Div 6Licence conditions

Division 6—Licence conditions 46—Licence conditions A licence is subject to conditions determined by the Regulator. 47—Offence to contravene licence conditions If a licence condition is contravened, the licensee is guilty of an offence. 48—Responsible person (1) It is a condition of a licence that the licensee must ensure that the business conducted under the licence is managed by an individual (a responsible person) who— (a) is a fit and proper person; and (b) is concerned in the management of the business being conducted under the licence; and (c) is at least 21 years of age; and (d) is approved by the Regulator as a security cleared person; and (e) is not an unsuitable person; and (f) meets any other requirements determined by the Regulator. (2) It is a condition of a licence that if there is a change to the responsible person who manages the business under the licence, the licensee must, within 14 days, give the Regulator notice of the change in the form and containing the information required by the Regulator. (3) If at any time the operations conducted under a licence are not managed by a responsible person, the licensee is guilty of an offence. Maximum penalty: $50 000. 49—Reporting of loss, theft or unauthorised interference (1) It is a condition of a licence that the licensee must ensure that the theft, loss or apparent unauthorised interference with an explosive to which the licence relates is reported immediately to a police officer and the Regulator. (2) A person is required to make a report despite the fact that to do so might incriminate the person or make the person liable to a penalty. Division 7—Reconsideration of decisions 50—Reconsideration of decisions (1) A person affected by a decision of the Regulator under this Part may apply to the Regulator for reconsideration of the decision. (2) An application for reconsideration must be made within— (a) 28 days after the day the person was informed of the decision by the Regulator; or (b) a longer period allowed by the Regulator, either before or after the end of the 28 days. (3) The application must be in writing and set out the grounds on which reconsideration of the decision is sought. (4) Within 28 days after receiving the application, the Regulator must reconsider the decision, and confirm, revoke or vary the decision. (5) If the Regulator has not reconsidered the decision within that period, the Regulator is to be taken to have confirmed the decision. (6) The Regulator must inform the applicant in writing of the result of the reconsideration and of the reasons for the result. Part 7—Enforcement measures Division 1—General Subdivision 1—Authorised persons 51—Interpretation In this Division— commercial motor vehicle has the same meaning as in the Motor Vehicles Act 1959; place or vehicle to which this Division applies means— (a) a place or vehicle subject to a licence; or (b) a place or vehicle that an authorised person reasonably suspects is being, or has been, used for or in connection with an activity involving an explosive; or (c) a place or vehicle in which an authorised person reasonably suspects there may be records relating to an activity involving an explosive or anything that has been used in, or may constitute evidence of, a contravention of this Act; or (d) a commercial motor vehicle or a vehicle that an authorised person reasonably suspects is a commercial motor vehicle. 52—Appointment of authorised persons (1) For the purposes of this Act, the Minister may, by instrument in writing, appoint— (a) a specified individual to be an authorised person; or (b) persons of a specified class to be authorised persons. (2) An appointment may be made subject to conditions specified in the instrument of appointment. (3) The Minister may, at any time, by instrument in writing applicable to a specified authorised person or each authorised person of a specified class— (a) revoke or suspend their appointment; or (b) vary or revoke a condition of their appointment; or (c) impose a further condition on their appointment. (4) All police officers are authorised persons for the purposes of this Act. 53—Identification of authorised persons (1) Subject to this section, an authorised person appointed under this Act must be issued with an identity card— (a) containing the individual's name and their photograph; and (b) stating that the individual is an authorised person under this Act. (2) A police officer is not required to be issued with an identity card. (3) If the powers of an authorised person have been limited by conditions, the identity card issued to the authorised person must indicate those limitations. (4) An authorised person must, at the request of a person in relation to whom the authorised person intends to exercise powers under this Act, produce for the inspection of the person— (a) in the case of an authorised person who is a police officer and is not in uniform—the police officer's certificate of authority; or (b) in the case of an authorised person appointed under this Act—the authorised person's identity card. (5) If an individual to whom an identity card has been issued ceases to be an authorised person, the individual must return the identity card to the Regulator as soon as practicable. 54—Warrant procedures (1) A magistrate must not issue a warrant for the purposes of this Division unless satisfied that the warrant is reasonably required in the circumstances. (2) An application for a warrant may be made personally or, if, in the opinion of the applicant, the warrant is urgently required and there is not enough time to lodge a written application and appear before a magistrate, by telephone or electronically. (3) The grounds of an application for a warrant must be verified by affidavit. (4) If an application for a warrant is made by telephone or electronically, the following provisions apply: (a) the applicant must inform the magistrate of the applicant's name and identify themself as an authorised person and the magistrate, on receiving that information, is entitled to assume its accuracy without further inquiry; (b) the applicant must inform the magistrate of the purpose for which the warrant is required, the grounds on which it is sought and the circumstances giving rise to the urgency of the application; (c) the magistrate may, on being satisfied as to the circumstances of urgency and the grounds for the issue of the warrant, inform the applicant of the facts on which the magistrate relies as grounds for the issue of the warrant, and must not proceed to issue the warrant unless the applicant undertakes to make an affidavit verifying those facts; (d) if the applicant gives such an undertaking, the magistrate may then make out and sign a warrant; (e) the warrant is to be taken to have been issued, and comes into force, when signed by the magistrate; (f) the magistrate must inform the applicant of the terms of the warrant; (g) the applicant must fill out and sign a warrant form (the duplicate warrant) that— (i) sets out the name of the magistrate who issued the original, the date and time of the issue of the original and the terms of the warrant; and (ii) complies with any other prescribed requirements; (h) the applicant must, as soon as practicable after the issue of the warrant, forward to the magistrate an affidavit verifying the facts referred to in paragraph (c) and a copy of the duplicate warrant. (5) A warrant, if not executed at the expiration of 1 month from the date of its issue, then expires. Subdivision 2—Powers of entry 55—Power to enter (1) An authorised person may enter any place or vehicle to which this Division applies. (2) Subject to section 56, entry to any place or vehicle to which this Division applies may be effected with or without the authority of a warrant. 56—Entry into residential premises This Part does not authorise an authorised person to enter any residential premises without the permission of the occupier or the authority of a warrant. 57—General powers of authorised persons (1) An authorised person may, as reasonably required for the administration and enforcement of this Act— (a) enter and inspect and, if necessary, use reasonable force to break into or open— (i) a place or vehicle to which this Division applies; or (ii) part of, or anything in or on, a place or vehicle to which this Division applies; and (b) give directions with respect to the stopping or movement of a vehicle to which this Division applies; and (c) require a vehicle to which this Division applies to be presented for inspection at a specified place and time; and (d) require a person to provide or take samples of or from an explosive or thing for analysis; and (e) examine or test any plant, vehicle, substance or other thing, or cause or require it to be examined or tested, or seize it or require its production for examination or testing; and (f) require a person to produce a document, including a written record that reproduces in an understandable form information stored by computer, microfilm or other process; and (g) examine, copy or take extracts from a document or information so produced or require a person to provide a copy of any such document or information; and (h) take photographs, films or audio, video or other recordings; and (i) seize and retain, or issue a seizure order in respect of an explosive— (i) that the authorised person reasonably suspects is not authorised; or (ii) in order to prevent the explosive being used before it can be determined whether it is authorised or is an explosive that is not required to be authorised; and (j) seize and retain, or issue a seizure order in respect of anything that the authorised person reasonably suspects has been used in, or may constitute evidence of, a contravention of this Act; and (k) require a person who the authorised person reasonably suspects has committed, is committing, or is about to commit, a contravention of this Act to state the person's full name and usual place of residence and to produce evidence of the person's identity and, if relevant to the contravention, the person's age; and (l) require a person who the authorised person reasonably suspects has knowledge of matters in respect of which information is required for the administration or enforcement of this Act to answer questions in relation to those matters; and (m) require a person holding or required to hold a licence to produce it for inspection; and (n) give a direction required in connection with the exercise of a power conferred by a paragraph above or otherwise in connection with the administration or enforcement of this Act. (2) An authorised person may only use force under subsection (1)(a) to break into a place or vehicle to which this Division applies on the authority of a warrant or in circumstances where the authorised person is acting in the case of an emergency. (3) In the exercise of powers under this Act, an authorised person may be assisted by such individuals as the authorised person considers necessary in the circumstances. (4) An authorised person may require an occupier of a place or a person apparently in charge of any plant, vehicle or other thing to give to the authorised person, or an individual assisting the authorised person, such assistance as is reasonably required by the authorised person for the effective exercise of powers conferred by this Act. Subdivision 3—Miscellaneous 58—Provisions relating to seizure (1) A seizure order— (a) must be in the form of a written notice given to the owner or person in control of the thing to which the order relates; and (b) may be varied or discharged by further such written notice. (2) If a seizure order is issued, a person who, knowing of the order, removes or interferes with the thing to which the order relates without the approval of an authorised person before the thing is dealt with under this section or the seizure order discharged is guilty of an offence. Maximum penalty: $5 000. (3) If an explosive has been seized or made the subject of a seizure order under section 57(1)(i), the following provisions apply: (a) if an authorised person is satisfied that the explosive is an authorised explosive or is an explosive that is not required to be authorised—it must be released immediately; (b) if an authorised person is satisfied that the explosive is unauthorised—the authorised person may dispose of it as the authorised person thinks fit or direct its disposal in a specified manner. (4) Before exercising a power under subsection (3)(b), the authorised person must— (a) give the owner of the explosive written notice of the proposed action and the reasons for the proposed action; and (b) allow the owner of the explosive a reasonable opportunity to comment on the proposed action. (5) Subject to this section, if any thing has been seized or made the subject of a seizure order under section 57(1)(j), the following provisions apply: (a) the thing must, if it has been seized, be held pending proceedings for an offence against this Act related to the thing seized, unless the Minister, on application, authorises its release to the person from whom it was seized, or to a person who had legal title to it at the time of its seizure, subject to such conditions as the Minister thinks fit (including conditions as to the giving of security for satisfaction of an order under paragraph (b)(ii)); (b) if proceedings for an offence against this Act relating to the thing are instituted within the designated period after its seizure or the issuing of the seizure order and the defendant is convicted or found guilty of the offence, the court may— (i) order that it be forfeited to the Minister; or (ii) if it has been released pursuant to paragraph (a) or is the subject of a seizure order—order that it be forfeited to the Minister or that the person to whom it was released or the defendant pay to the Minister an amount equal to its market value at the time of its seizure as the court thinks fit; (c) if— (i) proceedings are not instituted for an offence against this Act relating to the thing within the designated period after its seizure or the issuing of the seizure order; or (ii) proceedings have been so instituted and— (A) the defendant is found not guilty of the offence; or (B) the defendant is convicted or found guilty of the offence but no order for forfeiture is made under paragraph (b), then— (iii) in the case of a thing seized—the person from whom the thing was seized, or a person with legal title to it is entitled to recover from the Minister (if necessary, by action in a court of competent jurisdiction)— (A) the thing itself, unless the Minister considers that to return the thing would be likely to result in undue danger to life or property or would not be in the public interest; or (B) compensation of an amount equal to the market value of the thing at the time of its seizure; or (iv) in the case of a thing subject to a seizure order—the order is discharged. (6) If, in the opinion of the Regulator or the Commissioner of Police, storing an explosive seized under this Act pending proceedings for an offence against this Act relating to the explosive would result in an unacceptable level of danger, or there are no adequate facilities available for such storage, the following provisions apply: (a) the Regulator or Commissioner of Police may direct that the explosive be destroyed, whether or not a person has been or is to be charged with an offence in relation to it; (b) the explosive may be destroyed at the place at which it was seized or at any other suitable place; (c) if a charge is laid, or is to be laid, for an offence in relation to the explosive, the Regulator or Commissioner of Police may direct that a person appointed or approved by the Regulator as an analyst for the purposes of this Act undertake an analysis of the explosive by means of testing, physical examination or visual inspection of the explosive, or of photographs or films of the explosive, or in any other manner the Regulator or Commissioner thinks fit (as the case may be). (7) In this section— designated period means 6 months or such longer period as a magistrate may, on application by the Minister, allow. 59—Offence to hinder etc authorised persons A person who— (a) hinders or obstructs an authorised person, or an individual assisting an authorised person, in the exercise of powers conferred by this Act; or (b) refuses or fails to comply with a requirement or direction of an authorised person under this Act; or (c) when required by an authorised person under this Act to answer a question, refuses or fails to answer the question to the best of the person's knowledge, information and belief; or (d) falsely represents, by words or conduct, that the person is an authorised person, is guilty of an offence.