(11) The provisions of this Division relating to the issue of a monitoring warrant apply, with such modifications as are necessary, to the issuing of an extension.
Definition
(12) In this section:
relevant material means:
(a) evidential material; or
(b) any other material that is relevant for the purposes of finding out whether any or all of the provisions of an environmental law have been, are being or will be complied with.
407B Compensation for damage to electronic equipment
(1) If:
(a) damage is caused to electronic equipment as a result of it being operated as mentioned in section 407A; 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;
compensation for the damage is payable to the owner of 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.
408 Monitoring searches with occupier’s consent
Entry by consent
(1) An authorised officer may, with the consent of the occupier of any premises, enter the premises for the purpose of finding out whether any or all of the provisions of an environmental law have been, are being or will be complied with.
Entry for monitoring purposes
(2) An authorised officer may only enter premises under subsection (1) to the extent that it is reasonably necessary for the purpose of finding out whether any or all of the provisions of an environmental law have been, are being or will be complied with.
Exercise of monitoring powers
(3) If an authorised officer enters premises under subsection (1), the authorised officer may exercise monitoring powers in relation to those premises.
Exercise of seizure powers
(4) If an authorised officer enters premises under subsection (1), the authorised officer may exercise powers of seizure conferred by section 444A or 445.
Right to refuse to give consent
(5) Before obtaining the consent of a person for the purposes of this section, an authorised officer must tell the person that the person may refuse to give consent.
(6) An entry by an authorised officer in consequence of the consent of a person is not lawful unless the person voluntarily consented to the entry.
Production of identity card etc.
(7) An authorised officer is not entitled to:
(a) enter premises under subsection (1); or
(b) exercise any powers referred to in subsection (3) or (4) in relation to premises;
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
(ca) 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
(d) in any other case—the officer fails to produce his or her identity card for inspection by the occupier.
Extension to vehicles, vessels and aircraft
(8) Subsections (1), (2), (3), (4), (5), (6) and (7) apply in relation to:
(a) a vehicle, vessel or aircraft in the same way as they apply in relation to premises; and
(b) a person apparently in charge of a vehicle, vessel or aircraft in the same way as they apply in relation to the occupier of premises.
409 Monitoring warrants
Application for monitoring warrant
(1) An authorised officer may apply to a magistrate for a warrant under this section in relation to particular premises. The warrant is to be known as a monitoring warrant.
Note: Urgent applications may be made by telephone or other electronic means under section 409A.
Issue of monitoring warrant
(2) Subject to subsection (3), the magistrate may issue the monitoring warrant if satisfied, by information on oath or affirmation, that it is reasonably necessary that the authorised officer should have access to the premises for the purpose of finding out whether any or all of the provisions of an environmental law have been, are being or will be complied with.
Information about grounds for issue of monitoring warrant
(3) The magistrate must not issue the monitoring warrant unless the authorised officer or another person has given the magistrate, either orally (on oath or affirmation) or by affidavit, such further information as the magistrate requires about the grounds on which the issue of the monitoring warrant is being sought.
Terms of warrant
(4) The monitoring warrant must:
(a) name an authorised officer who, unless he or she inserts the name of another authorised officer in the warrant, is to be responsible for executing the warrant; and
(aa) authorise the executing officer, with such assistance and by such force as is necessary and reasonable, from time to time while the monitoring warrant remains in force:
(i) to enter the premises; and
(ii) to exercise monitoring powers in relation to the premises; and
(b) state whether an entry under the monitoring warrant 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 monitoring warrant) on which the monitoring warrant ceases to have effect; and
(d) state the purpose for which the monitoring warrant is issued.
Seizure powers
(5) If an authorised officer enters premises under a monitoring warrant, he or she may exercise powers of seizure conferred by section 444A or 445.
409A Monitoring warrants by telephone or other electronic means
Application
(1) An authorised officer may make an application to a magistrate for a monitoring warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the monitoring warrant.
Voice communication
(2) The magistrate:
(a) may require communication by voice to the extent that is practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such communication by voice.
Information
(3) An application under this section must include all information as required to be provided in an application under section 409, but the application may, if necessary, be made before the information is sworn or affirmed.
Issue of monitoring warrant
(4) If an application is made to a magistrate under this section and the magistrate, after considering the information and having received and considered such further information (if any) as the magistrate required, is satisfied that:
(a) a monitoring warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the monitoring warrant;
the magistrate may complete and sign the same form of monitoring warrant that would be issued under section 409.
Notification
(5) If the magistrate decides to issue the monitoring warrant, the magistrate must inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the monitoring warrant and the day on which and the time at which it was signed.
Form of monitoring warrant
(6) The applicant must then complete a form of monitoring warrant in terms substantially corresponding to those given by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the monitoring warrant was signed.
Completed form of monitoring warrant to be given to magistrate
(7) The applicant must, not later than 48 hours after making the application, give or transmit to the magistrate:
(a) the form of monitoring warrant completed by the applicant; and
(b) if the information referred to in subsection (3) was not sworn or affirmed—that information duly sworn or affirmed.
Attachment of form of warrant to subsection (7) documents
(8) The magistrate must attach to the documents provided under subsection (7) the form of monitoring warrant completed by the magistrate.
Presumption if form of warrant not produced in evidence
(9) If:
(a) it is material, in any proceeding, for a court to be satisfied that the exercise of a power under a monitoring warrant issued under this section was duly authorised; and
(b) the form of monitoring warrant signed by the magistrate is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
Court may admit evidence even if subsection (7) or (8) not complied with
(10) A court may admit evidence obtained because of the issue of a warrant pursuant to this section even if either or both of subsections (7) and (8) have not been complied with if, having regard to the nature of and reasons for the non‑compliance and any other relevant matters, the court is satisfied that it was not practicable to comply with that subsection or those subsections (as the case requires).
409B Executing officer to be in possession of warrant
When executing a warrant, the executing officer must be in possession of:
(a) the original warrant issued by the magistrate under section 409, or a copy of the original warrant as so issued; or
(b) the original form of warrant completed under subsection 409A(6), or a copy of the original form as so completed.
410 Details of monitoring warrant to be given to occupier etc.
(1) If a monitoring 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 executing officer must make available to that person a copy of the monitoring warrant.
(2) The executing officer must identify himself or herself to that person at the premises.
(3) The copy of the monitoring warrant referred to in subsection (1) need not include the signature of the magistrate or the seal of the relevant court.
411 Occupier entitled to be present during search
(1) If a monitoring 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, subject to Part IC of the Crimes Act 1914, 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.
412 Announcement before entry
(1) Before any person enters premises under a monitoring warrant, the executing officer must:
(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) The executing officer 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 (including an authorised officer); or
(b) that the effective execution of the monitoring warrant is not frustrated.
412A Other powers when on premises under monitoring warrant
(1) If the executing officer enters premises under a monitoring warrant, he or she may require a person on the premises to:
(a) answer a question asked by the executing officer; or
(b) give the executing officer information requested by the executing officer; or
(c) produce to the executing officer records or documents kept on the premises.
(2) A person commits an offence if:
(a) the executing officer has entered premises under a monitoring warrant; and
(b) the person is on the premises; and
(c) the executing officer requires the person to:
(i) answer a question asked by the executing officer; or
(ii) give the executing officer information requested by the executing officer; or
(iii) produce to the executing officer records or documents kept on the premises; and
(d) the person contravenes the requirement.
(3) The offence is punishable on conviction by imprisonment for a term not more than 6 months, a fine of not more than 30 penalty units, or both.
Division 4—Search warrants
413 When search warrants can be issued
(1) A magistrate may issue a warrant authorising an authorised officer to search premises if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, at the premises 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) A magistrate may issue a warrant authorising an authorised officer to carry out an ordinary search or a frisk search of a person if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any 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.
(3) For the purposes of this Act, frisk search means:
(a) a search of a person conducted by quickly running the hands over the person’s outer garments; and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
(4) If the authorised officer applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the authorised officer must state that suspicion, and the grounds for that suspicion, in the information.
(5) If the application for the warrant is made under section 416, this section applies as if subsections (1) and (2) referred to 48 hours rather than 72 hours.
(6) If the applicant for a warrant is a member or special member of the Australian Federal Police and has, at any time previously, applied for a warrant relating to the same person or premises, the person must state particulars of those applications and their outcome in the information.
414 Statements in warrants
(1) If a magistrate issues a warrant under section 413, the magistrate is to state in the warrant:
(a) each offence and/or environmental penalty provision to which the warrant relates; and
(b) a description of the premises to which the warrant relates or the name or description of a person to whom it relates; and
(c) the kinds of evidential material that are to be searched for under the warrant; and
(d) the name of the authorised officer who, unless he or she inserts the name of another authorised officer in the warrant, is to be responsible for executing the warrant; and
(e) the period for which the warrant remains in force, which must not be more than 7 days; and
(f) if the warrant relates to premises—whether the premises may be entered at any time of the day or night or only during particular hours of the day or night; and
(g) if the warrant relates to a person—whether the search of the person may be carried out at any time of the day or night or only during particular hours of the day or night.
(2) The magistrate is also to state, in a warrant in relation to premises:
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (1)(c)) found at the premises in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence, or in relation to a contravention of an environmental penalty provision, to which the warrant relates; or
(ii) evidential material in relation to another offence against an environmental law, where the other offence is an indictable offence; or
(iii) evidential material in relation to another contravention of an environmental penalty provision;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against an environmental law or in contravening an environmental penalty provision; and
(b) whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or an officer assisting suspects on reasonable grounds that the person has in his or her possession:
(i) any 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; or
(ii) any eligible seizable items.
(3) For the purposes of this Act, ordinary search means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and
(b) an examination of those items.
(4) The magistrate is also to state, in a warrant in relation to a person: