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Australian Radiation Protection and Nuclear Safety Bill 1998

Part 7 Powers of inspection etc .

   

61   Appointment of inspectors

             (1)  The CEO may, by instrument in writing, appoint any of the following persons as an inspector:

                     (a)  a person who is appointed or employed by the Commonwealth;

                     (b)  a person who is appointed or employed by a State or Territory.

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

             (3)  The CEO must issue an identity card to an inspector, in the form prescribed by the regulations. The identity card must contain a recent photograph of the inspector.

             (4)  If a person to whom an identity card has been issued ceases to be an inspector, the person must immediately return the identity card to the CEO.

Maximum penalty:    1 penalty unit.

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

62   Powers available to inspectors for monitoring compliance

             (1)  For the purpose of finding out whether this Act or the regulations have been complied with, an inspector may:

                     (a)  enter any premises; and

                     (b)  exercise the powers set out in subsection 66(1).

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

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

                     (b)  the entry is made under a warrant issued under section 76.

63   Inspector must produce identity card on request

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

                     (a)  the occupier of the premises has required the inspector to produce his or her identity card for inspection by the occupier; and

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

64   Powers available to inspectors for dealing with hazardous situations

             (1)  This section applies if an inspector has reasonable grounds for suspecting that:

                     (a)  there may be on any premises a particular thing (the hazardous thing ) in respect of which this Act or the regulations have not been complied with; and

                     (b)  it is necessary in the interests of public health to exercise powers under this section in order to avoid an imminent risk of death, serious illness, serious injury or serious damage to the environment.

             (2)  The inspector may do any of the following:

                     (a)  enter the premises;

                     (b)  search the premises for the hazardous thing;

                     (c)  seize the hazardous thing, if the inspector finds it on the premises;

                     (d) if the inspector has reasonable grounds for suspecting that a controlled person has not complied with this Act or the regulations in respect of the hazardous thing—require the controlled person to take such steps that the inspector considers necessary.

             (3)  The inspector may exercise the powers in subsection (2) only to the extent that it is necessary for the purpose of avoiding an imminent risk of death, serious illness, serious injury or serious damage to the environment.

65   Searches and seizures related to offences

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

             (2)  The inspector may:

                     (a)  enter the premises, with the consent of the occupier or under a warrant issued under section 77; and

                     (b)  exercise the powers set out in subsection (3) and subsection 66(1); and

                     (c)  seize the suspected material, if the inspector finds it on the premises.

             (3)  If:

                     (a)  in the course of searching, in accordance with a warrant, for a particular thing, an inspector finds another thing that the inspector believes on reasonable grounds to be evidential material; and

                     (b)  the inspector believes, on reasonable grounds, that it is necessary to seize that other thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating an offence against this Act or the regulations;

the warrant is taken to authorise the inspector to seize that other thing.

66   General powers of inspectors in relation to premises

             (1)  The powers an inspector may exercise under paragraphs 62(1)(b) and 65(2)(b) are as follows:

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

                     (b)  to inspect, examine, take measurements of, or conduct tests (including by the taking of samples) concerning, any thing on the premises that relates to controlled material, controlled apparatus or a controlled facility;

                     (c)  to take photographs (including video recordings), take audio recordings or make sketches of the premises or any thing on the premises;

                     (d)  if the inspector was only authorised to enter the premises because the occupier of the premises consented to the entry—to require the occupier to:

                              (i)  answer any questions put by the inspector; and

                             (ii)  produce any book, record or document requested by the inspector;

                     (e)  if the inspector was authorised to enter the premises by a warrant under section 76 or 77—to require any person in or on the premises to:

                              (i)  answer any questions put by the inspector; and

                             (ii)  produce any book, record or document requested by the inspector;

                      (f)  to inspect any book, record or document on the premises;

                     (g)  to take extracts from or make copies of any such book, record or document;

                     (h)  to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises.

             (2)  A person must not refuse or fail to comply with a requirement under paragraph (1)(e).

Maximum penalty:    30 penalty units.

67   Details of warrant to be given to occupier etc.

             (1)  If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the inspector must make available to that person a copy of the warrant.

             (2)  The inspector 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.

68   Announcement before entry

             (1)  An inspector must, before entering the premises under a 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.

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

                     (a)  to ensure the safety of a person; or

                     (b)  to prevent serious damage to the environment; or

                     (c)  to ensure that the effective execution of the warrant is not frustrated.

69   Use of electronic equipment at premises

             (1)  The inspector may operate electronic equipment at the premises to see whether evidential material is accessible by doing so 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 inspector, 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; or

                     (c)  if the material can be transferred to a disk, tape or other storage device that:

                              (i)  is brought to the premises; or

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

                            operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.

             (3)  An inspector may seize equipment under paragraph (2)(a) only if:

                     (a)  it is not practicable to put the material in documentary form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c); or

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

             (4)  If the inspector 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.

             (5)  The inspector 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.

             (6)  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 happens first.

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

             (8)  The inspector 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 the application.

70   Compensation for damage to electronic equipment

             (1)  The owner of equipment is entitled to compensation for damage to the equipment if:

                     (a)  the damage was caused to equipment as a result of it being operated as mentioned in section 69; and

                     (b)  the damage was caused as a result of:

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

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

             (2)  Compensation is payable out of money appropriated by the Parliament for the purpose.

             (3)  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, had provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances.

71   Copies of seized things to be provided

             (1)  Subject to subsection (2), if an inspector seizes, under a warrant relating to premises:

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

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

the inspector 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)  Subsection (1) does not apply if:

                     (a)  the thing that has been seized was seized under paragraph 69(2)(b) or (c); or

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

72   Occupier entitled to be present during search

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

             (2)  The right to observe the search being conducted ceases if the person impedes the search.

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

73   Receipts for things seized under warrant

             (1)  If a thing is seized under this Part, the inspector must provide a receipt for the thing.

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

74   Retention of seized things

             (1)  Subject to any contrary order of a court, if an inspector seizes a thing under this Part, an inspector 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 inspector 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 inspector may retain the thing because of an order under section 75; or

                     (c)  to return the thing could cause an imminent risk of death, serious illness, serious injury or serious damage to the environment; or

                     (d)  an inspector is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) 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 the CEO sees fit.

75   Magistrate may permit a thing to be retained

             (1)  An inspector may apply to a magistrate for an order that he or she may retain the thing for a further period if:

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

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

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

             (2)  If the magistrate is satisfied that it is necessary for an inspector to continue to retain the thing:

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

                     (b)  to enable evidence of an offence against this Act to be secured for the purposes of a prosecution;

the magistrate may order that an inspector may retain the thing for a period (not being a period exceeding 3 years) specified in the order.

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

                     (a)  take reasonable steps to discover who has an interest in the retention of the thing; and

                     (b)  if it is practicable to do so, notify each person whom the inspector believes to have such an interest of the proposed application.

76   Monitoring warrants

             (1)  An inspector 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, that it is reasonably necessary that one or more inspectors should have access to the premises for the purposes of finding out whether this Act or the regulations have been complied with.

             (3)  The magistrate must not issue the warrant unless the inspector 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 inspectors (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 subsection 66(1) in relation to the premises; and

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

77   Offence related warrants

             (1)  An inspector 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, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, in or on the premises evidential material.

             (3)  The magistrate must not issue the warrant unless the inspector 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)  name one or more inspectors; and

                     (b)  authorise the persons so named, 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 subsections 65(3) and 66(1); and

                            (iii)  to seize the evidential material; and

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

                     (d)  specify the day (not more than one week after the issue of the warrant) on which the warrant ceases to have effect; and

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

78   Offence related warrants by telephone

             (1)  If, in an urgent case, an inspector considers it necessary to do so, the person may apply to a magistrate by telephone for a warrant under section 77 in relation to premises.

             (2)  Before applying for the warrant, the person must prepare an information of the kind mentioned in subsection 77(2) in relation to the premises that sets out the grounds on which the warrant is sought.

             (3)  If it is necessary to do so, the person may apply for the warrant before the information is sworn.

             (4)  If the magistrate is satisfied:

                     (a)  after having considered the terms of the information; and

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

that there are reasonable grounds for issuing the warrant, the magistrate may complete and sign the same warrant that the magistrate would issue under section 77 if the application had been made under that section.

             (5)  If the magistrate completes and signs the warrant:

                     (a)  the magistrate must:

                              (i)  tell the inspector what the terms of the warrant are; and

                             (ii)  tell the inspector the day on which and the time at which the warrant was signed; and

                            (iii)  tell the inspector the day (not more than one week after the magistrate completes and signs the warrant) on which the warrant ceases to have effect; and

                            (iv)  record on the warrant the reasons for granting the warrant; and

                     (b)  the inspector must:

                              (i)  complete a form of warrant in the same terms as the warrant completed and signed by the magistrate; and

                             (ii)  write on the form the name of the magistrate and the day on which and the time at which the warrant was signed.

             (6)  The inspector must also, not later than the day after the day of expiry or execution of the warrant, whichever is the earlier, send to the magistrate:

                     (a)  the form of warrant completed by the person; and

                     (b)  the information referred to in subsection (2), which must have been duly sworn.

             (7)  When the magistrate receives those documents, the magistrate must:

                     (a)  attach them to the warrant that the magistrate completed and signed; and

                     (b)  deal with them in the way in which the magistrate would have dealt with the information if the application had been made under section 77.

             (8)  A form of warrant duly completed under subsection (5) is authority for any entry, search, seizure or other exercise of a power that the warrant signed by the magistrate authorises.

             (9)  If:

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

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

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

           (10)  A reference in this Part to a warrant under section 77 includes a reference to a warrant signed by a magistrate under this section.

79   Offences relating to warrants

             (1)  A person must not make, in an application for a warrant, a statement that the person knows to be false or misleading in a material particular.

Maximum penalty:    Imprisonment for 2 years.

             (2)  A person must not:

                     (a)  state in a document that purports to be a form of warrant under section 78 the name of a magistrate unless that magistrate issued the warrant; or

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

                     (c)  purport to execute, or present to another person, a document that purports to be a form of warrant under that section that the first-mentioned person knows:

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

                             (ii)  to depart in a material particular from the terms authorised by a magistrate under that section; or

                     (d)  give to a magistrate a form of warrant under that section that is not the form of warrant that the person purported to execute.

Maximum penalty:    Imprisonment for 2 years.

80   Part does not limit power to impose licence conditions

                   This Part is not to be taken to limit the CEO’s power to impose licence conditions.

81   Operation of Nuclear Non-Proliferation (Safeguards) Act 1987

             (1)  This Part is not to be taken to excuse an inspector from complying with sections 23, 25 and 26 of the Nuclear Non-Proliferation (Safeguards) Act 1987 .

             (2)  In particular, the exercise of powers by an inspector under this Part is not taken to be a reasonable excuse for the purposes of those sections.