82ADocuments available for inspection

82A Documents available for inspection S. 82A(1) amended by No. 4/2008 s. 28. (1) A licensed motor car trader must at all reasonable times at each office at which that trader carries on business as a motor car trader keep all documents relating to the business carried on at that office for the previous 3 years available for inspection by an inspector in a form in which they can be readily and expeditiously inspected by an inspector. (2) If the licence of a licensed motor car trader has been surrendered or cancelled in the last 3 years, the former licensee must make all documents relating to the former business available for inspection by an inspector in a form and at a place where they can be readily and expeditiously inspected by an inspector. S. 82A(3) inserted by No. 91/2005 s. 4. (3) Despite subsection (1), if a licensed motor car trader carries on business as a motor car trader at more than one premises and keeps a dealings book in an electronically readable form under section 35, the motor car trader may keep the dealings book on a single electronic database if— (a) the record of each transaction in the dealings book clearly indicates the premises that the transaction relates to; and (b) the record of each transaction relating to particular premises in the dealings book is readily accessible from those premises; and (c) all paper documents relating to a transaction are kept together at the premises to which the transaction relates. S. 82AA inserted by No. 17/1999 s. 13. 82AA Specified persons to produce documents and answer questions (1) For the purpose of monitoring compliance with this Act or the regulations, an inspector may require a licensed motor car trader or a specified person at a time and place specified by the inspector— (a) to answer orally or in writing any questions put by the inspector relating to the licensed motor car trader's business as a motor car trader; (b) to supply orally or in writing information required by the inspector relating to that business; (c) to produce to the inspector specified documents or documents of a specified class relating to that business. S. 82AA(1A) inserted by No. 91/2005 s. 5. (1A) Without limiting subsection (1), if a document required to be produced under subsection (1)(c) is, or is part of, a dealings book kept under section 35 in an electronically readable form, the inspector may require the document to be provided in a readily accessible form— (a) electronically; or (b) in a paper form produced by a computer. S. 82AA(1B) inserted by No. 91/2005 s. 5. (1B) If a person produces a document referred to in subsection (1A), the person must also provide the inspector with a prescribed statement verifying that the document provided is a true record of the dealings book at the date of the statement. (2) In this section— ***specified person***, in relation to the business of a licensed motor car trader, means— (a) a person whose licence has been surrendered or cancelled within the last 3 years; or (b) a person who is a director or officer of a corporation which is a licensed motor car trader; or (c) if the licence of a corporation has been surrendered or cancelled within the last 3 years, a person who was a director or officer of the corporation at the time the licence was surrendered or cancelled; or (d) a person who under section 33 is carrying on the business of a licensed motor car trader. S. 82AB inserted by No. 17/1999 s. 13. 82AB Third parties to produce documents and answer questions relating to trader's business For the purpose of monitoring compliance with this Act or the regulations, an inspector may require any person who has possession, custody or control of documents relating to a licensed motor car trader's business as a motor car trader— (a) to answer orally or in writing any questions put by the inspector relating to the motor car trader's business as a motor car trader; (b) to supply orally or in writing information required by the inspector relating to that business; (c) to produce to the inspector specified documents or documents of a specified class relating to that business. S. 82AC inserted by No. 17/1999 s. 13. 82AC Ministers, police, and public authorities to produce information to inspectors (1) For the purpose of monitoring compliance with this Act or the regulations, the Director or an inspector may request a specified public body within a time specified by the Director or inspector— (a) to answer orally or in writing any questions put by the inspector relating to a licensed motor car trader's business as a motor car trader; (b) to supply orally or in writing information required by the inspector relating to that business. (2) An inspector can only make a request under subsection (1) with the written consent of the Director. (3) A specified public body must comply with a request under subsection (1). (4) In this section ***specified public body*** means— (a) a Minister; or (b) a public statutory authority; or (c) a municipal council; or (d) the Chief Commissioner of Police. S. 82AD inserted by No. 17/1999 s. 13. 82AD Certain other specified persons or bodies to produce information (1) For the purpose of monitoring compliance with this Act or the regulations, the Director or an inspector may require a specified person or body within a time specified by the Director or inspector— (a) to answer orally or in writing any questions put by the inspector relating to a licensed motor car trader's business as a motor car trader; (b) to supply orally or in writing information required by the inspector relating to that business. (2) An inspector can only make a requirement under subsection (1) with the written consent of the Director. (3) In this section ***specified person or body*** means— (a) a person who is a publisher of a publication; or (b) a person who is the owner or operator of a broadcasting service; or (c) a person who is the owner or operator of a telecommunications service; or (d) a person who is the owner or operator of a postal service; or (e) a financial institution. S. 82AE inserted by No. 17/1999 s. 13. 82AE Powers on production of documents (1) If any documents are produced to an inspector under section 82AA or 82AB, the inspector may— (a) inspect the documents or authorise a person to inspect the documents; (b) make copies of or take extracts from the documents; (c) seize the documents if the inspector considers the documents necessary for the purpose of obtaining evidence for the purpose of any proceedings under this Act or the regulations; (d) seize the documents if the inspector— S. 82AE(1) (d)(i) amended by No. 35/2000 s. 47(c). (i) considers the documents necessary for the purpose of obtaining evidence for the purpose of any proceedings under any Consumer Act; and S. 82AE(1) (d)(ii) amended by No. 35/2000 s. 47(c). (ii) believes on reasonable grounds, that it is necessary to seize the documents in order to prevent their concealment, loss or destruction or their use in the contravention of any Consumer Act; (e) secure any seized documents against interference; (f) retain possession of the documents in accordance with this Division. S. 82AE(2) amended by No. 35/2000 s. 47(d). (2) An inspector must not require a person to produce a document at a place other than the person's place of business or an office of the Director without the consent of the person. S. 82AF inserted by No. 17/1999 s. 13. 82AF Order requiring supply of information and answers to questions (1) For the purpose of monitoring compliance with this Act, an inspector, with the written approval of the Director, may apply to the Magistrates' Court for an order requiring any person at a time and place specified by an inspector— (a) to answer orally or in writing any questions put by an inspector relating to a licensed motor car trader's business; or (b) to supply orally or in writing information required by an inspector in relation to a licensed motor car trader's business. (2) If the Magistrates' Court is satisfied on the basis of evidence presented by the Director that the order is necessary for the purpose of monitoring compliance with this Act or the regulations, the Court may grant the order sought. (3) An order under this section must state a day, not later than 28 days after the making of the order, on which the order ceases to have effect. (4) An inspector who executes an order under this section must, as soon as practicable after that execution, notify the Magistrates' Court in writing of the time and place of execution of the order. S. 82AG inserted by No. 17/1999 s. 13. 82AG Entry or search with consent (1) For the purpose of monitoring compliance with this Act or the regulations, an inspector, with the consent of the occupier of the premises, may— (a) enter and search any premises; (b) seize anything found on the premises which the inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations; (c) examine and take and keep samples of any goods found on the premises which the inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations; (d) inspect and make copies of, or take extracts from, any document found on the premises. (2) An inspector must not enter and search any premises with the consent of the occupier unless, before the occupier consents to that entry, the inspector has— (a) produced his or her identity card for inspection; and (b) informed the occupier— (i) of the purpose of the search; and (ii) that the occupier may refuse to give consent to the entry and search or to the seizure of anything found during the search; and (iii) that the occupier may refuse to consent to the taking of any sample of goods or any copy or extract from a document found on the premises during the search; and (iv) that anything seized or taken during the search with the consent of the occupier may be used in evidence in proceedings. S. 82AG(3) amended by No. 106/2003 s. 27(1). (3) If an occupier consents to an entry and search, the inspector who requested consent must before entering the premises ask the occupier to sign an acknowledgment stating— (a) that the occupier has been informed of the purpose of the search and that anything seized or taken in the search with the consent of the occupier may be used in evidence in proceedings; and S. 82AG(3)(b) amended by No. 106/2003 s. 27(2). (b) that the occupier has been informed that he or she may refuse to give consent to the entry and search or to the seizure of anything or to the taking of any sample, copy or extract; and (c) that the occupier has consented to such an entry and search; and (d) the date and time that the occupier consented. (4) If an occupier consents to the seizure or taking of any thing during a search under this section, the inspector must before seizing or taking the thing ask the occupier to sign an acknowledgment stating— (a) that the occupier has consented to the seizure or taking of the thing; and (b) the date and time that the occupier consented. (5) An occupier who signs an acknowledgment must be given a copy of the signed acknowledgment before the inspector leaves the premises. (6) If, in any proceeding, an acknowledgment is not produced to the court or a tribunal, it must be presumed, until the contrary is proved, that the occupier did not consent to the entry and search or to the seizure or taking of the thing. S. 82AH inserted by No. 17/1999 s. 13, substituted by No. 79/2006 s. 81. 82AH Entry without consent or warrant (1) For the purpose of monitoring compliance with this Act or the regulations or an order made by a court or tribunal under this Act or the regulations, an inspector may, subject to subsection (2)— (a) enter and search any premises at which the inspector believes, on reasonable grounds— (i) a person is conducting a business or supplying goods or services; or (ii) a person is keeping a record or document that is required to be kept by this Act or the regulations or that may show whether or not this Act or the regulations are being complied with; (b) examine anything found on the premises; (c) take and keep samples of anything found on the premises if the inspector believes, on reasonable grounds, that it is connected with a contravention of this Act or the regulations; (d) seize anything found on the premises or secure anything found on the premises against interference, if the inspector believes, on reasonable grounds, that it is connected with a contravention of this Act or the regulations; (e) examine and test any equipment found on the premises that is of a kind used in connection with the supply of goods or services; (f) in the case of any document on the premises, do all or any of the following— (i) require the document to be produced for examination; (ii) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts to be done on the premises or elsewhere; (iii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document; (g) make any still or moving image or audio-visual recording; (h) bring any equipment onto the premises that the inspector believes, on reasonable grounds, is necessary for the examination or processing of things (including documents) found at the premises in order to determine whether they are things that may be seized under this section. (2) An inspector— (a) must not exercise a power under subsection (1) in any part of the premises that is used for residential purposes; and (b) must not exercise a power under subsection (1), except between the hours of 9 a.m. to 5 p.m., or when the premises are open for business. (3) If an inspector exercises a power of entry under this section without the owner or occupier being present the inspector must, on leaving the premises, leave a notice setting out— (a) the time of entry; and (b) the purpose of entry; and (c) a description of things done while on the premises; and (d) the time of departure; and (e) the procedure for contacting the Director for further details of the entry. S. 82AI inserted by No. 17/1999 s. 13. 82AI Search warrants (1) An inspector, with the written approval of the Director, may apply to a magistrate for the issue of a search warrant in relation to particular premises for the purpose of monitoring compliance with this Act or the regulations. S. 82AI(2) amended by No. 6/2018 s. 68(Sch. 2 item 90). (2) If a magistrate is satisfied by the evidence, on oath or by affirmation or by affidavit, of the inspector that the warrant is necessary for the purpose of monitoring compliance with this Act or the regulations, the magistrate may issue a search warrant, in accordance with the **Magistrates' Court Act 1989**, authorising an inspector named in the warrant, together with any other person or persons named or otherwise identified in the warrant and with any necessary equipment— (a) to enter the premises specified in the warrant, if necessary by force; and (b) to do all or any of the following— (i) search for; (ii) seize; (iii) secure against interference; (iv) examine and inspect; (v) make copies of or take extracts from— a thing or things of a particular kind named or described in the warrant and which the inspector believes, on reasonable grounds, to be connected with a contravention of this Act or the regulations. (3) A search warrant issued under this section must state— (a) the purpose for which the search is required; and (b) any conditions to which the warrant is subject; and (c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and (d) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect. (4) Except as provided by this Act, the rules to be observed with respect to search warrants under the **Magistrates' Court Act 1989** extend and apply to warrants under this section. S. 82AJ inserted by No. 17/1999 s. 13. 82AJ Announcement before entry (1) On executing a search warrant, the inspector executing the warrant— (a) must announce that he or she is authorised by the warrant to enter the premises; and (b) if the inspector has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises. (2) An inspector need not 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 any person; or (b) that the effective execution of the search warrant is not frustrated. S. 82AK inserted by No. 17/1999 s. 13. 82AK Details of warrant to be given to occupier (1) If the occupier is present at premises where a search warrant is being executed, the inspector must— (a) identify himself or herself to the occupier; and (b) give to the occupier a copy of the warrant. (2) If the occupier is not present at premises where a search warrant is being executed, the inspector must— (a) identify himself or herself to a person (if any) at the premises; and (b) give to the person a copy of the warrant. S. 82AL inserted by No. 17/1999 s. 13. 82AL Seizure of things not mentioned in the warrant A search warrant under section 82AI authorises an inspector executing the search warrant, in addition to the seizure of any thing of the kind described in the warrant, to seize or take a sample of any thing which is not of the kind described in the warrant if— (a) the inspector believes, on reasonable grounds, that the thing— (i) is of a kind which could have been included in a search warrant issued under this Division; or S. 82AL(a)(ii) amended by No. 35/2000 s. 47(c). (ii) will afford evidence about the contravention of any Consumer Act; and S. 82AL(b) amended by No. 35/2000 s. 47(c). (b) in the case of seizure, the inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the contravention of this Act or any other Consumer Act. S. 82AM inserted by No. 17/1999 s. 13. 82AM Embargo notice S. 82AM(1) amended by No. 103/2004 s. 56. (1) An inspector executing a search warrant who is authorised by that warrant to seize any thing may, if the thing cannot, or cannot readily, be physically seized and removed, issue an embargo notice in the prescribed form— (a) by causing a copy of the notice to be served on the occupier; or (b) if the occupier cannot be located after all reasonable steps have been taken to do so, by affixing a copy of the notice to the thing in a prominent position. (2) A person who knows that an embargo notice relates to a thing and who— (a) sells; or (b) leases; or (c) without the written consent of the inspector who issued the embargo notice, moves; or (d) transfers; or (e) otherwise deals with— the thing or any part of the thing is guilty of an offence and liable to a penalty not exceeding 50 penalty units. S. 82AM(3) amended by No. 68/2009 s. 97(Sch. item 88.2). (3) It is a defence to a prosecution for an offence against subsection (2) to prove that the accused moved the thing or the part of the thing for the purpose of protecting and preserving it. (4) Despite anything in any other Act, a sale, lease, transfer or other dealing with a thing in contravention of this section is void. S. 82AN inserted by No. 17/1999 s. 13. 82AN Copies of seized documents (1) If an inspector retains possession of a document taken or seized from a person under this Division, the inspector must give the person, within 21 days of the seizure, a copy of the document certified as correct by the inspector. (2) A copy of a document certified under subsection (1) shall be received in all courts and tribunals to be evidence of equal validity to the original. S. 82AO inserted by No. 17/1999 s. 13. 82AO Retention and return of seized documents or things (1) If an inspector seizes a document or other thing under this Division, the inspector must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists. (2) If the document or thing seized has not been returned within 3 months after it was seized, the inspector must take reasonable steps to return it unless— (a) proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or (b) the Magistrates' Court makes an order under section 82AP extending the period during which the document or thing may be retained. S. 82AP inserted by No. 17/1999 s. 13. 82AP Magistrates' Court may extend 3 month period (1) An inspector may apply to the Magistrates' Court within 3 months after seizing a document or other thing under this Division for an extension of the period for which the inspector may retain the document or thing. (2) The Magistrates' Court may order such an extension if it is satisfied that retention of the document or other thing is necessary— (a) for the purposes of an investigation into whether a contravention of this Act or the regulations has occurred; or (b) to enable evidence of a contravention of this Act or the regulations to be obtained for the purposes of a proceeding under this Act. (3) The Magistrates' Court may adjourn an application to enable notice of the application to be given to any person. S. 82AQ inserted by No. 17/1999 s. 13. 82AQ Requirement to assist inspector during entry To the extent that it is reasonably necessary to determine compliance with this Act or the regulations, an inspector exercising a power of entry under this Division who produces his or her identity card for inspection by the occupier of the premises or an agent or employee of the occupier may require that person— (a) to give information to the inspector, orally or in writing; and (b) to produce documents to the inspector; and (c) to give reasonable assistance to the inspector. S. 82AR inserted by No. 17/1999 s. 13. 82AR Refusal or failure to comply with requirement A person must not refuse or fail, without reasonable excuse, to comply with a requirement of an inspector under this Division. S. 82AS inserted by No. 17/1999 s. 13, substituted by No. 79/2006 s. 82. 82AS Protection against self-incrimination (1) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this Part, if the giving of the information or the doing of that other thing would tend to incriminate the person. (2) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Part, if the production of the document would tend to incriminate the person. S. 82AT inserted by No. 17/1999 s. 13. 82AT Offence to give false or misleading information A person must not— (a) give information to an inspector under this Division that the person believes to be false or misleading in any material particular; or (b) produce a document to an inspector under this Division that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information. S. 82ATA inserted by No. 2/2008 s. 60(Sch. item 7.1). 82ATA Powers of court if requirement to produce information not complied with (1) If the Director is satisfied that a person has, without reasonable excuse, failed to comply with a requirement under section 82AD, the Director may certify that failure to a court. (2) Subject to subsection (3), if an inspector is satisfied that a person has, without reasonable excuse, failed to comply with a requirement of the inspector under section 82AA, 82AB, 82AD or 82AQ, the inspector may certify that failure to a court. (3) The inspector cannot certify a failure to a court under subsection (1) if the person to whom the failure relates has been charged with an offence against section 82AR. (4) If the Director or an inspector so certifies under subsection (1) or (2), the court may inquire into the case and may order the person to comply with the requirement within the period specified by the court. (5) If a proceeding is brought under this section in relation to a failure to comply with a requirement, a person to whom the failure relates cannot be charged with an offence against section 82AR in respect of that failure. S. 82AU inserted by No. 17/1999 s. 13, amended by No. 21/2012 s. 239(Sch. 6 items 28.4, 28.5). 82AU Application of provisions relating to inspections Sections 152, 172, 173, 176, 178 and 179 of the **Australian Consumer Law and Fair Trading Act 2012** apply (with any necessary modifications) in relation to the exercise or attempted exercise of a power of an inspector under this Division as if any reference in those sections to Part 6.4 of that Act were a reference to this Division. S. 82AV inserted by No. 17/1999 s. 13. 82AV Service of documents (1) A written requirement by an inspector under this Division may be given personally or by registered post to a person— (a) at the last known place of business, employment or residence of the person; or (b) in the case of a body corporate, at the registered office of the body corporate. S. 82AV(2) amended by No. 35/2000 s. 47(e). (2) A person who provides a document or information in response to a requirement of an inspector under this Division may send that document or information to the Director by registered post. S. 82AW inserted by No. 17/1999 s. 13. 82AW Confidentiality (1) An inspector must not, except to the extent necessary to carry out the inspector's functions under this Division, give to any other person, whether directly or indirectly, any information acquired by the inspector in carrying out those functions. (2) Subsection (1) does not apply to the giving of information— (a) to a court or tribunal in the course of legal proceedings; or (b) pursuant to an order of a court or tribunal; or (c) to the extent reasonably required to enable the investigation or the enforcement of a law of this State or of any other State or Territory or of the Commonwealth; or (d) to the Business Licensing Authority established under the **Business Licensing Authority Act 1998**; or (e) with the written authority of the Director; or (f) with the written authority of the person to whom the information relates. S. 82AX inserted by No. 17/1999 s. 13. 82AX Production of information to Authority (1) The Authority may require a licensed motor car trader to answer any question or provide information relating to the business of the motor car trader that the Authority reasonably requires to carry out its functions in relation to that motor car trader. (2) A licensed motor car trader must not refuse or fail, without reasonable excuse, to comply with a requirement made by the Authority under this section. S. 82AY inserted by No. 17/1999 s. 13. 82AY Rule against self-incrimination does not apply (1) A licensed motor car trader is not excused from answering a question or providing information under section 82AX on the ground that the answer or the information might tend to incriminate the motor car trader. (2) If the licensed motor car trader claims, before answering a question, that the answer might tend to incriminate the motor car trader, the answer is not admissible in evidence in any criminal proceedings, other than in proceedings in respect of the falsity of the answer. S. 82B inserted by No. 74/1996 s. 37. 82B Verification of details supplied to the Authority The Authority may specify how any information supplied to it under this Act is to be verified, and without limiting the scope of this power, may require that the information be supplied in the form of, or be verified by, a statutory declaration. S. 82C inserted by No. 74/1996 s. 37. 82C Extended time for prosecutions Despite anything to the contrary in any Act, a proceeding for an offence against this Act may be commenced within 3 years after the date on which the offence is alleged to have been committed. S. 82CA inserted by No. 103/2004 s. 57. 82CA Who may bring proceedings for offences? (1) Proceedings for an offence against this Act may only be brought by— (a) the Director; or (b) a person authorised by the Director for the purposes of this section; or S. 82CA(1)(c) amended by No. 37/2014 s. 10(Sch. item 114.2). (c) a police officer. (2) In proceedings for an offence against this Act it must be presumed, in the absence of evidence to the contrary, that the person bringing the proceedings was authorised to bring the proceedings. (3) Subsection (1) does not apply to proceedings for an indictable offence. Pt 5A Div. 2 (Heading) inserted by No. 74/1996 s. 37. Division 2—Infringement notices S. 82D inserted by No. 74/1996 s. 37.