necessary and reasonable. A person giving such assistance is a person assisting the authorised officer.

Powers of a person assisting the authorised officer

             (2)  A person assisting the authorised officer may:

                     (a)  enter the premises; and

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

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

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

70   Use of force in executing a warrant

                   In executing a warrant, an authorised officer executing the warrant and a person assisting the authorised officer may use such force against things as is necessary and reasonable in the circumstances.

71   Authorised officer may ask questions and seek production of documents

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

                     (a)  answer any questions relating to:

                              (i)  the operation of this Act; or

                             (ii)  information provided under this Act; or

                            (iii)  the reasons for the authorised officer entering the premises;

                            that are put by the authorised officer; and

                     (b)  produce any document relating to:

                              (i)  the operation of this Act; or

                             (ii)  information provided under this Act; or

                            (iii)  the reasons for the authorised officer entering the premises;

                            that is requested by the authorised officer.

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

                     (a)  answer any questions relating to:

                              (i)  the operation of this Act; or

                             (ii)  information provided under this Act; or

                            (iii)  the reasons for the authorised officer entering the premises;

                            that are put by the authorised officer; and

                     (b)  produce any document relating to:

                              (i)  the operation of this Act; or

                             (ii)  information provided under this Act; or

                            (iii)  the reasons for the authorised officer entering the premises;

                            that is requested by the authorised officer.

Offence

             (3)  A person commits an offence if:

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

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

Penalty for contravention of this subsection:        30 penalty units.

Subdivision B Obligations and incidental powers of authorised officers

72   Consent

             (1)  An authorised officer must, before obtaining the consent of an occupier of premises for the purposes of paragraph 66(3)(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 authorised officer entered premises because of the consent of the occupier of the premises, the authorised officer, and any person assisting the authorised officer, must leave the premises if the consent ceases to have effect.

73   Announcement before entry under warrant

             (1)  An authorised officer must, before entering premises under a 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 authorised officer is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure that the effective execution of the warrant is not frustrated.

             (3)  If:

                     (a)  an authorised officer 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 officer must, as soon as practicable after entering the premises, show his or her identity card to the occupier or other person.

74   Authorised officer to be in possession of warrant

Monitoring warrant

             (1)  If a monitoring warrant is being executed in relation to premises, an authorised officer executing the warrant must be in possession of the warrant or a copy of the warrant.

Enforcement warrant

             (2)  If an enforcement warrant is being executed in relation to premises, an authorised officer executing the warrant must be in possession of:

                     (a)  the warrant issued by the magistrate under section 86 or a copy of the warrant as so issued; or

                     (b)  the form of warrant completed under subsection 87(6) or a copy of the form as so completed.

75   Details of warrant etc. to be given to occupier

                   If:

                     (a)  a 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 authorised officer executing the warrant must, as soon as practicable:

                     (c)  do one of the following:

                              (i)  if the warrant was issued under section 85 or 86—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);

                             (ii)  if the warrant was signed under section 87—make a copy of the form of warrant completed under subsection 87(6) available to the occupier or other person; and

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

76   Expert assistance to operate electronic equipment

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

Monitoring powers

             (2)  If entry to the premises is under a monitoring warrant and an authorised officer believes on reasonable grounds that:

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

                              (i)  determining whether there has been compliance with this Act; or

                             (ii)  assessing the correctness of information provided under this Act;

                            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.

Enforcement powers

             (3)  If entry to the premises is under an enforcement warrant and an authorised officer believes on reasonable grounds that:

                     (a)  there is on the premises evidential material of the kind specified in the warrant 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 evidential material 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 otherwise.

Notice to occupier

             (4)  The authorised officer 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 under subsection (2) or (3) and of the fact that the equipment may be secured for up to 24 hours.

Period equipment may be secured

             (5)  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

             (6)  If an authorised officer 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.

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

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

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

77   Compensation for damage to electronic equipment

             (1)  This section applies if:

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

                              (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 Federal 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.

Subdivision C Occupier’s rights and responsibilities

78   Occupier entitled to observe execution of warrant

             (1)  If:

                     (a)  a 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.

79   Occupier to provide authorised officer with facilities and assistance

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

                     (a)  an authorised officer executing the warrant; and

                     (b)  any person assisting the authorised officer;

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.

Subdivision D General provisions relating to seizure

80   Copies of seized things to be provided

             (1)  If an enforcement warrant is being executed and an authorised officer seizes:

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

                     (b)  a storage device, the information in which can be readily copied;

the authorised officer must, if requested to do so by the occupier of the premises, or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to the occupier or other person as soon as practicable after the seizure.

             (2)  However, subsection (1) does not apply 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.

81   Receipts for things seized

             (1)  If a thing is seized under this Division, an authorised officer must provide a receipt for the thing.

             (2)  If 2 or more things are seized, they may be covered in the one receipt.

82   Return of seized things

             (1)  Subject to any contrary order of a court, if an authorised officer seizes a thing under this Division, an authorised officer must take reasonable steps to return it if:

                     (a)  the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or

                     (b)  the period of 60 days after its seizure ends;

whichever happens first, unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

             (2)  If, apart from this subsection, an authorised officer would be required to take reasonable steps to return a thing under subsection (1) because of paragraph (1)(b), the authorised officer is not required to do so if:

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

                     (b)  the thing may continue to be retained because of an order under section 83; or

                     (c)  the Commonwealth, the National VET Regulator or an authorised officer 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.

             (3)  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).

83   Magistrate may permit a thing to be retained

             (1)  An authorised officer may apply to a magistrate for an order permitting the retention of the thing for a further period if:

                     (a)  before the end of 60 days after the seizure; or

                     (b)  before the end of a period previously specified in an order of a magistrate under this section;

proceedings in respect of which the thing may afford evidence have not commenced.

             (2)  If the magistrate is satisfied that it is necessary for the thing to continue to be retained:

                     (a)  for the purposes of an investigation in respect of:

                              (i)  an offence against this Act or an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act; or

                             (ii)  a contravention of a civil penalty provision; or

                            (iii)  both an offence mentioned in subparagraph (i) and a civil penalty provision; or

                     (b)  to enable evidence of an offence mentioned in paragraph (a) or a civil penalty provision to be secured for the purposes of a prosecution, civil penalty proceedings or both;

the magistrate may order that the thing may continue to be retained for a period specified in the order (which must not exceed 3 years).

             (3)  Before making the application, the authorised officer 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 authorised officer believes to have such an interest of the proposed application.

84   Disposal of things

                   If:

                     (a)  a thing is seized under this Division; and

                     (b)  apart from this section, an authorised officer would be required to take reasonable steps to return the thing to a person; and

                     (c)  either:

                              (i)  the authorised officer cannot, despite making reasonable efforts, locate the person; or

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

the National VET Regulator may dispose of the thing in such manner as the Regulator considers appropriate.

Note:          If the operation of this section would result in an acquisition of property otherwise than on just terms, see section 234.

Subdivision E Warrants

85   Monitoring warrants

Application for warrant

             (1)  An authorised officer 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 authorised officers should have access to the premises for the purpose of:

                     (a)  determining whether this Act has been, or is being, complied with; or

                     (b)  assessing the correctness of information provided under this Act.

             (3)  However, the magistrate must not issue the warrant unless the authorised officer 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 has been, or is being, complied with; or

                             (ii)  assessing the correctness of information provided under this Act; and

                     (d)  authorise one or more authorised officers (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 Subdivisions A and B of this Division 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.

86   Issue of enforcement warrants

Application for warrant

             (1)  An authorised officer 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 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 magistrate must not issue the warrant unless the authorised officer 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)  specify the kind of evidential material that is to be searched for under the warrant; and

                     (d)  name one or more authorised officers; and

                     (e)  authorise the authorised officer or authorised officers so named:

                              (i)  to enter the premises; and

                             (ii)  to exercise the powers set out in Subdivisions A, B and D of this Division in relation to the premises; and

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

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

87   Enforcement warrants by telephone, fax etc.

Application for warrant

             (1)  An authorised officer may apply to a magistrate by telephone, fax or other electronic means for a warrant under section 86 in relation to premises:

                     (a)  in an urgent case; or

                     (b)  if the authorised officer believes, on reasonable grounds, that the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

Voice communication

             (2)  The magistrate may require communication by voice to the extent that it is practicable in the circumstances.

Information

             (3)  Before applying for the warrant, the authorised officer must prepare information (of the kind mentioned in subsection 86(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 officer may apply for the warrant before the information is sworn or affirmed.

Signing of warrant

             (4)  If the magistrate is satisfied:

                     (a)  after considering the terms of the information; and

                     (b)  after receiving such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought;

that there are reasonable grounds for issuing the warrant, the magistrate may complete and sign the same warrant that the magistrate would issue under section 86 if the application had been made under that section.

Informing authorised officer

             (5)  If the magistrate completes and signs the warrant, the magistrate must inform the authorised officer, 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.

Form of warrant

             (6)  The authorised officer must then complete a form of warrant in the same terms as the warrant completed and signed by the magistrate, stating on the form:

                     (a)  the name of the magistrate; and

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

Completed form of warrant to be given to magistrate

             (7)  The authorised officer must also, not later than the day after the day on which the warrant ceased to be in force or the day of execution of the warrant, whichever is earlier, send to the magistrate:

                     (a)  the form of warrant completed by the authorised officer; and

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

Attachment

             (8)  The magistrate must attach to the documents provided under subsection (7) the warrant signed by the magistrate.

Authority of warrant

             (9)  A form of warrant duly completed under subsection (6) is authority for the same powers as are authorised by the warrant signed by the magistrate.

           (10)  If:

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

                     (b)  the warrant signed by the magistrate authorising the exercise of the power is not produced in evidence;

the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.

88   Offence relating to warrants by telephone, fax etc.

                   An authorised officer commits an offence if:

                     (a)  the authorised officer states in a document that purports to be a form of warrant under section 87 the name of a magistrate, unless that magistrate signed the warrant; or

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

                     (c)  the authorised officer purports to execute, or present to another person, a document that purports to be a form of warrant under that section that the authorised officer knows:

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

                             (ii)  departs in a material particular from the terms of a warrant signed by a magistrate under that section; or

                     (d)  the authorised officer gives to a magistrate a form of warrant under that section that is not the form of warrant that the authorised officer purported to execute.

Penalty:  Imprisonment for 2 years.

Subdivision F Appointment of authorised officers and issue of identity cards

89   Appointment of authorised officers

             (1)  The Chief Commissioner may, in writing, appoint a member of the staff of the Regulator as an authorised officer for the purposes of this Act.

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

             (3)  An authorised officer must, in exercising powers as an authorised officer, comply with any directions of the Chief Commissioner.

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

90   Identity cards

             (1)  The Chief Commissioner must issue an identity card to an authorised officer.

Form of identity card

             (2)  The identity card must:

                     (a)  be in the form approved by the Chief Commissioner; and

                     (b)  contain a recent photograph of the authorised officer.

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 officer; and

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

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 .

Authorised officer must carry card

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

Subdivision G Powers of magistrates

91   Federal Magistrates—consent to nomination

             (1)  A Federal Magistrate may, by writing, consent to be nominated by the Minister under subsection (2).

             (2)  The Minister may, by writing, nominate a Federal Magistrate in relation to whom a consent is in force under subsection (1) to be a magistrate for the purposes of this Act.

             (3)  A nomination under subsection (2) is not a legislative instrument.

92   Magistrates—personal capacity

Powers conferred personally

             (1)  A power conferred on a magistrate by this Division 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 (other than a Federal Magistrate) need not accept the power conferred.

Protection and immunity

             (3)  A magistrate exercising a power conferred by this Division 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.