(5) An authorised officer may, for the purposes of this Act or the Great Barrier Reef Marine Park Act 1975 (other than Part VIIA of that Act (compulsory pilotage)), require the person in charge of a vehicle, vessel, aircraft or platform to which this section applies to give information concerning any or all of the following:
(a) the vehicle, vessel, aircraft or platform;
(b) the crew or any other person on board the vehicle, vessel, aircraft or platform;
(c) in the case of a vessel—any dory being operated in association with the vessel;
(d) in the case of a vessel—any person operating a dory in association with the vessel.
(5A) A person commits an offence if:
(a) a requirement is made of the person under this section; and
(b) the person fails to comply with the requirement.
Penalty:
(a) if the requirement is made under subsection (2A)—imprisonment for 6 months or 30 penalty units, or both; or
(b) if the requirement is made under subsection (3), (4) or (5)—50 penalty units.
(5B) If there is a restraint on the liberty of a person on a vessel resulting from an authorised officer’s exercise of a power under this section in relation to the vessel:
(a) the restraint is not unlawful; and
(b) civil or criminal proceedings in respect of the restraint may not be instituted or continued in any court against:
(i) the authorised officer; or
(ii) any person assisting the authorised officer in the exercise of the power; or
(iii) the Commonwealth.
This subsection is not intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
(5C) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
(6) In this Act:
Commonwealth aircraft means an aircraft in the service of the Commonwealth on which the prescribed ensign or prescribed insignia of the aircraft is displayed.
Commonwealth ship means a ship in the service of the Commonwealth on which the prescribed ensign of the ship is flying.
404 Authorised officers to produce identification
(1) If an authorised officer (subject to subsection (1A)) boards a vehicle, vessel, aircraft or platform under section 403, the authorised officer must:
(a) in the case of a member of a police force—produce, for inspection by the person in charge of that vehicle, vessel, aircraft or platform, written evidence of the fact that he or she is a member of that police force; or
(aa) in the case of an officer of Customs—produce, for inspection by the person in charge of that vehicle, vessel, aircraft or platform, written evidence of the fact that he or she is an officer of Customs; or
(b) in any other case—produce his or her identity card for inspection by that person.
(1A) Subsection (1) does not apply to an authorised officer if:
(a) the authorised officer is a member of a police force or an officer of Customs; and
(b) the officer is in uniform.
(2) An authorised officer who does not comply with subsection (1) is not authorised to remain, or to require any person assisting the authorised officer to remain, on board the vehicle, vessel, aircraft or platform, or to detain the vehicle, vessel or aircraft.
(3) If an authorised officer (subject to subsection (3A)) makes a requirement of a person under section 403 the authorised officer, unless it is impracticable to do so, must:
(a) in the case of a member of a police force—produce, for inspection by that person, written evidence of the fact that he or she is a member of that police force; or
(aa) in the case of an officer of Customs—produce, for inspection by that person, written evidence of the fact that he or she is an officer of Customs; or
(b) in any other case—produce his or her identity card for inspection by that person;
and, if the authorised officer fails to do so, that person is not obliged to comply with the requirement.
(3A) Subsection (3) does not apply to an authorised officer if:
(a) the authorised officer is a member of a police force or an officer of Customs; and
(b) the officer is in uniform.
405 Access to premises
(1) An authorised officer may, with the consent of the occupier of any premises, enter the premises for the purpose of exercising the powers of an authorised officer under section 406.
(2) If an authorised officer enters any premises under subsection (1), he or she may exercise the powers of an authorised officer under section 406.
(3) An authorised officer who enters premises under subsection (1) must, if the occupier of the premises revokes his or her consent, leave the premises forthwith, and is not entitled to exercise, or continue to exercise, the powers of an authorised officer under section 406 in relation to the premises.
(4) An authorised officer is not entitled to:
(a) enter premises under subsection (1); or
(b) exercise any powers as mentioned in subsection (2);
if the occupier of the premises has required the officer to produce written identification for inspection by the occupier and:
(c) if the authorised officer is a member of a police force—the officer fails to produce, for inspection by the occupier, written evidence of the fact that he or she is a member of that police force; or
(d) if the authorised officer is an officer of Customs—the officer fails to produce, for inspection by the occupier, written evidence of the fact that he or she is an officer of Customs; or
(e) in any other case—the officer fails to produce his or her identity card for inspection by the occupier.
406 Powers of authorised officers
(1) An authorised officer who boards a vehicle, vessel, aircraft or platform under section 403, or enters premises under section 405 may:
(a) inspect and search the vehicle, vessel, aircraft, platform or premises, as the case may be; and
(aa) take photographs (including a video recording), and make sketches, of the premises or of any substance or thing on the vehicle, vessel, aircraft, platform or premises; and
(b) inspect, take extracts from, and make copies of, any document that is, or that the authorised officer suspects on reasonable grounds is, evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both; and
(ba) in the case of an authorised officer who boards a vessel under section 403—subject to section 406A, search without warrant:
(i) a person on the vessel; and
(ii) the person’s clothing;
to find out whether there is hidden on the person or in the clothing:
(iii) an eligible seizable item; or
(iv) a thing that may be evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both; and
(c) inspect, and take samples of, any other evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both; and
(ca) take measurements of, and conduct tests on, the vehicle, vessel, aircraft, platform or premises or any substance or thing on the vehicle, vessel, aircraft, platform or premises; and
(d) exercise powers of seizure conferred on the authorised officer by section 444A or 445; and
(e) take onto the vehicle, vessel, aircraft, platform or premises any equipment or material reasonably necessary for the purpose of exercising a power referred to in any of the other paragraphs of this subsection.
(2) For the purposes of this Part, evidential material means:
(a) in relation to an offence against an environmental law:
(i) any thing with respect to which the offence has been committed or is suspected, on reasonable grounds, of having been committed; or
(ii) any thing as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of the offence; or
(iii) any thing as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing the offence; and
(b) in relation to a contravention of an environmental penalty provision:
(i) any thing with respect to which the environmental penalty provision has been contravened or is suspected, on reasonable grounds, of having been contravened; or
(ii) any thing as to which there are reasonable grounds for suspecting that it will afford evidence as to the contravention of the environmental penalty provision; or
(iii) any thing as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of contravening the environmental penalty provision.
(2A) A reference to a thing in subsection (2) includes a reference to any such thing in electronic form.
(3) For the purposes of exercising a power under subsection (1), an authorised officer may break open any hold or compartment, or any container or other receptacle (including any place that could be used as a receptacle), on a vehicle, vessel, aircraft or platform or on any premises.
406A Searches under paragraph 406(1)(ba)
(1) A search under paragraph 406(1)(ba) of a person (the subject) may only be conducted by an authorised officer of the same sex as the subject.
(2) However, if an authorised officer of the same sex as the subject is not available to conduct the search, it may be conducted by another person who:
(a) is of the same sex as the subject; and
(b) agrees, at the request of an authorised officer, to conduct the search.
(3) Paragraph 406(1)(ba) and this section do not authorise the authorised officer or other person:
(a) to remove any of the subject’s clothing; or
(b) to require the subject to remove any of his or her clothing; or
(c) to use more force, or subject the subject to greater indignity, than is reasonably necessary to conduct the search.
406AA Taking things into possession
(1) This section applies if, in conducting a search referred to in paragraph 406(1)(a) or (ba), an authorised officer or a person who conducts a search because of subsection 406A(2) finds:
(a) an eligible seizable item; or
(b) a thing that may be evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both.
(2) An authorised officer may:
(a) take possession of the item or thing; and
(b) keep the item or thing for so long as he or she thinks necessary for the purposes of this Act or the Great Barrier Reef Marine Park Act 1975.
(3) A person who conducts a search because of subsection 406A(2) must take possession of the item or thing and give it to an authorised officer.
(4) An authorised officer who is given an item or thing under subsection (3) may keep it for so long as he or she thinks necessary for the purposes of this Act or the Great Barrier Reef Marine Park Act 1975.
(5) If:
(a) an authorised officer is keeping an item or thing under subsection (2) or (4); and
(b) the item or thing was found in conducting a search of a person under paragraph 406(1)(ba); and
(c) the person is detained under Schedule 1;
the authorised officer may continue to keep the item or thing for so long as he or she thinks necessary for the purposes of this Act, the Great Barrier Reef Marine Park Act 1975 or the Migration Act 1958.
Note: Once the person ceases to be detained under Schedule 1, the person will generally need to be detained under the Migration Act 1958 while he or she is in the migration zone (because his or her enforcement visa under that Act will cease to have effect). Subsection (5) ensures the officer can keep the item or thing while the person is detained under this Act or that Act.
406B Thing taken into possession is not a thing seized
A reference in this Act to a thing (however described) seized under this Part or this Act does not include a reference to a thing that has been taken into possession under section 406AA or Schedule 1.
Division 3—Monitoring of compliance
407 Monitoring powers
(1) For the purposes of this Division, each of the following powers is a monitoring power in relation to particular premises:
(a) the power to inspect and search the premises;
(b) the power to take photographs (including a video recording), or to make sketches, of the premises or of any substance or thing at the premises;
(c) the power to inspect, examine and take samples of, any substance or thing on or in the premises;
(ca) the power to take measurements of, and conduct tests on, the premises or any substance or thing on the premises;
(cb) the power to mark a live specimen on the premises (see subsection (2));
(d) the power to take extracts from, or make copies of, any document, book or record on the premises;
(da) the powers to operate electronic equipment, and do other things, at the premises as mentioned in section 407A;
(e) the power to take onto the premises any equipment or material reasonably necessary for the purpose of exercising a power referred to in any other paragraph of this subsection.
(2) For the purposes of paragraph (1)(cb), mark includes:
(a) in the case of a live plant:
(i) mark or label a cage or container in which the plant is kept or in which the plant is growing; and
(ii) place a label or tag on the plant; and
(b) in the case of a live animal:
(i) implant a scannable device in the animal; and
(ii) place a band on any part of the animal; and
(iii) place (whether by piercing or otherwise) a tag or ring on any part of the animal; and
(iv) mark or label a cage or container within which the animal is kept.
(3) If:
(a) damage is caused to a specimen, or a cage or container in which a specimen is kept, as a result of an authorised officer exercising the power to mark under paragraph (1)(cb); and
(b) the damage was caused as a result of insufficient care being exercised by the authorised officer;
compensation for the damage is payable to the owner of the specimen, or to the owner of the cage or container, as the case requires.
(4) Compensation is payable out of money appropriated by the Parliament for the purpose.
(5) In determining the amount of compensation payable, regard is to be had to whether the owner, if the owner was available at the time, had provided any warning or guidance relating to the marking of the specimen, cage or container.
407A Operation of electronic equipment at premises
Monitoring powers include the powers set out in this section
(1) Monitoring powers in relation to premises include the powers set out in this section. This section does not authorise these powers to be exercised otherwise than in situations in which this Division allows monitoring powers to be exercised.
Operation of equipment
(2) An authorised officer may operate electronic equipment at premises to see whether relevant 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.
Seizure etc.
(3) If an authorised officer operates electronic equipment at premises under subsection (2), and the authorised officer finds that relevant 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 relevant 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 relevant 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.
Limitation on seizure
(4) An authorised officer may seize equipment under paragraph (3)(a) only if:
(a) it is not practicable to put the relevant material in documentary form as mentioned in paragraph (3)(b) or to copy the material as mentioned in paragraph (3)(c); or
(b) possession of the equipment by the occupier could constitute an offence.
How this Part applies to things seized
(5) The other provisions of this Part apply in relation to a thing seized under paragraph (3)(a) or (b) as if the thing had been seized under section 445.
Securing equipment
(6) If an authorised officer believes on reasonable grounds that:
(a) relevant 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.
Notice about securing equipment
(7) An authorised officer who wishes to secure electronic equipment under subsection (6) must give notice to the occupier of the premises 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.
Period for which equipment may be secured
(8) Electronic equipment may be secured under subsection (6):
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
Extension of period
(9) If an authorised officer believes on reasonable grounds that expert assistance will not be available within 24 hours, the authorised officer may apply to a magistrate for an extension of that period.
Notice to occupier
(10) An authorised officer must give notice to the occupier of the premises of his or her intention to apply for an extension under subsection (9), and the occupier is entitled to be heard in relation to the application.