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Migration Legislation Amendment (Overseas Students) Bill 2000
Schedule 2 Monitoring compliance with student visa conditions

   

Migration Act 1958

1  Subsection 5(1)

Insert:

student visa has the meaning given by the regulations.

1A  Subsection 116(1B)

Repeal the subsection.

2  After Division 14 of Part 2

Insert:

Division 14A Monitoring compliance with student visa conditions

Subdivision A Preliminary

268AA   Definitions

                   In this Division:

attendance notice means a notice given under section 268BD.

document includes copy of a document.

education provider means an institution or other body or person in Australia that provides, has provided or seeks to provide courses of education or of training to persons who hold student visas.

monitoring warrant means a warrant issued under section 268CE or 268CZD.

new ESOS Act means the Education Services for Overseas Students Act 2000 .

occupier :

                     (a)  in relation to premises comprising a vehicle or vessel—means the person apparently in charge of the vehicle or vessel; and

                     (b)  in any case—includes a person who apparently represents the occupier.

old ESOS Act means the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991 .

premises means:

                     (a)  an area of land or any other place, whether or not it is enclosed or built on; or

                     (b)  a building or other structure; or

                     (c)  a vehicle or vessel;

and includes a part of any such premises.

production notice means a notice given under section 268BA.

tribunal member means a member of the Administrative Appeals Tribunal.

visa monitoring purpose means a purpose of determining whether the conditions of a particular student visa or visas, or of student visas generally, are being or have been complied with.

268AB   Division binds the Crown

             (1)  This Division binds the Crown in each of its capacities.

             (2)  However, nothing in this Division makes the Crown in any capacity liable to be prosecuted for an offence.

268AC   Criminal Code applies

                   The Criminal Code applies to all offences against this Division.

268AD   Powers conferred on magistrates in their personal capacity

             (1)  A power conferred on a magistrate by section 268BQ, 268CE, 268CU or 268CZD 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.

             (3)  A magistrate exercising a power mentioned in subsection (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.

Subdivision B Notices requiring information and documents

268BA   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 visa 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 visa monitoring purpose to an authorised officer; or

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

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

Note:          The Secretary may also give the individual an attendance notice: see section 268BD.

             (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.

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

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

                     (b)  a consultant to an education provider; or

                     (c)  a partner in an education provider; or

                     (d)  an individual trading as an education provider.

             (5)  A production notice under this section may be given even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider.

268BB   Contents of the production notice

             (1)  A production notice must:

                     (a)  state that it is given under section 268BA; and

                     (b)  set out the effects of sections 268BH, 268BI and 268BJ; and

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

             (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.

268BC   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 268BB(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.

268BD   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 visa monitoring purpose.

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

Note:          The Secretary may also give the individual a production notice: see section 268BA.

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

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

                     (b)  a consultant to an education provider; or

                     (c)  a partner in an education provider; or

                     (d)  an individual trading as an education provider.

             (4)  An attendance notice under this section may be given even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider.

268BE   Contents of attendance notice

             (1)  An attendance notice must:

                     (a)  state that it is given under section 268BD; and

                     (b)  set out the effects of sections 268BH, 268BI and 268BJ; 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.

268BF   Scales of expenses

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

268BG   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 268BA(2)(c) (copies of documents given under production notices).

268BH   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 .

268BI   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.

268BJ   Offence: giving false or misleading document

             (1)  A person who gives or shows an authorised officer 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 .

268BK   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 268BI or 268BJ.

268BL   Copies of documents

                   An authorised officer, or another officer with an authorised officer’s permission, may:

                     (a)  inspect a document given or shown to the authorised officer under this Subdivision; 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 officer in accordance with a requirement covered by paragraph 268BA(2)(c) (copies of documents given under production notices).

268BM   Officer may retain documents

             (1)  An authorised officer, or another officer with an authorised officer’s permission, may retain a document given to the authorised officer under this Subdivision:

                     (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 officer was given the document.

Note:          The authorised officer may apply to retain the document for a further period: see section 268BP.

268BN   Owner of document must be given copy

             (1)  If an officer retains a document under section 268BM, then the Secretary 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.

             (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 Secretary thinks appropriate.

268BO   Retaining documents

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

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

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

                     (a)  the authorised officer may retain the document because of an order under section 268BQ; or

                     (b)  the authorised officer 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.

268BP   Officer may apply to magistrate or tribunal member for a further period

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

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

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

                     (b)  a period previously specified in an order of a magistrate or tribunal member under section 269BQ.

             (3)  Before making the application, the officer 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 officer believes to be such a person of the proposed application.

268BQ   Magistrate or tribunal member may order retention for further period

             (1)  The magistrate or tribunal member may order that the officer who made the application under section 268BP may retain the document if the magistrate or tribunal member is satisfied that it is necessary for the officer 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 officer may retain the document.

Subdivision C Searching education providers’ premises

268CA   Authorised officer may enter premises for a visa monitoring purpose

             (1)  An authorised officer may for a visa monitoring purpose:

                     (a)  enter any premises:

                              (i)  occupied by an education provider for the purposes of providing courses of education or of training; or

                             (ii)  at which it is reasonable to believe there might be a thing belonging to or possessed by an education provider, or an activity conducted by or with the consent of the provider, that is relevant to a visa monitoring purpose (whether or not those premises are occupied by the provider); and

                     (b)  exercise the monitoring powers set out in section 268CI.

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

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

Note:       Section 268CC 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 268CE or 268CZD.

             (3)  The powers in this Subdivision may be exercised even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider.

268CB   Being on premises with consent

             (1)  An authorised officer may enter premises under section 268CA with the consent of the occupier of the premises at any reasonable time of the day or night.

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

268CC   Consent

             (1)  Before obtaining the consent of a person for the purposes of paragraph 268CA(2)(a), the authorised officer must inform the person that he or she may refuse consent.

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

268CD   Authorised officer may apply for monitoring warrant

             (1)  An authorised officer may apply to a magistrate or tribunal member for a monitoring warrant in relation to premises mentioned in subsection 268CA(1).

Note:          Monitoring warrants may also be obtained by telephone, fax or other electronic means in urgent circumstances: see section 268CZD.

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

268CE   Magistrate or tribunal member may issue 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 officers have access to the premises mentioned in subsection 268CA(1) for a visa monitoring purpose.

268CF   Magistrate or tribunal member may require more information

             (1)  The magistrate or tribunal member may require an authorised officer 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 either orally or by affidavit.

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

268CG   Contents of monitoring warrant

             (1)  A monitoring warrant must:

                     (a)  authorise one or more authorised officers:

                              (i)  to enter the premises; and

                             (ii)  to exercise the powers under section 268CI 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 268CE.

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

268CH   Use of reasonable force and assistance

                   An authorised officer may use such assistance and force as is necessary and reasonable in entering the premises under a monitoring warrant and exercising the powers under section 268CI.

268CI   Monitoring powers of authorised officers

             (1)  For the purposes of this Subdivision, the following are the monitoring powers that an authorised officer may exercise in relation to premises under section 268CA:

                     (a)  to search the premises, and any receptacle on the premises, for any thing on the premises belonging to or possessed by the education provider that might be relevant to a visa 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 education provider that might be relevant to a visa 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 education provider that might be relevant to a visa 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 officer requires for the purpose of exercising powers in relation to the premises;

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

             (2)  For the purposes of this Subdivision, 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 education provider that is relevant to a visa monitoring purpose.

             (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 education 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 sections 268CO, 268CP and 268CQ.

             (5)  If an authorised officer, 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 or the regulations, the Crimes Act 1914 or the Criminal Code , the monitoring powers include securing the thing pending the obtaining of a warrant to seize it.

268CJ   Authorised officer on premises with consent may ask questions

                   An authorised officer 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 visa monitoring purpose; and

                             (ii)  give or show the officer any document requested by the officer 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, under this section, the person gives false or misleading information or shows a document that is false or misleading in a material particular: see sections 268CM and 268CN.

268CK   Authorised officer on premises under warrant may ask questions

                   An authorised officer 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 visa monitoring purpose; and

                             (ii)  give or show the officer any document requested by the officer that is relevant to a visa 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 268CL.

Note 2:       A person could be guilty of an offence if, under this section, the person gives false or misleading information or shows a document that is false or misleading in a material particular: see sections 268CM and 268CN.

268CL   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 268CK (officer 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 .

268CM   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 268CJ or 268CK (officer 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.

268CN   Offence: giving or showing documents that are false or misleading in material particulars

             (1)  A person who gives or shows an authorised officer a document that is false or misleading in a material particular, in the course of complying or purporting to comply with section 268CJ or 268CK (officer 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 .

268CO   Use of electronic equipment in exercising monitoring powers

                   In order to exercise monitoring powers, an authorised officer 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 268CY.

268CP   Use of electronic equipment by experts

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

                     (a)  there is on the premises information belonging to the education provider concerned:

                              (i)  that is relevant to a visa monitoring purpose; and

                             (ii)  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 officer or person assisting may do whatever is necessary to secure the equipment.

             (3)  Before doing so, the authorised officer 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.

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

                     (a)  24 hours later; or

                     (b)  the equipment being operated by the expert.

268CQ   Extension of period

             (1)  If an authorised officer 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 officer 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)  The provisions of this Subdivision relating to the issue of monitoring warrants apply, with such modifications as are necessary, to the issue of an extension.

268CR   Powers without warrant in emergency situations

             (1)  This section applies when an authorised officer is on premises under section 268CA if the officer reasonably suspects that:

                     (a)  a thing relevant to an offence against this Act or the regulations, 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 because the circumstances are so serious and urgent.

             (2)  The authorised officer 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)  exercise the powers mentioned in subsections 268CI(2) and (3) in relation to the thing.

268CS   Retaining seized things

             (1)  This section applies to an authorised officer when one of the following happens in respect of a thing seized under section 268CR:

                     (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 officer 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 officer 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 officer may retain the thing because of an order under section 268CU; or

                     (b)  in any case—the authorised officer 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.

268CT   Authorised officer may apply for a thing to be retained for a further period

             (1)  This section applies if an authorised officer has seized a thing under section 268CR 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 268CU.

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

             (3)  Before making the application, the authorised officer 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 officer believes to be such a person of the proposed application.

268CU   Magistrate or tribunal member may order that thing be retained

             (1)  The magistrate or tribunal member may order that the authorised officer who made an application under section 268CT may retain the thing if the magistrate or tribunal member is satisfied that it is necessary for the officer 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 officer may retain the thing.

268CV   Occupier to provide authorised officer with all facilities and assistance

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

             (2)  A person is guilty of an offence if the person contravenes 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.

268CW   Announcement before entry

                   An authorised officer executing a monitoring 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.

268CX   Copy of monitoring warrant to be given to occupier before entry

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

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

268CY   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 268CO; 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.

             (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.

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

268CZ   Occupier entitled to be present during execution of monitoring warrant

             (1)  If a monitoring 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.

268CZA   Identity cards

             (1)  For the purposes of this Subdivision, an authorised officer’s identity card must be in a form approved by the Secretary. It must contain a recent photograph of the authorised officer.

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

                     (a)  the person holds or held an identity card for the purposes of this Subdivision; and

                     (b)  the person ceases to be an authorised officer for all purposes under this Act; 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.

             (3)  This offence is one of strict liability.

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

             (4)  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 (4): see subsection 13.3(3) of the Criminal Code .

             (5)  An authorised officer must carry an identity card at all times when exercising powers under this Subdivision.

268CZB   Authorised officer must produce identity card on request

                   An authorised officer is not entitled to exercise any powers under this Subdivision in relation to premises if:

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

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

268CZC   Officer may apply for warrants by telephone etc.

             (1)  An authorised officer may apply to a magistrate or tribunal member for a warrant under section 268CE by telephone, fax or other electronic means if the officer 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 officer must prepare an information that sets out the grounds for seeking the warrant.

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

268CZD   Magistrate or tribunal member may grant warrant by telephone etc.

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

                     (a)  consider the information prepared under subsection 268CZC(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.

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

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

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

268CZE   Procedure for issuing warrant by telephone etc.

             (1)  If the magistrate or tribunal member issues a monitoring warrant under section 268CZD, the magistrate or tribunal member must complete and sign a warrant that is the same as the monitoring warrant that the magistrate or tribunal member would have issued if the application had been made under section 268CD.

             (2)  The magistrate or tribunal member must also:

                     (a)  inform the authorised officer 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.

             (3)  The authorised officer must:

                     (a)  complete a form of warrant in the terms given to the authorised officer 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.

268CZF   Procedure after telephone warrant ceases or is executed

             (1)  An authorised officer who completes a form of warrant under section 268CZE must send the magistrate or tribunal member who signed the monitoring warrant:

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

             (3)  The magistrate or tribunal member must:

                     (a)  attach the monitoring warrant signed by the magistrate or tribunal member under section 268CZE 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 268CD.

268CZG   Form of warrant authorises exercise of power

                   The form of warrant completed under section 268CZE is authority for any exercise of a power that the monitoring warrant issued under section 268CZD is authority for, if the form of warrant is in accordance with the terms of the monitoring warrant.

268CZH   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 if the monitoring warrant signed by the magistrate or tribunal member under section 268CZE is not produced in evidence.