Part 11Powers of inspection

Part 11—Powers of inspection 149—Simplified outline (a) provides for powers of inspection in relation to monitoring and offences; (b) provides for the appointment of inspectors (see Division 2); (c) deals with the powers and obligations of inspectors and the rights and responsibilities of an occupier of premises when an inspector seeks to exercise powers (see Divisions 3 to 9); (d) sets out procedures relating to monitoring warrants and offence-related warrants (see Division 10); (e) does not limit the conditions to which a licence or an emergency dealing determination can be subject, and section 64 imposes a condition in relation to monitoring dealings with GMOs. Division 2—Appointment of inspectors and identity cards 150—Appointment of inspectors (1) The Regulator may, by instrument in writing, appoint as an inspector any person or class of persons as the Regulator thinks fit, including a person who is appointed or employed by the Commonwealth. (2) In exercising powers or performing functions as an inspector, an inspector must comply with any directions of the Regulator. This section differs from section 150 of the Commonwealth Act. 151—Identity card (1) The Regulator must issue an identity card to an inspector. (2) The identity card— (a) must be in the form prescribed by the regulations; and (b) must contain a recent photograph of the inspector. (3) If a person to whom an identity card has been issued ceases to be an inspector, the person must return the identity card to the Regulator as soon as practicable. Maximum penalty: $110. (4) An inspector must carry his or her identity card at all times when exercising powers or performing functions as an inspector. Division 3—Monitoring powers 152—Powers available to inspectors for monitoring compliance (1) For the purpose of finding out whether this Act or the regulations have been complied with, an inspector may— (a) enter any premises; and (b) exercise the monitoring powers set out in section 153. (2) An inspector is not authorised to enter premises under subsection (1) unless— (a) the occupier of the premises has consented to the entry; or (b) the entry is made under a warrant under section 172; or (c) the occupier of the premises is a licence holder, or a person covered by a licence, and the entry is at a reasonable time; or (d) the occupier of the premises is a person dealing with, or who has dealt with, a GMO specified in an emergency dealing determination and the entry is at a reasonable time. 153—Monitoring powers (1) The monitoring powers that an inspector may exercise under section 152(1)(b) are as follows: (a) to search the premises and any thing on the premises; (b) to inspect, examine, take measurements of, conduct tests on, or take samples of, any thing on the premises that relates to a GMO; (c) to take photographs, make video or audio recordings or make sketches of the premises or any thing on the premises; (d) if the inspector was authorised to enter the premises by a warrant under section 172, to require any person in or on the premises to— (i) answer any questions put by the inspector; and (ii) produce any book, record or document requested by the inspector; (e) to inspect any book, record or document on the premises; (f) to take extracts from or make copies of any such book, record or document; (g) to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises; (h) to secure a thing, until a warrant is obtained to seize it, being a thing— (i) that the inspector finds during the exercise of monitoring powers on the premises; and (ii) that the inspector believes on reasonable grounds is evidential material; and (iii) that the inspector believes on reasonable grounds would be lost, destroyed or tampered with before the warrant can be obtained. (2) For the purposes of this Part, monitoring powers include the power to operate equipment at premises to see whether— (a) the equipment; or (b) a disk, tape or other storage device that— (i) is at the premises; and (ii) can be used with the equipment or is associated with it, contains information that is relevant to determining whether there has been compliance with this Act or the regulations. (3) If the inspector, after operating equipment at the premises, finds that the equipment, or that a tape, disk or other storage device at the premises, contains information mentioned in subsection (2), the inspector may— (a) operate facilities at the premises to put the information in documentary form and copy the document so produced; or (b) if the information can be transferred to a tape, disk 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 information to the storage device, and remove the storage device from the premises. Division 4—Offence related powers 154—Searches and seizures related to offences (1) This section applies if an inspector has reasonable grounds for suspecting that there may be evidential material on any premises. (2) The inspector may— (a) enter the premises, with the consent of the occupier or under a warrant issued under section 173; and (b) exercise the powers set out in subsection (3) and section 155; and (c) if the entry is under a warrant—seize the evidential material, if the inspector finds it on the premises. (3) If— (a) in the course of searching, in accordance with a warrant, for a particular thing, an inspector finds another thing that the inspector believes on reasonable grounds to be evidential material; and (b) the inspector believes, on reasonable grounds, that it is necessary to seize that other thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating an offence against this Act or the regulations, the warrant is taken to authorise the inspector to seize that other thing. 155—Offence-related powers of inspectors in relation to premises The powers an inspector may exercise under section 154(2)(b) are as follows: (a) to search the premises and any thing on the premises for the evidential material; (b) to inspect, examine, take measurements of, conduct tests on, or take samples of the evidential material; (c) to take photographs, make video or audio recordings or make sketches of the premises or the evidential material; (d) to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises. 156—Use of equipment at premises (1) The inspector may operate equipment at the premises to see whether evidential material is accessible by doing so, if the inspector believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. (2) If the inspector, after operating the equipment, finds that evidential material is accessible by doing so, the inspector may— (a) seize the equipment and any disk, tape or other associated device; or (b) if the 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 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. (3) An inspector may seize equipment under subsection (2)(a) only if— (a) it is not practicable to put the material in documentary form as mentioned in subsection (2)(b) or to copy the material as mentioned in subsection (2)(c); or (b) possession by the occupier of the equipment could constitute an offence. (4) An inspector may seize equipment under subsection (2)(a) or documents under subsection (2)(b) only if the inspector entered the premises under a warrant. Division 5—Expert assistance 157—Expert assistance to operate a thing (1) If an inspector believes on reasonable grounds that— (a) information relevant to determining whether there has been compliance with this Act or the regulations, or evidential material, may be accessible by operating a thing at particular premises; and (b) expert assistance is required to operate the thing; and (c) if he or she does not take action under this subsection, the information or material may be destroyed, altered or otherwise interfered with, he or she may do whatever is necessary to secure the thing, whether by locking it up, placing a guard or otherwise. (2) The inspector must give notice to the occupier of the premises of his or her intention to secure the thing and of the fact that the thing may be secured for up to 24 hours. (3) The thing may be secured— (a) for a period not exceeding 24 hours; or (b) until the thing has been operated by the expert, whichever happens first. (4) If the inspector believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to the Magistrates Court for an extension of that period. (5) The inspector must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application. Division 6—Emergency powers 158—Powers available to inspectors for dealing with dangerous situations (1) This section applies if— (a) an inspector has reasonable grounds for suspecting that there may be on any premises a particular thing in respect of which this Act or the regulations has not been complied with; and (b) the inspector considers that it is necessary to exercise powers under this section in order to avoid an imminent risk of death, serious illness or serious injury, or to protect the environment. (2) The inspector may do any of the following: (a) enter the premises; (b) search the premises for the thing; (c) secure the thing, if the inspector finds it on the premises, until a warrant is obtained to seize the thing; (d) if the inspector has reasonable grounds for suspecting that a person has not complied with this Act or the regulations in respect of the thing—require the person to take such steps as the inspector considers necessary for the person to comply with this Act or the regulations; (e) take such steps, or arrange for such steps to be taken, in relation to the thing as the inspector considers appropriate. (3) The inspector may exercise the powers in subsection (2) only to the extent that it is necessary for the purpose of avoiding an imminent risk of death, serious illness, serious injury or serious damage to the environment. (4) If the Regulator incurs costs because of steps reasonably taken or arranged to be taken by an inspector under subsection (2)(e), the person is liable to pay to the State of South Australia an amount equal to the cost, and the amount may be recovered by the State as a debt due to the State in a court of competent jurisdiction. Division 7—Obligations and incidental powers of inspectors 159—Inspector must produce identity card on request An inspector is not entitled to exercise any powers under this Part in relation to premises if— (a) the occupier of the premises has required the inspector to produce his or her identity card for inspection by the occupier; and (b) the inspector fails to comply with the requirement. 160—Consent (1) Before obtaining the consent of a person for the purposes of section 152(2)(a) or 154(2)(a), the inspector must inform the person that he or she may refuse consent. (2) An entry of an inspector by virtue of the consent of a person is not lawful unless the person voluntarily consented to the entry. 161—Details of warrant to be given to occupier etc (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 inspector must make available to that person a copy of the warrant. (2) The inspector must identify himself or herself to that person. (3) The copy of the warrant referred to in subsection (1) need not include the signature of the magistrate who issued the warrant. 162—Announcement before entry (1) An inspector must, before entering premises under a warrant— (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 inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required— (a) to ensure the safety of a person; or (b) to prevent serious damage to the environment; or (c) to ensure that the effective execution of the warrant is not frustrated. 163—Compensation for damage (1) The owner of a thing is entitled to compensation for damage to the thing if— (a) the damage was caused to the thing as a result of it being operated as mentioned in this Part; and (b) the damage was caused as a result of— (i) insufficient care being exercised in selecting the person who was to operate the thing; or (ii) insufficient care being exercised by the person operating the thing. (2) Compensation is payable by the Regulator. Section 163(2) of the Commonwealth Act provides for compensation to be paid out of money appropriated by Parliament. (3) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and their employees and agents, if they were available at the time, had provided any warning or guidance as to the operation of the thing that was appropriate in the circumstances. Division 8—Power to search goods, baggage etc 164—Power to search goods, baggage etc (1) This section applies to any goods that are to be, are being, or have been, taken off a ship that voyages, or an aircraft that flies, between a place outside South Australia and a place in South Australia. (2) If an inspector believes, on reasonable grounds, that goods are goods to which this section applies, and that the goods may be, or may contain, evidential material, the inspector 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 inspector may ask a person who owns, is carrying or is otherwise associated with, or appears to the inspector 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). Maximum penalty: $3 300. This section differs from section 164 of the Commonwealth Act. 165—Seizure of goods An inspector may seize goods mentioned in section 164 if the inspector has reasonable grounds to suspect that the goods are evidential material.