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Education Services for Overseas Students Bill 2000

Part 7 Monitoring and searching providers

Division 1 Introduction

111   Powers conferred on magistrates in their personal capacity

             (1)  A power conferred on a magistrate by section 129, 138, 144, 150, 154 or 165 is conferred on the magistrate in a personal capacity and not as a court or a member of a court.

             (2)  The magistrate need not accept the power conferred.

112   Immunity of magistrates

                   A magistrate exercising a power mentioned in subsection 111(1) has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.



 

Division 2 Notices requiring information and documents

Subdivision A Production notices

113   Production notices

             (1)  This section applies if the Secretary reasonably believes that an individual specified in subsection (4) has, or has access to, information or documents that are relevant to a monitoring purpose.

             (2)  The Secretary may give the individual a written notice requiring him or her to:

                     (a)  give any information or documents relevant to the monitoring purpose to an authorised employee; or

                     (b)  show any such documents to an authorised employee; or

                     (c)  make copies of any such documents and give the copies to an authorised employee.

Note:          The Secretary may also give the individual an attendance notice: see section 116.

Information and documents may be required in a particular form

             (3)  If the information or documents are in a particular form then the production notice may require the information or documents to be given in that form.

Individuals who may be given production notices

             (4)  The individuals who may be given a production notice are:

                     (a)  an officer or employee of a registered provider; or

                     (b)  a consultant to a registered provider; or

                     (c)  a partner in a registered provider; or

                     (d)  an individual trading as a registered provider.

114   Contents of the production notice

             (1)  A production notice must:

                     (a)  state that it is given under section 113; and

                     (b)  set out the effects of sections 120, 121 and 122; and

                     (c)  state how and by when the information or documents must be given or shown.

Time for production of information or documents

             (2)  In so far as the notice covers information or documents:

                     (a)  that relate to any extent to the calendar year in which the notice is given; and

                     (b)  that are required to be given or shown on the premises where they are currently located;

the time mentioned in paragraph (1)(c) must be at least 24 hours after the notice is given.

             (3)  In so far as the notice covers any other information or documents, the time mentioned in paragraph (1)(c) must be at least 72 hours after the notice is given.

115   Serving production notices

             (1)  The Secretary must give a production notice to an individual:

                     (a)  by delivering it to the individual personally; or

                     (b)  by:

                              (i)  leaving it at the address of the individual’s place of residence or business last known to the Secretary; and

                             (ii)  taking reasonably practicable action to draw the individual’s attention to the notice; or

                     (c)  by sending it by ordinary or any other class of pre-paid post to the individual’s place of residence or business last known to the Secretary.

             (2)  However, if the Secretary uses the method in paragraph (1)(c), the time mentioned in paragraph 114(1)(c) must be at least 14 days after the notice is given (instead of at least 24 hours or 72 hours).

Note:          Section 29 of the Acts Interpretation Act 1901 sets out when the notice is taken to have been given if the notice is posted to the individual.

Subdivision B Attendance notices

116   Attendance notices

             (1)  This section applies if the Secretary reasonably believes that an individual specified in subsection (3) has, or has access to, information or documents that are relevant to a monitoring purpose.

             (2)  The Secretary may give the individual written notice requiring the individual to attend before an authorised employee and answer questions about the matter.

Note:          The Secretary may also give the individual a production notice: see section 113.

Individuals who may be given attendance notices

             (3)  The individuals who may be given an attendance notice are:

                     (a)  an officer or employee of a registered provider; or

                     (b)  a consultant to a registered provider; or

                     (c)  a partner in a registered provider; or

                     (d)  an individual trading as a registered provider.

117   Contents of the attendance notice

             (1)  An attendance notice must:

                     (a)  state that it is given under section 116; and

                     (b)  set out the effects of sections 120, 121 and 122; and

                     (c)  state where and when the individual is to attend.

The time mentioned in paragraph (c) must be at least 14 days after the notice is given.

             (2)  An attendance notice may be included in the same document as a production notice, if the notices are being given to the same individual.

Subdivision C Common rules for production and attendance notices

118   Scales of expenses

                   The regulations may prescribe scales of expenses to be allowed to persons required to give information or documents under this Division.

119   Reasonable compensation for giving copies

                   A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph 113(2)(c) (copies of documents given under production notices).

120   Offence: failing to comply with a notice

             (1)  A person who refuses or fails to comply with a production or attendance notice is guilty of an offence.

Maximum penalty:    Imprisonment for 6 months.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (2)  However, a person is not guilty of an offence in relation to a production notice if the person complied with the notice to the extent that it was practicable to do so within the period allowed by the notice.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .

121   Offence: giving false or misleading information

                   A person who gives false or misleading information in the course of complying or purporting to comply with a production or attendance notice is guilty of an offence.

Maximum penalty:    Imprisonment for 12 months.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

122   Offence: giving false or misleading document

             (1)  A person who gives or shows an authorised employee a document that is false or misleading in a material particular, in the course of complying or purporting to comply with a production or attendance notice, is guilty of an offence.

Maximum penalty:    Imprisonment for 12 months.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (2)  However, the person is not guilty of the offence if the document is accompanied by a written statement signed by the person:

                     (a)  stating that the document is, to the person’s knowledge, false or misleading in the material particular concerned; and

                     (b)  setting out or referring to the material particular.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .

123   Information and documents that incriminate a person

             (1)  A person is not excused from the requirement to comply with a production or attendance notice on the ground that doing so might tend to incriminate the person or expose the person to a penalty.

             (2)  However, if the person is an individual:

                     (a)  the information, document or answer to the question; or

                     (b)  any other information, document or thing obtained as a direct or indirect result of complying with a notice;

is not admissible in evidence against the individual in any criminal proceedings other than proceedings under, or arising out of, section 121 or 122.

124   Copies of documents

                   An authorised employee, or another employee of the Department with an authorised employee’s permission, may:

                     (a)  inspect a document given or shown to the authorised employee under this Division; and

                     (b)  make and retain copies of, or take and retain extracts from, such a document; and

                     (c)  retain a copy of a document given to the authorised employee in accordance with a requirement covered by paragraph 113(2)(c) (copies of documents given under production notices).

125   Employee may retain documents

             (1)  An authorised employee, or another employee of the Department with an authorised employee’s permission, may retain a document given to the authorised employee under this Division:

                     (a)  for the purposes of this Act; or

                     (b)  for the purposes of an investigation as to whether an offence has been committed; or

                     (c)  to enable evidence of an offence to be secured for the purposes of a prosecution.

             (2)  However, the document must not be retained for longer than 60 days after the authorised employee was given the document.

Note:          The authorised employee may apply to retain the document for a further period: see section 128.

126   Owner of document must be given copy

             (1)  An employee retaining a document under section 125 must as soon as practicable:

                     (a)  certify a copy of the document to be a true copy; and

                     (b)  give the copy to the person (the owner )otherwise entitled to possession of the document.

             (2)  The certified copy must be received in all courts and tribunals as evidence as if it had been the original.

Owner may inspect etc. original document

             (3)  Until the certified copy is given, the owner, or a person authorised by the owner, may inspect and make copies of, or take and retain extracts from, the original document at the times and places that the employee thinks appropriate.

127   Retaining documents

             (1)  This section applies 60 days after a document is given to an authorised employee under this Division.

             (2)  The authorised employee must take reasonable steps to return the document to the person who gave the employee the document or to the owner if that person is not entitled to possess it.

             (3)  However, the authorised employee does not have to take those steps if:

                     (a)  the authorised employee may retain the document because of an order under section 129; or

                     (b)  the authorised employee is otherwise authorised (by a law, or an order of a court, of the Commonwealth or a State) to retain, destroy or dispose of the document.

128   Employee may apply to magistrate or tribunal member for a further period

             (1)  An authorised employee given a document under this Division, or another employee who is currently retaining such a document, may apply to a magistrate or tribunal member for an order that the employee may retain the document for a further period.

Time limit for application

             (2)  The application must be made before the end of:

                     (a)  60 days after the document was given to the authorised employee; or

                     (b)  a period previously specified in an order of a magistrate or tribunal member under section 129.

Employee must try to notify those affected

             (3)  Before making the application, the employee must:

                     (a)  take reasonable steps to discover which persons’ interests would be affected by the retention of the document; and

                     (b)  if it is practicable to do so, notify each person who the employee believes to be such a person of the proposed application.

129   Magistrate or tribunal member may order retention for further period

             (1)  The magistrate or tribunal member may order that the employee who made the application under section 128 may retain the document if the magistrate or tribunal member is satisfied that it is necessary for the employee to retain it:

                     (a)  for the purposes of this Act; or

                     (b)  for the purposes of an investigation as to whether an offence has been committed; or

                     (c)  to enable evidence of an offence to be secured for the purposes of a prosecution.

             (2)  The order must specify the period for which the employee may retain the document.



 

Division 3 Monitoring warrants

Subdivision A Monitoring powers

130   Authorised employee may enter premises for a monitoring purpose

             (1)  An authorised employee may for a monitoring purpose:

                     (a)  enter any premises:

                              (i)  occupied by a registered provider for the purposes of providing courses; or

                             (ii)  at which it is reasonable to believe there might be a thing belonging to or possessed by the provider, or an activity conducted by or with the consent of the provider, that is relevant to a monitoring purpose; and

                     (b)  exercise the monitoring powers set out in section 131.

             (2)  An authorised employee is not authorised to enter premises under subsection (1) unless:

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

Note:       Section 157 sets out the requirements for obtaining the occupier’s consent.

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

Note:       Monitoring warrants are issued under section 138 or subsection 165(2).

131   Monitoring powers of authorised employees

             (1)  For the purposes of this Division, the following are the monitoring powers that an authorised employee may exercise in relation to premises under section 130:

                     (a)  to search the premises , and any receptacle on the premises , for any thing on the premises belonging to or possessed by the provider that might be relevant to a monitoring purpose;

                     (b)  to examine any such thing;

                     (c)  to examine any activity that is conducted on the premises by, or with the consent of, the provider that might be relevant to a monitoring purpose;

                     (d)  to take photographs or make video or audio recordings or sketches on the premises of any such activity or thing;

                     (e)  to inspect any document on the premises belonging to or possessed by the provider that might be relevant to a monitoring purpose;

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

                     (g)  to take onto the premises any equipment and materials that the authorised employee requires for the purpose of exercising powers in relation to the premises;

                     (h)  to secure a thing, until a search warrant is obtained to seize it, being a thing:

                              (i)  that the employee finds during the exercise of monitoring powers on the premises; and

                             (ii)  that the employee believes on reasonable grounds is evidential material; and

                            (iii)  that the employee believes on reasonable grounds would be lost, destroyed or tampered with before the warrant can be obtained;

                      (i)  the powers in subsections (2), (3) and (5).

Operating equipment

             (2)  For the purposes of this Division, the monitoring powers include the power to operate equipment that is 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 belonging to the provider that is relevant to a monitoring purpose.

Removing disks etc. and documents

             (3)  For the purposes of this Division, the monitoring powers include the following powers in relation to information described in subsection (2) that is found in the exercise of the power under that subsection:

                     (a)  to operate facilities that are on the premises to put the information in documentary form and remove the documents so produced;

                     (b)  to operate such facilities 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 to in writing by the provider or occupier (as appropriate);

                     (c)  to remove from the premises a disk, tape or other storage device to which the information has been transferred in exercise of the power under paragraph (b).

             (4)  The powers mentioned in subsections (2) and (3) must be exercised in accordance with section 148.

Securing evidence of other offences

             (5)  If an authorised employee, during a search of premises, reasonably believes that there is on the premises a thing that might afford evidence of the commission of an offence against this Act, the Crimes Act 1914 or the Criminal Code , the monitoring powers include securing the thing pending the obtaining of a warrant to seize it.

132   Authorised employee on premises with consent may ask questions

                   An authorised employee who is only authorised to enter premises because the occupier of the premises consented to the entry may:

                     (a)  ask the occupier to:

                              (i)  answer any questions that are relevant to a monitoring purpose; and

                             (ii)  give or show the authorised employee any document requested by the employee that is relevant to the matter; or

                     (b)  ask any person on the premises to answer any questions that may facilitate the exercise of monitoring powers in relation to the premises.

Note:          A person could be guilty of an offence if, in complying or purporting to comply with this section, the person gives false or misleading information or shows a document that is false or misleading in a material particular: see sections 135 and 136.

133   Authorised employee on premises under warrant may ask questions

                   An authorised employee who is authorised to enter premises by a monitoring warrant may:

                     (a)  require the occupier of the premises to:

                              (i)  answer any questions that are relevant to a monitoring purpose; and

                             (ii)  give or show the employee any document requested by the employee that is relevant to a monitoring purpose; or

                     (b)  require any person on the premises to answer any questions that may facilitate the exercise of monitoring powers in relation to the premises.

Note 1:       A person could be guilty of an offence if the person fails to comply with a requirement under this section: see section 134.

Note 2:       A person could be guilty of an offence if, in complying or purporting to comply with this section, the person gives false or misleading information or shows a document that is false or misleading in a material particular: see sections 135 and 136.

134   Offence: failure to answer question

             (1)  A person is guilty of an offence if the person refuses or fails to comply with a requirement under section 133 (employee on premises under warrant may ask questions).

Maximum penalty:    Imprisonment for 6 months.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (2)  However, a person is not guilty of an offence if answering the question or giving or showing the document might tend to incriminate the person or expose the person to a penalty.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .

135   Offence: giving false or misleading information

                   A person who gives false or misleading information in the course of complying or purporting to comply with section 132 or 133 (employee may ask questions) is guilty of an offence.

Maximum penalty:    Imprisonment for 12 months.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

136   Offence: giving or showing documents that are false or misleading in material particulars

             (1)  A person who gives or shows an authorised employee a document that is false or misleading in a material particular, in the course of complying or purporting to comply with section 132 or 133 (employee may ask questions), is guilty of an offence.

Maximum penalty:    Imprisonment for 12 months.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (2)  However, the person is not guilty of an offence if the document is accompanied by a written statement signed by the person:

                     (a)  stating that the document is, to the person’s knowledge, false or misleading in the material particular concerned; and

                     (b)  setting out or referring to the material particular.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .

Subdivision B Applying for monitoring warrants

137   Authorised employee may apply for a monitoring warrant

             (1)  An authorised employee may apply to a magistrate or tribunal member for a monitoring warrant in relation to premises mentioned in subsection 130(1) (including premises in a State other than the magistrate’s or tribunal member’s State).

Note:          Monitoring warrants may also be obtained by telephone, fax or other electronic means in urgent circumstances: see section 165.

             (2)  The employee must give the magistrate or tribunal member an information on oath or affirmation that sets out the grounds for seeking the warrant.

138   Magistrate or tribunal member may issue a monitoring warrant

                   The magistrate or tribunal member may issue a monitoring warrant if he or she is satisfied that it is reasonably necessary that one or more authorised employees have access to the premises mentioned in subsection 130(1) for a monitoring purpose.

139   Magistrate or tribunal member may require more information

             (1)  The magistrate or tribunal member may require an authorised employee or other person to give the magistrate or tribunal member further information on oath or affirmation concerning the grounds on which the monitoring warrant is being sought before issuing it.

             (2)  The information may be given orally or by affidavit.

             (3)  The magistrate or tribunal member must not issue the warrant until the employee or other person has given the required information.

140   Contents of monitoring warrant

             (1)  A monitoring warrant must:

                     (a)  authorise one or more authorised employees:

                              (i)  to enter the premises; and

                             (ii)  to exercise the powers under section 131 in relation to the premises; and

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

                     (c)  state the day and time at which it ceases to have effect (which must be no later than 7 days after it is issued); and

                     (d)  state the purpose for which the warrant is issued; and

                     (e)  state that the warrant is issued under section 138.

             (2)  The authorised employees do not have to be named in the warrant.



 

Division 4 Search warrants

Subdivision A Search powers

141   Authorised employee may enter premises to look for evidential material

             (1)  This section applies if an authorised employee has reasonable grounds for suspecting that there may be evidential material on any premises.

             (2)  The authorised employee may:

                     (a)  enter the premises; and

                     (b)  exercise the search powers set out in section 142; and

                     (c)  if the entry is under warrant—seize the evidential material, if the authorised employee finds it on the premises.

             (3)  However, an authorised employee is not authorised to enter premises under subsection (2) unless:

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

Note:       Section 157 sets out the requirements for obtaining the occupier’s consent.

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

Note:       Search warrants are issued under section 144 or subsection 165(3).

142   Search powers of authorised employees

             (1)  For the purposes of this Division, the following are the search powers that an authorised employee may exercise in relation to premises under section 141:

                     (a)  to search the premises , and any receptacle on the premises, for the evidential material;

                     (b)  to examine the evidential material;

                     (c)  to take photographs or make video or audio recordings or sketches on the premises of the evidential material;

                     (d)  to inspect any documentary evidential material;

                     (e)  to take extracts from or make copies of the evidential material;

                      (f)  to take onto the premises any equipment and materials that the authorised employee requires for the purpose of exercising powers in relation to the premises;

                     (g)  the powers in subsections (2), (3) and (5).

Operating equipment

             (2)  For the purposes of this Division, the search powers include the power to operate equipment that is 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.

Removing disks etc. and documents

             (3)  For the purposes of this Division, the search powers include the following powers in relation to the evidential material that is found in the exercise of the power under subsection (2):

                     (a)  to seize the equipment or any disk, tape or other associated storage device;

                     (b)  to operate facilities that are on the premises to put the material in documentary form and remove the documents so produced;

                     (c)  to operate such facilities to transfer the 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 to in writing by the provider or occupier (as appropriate);

                     (d)  to remove from the premises a disk, tape or other storage device to which the evidential material has been transferred in exercise of the power under paragraph (c).

             (4)  The powers mentioned in subsections (2) and (3) must be exercised in accordance with section 148.

             (5)  An authorised employee may seize equipment under paragraph (3)(a) only if:

                     (a)  it is not practicable to put the material in documentary form as mentioned in paragraph (3)(b) or to copy the material as mentioned in paragraph (3)(c); or

                     (b)  possession by the occupier of the equipment could constitute an offence.

             (6)  An authorised employee may seize equipment under paragraph (3)(a) or remove the documents under paragraph (3)(b) only if the employee entered the premises under a warrant.

Securing evidence of other offences

             (7)  If an authorised employee, during a search of premises, reasonably believes that there is on the premises a thing that might afford evidence of the commission of an offence against this Act, the Crimes Act 1914 or the Criminal Code , then the search powers include securing the thing pending the obtaining of a warrant to seize it.

Note:          Section 151 allows for things to be seized without a warrant in emergencies.

Subdivision B Applying for search warrants

143   Authorised employee may apply for a search warrant

             (1)  An authorised employee may apply to a magistrate or tribunal member for a search warrant in relation to the premises mentioned in subsection 141(1) (including premises in a State other than the magistrate’s or tribunal member’s State).

Note:          Search warrants may also be obtained by telephone, fax or other electronic means in urgent circumstances: see section 165.

             (2)  The employee must give the magistrate or tribunal member an information on oath or affirmation that sets out the grounds for seeking the warrant.

144   Magistrate or tribunal member may issue a search warrant

                   The magistrate or tribunal member may issue a search warrant if he or she is satisfied that there are reasonable grounds for suspecting that there may be evidential material on the premises.

145   Magistrate or tribunal member may require more information

             (1)  The magistrate or tribunal member may require an authorised employee or other person to give the magistrate or tribunal member further information on oath or affirmation concerning the grounds on which the search warrant is being sought before issuing it.

             (2)  The information may be given orally or by affidavit.

             (3)  The magistrate or tribunal member must not issue the warrant until the employee or other person has given the required information.

146   Contents of a search warrant

             (1)  A search warrant must:

                     (a)  authorise one or more authorised employees:

                              (i)  to enter the premises; and

                             (ii)  to exercise the powers under section 142 in relation to the premises; and

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

                     (c)  state the day and time at which it ceases to have effect (which must be no later than 7 days after it is issued); and

                     (d)  state the purpose for which the warrant is issued; and

                     (e)  state that the warrant is issued under section 144.

             (2)  The authorised employees must be named in the warrant.



 

Division 5 Common rules for monitoring warrants and search warrants

Subdivision A Common powers etc. under monitoring warrants and search warrants

147   Use of reasonable force and assistance

                   An authorised employee may use such assistance and force as is necessary and reasonable in entering the premises under a monitoring warrant or a search warrant and exercising the powers under section 131 or 142.

148   Use of electronic equipment in exercising search or monitoring powers

                   In order to exercise search powers or monitoring powers, an authorised employee or a person assisting may operate electronic equipment on the premises if he or she reasonably believes that this can be done without damaging the equipment or data recorded on the equipment.

Note:          Compensation may be payable in certain circumstances if the equipment or data is damaged: see section 160.

149   Securing electronic equipment for use by experts

             (1)  This section applies if the authorised employee or a person assisting reasonably believes that:

                     (a)  there is on the premises:

                              (i)  if the authorised employee is on the premises under section 130—information belonging to the provider concerned that is relevant to a monitoring purpose; or

                             (ii)  if the authorised employee is on the premises under section 141—evidential material;

                            that might be accessible by operating electronic equipment that is on the premises; and

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

                     (c)  if he or she does not take action under subsection (2), the information might be destroyed, altered or otherwise interfered with.

             (2)  The authorised employee or person assisting may do whatever is necessary to secure the equipment.

Authorised employee must give notice

             (3)  Before doing so, the authorised employee or person assisting must give notice to the occupier of the premises of:

                     (a)  his or her intention to secure equipment; and

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

Time limit on securing equipment

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

                     (a)  24 hours later; or

                     (b)  the equipment being operated by the expert.

150   Extension of period

             (1)  If an authorised employee or a person assisting reasonably believes that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate or tribunal member for an extension of the period.

             (2)  The authorised employee or a person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension. The occupier is entitled to be heard in relation to that application.

             (3)  Subdivision B of Divisions 3 and 4 relating to the issue of monitoring warrants and search warrants apply, with such modifications as are necessary, to the issue of an extension.

151   Powers without warrant in emergency situations

             (1)  This section applies when an authorised employee is on premises under section 130 or 141 if the employee reasonably suspects that:

                     (a)  a thing relevant to an offence against this Act, the Crimes Act 1914 or the Criminal Code is on the premises; and

                     (b)  it is necessary to exercise a power under subsection (2) in order to prevent the thing from being concealed, lost or destroyed; and

                     (c)  it is necessary to exercise the power without the authority of a monitoring warrant or a search warrant because the circumstances are so serious and urgent.

             (2)  The authorised employee may:

                     (a)  search the premises, and any receptacle on the premises, for the thing; and

                     (b)  seize the thing if he or she finds it there; and

                     (c)  either:

                              (i)  if the employee is on the premises under section 130—exercise the powers mentioned in subsections 131(2) and (3); or

                             (ii)  if the employee is on the premises under section 141—exercise the powers mentioned in subsections 142(2) and (3);

                            in relation to the thing.

152   Retaining seized things

             (1)  This section applies to an authorised employee when one of the following happens in respect of a thing seized under section 151:

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

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

             (2)  The authorised employee must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.

             (3)  However, the authorised employee does not have to take those steps if:

                     (a)  in a paragraph (1)(b) case:

                              (i)  proceedings in respect of which the thing might afford evidence have been 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

                             (ii)  the authorised employee may retain the thing because of an order under section 153; or

                     (b)  in any case—the authorised employee is otherwise authorised (by a law, or an order of a court or a tribunal, of the Commonwealth or a State) to retain, destroy or dispose of the thing; or

                     (c)  the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

153   Authorised employee may apply for a thing to be retained for a further period

             (1)  This section applies if an authorised employee has seized a thing under section 151 and proceedings in respect of which the thing might 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 a magistrate or tribunal member under section 154.

             (2)  The authorised employee may apply to a magistrate or tribunal member for an order that the employee may retain the thing for a further period.

Authorised employee must try to notify those affected

             (3)  Before making the application, the authorised employee must:

                     (a)  take reasonable steps to discover which persons’ interests would be affected by the retention of the thing; and

                     (b)  if it is practicable to do so, notify each person who the employee believes to be such a person of the proposed application.

154   Magistrate or tribunal member may order that the thing be retained

             (1)  The magistrate or tribunal member may order that the authorised employee who made an application under section 153 may retain the thing if the magistrate or tribunal member is satisfied that it is necessary for the employee to do so:

                     (a)  for the purposes of an investigation as to whether an offence has been committed; or

                     (b)  to enable evidence of an offence to be secured for the purposes of a prosecution.

             (2)  The order must specify the period for which the employee may retain the thing.

155   Occupier to provide authorised employee with all facilities and assistance

             (1)  The occupier of the premises to which a monitoring warrant or a search warrant relates must provide the authorised employee executing the warrant and any person assisting that employee with all reasonable facilities and assistance for the effective exercise of their powers.

             (2)  A person is guilty of an offence if the person breaches subsection (1).

Maximum penalty:    10 penalty units.

Note 1:       Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:       See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Subdivision B Obligations on authorised employees etc.

156   Being on premises with consent

             (1)  An authorised employee may enter premises under section 130 or 141 with the consent of the occupier of the premises at any reasonable time of the day or night.

             (2)  However, the authorised employee must leave the premises if the occupier asks the employee to do so.

157   Consent

             (1)  Before obtaining the consent of a person for the purposes of paragraph 130(2)(a) or 141(3)(a), the authorised employee must inform the person that he or she may refuse consent.

             (2)  An entry of an authorised employee with the consent of a person is not lawful unless the person voluntarily consents to the entry.

158   Announcement before entry

                   An authorised employee executing a monitoring warrant or a search warrant must, before entering premises under the warrant:

                     (a)  announce that he or she is authorised to enter the premises; and

                     (b)  give a person on the premises (if there is one) an opportunity to allow entry to the premises.

159   Copy of warrant to be given to the occupier before entry

             (1)  If a monitoring warrant or a search warrant is being executed on premises and the occupier of the premises is present, the authorised employee must make a copy of the warrant available to the occupier.

             (2)  The authorised employee must identify himself or herself to that person.

160   Compensation for damage to electronic equipment or data

             (1)  This section applies if:

                     (a)  damage is caused to equipment as a result of it being operated as mentioned in section 148; or

                     (b)  the data recorded on the equipment is damaged or programs associated with its use are damaged or corrupted;

because:

                     (c)  insufficient care was exercised in selecting the person who was to operate the equipment; or

                     (d)  insufficient care was exercised by the person operating the equipment.

Amount of compensation

             (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 they agree on.

             (3)  However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court for such reasonable amount of compensation as the Court determines.

             (4)  In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

             (5)  Compensation is payable out of money appropriated by the Parliament.

Damage to data

             (6)  For the purposes of subsection (1), damage to data includes damage by erasure of data or addition of other data.

161   Occupier entitled to be present during execution of the monitoring warrant

             (1)  If a monitoring warrant or a search warrant is being executed at premises and the occupier of the premises is present, the occupier is entitled to observe the execution of the warrant.

             (2)  The right to observe the execution of the warrant ceases if the occupier 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.

162   Identity cards

             (1)  The Secretary must give each authorised employee an identity card.

             (2)  An identity card must:

                     (a)  be in a form approved in writing by the Secretary; and

                     (b)  include a recent photograph of the employee.

Offence: failing to return identity card

             (3)  A person is guilty of an offence if:

                     (a)  the person holds or held an identity card; and

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

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

Maximum penalty:    1 penalty unit.

Note 1:       Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:       See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

             (4)  This offence is one of strict liability.

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

Defence: lost or destroyed card

             (5)  However, the person is not guilty of the offence if the identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3) of the Criminal Code .

Authorised employee must always carry identity card

             (6)  An authorised employee must carry an identity card at all times when exercising powers under Division 3, 4 or 5.

163   Authorised employee must produce identity card on request

                   An authorised employee is not entitled to exercise any powers under Division 3, 4 or 5 in relation to premises if:

                     (a)  the occupier of the premises requests the authorised employee to show his or her identity card to the occupier; and

                     (b)  the authorised employee fails to comply with the request.

Subdivision C Issue of warrants by telephone etc.

164   Employee may apply for warrants by telephone etc.

             (1)  An authorised employee may apply to a magistrate or tribunal member for a monitoring warrant or a search warrant by telephone, fax or other electronic means if the employee thinks it necessary to do so because of urgent circumstances.

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

             (3)  Before making the application, the authorised employee must prepare an information on oath or affirmation that sets out the grounds for seeking the warrant.

             (4)  However, the employee may make the application before the information has been sworn or affirmed, if necessary.

165   Magistrate or tribunal member may grant warrant by telephone etc.

Procedure before issuing the warrant

             (1)  Before issuing the warrant the magistrate or tribunal member must:

                     (a)  consider the information prepared under subsection 164(3); and

                     (b)  receive any further information that the magistrate or tribunal member may require about the grounds on which the warrant is being sought.

Issuing monitoring warrant by telephone etc.

             (2)  The magistrate or tribunal member may issue a monitoring warrant if the magistrate or tribunal member is satisfied:

                     (a)  that it is reasonably necessary that one or more authorised employees have access to the premises for a monitoring purpose; and

                     (b)  that there are reasonable grounds for issuing the warrant by telephone, fax or other electronic means.

Issuing search warrant by telephone etc.

             (3)  The magistrate or tribunal member may issue a search warrant if the magistrate or tribunal member is satisfied:

                     (a)  that there are reasonable grounds for suspecting that there might be evidential material on the premises; and

                     (b)  that there are reasonable grounds for issuing the warrant by telephone, fax or other electronic means.

166   Procedure for issuing warrant by telephone etc.

Obligations on magistrate or tribunal member

             (1)  If the magistrate or tribunal member issues a warrant under section 165, the magistrate or tribunal member must complete and sign a warrant that is the same as the monitoring warrant or search warrant that the magistrate or tribunal member would have issued if the application had been made under section 137 or 143.

             (2)  The magistrate or tribunal member must also:

                     (a)  inform the authorised employee of:

                              (i)  the terms of the warrant; and

                             (ii)  the day and time when it was signed; and

                            (iii)  the time at which it ceases to have effect (which must be no later than 48 hours after it is signed); and

                     (b)  record on the warrant the reasons for issuing it.

Obligations on authorised employees

             (3)  The authorised employee must:

                     (a)  complete a form of warrant in the terms given to the authorised employee by the magistrate or tribunal member; and

                     (b)  write on it the magistrate’s or tribunal member’s name and the day and time when the warrant was signed.

167   Procedure after telephone warrant ceases or is executed

Obligations on authorised employee

             (1)  An authorised employee who completes a form of warrant under section 166 must send the magistrate or tribunal member who signed the monitoring warrant or search warrant:

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

                     (b)  the information duly sworn or affirmed in connection with the warrant.

             (2)  The form of warrant and information must be sent by the end of the day after the earlier of:

                     (a)  the day on which the warrant ceases to have effect; or

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

Obligations on magistrate or tribunal member

             (3)  The magistrate or tribunal member must:

                     (a)  attach the monitoring warrant or search warrant signed by the magistrate or tribunal member under section 166 to the form of warrant and information; and

                     (b)  deal with the documents in the same way that the magistrate or tribunal member would have dealt with them if the application for the warrant had been made under section 137 or 143.

168   Form of warrant authorises exercise of power

                   The form of warrant completed under section 166 is authority for any exercise of a power that the monitoring warrant or search warrant issued under section 165 is authority for, if the form of warrant is in accordance with the terms of the monitoring warrant or search warrant.

169   Court to assume that exercise of power not authorised by telephone etc. warrant

                   A court must assume (unless the contrary is proved) that an exercise of power was not authorised by a monitoring warrant or search warrant if the warrant signed by the magistrate or tribunal member under section 166 is not produced in evidence.