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Civil Aviation Amendment Bill 2009

Schedule 2 Enforcement

   

Civil Aviation Act 1988

1  Subsection 3(1)

Insert:

civil aviation legislation means:

                     (a)  this Act or the regulations; or

                     (b)  legislative instruments (within the meaning of the Legislative Instruments Act 2003 ) made under this Act or the regulations; or

                     (c)  Chapter 7 of the Criminal Code , insofar as that Chapter applies to conduct in relation to:

                              (i)  this Act or the regulations; or

                             (ii)  legislative instruments (within the meaning of the Legislative Instruments Act 2003 ) made under this Act or the regulations; or

                            (iii)  CASA; or

                            (iv)  an officer acting, or purporting to act, in the course of the officer’s official duties; or

                             (v)  an authorised person acting, or purporting to act, in accordance with powers conferred under the regulations; or

                            (vi)  a person to whom a power or function has been delegated under this Act, the regulations, or an instrument made under this Act or the regulations.

2  Subsection 3(1)

Insert:

civil aviation offence means an offence against the civil aviation legislation.

3  Subsection 3(1)

Insert:

data has the same meaning as in Part IAA of the Crimes Act 1914 .

4  Subsection 3(1)

Insert:

data held in a computer has the same meaning as in Part IAA of the Crimes Act 1914 .

5  Subsection 3(1)

Insert:

data storage device has the same meaning as in Part IAA of the Crimes Act 1914 .

6  Subsection 3(1)

Insert:

evidential material means a thing that may be relevant to a civil aviation offence.

7  After subsection 23(2)

Insert:

       (2AA)  A person must not carry or consign for carriage any goods on board an aircraft and be negligent as to whether the goods are dangerous goods, except:

                     (a)  in accordance with the regulations, including any conditions subject to which the regulations permit the carriage or consignment of those goods; or

                     (b)  in accordance with the Aviation Transport Security Regulations 2005 , including any conditions subject to which those regulations permit the carriage or consignment of those goods; or

                     (c)  with the written permission of CASA and in accordance with any conditions specified in the permission.

Penalty:  Imprisonment for 2 years.

8  Subsection 30DK(2)

Omit “6 months”, substitute “12 months”.

9  Subsection 30DO(1)

Omit “CASA must disregard a reportable contravention if”, substitute “CASA may disregard a reportable contravention if, having regard to the circumstances in which the contravention occurred,”.

10  Paragraph 30DQ(a)

Omit “was required by that section to disregard”, substitute “disregarded”.

11  Before section 32AA

Insert:

Division 1 Appointment of investigators and issue of identity cards

12  Section 32AA

Before “CASA”, insert “(1)”.

13  At the end of section 32AA

Add:

             (2)  CASA must not appoint an officer as an investigator unless CASA is satisfied that the officer has suitable qualifications and experience to properly exercise the powers of an investigator.

             (3)  An investigator must, in exercising powers as an investigator, comply with any directions of CASA.

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

14  At the end of section 32AB

Add:

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

15  Section 32AC

Repeal the section, substitute:

Division 2 Powers of investigators

Subdivision A Searches without a warrant

32AC   Search with consent to monitor compliance

             (1)  Subject to section 32ACB, for the purpose of finding out whether the civil aviation legislation is being complied with, an investigator may:

                     (a)  enter premises; and

                     (b)  exercise inspection powers.

             (2)  The power to enter premises and exercise inspection powers can only be exercised for the purpose of finding out whether the Civil Aviation Act 1990 of New Zealand, and the regulations and rules made under that Act, are being complied with if a request has been made to CASA, in accordance with the ANZA mutual recognition agreements, for the exercise of powers under this Part in relation to that legislation.

32ACA   Search with consent for evidence in relation to civil aviation offences

                   Subject to section 32ACB, if an investigator has reasonable grounds for suspecting that there is on, or in, any premises a particular thing which may be evidential material, the investigator may:

                     (a)  enter the premises; and

                     (b)  search the premises for the thing.

32ACB   Consent to enter premises

             (1)  An investigator is not authorised to enter premises unless:

                     (a)  the occupier of the premises has consented to the entry; and

                     (b)  the investigator has shown his or her identity card to the occupier.

             (2)  An investigator must, before obtaining the consent of an occupier of premises for the purposes of subsection (1), inform the occupier that the occupier may refuse consent.

             (3)  A consent has no effect unless the consent is voluntary.

             (4)  A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.

             (5)  A consent that is not limited as mentioned in subsection (4) has effect until the consent is withdrawn.

             (6)  If an investigator entered premises because of the consent of the occupier of the premises, the investigator, and any person assisting the investigator, must leave the premises if the consent ceases to have effect.

Subdivision B Applying for and issuing a warrant

16  Subsection 32AD(1A)

Omit “legislation referred to in paragraph (b) of the definition of relevant legislation in subsection 32AC(2) is”, substitute “the Civil Aviation Act 1990 of New Zealand, and the regulations and rules made under that Act (the New Zealand legislation ), are”.

17  Subsection 32AD(2)

Omit “relevant legislation”, substitute “civil aviation legislation or the New Zealand legislation”.

18  Subsection 32AD(5)

Repeal the subsection.

19  Section 32AE

Repeal the section.

20  Subsection 32AF(2)

Omit “an offence against this Act or the regulations”, substitute “a civil aviation offence”.

21  Section 32AH

Repeal the section, substitute:

32AH   Seizures related to civil aviation offences

             (1)  This section applies if:

                     (a)  an investigator searches premises with the consent of the occupier, as mentioned in section 32ACA; or

                     (b)  an investigator searches premises in accordance with a warrant that has been issued under section 32AF or 32AG.

             (2)  The investigator may seize a thing that he or she:

                     (a)  finds in the course of the search; and

                     (b)  believes on reasonable grounds to be evidential material; and

                     (c)  believes on reasonable grounds needs to be seized to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating a civil aviation offence.

Subdivision C General provisions about executing a warrant

32AHA   Announcement before entry

             (1)  An investigator executing a warrant must, before any person enters premises under the warrant:

                     (a)  announce that he or she, and any other person who enters the premises under the warrant, is authorised to enter the premises; and

                     (b)  give any person at the premises an opportunity to allow entry to the premises.

             (2)  An investigator is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:

                     (a)  the safety of a person; or

                     (b)  that the effective execution of the warrant is not frustrated.

32AHB   Assistance and force in executing a warrant

                   In executing a warrant, the investigator executing the warrant may:

                     (a)  obtain the assistance that is necessary and reasonable in the circumstances; and

                     (b)  use the force against persons and things that is necessary and reasonable in the circumstances.

32AHC   Copy of warrant to be shown to occupier etc.

             (1)  If the occupier of the premises, or another person who apparently represents the occupier, is present at the premises, the investigator executing the warrant must make a copy of it available to the person.

             (2)  The investigator must identify himself or herself to the person at the premises.

             (3)  The copy of the warrant need not include the signature of the magistrate who issued it.

32AHD   Occupier entitled to watch search

             (1)  The occupier of the premises, or another person who apparently represents the occupier, who is present at the premises, is entitled to watch the search.

             (2)  The right to watch the search being conducted ceases if the occupier, or the person representing the occupier, impedes the search.

             (3)  This section does not prevent 2 or more areas of the premises being searched at the same time.

32AHE   Specific powers available to investigator executing a warrant

             (1)  The investigator executing the warrant or a person assisting him or her may take photographs or video recordings of the premises or things on the premises:

                     (a)  for a purpose incidental to the execution of the warrant; or

                     (b)  with the written consent of the occupier of the premises.

             (2)  The investigator executing the warrant and all people assisting him or her may, if the warrant is still in force, finish executing the warrant after all of them temporarily stop executing it and leave the premises:

                     (a)  for not more than one hour; or

                     (b)  for a longer period with the written consent of the occupier of the premises.

             (3)  The execution of a warrant that is stopped by an order of a court may be completed if:

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

                     (b)  the warrant is still in force.

32AHF   Use of equipment to examine or process things

             (1)  The investigator executing the warrant or a person assisting him or her may bring to the premises any equipment (including electronic equipment) reasonably necessary to examine or process things found at the premises in order to determine whether they are things that may be seized under the warrant.

             (2)  A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized if:

                     (a)  both of the following apply:

                              (i)  it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;

                             (ii)  there are reasonable grounds to believe that the thing contains or constitutes evidential material; or

                     (b)  the occupier of the premises consents in writing.

             (3)  If things are moved to another place for the purpose of examination or processing, the investigator must, if it is practicable to do so:

                     (a)  inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and

                     (b)  allow the occupier or his or her representative to be present during the examination or processing.

             (4)  The thing may be moved to another place for examination or processing for no longer than 72 hours.

             (5)  An investigator may apply to a magistrate for one or more extensions of that time if the investigator believes on reasonable grounds that the thing cannot be examined or processed within 72 hours or that time as previously extended.

             (6)  The investigator must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard in relation to the application.

             (7)  The investigator executing the warrant or a person assisting him or her may operate equipment (including electronic equipment) already on the premises to examine or process a thing found on the premises in order to determine whether it may be seized under the warrant, if the investigator or the person believes on reasonable grounds that:

                     (a)  the equipment is suitable for the examination or processing; and

                     (b)  the examination or processing can be carried out without damaging the equipment or thing.

             (8)  A notice of the application given to the occupier of the premises is not a legislative instrument.

32AHG   Use of electronic equipment at premises without expert assistance

             (1)  The investigator executing the warrant or a person assisting him or her may operate electronic equipment on the premises to access data (including data not held at the premises) if he or she believes on reasonable grounds that:

                     (a)  the data might constitute evidential material; and

                     (b)  the equipment can be operated without damaging it.

Note:          An investigator can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 32AHI.

             (2)  If the investigator or the person assisting him or her believes on reasonable grounds that any data accessed by operating the electronic equipment might constitute evidential material, he or she may:

                     (a)  copy the data to a disk, tape or other associated device brought to the premises; or

                     (b)  if the occupier of the premises agrees in writing—copy the data to a disk, tape or other associated device at the premises;

and take the device from the premises.

             (3)  If:

                     (a)  the investigator or the person assisting him or her takes the device from the premises; and

                     (b)  CASA is satisfied that the data is not required (or is no longer required) for an investigation or the prosecution of a person;

CASA must arrange for:

                     (c)  the removal of the data from any device in the control of CASA; and

                     (d)  the destruction of any other reproduction of the data in the control of CASA.

             (4)  If the investigator or the person assisting him or her, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:

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

                     (b)  if the material can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents so produced.

             (5)  A person may seize equipment under paragraph (4)(a) only if:

                     (a)  it is not practicable to put the material in documentary form as referred to in paragraph (4)(b); or

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

32AHH   Use of electronic equipment at premises with expert assistance

             (1)  If the investigator executing the warrant or a person assisting him or her believes on reasonable grounds that:

                     (a)  evidential material may be accessible by operating electronic equipment at 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.

             (2)  The investigator or the person assisting him or her must notify the occupier of the premises, in writing, of:

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

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

             (3)  The equipment may be secured for up to 24 hours to allow the equipment to be operated by an expert.

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

             (5)  The investigator or the person assisting him or her must notify 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 the application.

             (6)  The provisions of this Part in relation to the issuing of warrants apply, with such modifications as are necessary, to the issuing of an extension.

             (7)  A notification given to the occupier of the premises under this section is not a legislative instrument.

32AHI   Person with knowledge of a computer or a computer system to assist access etc.

             (1)  The investigator executing the warrant may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer or a person assisting him or her or to do one or more of the following:

                     (a)  access data held in a computer, or accessible from a computer, that is on premises in relation to which the warrant is in force;

                     (b)  copy the data to a data storage device;

                     (c)  convert the data into documentary form.

             (2)  The magistrate may grant the order if he or she is satisfied that:

                     (a)  there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer; and

                     (b)  the specified person is:

                              (i)  in the case of a warrant—reasonably suspected of having committed the offence stated in the warrant; or

                             (ii)  the owner or lessee of the computer; or

                            (iii)  an employee of the owner or lessee of the computer; and

                     (c)  the specified person has relevant knowledge of:

                              (i)  the computer or a computer network of which the computer forms a part; or

                             (ii)  measures applied to protect data held in, or accessible from, the computer.

             (3)  A person commits an offence if the person fails to comply with the order.

Penalty:  Imprisonment for 6 months.

32AHJ   Accessing data held on other premises—notification to occupier of those premises

             (1)  If:

                     (a)  data that is held on premises (other than the premises in relation to which the warrant is in force) is accessed under subsection 32AHG(1); and

                     (b)  it is practicable to notify the occupier of the other premises that the data has been accessed under a warrant;

the investigator executing the warrant must:

                     (c)  do so as soon as practicable; and

                     (d)  if the investigator has arranged, or intends to arrange, for continued access to the data under subsection 32AHG(2) or (5)—include that information in the notification.

             (2)  A notification under subsection (1) must include sufficient information to allow the occupier of the other premises to contact the investigator.

32AHK   Compensation for damage to electronic equipment

             (1)  This section applies if:

                     (a)  as a result of equipment being operated as mentioned in section 32AHF, 32AHG or 32AHH:

                              (i)  damage is caused to the equipment; or

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

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

                     (b)  the damage or corruption occurs because:

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

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

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

             (3)  However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia 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, had provided any appropriate warning or guidance on the operation of the equipment.

             (5)  For the purpose of subsection (1):

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

32AHL   Copies of seized things to be provided

             (1)  If the investigator executing the warrant or a person assisting him or her seizes:

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

                     (b)  a device storing information that can be readily copied;

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

             (2)  However, subsection (1) does not apply if:

                     (a)  the thing that has been seized was seized under subsection 32AHG(2) or paragraph 32AHG(5)(a); or

                     (b)  possession of the document, film, computer file, thing or information by the occupier could constitute an offence.

32AHM   Receipts of things seized under warrant

             (1)  If a thing is seized, as allowed by section 32AH, the investigator executing the warrant or person assisting him or her must provide a receipt for the thing.

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

32AHN   Retention of seized things

             (1)  Subject to any contrary order of a court, if an investigator seizes a thing, as allowed by section 32AH, an investigator must return it if:

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

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

whichever first occurs, unless the thing is forfeited or forfeitable to the Commonwealth.

             (2)  At the end of the 60 days specified in subsection (1), an investigator must take reasonable steps to return the thing to the person from whom it was seized, unless:

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

                     (b)  an investigator may retain the thing because of an order under section 32AHO; or

                     (c)  an investigator is otherwise authorised (by a law, or an order of a court, of the Commonwealth) to retain, destroy or dispose of the thing.

             (3)  The thing may be returned under subsection (2) either unconditionally or on such terms and conditions as CASA sees fit.

22  Section 32AHA

Renumber as section 32AHO.

23  Subsection 32AHA(1)

Omit “under section 32AH”, substitute “, as allowed by a warrant or section 32AH,”.

24  Paragraph 32AHA(3)(a)

Omit “an offence against this Act or the regulations”, substitute “a civil aviation offence”.

25  Paragraph 32AHA(3)(b)

Omit “an offence against this Act”, substitute “a civil aviation offence”.

26  At the end of Part IIIA

Add:

Division 3 Offences

32AMA   Making false statements in warrants

                   A person commits an offence if:

                     (a)  the person makes a statement in applying for a warrant; and

                     (b)  the person knows that the statement is false or misleading in a material particular.

Penalty:  Imprisonment for 2 years.

32AMB   Offence for stating incorrect names in telephone warrants

                   A person commits an offence if:

                     (a)  the person states a name of a magistrate in a document; and

                     (b)  the document purports to be a form of warrant under section 32AG; and

                     (c)  the name is not the name of the magistrate who issued the warrant.

Penalty:  Imprisonment for 2 years.

32AMC   Offence for unauthorised form of warrant

                   A person commits an offence if:

                     (a)  the person states a matter in a form of warrant under section 32AG; and

                     (b)  the person knows that the matter departs in a material particular from the form authorised by the magistrate.

Penalty:  Imprisonment for 2 years.

32AMD   Offence for executing etc. an unauthorised form of warrant

                   A person commits an offence if:

                     (a)  the person executes or presents a document to another person; and

                     (b)  the document purports to be a form of warrant under section 32AG; and

                     (c)  the person knows that the document:

                              (i)  has not been approved by a magistrate under either of those sections; or

                             (ii)  departs in a material particular from the terms authorised by a magistrate under either of those sections.

Penalty:  Imprisonment for 2 years.

32AME   Offence for giving unexecuted form of warrant

                   A person commits an offence if:

                     (a)  the person gives a magistrate a form of warrant under section 32AG; and

                     (b)  the document is not the form of warrant that the person executed.

Penalty:  Imprisonment for 2 years.

Division 4 Miscellaneous

32AMF   Other laws about search and seizure not affected

             (1)  This Part is not intended to limit, or exclude the operation of, another law of the Commonwealth relating to:

                     (a)  the search of premises; or

                     (b)  the seizure of things.

             (2)  To avoid doubt, even though another law of the Commonwealth provides power to do either or both of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.

32AMG   Magistrates—personal capacity

             (1)  A function or power conferred on a magistrate by this Part is conferred on the magistrate:

                     (a)  in a personal capacity; and

                     (b)  not as a court or a member of a court.

             (2)  A magistrate need not accept a function or power conferred.

             (3)  A magistrate has, in relation to the performance or exercise of a function or power conferred on the magistrate by this Part, the same protection and immunity as if he or she were exercising that function or power as, or as a member of, the court of which the magistrate is a member.

27  Subsection 97A(2)

Omit “of a prosecution for an offence against this Act”, substitute “of this Act or the regulations”.

28  Application

(1)       The amendment made by item 8 of this Schedule applies to an undertaking given to CASA on or after the day on which this item commences.

(2)       The amendments made by this Schedule (other than items 7 to 10 and 27) apply in relation to:

                     (a)  if a power is exercised under a warrant issued under Part IIIA of the Civil Aviation Act 1988 —a warrant issued on or after the day on which this item commences; and

                     (b)  in any other case—a power exercised under Part IIIA of the Civil Aviation Act 1988 on or after the day on which this item commences.