(a) damage is caused to equipment as a result of it being operated as mentioned in section 421 or 422; 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.
424 Copies of seized things to be provided
(1) Subject to subsection (2), if an authorised officer 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 authorised officer 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 422(2)(b) or (c); or
(b) possession of the document, film, computer file, thing or information by the occupier could constitute an offence.
425 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, 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.
426 Receipts for things seized under warrant
(1) If a thing is seized under a warrant or moved under subsection 421(2), the executing officer or an officer assisting 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.
427 Restrictions on personal searches
A warrant cannot authorise a strip search or a search of a person’s body cavities.
428 When a thing is in the possession of a person
This Division applies to a person (the possessor) who has a thing under his or her control in any place (whether for the use or benefit of the possessor or of another person), even if another person has the actual possession or custody of the thing, as if the possessor has possession of the thing.
Division 6—Arrest and related matters
430 Powers of arrest
(1) An authorised officer may, without warrant, arrest any person, if the authorised officer believes on reasonable grounds that:
(a) the person is committing or has committed an offence against an environmental law; and
(b) proceedings against the person by summons would not be effective.
(2) If an authorised officer (subject to subsection (2A)) arrests a person under subsection (1), the authorised officer 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; and
(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; and
(b) in any other case—produce his or her identity card for inspection by that person.
(2A) Subsection (2) 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.
(3) If a person is arrested under subsection (1), an authorised officer must without unreasonable delay bring the person, or cause the person to be brought, before a Justice of the Peace or other proper authority to be dealt with in accordance with law.
(4) 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).
431 Power to conduct a frisk search of an arrested person
An authorised officer who arrests a person for an offence against an environmental law, or who is present at such an arrest, may, if the authorised officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the arrested person is carrying any eligible seizable items:
(a) conduct a frisk search of the arrested person at or soon after the time of arrest; and
(b) seize any eligible seizable items found as a result of the search.
432 Power to conduct an ordinary search of an arrested person
An authorised officer who arrests a person for an offence against an environmental law, or who is present at such an arrest, may, if the authorised officer suspects on reasonable grounds that the arrested person is carrying:
(a) evidential material in relation to that or another offence against an environmental law; or
(aa) evidential material in relation to a contravention of an environmental penalty provision; or
(b) an eligible seizable item;
conduct an ordinary search of the arrested person at or soon after the time or arrest, and seize any such thing found as a result of the search.
433 Power to conduct search of arrested person’s premises
An authorised officer who arrests a person at premises for an offence against an environmental law, or who is present at such an arrest, may seize a thing in plain view at those premises that the authorised officer believes on reasonable grounds to be:
(a) evidential material in relation to that or another offence against an environmental law; or
(aa) evidential material in relation to a contravention of an environmental penalty provision; or
(b) an eligible seizable item.
433A Interaction of this Division with Schedule 1
This Division does not limit, and is not limited by, Schedule 1. In particular, the detention of a person under Schedule 1 is not to be taken to constitute the arrest of the person for the purposes of this Division.
Division 6A—Provisions relating to detention of suspected foreign offenders
433B Provisions relating to detention of suspected foreign offenders
Schedule 1 has effect.
Division 7—Miscellaneous provisions about searches, entry to premises, warrants etc.
434 Conduct of ordinary searches and frisk searches
An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched.
435 Announcement before entry
(1) An authorised officer must, before any person enters premises under a warrant or to arrest a person under this Act:
(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 authorised 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 warrant or the arrest is not frustrated.
436 Offence of making false statements in warrants
A person commits an offence punishable upon conviction by imprisonment for a term not exceeding 2 years if the person:
(a) makes a statement in an application for a warrant; and
(b) does so knowing the statement is false or misleading in a material particular.
437 Offences relating to telephone warrants
A person must not:
(a) state in a document that purports to be a form of warrant under section 409A or 416 the name of a magistrate unless the magistrate issued the warrant; or
(b) state on a form of warrant under section 409A or 416 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 section 409A or 416 that the person knows:
(i) has not been approved by a magistrate under that section; or
(ii) departs 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 section 409A or 416 that is not the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
438 Retention of things seized under Division 4 or 6
(1) This section applies to a thing that is seized under Division 4 or 6.
(2) The thing may be retained until:
(a) the reason for the seizure of the thing no longer exists; or
(b) it is decided that the thing is not to be used in evidence;
whichever happens first.
(3) As soon as practicable after the end of the period during which the thing may be retained under subsection (2), the Secretary must cause reasonable steps to be taken to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
(4) Subsection (3) does not apply if:
(a) the thing is forfeited or forfeitable to the Commonwealth; or
(b) the thing has been dealt with under this Part, or as otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory), in a way that means the Secretary is not in a position to cause reasonable steps to be taken to return the thing; or
(c) the Commonwealth, the Secretary or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the thing.
440 Law relating to legal professional privilege not affected
This Part does not affect the law relating to legal professional privilege.
441 Other laws about search, arrest etc. 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 persons or premises; or
(b) arrest and related matters; or
(c) the stopping, detaining or searching of aircraft, vehicles or vessels; or
(d) the seizure of things.
(2) To avoid doubt, it is declared that even though another law of the Commonwealth provides power to do one or more 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.
442 Persons to assist authorised officers
(1) Subject to subsection (5), the owner, or person in charge:
(a) of any vehicle, vessel, aircraft or platform boarded by an authorised officer under section 403; or
(b) of any premises entered by an authorised officer under section 405;
must, if requested by an authorised officer to do so, provide reasonable assistance to the authorised officer in the performance of the functions, or carrying out of the duties, or the exercise of the powers, conferred on the authorised officer under this Act.
(2) A person must not contravene subsection (1).
Penalty: Imprisonment for 12 months.
(3) Subject to subsection (5), the owner, or the person in charge, of:
(a) premises entered under a warrant; or
(b) an aircraft, vehicle or vessel stopped under section 403;
must, if requested by an authorised officer to do so, provide reasonable assistance to the authorised officer in the performance of the functions, or carrying out of the duties, or the exercise of the powers, conferred on the authorised officer under this Act.
(4) A person must not contravene subsection (3).
Penalty: Imprisonment for 12 months.
(5) Where an authorised officer (subject to subsection (6)) makes a request of a person under this section, the authorised officer 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 request.
(6) Subsection (5) 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.
Division 8—Power to search goods, baggage etc.
443 Power to search goods, baggage etc.
(1) This section applies to any goods that are to be, are being, or have been, taken on or off a ship that voyages, or an aircraft that flies, between:
(a) a place in Australia and a place outside Australia; or
(b) a place in an external Territory and a place outside that Territory.
(2) If an authorised officer believes, on reasonable grounds that goods are goods to which this section applies, he or she may:
(a) examine the goods; or
(b) if the goods are baggage—open and search the baggage; or
(c) if the goods are in a container—open and search the container.
(3) An authorised officer may ask a person who owns, is carrying or is otherwise associated with, or appears to the authorised officer to be associated with, goods to which this section applies any question in respect of the goods.
(4) A person must not refuse or fail to answer a question put to the person under subsection (3).
Penalty: 60 penalty units.
(5) In this Act:
baggage includes any parcel or other goods that:
(a) a passenger; or
(b) the master, a mate, an engineer or any other member of the crew of a ship; or
(c) the pilot or any other member of the crew of an aircraft;
has had with him or her on the ship or aircraft.
goods includes baggage.
Division 8A—Power to ask questions about specimens
443A Authorised officer may ask questions about the nature or origin of specimens
When section applies
(1) This section applies if an authorised officer has reasonable grounds to suspect that:
(a) a specimen has been exported, or is proposed to be exported, in contravention of section 303CC or 303DD; or
(b) a specimen has been imported, or is proposed to be imported, in contravention of section 303CD or 303EK; or
(c) a person has in the person’s possession a specimen, and that possession contravenes section 303GN.
Note: Sections 303CC, 303CD, 303DD, 303EK and 303GN are included in Part 13A, which deals with international movement of wildlife specimens.
Questions
(2) If the authorised officer has reasonable grounds to suspect that a person has information about the nature or origin of the specimen, the authorised officer may ask the person one or more questions about the nature or origin of the specimen.
(2A) The authorised officer may ask the questions:
(a) in any case—by asking them in the presence of the person; or
(b) if the authorised officer is not a member of a police force and is not an officer of Customs—by sending written questions to the person.
Answers to questions
(3) Subject to subsections (6) and (7), if a person is asked a question under subsection (2), the person must not intentionally refuse or intentionally fail to answer the question to the extent that the person is capable of doing so.
(4) A person who contravenes subsection (3) commits an offence punishable on conviction by a fine not exceeding 10 penalty units.
(5) In subsection (3), strict liability applies to the circumstance that the person was asked a question under subsection (2).
Note: For strict liability, see section 6.1 of the Criminal Code.
No requirement to give incriminating answers
(6) If a person is asked a question under subsection (2), the person is not required to answer the question if the answer might tend to incriminate the person or expose the person to a penalty.
Identity cards etc.
(7) If a person is asked a question under subsection (2) by an authorised officer, the person is not required to answer the question unless:
(a) if the authorised officer is a member of a police force—the authorised officer produces, for inspection by the person, written evidence of the fact that the authorised officer is a member of that police force; or
(b) if the authorised officer is an officer of Customs—the authorised officer produces, for inspection by the person, written evidence of the fact that the authorised officer is an officer of Customs; or
(c) if the authorised officer is not a member of a police force and is not an officer of Customs:
(i) if the questions are asked in the presence of the person—the authorised officer produces the authorised officer’s identity card for inspection by the person; or
(ii) if the questions are asked by sending written questions to the person—the authorised officer sends with the questions a copy of his or her instrument of appointment.
Division 9—Power to ask for names and addresses
444 Authorised person may ask for person’s name and address
(1) An authorised officer may ask an individual to tell the authorised officer the individual’s name and address if the authorised officer has reasonable grounds to suspect that the individual has been involved in the commission of an offence against an environmental law.
(2) Subject to subsection (4), a person must not refuse or fail to comply with a request under subsection (1).
Penalty: 10 penalty units.
(3) A person commits an offence punishable upon conviction by a fine not exceeding 10 penalty units if the person:
(a) in purported compliance with a request under subsection (1), gives a name and address; and