80Non-compliance with s 79 notice

80 Non-compliance with s 79 notice (1) A licensee commits an offence if the licensee fails to comply with a notice given to the licensee under section 79 (Compliance auditors— production of documents). (2) Each partner in a partnership commits an offence if— (a) the partnership is a licensee; and (b) the partners, or any of them, fail to comply with a notice given to the partnership under section 79. (a) the partner did not know about the failure to comply; and appropriate diligence to avoid the failure to comply; or partnership in relation to the failure to comply. s (3) (see Criminal Code, s 59). 80CA Inspectors—appointment (1) The registrar may appoint a public servant to be an inspector for this Act for— (a) building assessment work; or (b) works assessment work. (2) An appointment must not be for longer than 5 years. Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act, s 208 and dict, pt 1, def appoint). 80CB Inspectors—functions (1) An inspector is responsible for inspecting the work undertaken by a licensee for compliance with this Act, the operational Acts and other legislation which applies to building assessors. Example—other legislation applying to building assessors Civil Law (Sale of Residential Property) Act 2003 Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104). (2) Subsection (1) applies only to work for which a person must be licensed under this Act. (3) An inspector has any other function given to the inspector by the registrar. (4) An inspector must exercise the inspector’s functions in accordance with— (a) the instrument of appointment; and (b) any directions the registrar gives the inspector. 80CC Inspectors—entry to premises (1) For this Act, an inspector may— (a) enter any premises at any time with the consent of the occupier; or (b) enter premises when open to the public; or (c) enter business premises during business hours at the premises; or (d) enter premises in accordance with a warrant under this part. (2) An inspector may, without the occupier’s consent or a warrant, enter the land around premises— (a) to ask the occupier for consent to enter the premises; or (b) to inspect the land. (3) An inspector must not remain on premises entered under this section if, on request by the occupier, the inspector does not produce the inspector’s identity card. (4) An inspector who enters premises under this part may, for this Act, do 1 or more of the following in relation to the premises, anything on the premises and the land around the premises: (a) inspect or examine; (b) inspect and copy, or take an extract from, any document at the premises; (c) take measurements or conduct tests; (d) take samples; (e) take photographs, films, audio, video or other recordings; (f) take onto the premises any people, equipment or material the inspector reasonably needs to exercise the inspector’s functions under this Act; (g) require the occupier, or anyone at the premises, to give information, answer questions, or produce documents or anything else, reasonably needed to exercise the inspector’s functions under this Act. Note The Legislation Act, s 170 and s 171 deal with the application of the privilege against self-incrimination and client legal privilege. (5) A person must take all reasonable steps to comply with a requirement made of the person under subsection (4) (g). 80CD Inspectors—power to seize things (1) An inspector who enters premises under this part with the occupier’s consent may seize anything at the premises if— (a) the inspector is satisfied on reasonable grounds that the thing is connected with an offence against this Act; and (b) seizure of the thing is consistent with the purpose of the entry told to the occupier when seeking the occupier’s consent. (2) An inspector who enters premises under a warrant under this part may seize anything at the premises that the inspector is authorised to seize under the warrant. (3) An inspector who enters premises under this part (whether with the occupier’s consent, under a warrant or otherwise) may seize anything at the premises if satisfied on reasonable grounds that— (a) the thing is connected with an offence against this Act; and (b) the seizure is necessary to prevent the thing from being— (i) concealed, lost or destroyed; or (ii) used to commit, continue or repeat the offence. (4) Also, an inspector who enters premises under this part (whether with the occupier’s consent or otherwise) may seize anything at the premises if satisfied on reasonable grounds that the thing— (a) puts the health or safety of people at risk; or (b) may cause damage to property or the environment. (5) The powers of an inspector under subsections (3) and (4) are additional to any powers of the inspector under subsection (1) or any other territory law. (6) Having seized a thing, an inspector may— (a) remove the thing from the premises where it was seized (the place of seizure) to another place; or (b) leave the thing at the place of seizure but restrict access to it. (7) A person commits an offence if— (a) the person interferes with a seized thing, or anything containing a seized thing, to which access has been restricted under subsection (6); and (b) the person does not have an inspector’s approval to interfere with the thing. (8) An offence against this section is a strict liability offence. 80CE Inspectors—receipt for things seized (1) As soon as practicable after a thing is seized by an inspector under this part, the inspector must give a receipt for it to the person from whom it was seized. (2) If, for any reason, it is not practicable to comply with subsection (1), the inspector must leave the receipt, secured conspicuously at the place of seizure. 80CF Access to things seized A person who would, apart from the seizure, be entitled to a thing seized under this part may— (a) inspect it; and (b) if it is a document—take extracts from it or make copies of it. 80CG Return of things seized (1) A thing seized under this part must be returned to its owner, or reasonable compensation must be paid to the owner by the Territory for the loss of the thing, if— (a) a prosecution for an offence relating to the thing is not instituted within 90 days of the seizure; or (b) the court does not find the offence proved in a prosecution for an offence relating to the thing. (2) A thing seized under this part is forfeited to the Territory if a court— (a) finds an offence relating to the thing to be proved; and (b) orders the forfeiture. (3) If subsection (2) (a) applies, but a court does not order forfeiture of the thing seized, the construction occupations registrar must return the thing to its owner or the Territory must pay reasonable compensation to the owner for the loss of the thing. Division 6.4 Identity cards—compliance auditors and inspectors Division 6.4 Identity cards—compliance auditors and inspectors 80CH Identity cards (1) The registrar must give a compliance auditor an identity card stating the person’s name and that the person is a compliance auditor. (2) The registrar must give an inspector an identity card stating the person’s name and that the person is an inspector. (3) The identity card must show— (a) a recent photograph of the person; and (b) the card’s date of issue and expiry; and (c) anything else prescribed by regulation. (4) A person commits an offence if— (a) the person ceases to be an officer; and (b) the person does not return the person’s identity card to the registrar as soon as practicable (but within 7 days) after the day the person ceases to be an officer. Maximum penalty: 1 penalty unit. (5) An offence against this section is a strict liability offence. 80CI Functions not to be exercised before identity card shown An officer may exercise a function under this Act in relation to a person only if the officer first shows the person the officer’s identity card. Identity cards—compliance auditors and inspectors Division 6.4 80CJ Consent to entry (1) When seeking the consent of an occupier for entering premises under this part an officer must— (a) produce the officer’s identity card; and (b) tell the occupier— (i) the purpose of the entry; and (ii) that anything found and seized under this part may be used in evidence in court; and (iii) that consent may be refused. (2) If the occupier consents, the officer must ask the occupier to sign a written acknowledgment— (a) that the occupier was told— (i) the purpose of the entry; and (ii) that anything found and seized under this part may be used in evidence in court; and (iii) that consent may be refused; and (b) that the occupier consented to the entry; and (c) stating the time, and day, when consent was given. (3) If the occupier signs an acknowledgment of consent, the officer must immediately give a copy to the occupier. (4) Unless the contrary is proven, a court must presume that an occupier of premises did not consent to an entry to the premises by an officer under this part if— (a) the question whether the occupier consented to the entry arises in proceedings in the court; and (b) an acknowledgment under this section is not produced in evidence for the entry; and (c) it is not proved that the occupier consented to the entry. (5) In this section: occupier, of premises, includes— (a) a person an officer believes on reasonable grounds to be an occupier of the premises; and (b) a person apparently in charge of the premises. 80CK Warrants generally (1) An officer may apply to a magistrate for a warrant to enter premises. (2) The application must be sworn and state the grounds on which the warrant is sought. (3) The magistrate may refuse to consider the application until the officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires. (4) The magistrate may issue a warrant only if satisfied there are reasonable grounds for suspecting— (a) there is a particular thing or activity connected with an offence against this Act; and (b) the thing or activity is, or is being engaged in, at the premises, or may be, or may be engaged in, at the premises within the next 14 days. (5) The warrant must state— (a) that an officer may, with any necessary assistance and force, enter the premises and exercise the officer’s powers under this part; and (b) the offence for which the warrant is issued; and (c) the things that may be seized under the warrant; and (d) the hours when the premises may be entered; and (e) the date, within 14 days after the day of the warrant’s issue, that the warrant ends. connected—an activity is connected with an offence if— (a) the offence has been committed by engaging or not engaging in it; or (b) it will provide evidence of the commission of the offence. 80CL Warrants—application made other than in person (1) An officer may apply for a warrant by phone, fax, radio or other form of communication if the officer considers it necessary because of— (a) urgent circumstances; or (b) other special circumstances. (2) Before applying for the warrant, the officer must prepare an application stating the grounds on which the warrant is sought. (3) The officer may apply for the warrant before the application is sworn. (4) After issuing the warrant, the magistrate must immediately provide a written copy to the officer if it is practicable to do so. (5) If it is not practicable to provide a written copy to the officer— (a) the magistrate must— (i) tell the officer what the terms of the warrant are; and (ii) tell the officer the date and time the warrant was issued; and (b) the officer must complete a form of warrant (the warrant form) and write on it— (i) the magistrate’s name; and (ii) the date and time the magistrate issued the warrant; and (iii) the warrant’s terms. (6) The written copy of the warrant, or the warrant form properly completed by the officer, authorises the entry and exercise of the officer’s powers under this part. (7) The officer must, at the first reasonable opportunity, send to the magistrate— (a) the sworn application; and (b) if the officer completed a warrant form—the completed warrant form. (8) On receiving the documents, the magistrate must attach them to the warrant. (9) A court must find that a power exercised by an officer was not authorised by a warrant under this section if— (a) the question arises in a proceeding before the court whether the exercise of power was authorised by a warrant; and (b) the warrant is not produced in evidence; and (c) it is not proved that the exercise of power was authorised by a warrant under this section. 80CM Search warrants—announcement before entry (1) An officer must, before anyone enters premises under a search warrant— (a) announce that the officer is authorised to enter the premises; and (b) give anyone at the premises an opportunity to allow entry to the premises; and (c) if an occupier of the premises, or someone else who apparently represents the occupier, is present at the premises—identify themself to the person. (2) The officer is not required to comply with subsection (1) if the officer believes on reasonable grounds that immediate entry to the premises is required to ensure— (a) the safety of anyone (including the officer or any person assisting); or (b) that the effective execution of the warrant is not frustrated. 80CN Details of search warrant to be given to occupier etc If an occupier of premises, or someone else who apparently represents the occupier, is present at the premises while a search warrant is being executed, the officer or a person assisting must make available to the person— (a) a copy of the warrant; and (b) a document setting out the rights and obligations of the person. 80CO Occupier entitled to be present during search etc (1) If an occupier of premises, or someone else who apparently represents the occupier, is present at the premises while a search warrant is being executed, the occupier or the other person is entitled to observe the search being conducted. (2) However, the person is not entitled to observe the search if— (a) to do so would impede the search; or (b) the person is under arrest, and allowing the person to observe the search being conducted would interfere with the objectives of the search. (3) This section does not prevent 2 or more areas of the premises being searched at the same time. 80CP Moving things to another place for examination or processing (1) A thing found at premises entered under a search warrant may be moved to another place for examination or processing to decide whether it may be seized under the warrant if— (a) both of the following apply: (i) there are reasonable grounds for believing that the thing is or contains something to which the warrant relates; (ii) 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; or (b) the occupier of the premises agrees in writing. (2) The thing may be moved to another place for examination or processing for not longer than 72 hours. (3) An officer may apply to a magistrate for an extension of time if the officer believes on reasonable grounds that the thing cannot be examined or processed within 72 hours. (4) The officer must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard on the application. (5) If a thing is moved to another place under this section, the officer must, if practicable— (a) tell the occupier of the premises the address of the place where, and time when, the examination or processing will be carried out; and (b) allow the occupier or the occupier’s representative to be present during the examination or processing. (6) The provisions of this part relating to the issue of search warrants apply, with any necessary changes, to the giving of an extension under this section.