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Energy Efficiency Opportunities Bill 2006

Part 8 Powers of inspection

Division 1 Overview

24   Overview of Part

             (1)  This Part provides for powers of inspection in relation to obligations under this Act.

             (2)  Division 2 provides for the appointment of authorised officers to undertake inspection functions and for the issue of identification for such persons.

             (3)  Division 3 sets out the powers of authorised officers and Division 4 sets out the obligations imposed on authorised officers in the exercise of those powers.

             (4)  Division 5 deals with an occupier’s rights and responsibilities in circumstances where an authorised officer seeks to exercise inspection powers.

             (5)  Division 6 deals with the procedure for obtaining and the nature of monitoring warrants.



 

Division 2 Appointment of authorised officers and identity cards

25   Appointment of authorised officers

             (1)  The Secretary may, in writing, appoint:

                     (a)  an officer or employee of the Department; or

                     (b)  any other suitably qualified person;

to be an authorised officer for the purposes of this Part.

             (2)  In exercising powers or performing functions as an authorised officer, an authorised officer must comply with any directions of the Secretary.

Note:          Section 70 of the Crimes Act 1914 creates an offence where Commonwealth officers (including persons performing services for or on behalf of the Commonwealth) disclose information in breach of a duty of confidentiality.

26   Identity cards

             (1)  The Secretary must issue an identity card to an authorised officer in the form prescribed by the regulations. The identity card must contain a recent photograph of the authorised officer.

             (2)  A person commits an offence if:

                     (a)  the person has been issued with an identity card; and

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

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

Penalty:  1 penalty unit.

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

             (3)  An authorised officer must carry the identity card at all times when exercising powers or performing functions as an authorised officer.



 

Division 3 Powers of authorised officer

Subdivision A Monitoring powers

27   Authorised officer may enter premises by consent or under monitoring warrant

             (1)  For the purposes of substantiating information provided under this Act or of determining whether this Act has been complied with, an authorised officer may:

                     (a)  enter any premises:

                              (i)  during normal business hours; or

                             (ii)   if the entry is made under a monitoring warrant—at any time specified in the warrant; and

                     (b)  exercise the monitoring powers set out in section 28.

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

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

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

             (3)  If an authorised officer is on the premises with the consent of the occupier, the authorised officer must leave the premises if the occupier asks the authorised officer to do so.

28   Monitoring powers of authorised officers

             (1)  For the purposes of this Part, the following are the monitoring powers that an authorised officer may exercise in relation to premises under section 27:

                     (a)  the power to search the premises for any thing on the premises that may relate to compliance with this Act;

                     (b)  the power to examine any activity conducted on the premises that may relate to information provided for the purposes of this Act;

                     (c)  the power to examine any thing on the premises that may relate to information provided for the purposes of this Act;

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

                     (e)  the power to inspect any document on the premises that may relate to information provided for the purposes of this Act;

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

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

                     (h)  the power to secure a thing that:

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

                             (ii)  an authorised officer believes on reasonable grounds affords evidence of a contravention of this Act or of the commission of an offence against the Crimes Act 1914 ;

                            until a warrant is obtained to seize the thing;

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

             (2)  For the purposes of this Part, monitoring powers includes the power to operate equipment at premises to see whether:

                     (a)  the equipment; or

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

                              (i)  is at the premises; and

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

contains information that is relevant to assessing the correctness of information provided under this Act.

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

                     (a)  the power to operate facilities at the premises to put the information in documentary form and copy the documents so produced;

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

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

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

                     (c)  the power 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).

Subdivision B Power of authorised officer to ask questions and seek production in certain circumstances

29   Authorised officer may request persons to answer questions

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

                     (a)  answer any questions related to the operation of this Act that are put by the authorised officer; and

                     (b)  produce any document requested by the authorised officer that is so related.

             (2)  If the authorised officer was authorised to enter the premises by a monitoring warrant, the authorised officer has power to require the occupier (if the occupier is in or on the premises), or another person who apparently represents the occupier (if that person is in or on the premises), to:

                     (a)  answer any questions related to the operation of this Act that are put by the authorised officer; and

                     (b)  produce any document requested by the authorised officer that is so related.

             (3)  A person commits an offence if the person refuses or fails to comply with a requirement under subsection (2).

Penalty:  10 penalty units.

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

             (4)  An individual is excused from complying with a requirement of subsection (2) if the answer to the question or the production of the document might tend to incriminate the individual or expose the individual to a penalty.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4), see subsection 13.3(3) of the Criminal Code .



 

Division 4 Obligations and incidental powers of authorised officers

30   Authorised officer must produce identity card on request

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

                     (a)  the occupier of the premises requires the authorised officer to produce his or her identity card for inspection by the occupier; and

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

31   Consent

             (1)  Before obtaining the consent of a person for the purposes of paragraph 27(2)(a), the authorised officer must inform the person that he or she may refuse consent.

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

32   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 any person at the premises an opportunity to allow entry to the premises.

33   Details of monitoring warrant to be given to occupier etc. before entry

             (1)  If a monitoring warrant is being executed and the occupier of the premises in respect of which it is being executed or another person who apparently represents the occupier is present at the premises, the authorised officer must make available to that person a copy of the warrant.

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

             (3)  The copy of the warrant referred to in subsection (1) need not include the signature of the magistrate who issued the warrant.

Note:          Monitoring warrants are issued under section 38.

34   Use of electronic equipment in exercising monitoring powers

             (1)  An authorised officer or a person assisting that officer may operate electronic equipment already at premises in order to exercise monitoring powers if he or she believes, on reasonable grounds, that the operation of the equipment can be carried out without damage to the equipment.

             (2)  If the authorised officer or a person assisting believes, on reasonable grounds, that:

                     (a)  there is on the premises material relating to information supplied under this Act that may be accessible by operating electronic equipment on the premises; and

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

                     (c)  if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;

he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard, or otherwise.

             (3)  The authorised officer or a person assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.

             (4)  The equipment may be secured:

                     (a)  for a period not exceeding 24 hours; or

                     (b)  until the equipment has been operated by the expert;

whichever first happens.

             (5)  If an authorised officer or a person assisting believes, on reasonable grounds, that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate for an extension of the period.

             (6)  The magistrate may extend the period of time, up to a maximum of a further 48 hours.

             (7)  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 and the occupier is entitled to be heard in relation to that application.

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

             (9)  In this section:

premises means:

                     (a)  premises that an authorised officer has entered, and remains on, with the consent of the occupier; and

                     (b)  warrant premises.

35   Compensation for damage to electronic equipment

             (1)  This section applies if:

                     (a)  as a result of equipment being operated as mentioned in section 34:

                              (i)  damage is caused to the equipment; or

                             (ii)  the data recorded on the equipment is damaged; or

                            (iii)  programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

                     (b)  the damage or corruption occurs because:

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

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

             (2)  The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

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

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

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

             (6)  For the purposes of subsection (1):

damage , in relation to data, includes damage by erasure of data or addition of other data.



 

Division 5 Occupier’s rights and responsibilities

36   Occupier entitled to be present during execution of monitoring warrant

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

             (2)  The right to observe the execution of the warrant ceases if the person impedes that execution.

             (3)  This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time.

37   Occupier to provide authorised officer with all facilities and assistance

             (1)  The occupier of warrant premises, or another person who apparently represents the occupier, must provide the 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 commits an offence if the person fails to comply with the obligation set out in subsection (1).

Penalty:  10 penalty units.

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



 

Division 6 Warrants

38   Monitoring warrants

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

             (2)  Subject to subsection (3), the magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that it is reasonably necessary that one or more authorised officers should have access to the premises for the purposes of substantiating information provided under this Act or of determining whether this Act has been complied with.

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

             (4)  The warrant must:

                     (a)  authorise one or more authorised officers (whether or not named in the warrant), with such assistance and by such force as is necessary and reasonable:

                              (i)  to enter the premises; and

                             (ii)  to exercise the powers set out in section 28 in relation to the premises; and

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

                     (c)  specify the day (not more than 6 months after the issue of the warrant) on which the warrant ceases to have effect; and

                     (d)  state the purpose for which the warrant is issued.