Div 1BAER trial waiver functions

Division 1B—AER trial waiver functions 30U—Definitions proponent—see section 30W(1). 30V—Interpretative matters (1) The functions of the AER under this Division are the AER trial waiver functions. (2) This Division does not limit any other provision of this Law or the Rules that provides for an exemption from, or for the waiver of, compliance with this Law or the Rules. 30W—Trial waiver (1) Subject to this section, the AER may, on application by a person or body that proposes to undertake a trial project (a proponent), make a determination to grant the proponent an exemption (a trial waiver) from 1 or more of the following: (a) section 91BJ; (b) section 91BRD; (c) section 91BRR; (d) section 91LB; (e) the Rules, or a provision of the Rules. (2) Before making a determination to grant a trial waiver, the AER must have regard to the innovative trial principles and any matter required by the Rules. (3) An application for a trial waiver must be made in accordance with the Rules. (4) Nothing in this section operates to prevent the granting of an exemption in accordance with a rule made under section 148A. 30X—Conditions of trial waiver (1) A trial waiver must be in writing and— (a) must be subject to any conditions required by the Rules; and (b) may be subject to any conditions the AER considers appropriate. (2) The AER may vary or revoke a condition of a trial waiver in accordance with the Rules. 30Y—Consultation on trial waiver Before granting a trial waiver, the AER must— (a) comply with any requirements specified by the Rules; and (b) undertake consultation (including with the proponent) in accordance with the Rules. 30Z—Publication etc of trial waiver As soon as practicable after a trial waiver is made, a copy of the trial waiver must be published on the AER's website. 30ZA—Duration of trial waiver Subject to this Division, a trial waiver has effect from the day specified in the trial waiver and for the period (not exceeding 5 years) specified in the trial waiver. 30ZB—Extension of trial waiver (1) The AER may, in accordance with the Rules, extend the period for which a trial waiver granted under this Division has effect by a period determined by the AER (which cannot exceed the period prescribed by the Regulations). (2) Before granting an extension under subsection (1), the AER must have regard to the innovative trial principles and any matter required by the Rules. (3) An extension under subsection (1) must be in writing and must be published on the AER's website. (4) An extension under subsection (1) may only be granted once in respect of a trial waiver granted under this Division. 30ZC—Compliance with trial waiver (1) A proponent granted a trial waiver must comply with any conditions to which the trial waiver is subject. (2) If a proponent breaches subsection (1), the AER may— (a) revoke the trial waiver; or (b) vary or revoke a condition of, or impose further conditions on, the trial waiver. (3) Nothing in this section limits section 30ZD. 30ZD—Revocation of trial waiver The AER may, in accordance with the Rules, revoke a trial waiver granted under this Division. 30ZE—Other matters (1) The AER must not grant a trial waiver if the AER reasonably considers— (a) that the trial project for which the trial waiver is sought is materially similar to a trial project— (i) for which a trial Rule has been made; or (ii) that is the subject of a request under section 295(1) for the making of a trial Rule; or (b) that the trial project is unlikely to be carried out. (2) The AER cannot grant itself a trial waiver. Division 2—Search warrants 31—Definitions authorised person means a person authorised under section 32; relevant provision means a provision of this Law, the Regulations or the Rules. 32—Authorised person (1) The AER may, in writing, authorise a person that the AER considers is suitably qualified or trained to be an authorised person for the purposes of this Division. (2) An authorised person must comply with any direction of the AER in exercising powers or functions as an authorised person. 33—Identity cards (1) The AER must issue an identity card to an authorised person. (2) The identity card must contain the name, a recent photograph and the signature of the authorised person. (3) An authorised person must carry the identity card at all times when exercising powers or performing functions as an authorised person. (4) An authorised person must produce his or her identity card for inspection— (a) before exercising a power as an authorised person; or (b) at any time during the exercise of a power as an authorised person, if asked to do so. 34—Return of identity cards If a person to whom an identity card has been issued ceases to be an authorised person, the person must return the identity card to the AER as soon as practicable. Maximum penalty: $620. See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website. 35—Search warrant (1) An authorised person may apply to a magistrate for the issue of a search warrant in relation to a particular place if the person— (a) believes on reasonable grounds that— (i) there is or has been or will be a breach of a relevant provision; and (ii) there is or may be a thing or things of a particular kind connected with that breach on or in that place; or (b) reasonably suspects that— (i) there may have been a breach of a relevant provision; and (ii) there is or may be a thing or things of a particular kind connected with that breach on or in that place. (2) If a magistrate is satisfied by the evidence, on oath or by affidavit, of an authorised person that there are reasonable grounds for suspecting that there is, or may be within the next 7 days, a thing or things of a particular kind connected with a breach or possible breach of a relevant provision on or in a place, the magistrate may issue a search warrant authorising an authorised person named in the warrant— (a) to enter the place specified in the warrant, with such assistance and by the use of such force as is necessary and reasonable; (b) to search the place or any part of the place; (c) to search for and seize a thing named or described in the warrant and which the person believes on reasonable grounds to be connected with the breach or possible breach of the relevant provision; (d) to inspect, examine or record an image of anything in the place; (e) to take extracts from, and make copies of, any documents in the place; (f) to take into the place such equipment and materials as the person requires for exercising the powers. (3) A search warrant issued under this section must state— (a) the purpose for which the search is required and the nature of the suspected breach of the relevant provision; 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 7 days after the issue of the warrant, on which the warrant ceases to have effect. (4) Except as provided by this Law, the rules to be observed with respect to search warrants mentioned in any relevant laws of this jurisdiction extend and apply to warrants under this section. 36—Announcement of entry and details of warrant to be given to occupier or other person at premises (1) This section applies if the occupier or another person who apparently represents the occupier is present at premises when a search warrant is being executed. (2) The authorised person executing the warrant must— (a) identify himself or herself to that person; and (b) announce that he or she is authorised by the warrant to enter the place; and (c) before using force to enter, give the person an opportunity to allow entry; and (d) give the person a copy of the warrant. (3) The authorised person executing the warrant is not entitled to exercise any powers under the warrant in relation to premises if the authorised person does not comply with subsection (2). 37—Immediate entry permitted in certain cases An authorised person executing a warrant need not comply with section 36 if he or she believes on reasonable grounds that immediate entry to premises is required to ensure— (a) the safety of any person; or (b) that the effective execution of the search warrant is not frustrated. 38—Copies of seized documents (1) If an authorised person executing a warrant retains possession of a document seized from a person in accordance with the warrant, the authorised person must give that other person, within 21 days of the seizure, a copy of the document certified as correct by the authorised person executing the warrant. (2) A copy of a document certified under subsection (1) shall be received in all courts and all tribunals as evidence of equal validity to the original. 39—Retention and return of seized documents or things (1) If an authorised person executing a warrant seizes a document or other thing in accordance with the warrant, the authorised person must if he or she is not a person employed by the AER, give the document or other thing seized to the AER. (2) The AER 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. (3) If the document or thing seized has not been returned within 3 months after it was seized, the AER 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) a magistrate makes an order under section 40 extending the period during which the document or thing may be retained. 40—Extension of period of retention of documents or things seized (1) The AER may apply to a magistrate— (a) within 3 months after a document or other thing was seized in accordance with a warrant; or (b) if an extension has been granted under this section, before the end of the period of the extension, for an extension of the period for which the AER may retain the document or thing but so that the total period of retention does not exceed 12 months. (2) An application must be made before proceedings for the purpose for which the document or thing was retained have been commenced. (3) A magistrate may order such an extension if he or she is satisfied that— (a) it is in the interests of justice; and (b) the total period of retention does not exceed 12 months; and (c) retention of the document or other thing is necessary— (i) for the purposes of an investigation into whether a breach of a relevant provision has occurred; or (ii) to enable evidence of a breach of a relevant provision to be obtained for the purposes of a proceeding under this Law. (4) If proceedings are commenced for the purpose for which the document or thing was retained at any time before the expiry of the period specified in an order under this section, the document or thing may be retained until those proceedings (including any appeal) have been completed despite those proceedings being completed after the period specified in the order. (5) At least 7 days prior to the hearing of an application under this section by a magistrate, notice of the application must be sent to the owner of the document or thing described in the application. 41—Obstruction of persons authorised to enter A person must not, without reasonable excuse, obstruct or hinder an authorised person in the exercise of a power under a search warrant under this Division. See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website. Division 3—General information gathering powers 42—Power to obtain information and documents in relation to performance and exercise of functions and powers (1) If the AER has reason to believe that a person is capable of providing information, producing a document or giving evidence that the AER requires for the performance or exercise of a function or power conferred on it under this Law or the Rules, the AER may, by notice in writing, serve on that person a notice (a relevant notice). (2) A relevant notice may require the person to do 1 or more of the following: (a) provide to the AER, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any information of the kind referred to in subsection (1); or (b) produce to the AER, or to a person specified in the notice acting on its behalf, in accordance with the notice, any documents of the kind referred to in subsection (1); or (c) appear before the AER, or before a member of the staff assisting the AER who is an SES employee or an acting SES employee and who is specified in the notice, at a time and place specified in the notice, to provide any information or to give any evidence of the kind referred to in subsection (1), either orally or in writing, and to produce any documents of the kind referred to in subsection (1). (3) A person on whom a relevant notice is served must comply with the relevant notice unless the person has a reasonable excuse. See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website. (3a) A person must not, when appearing under subsection (2)(c), refuse or fail to answer a question that the person is required to answer for the purpose of providing information or giving evidence unless the person has a reasonable excuse. See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website. (4) A person must not, in purported compliance with a relevant notice, provide information or give evidence that the person knows is false or misleading in a material particular. See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website. (5) It is a reasonable excuse for the purposes of subsection (3) if the person served the relevant notice is not capable of complying with that notice. (5a) It is a reasonable excuse for the purposes of subsection (3a) if the person is not capable of providing the information or giving the evidence (as the case may be) to which the question relates. (6) It is a reasonable excuse for a natural person to— (a) fail to provide information or to give evidence of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice; (b) fail to produce a document of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice acting on behalf of the AER, if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or a law of another participating jurisdiction. (7) It is not a reasonable excuse for a person to— (a) fail to provide information of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice; or (b) fail to produce a document of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice acting on behalf of the AER, on the ground of any duty of confidence. (8) This section does not require a person to— (a) provide information that is the subject of legal professional privilege; or (b) produce a document the production of which would disclose information that is the subject of legal professional privilege. (9) This section does not require a person to— (a) provide information or give evidence that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory; or (b) produce a document prepared for the purposes of a meeting of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory; or (c) provide information, give evidence or produce a document that would disclose the deliberations of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory. (9a) The AER, or a person specified in a relevant notice under this section, may require evidence given under subsection (2)(c) to be given on oath or affirmation and for that purpose the AER or specified person (as the case may be) may administer the oath or affirmation. (9b) A person must not, without reasonable excuse, refuse or fail to be sworn or to make an affirmation under subsection (9a). See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website. (10) A person incurs, by complying with a relevant notice, no liability for breach of contract, breach of confidence or any other civil wrong. (11) Subject to the preceding subsections, the Court may, on application by the AER on behalf of the Commonwealth, if satisfied that a person has breached subsection (3) or (3a), make an order that the person take such action as the Court requires for remedying the breach. (12) To avoid doubt, the Court may act under subsection (11) if satisfied on the balance of probabilities that a person is in breach of subsection (3) or (3a) (as the case may be). (13) The AER must not exercise, or continue to exercise, a power under subsection (1) in relation to a matter (and any notice under that subsection will cease to have effect)— (a) after the AER has commenced proceedings in relation to the matter, other than proceedings for an injunction (whether interim or final); or (b) if proceedings for a final injunction have been commenced by the AER—after the close of pleadings in those proceedings. (14) Subsection (13) does not prevent the AER from— (a) using any information, evidence or document acquired under this section in any proceedings if the information, evidence or document has been obtained before the commencement of those proceedings; or (b) exercising a power under this section for a purpose other than for the purposes of proceedings referred to in that subsection. (15) Any information, evidence or document obtained under subsection (14)(b) may be used in any proceedings if it is found to be relevant to those proceedings. (16) The Regulations may make any other provision in relation to the form, content or service of a notice under this section. (17) An annual report for the AER must include the following information relating to the relevant reporting period for that report: (aa) the number of notices given under this section for the purposes of a function under Division 1AA; (a) the number of notices (if any) given under subsection (2)(c) during the reporting period to appear to provide information or to give evidence orally; (b) in relation to a notice under paragraph (a)—a general description of the nature of the matter or matters in respect of which the notice was given; (c) the number of proceedings (if any) commenced during the reporting period to challenge a notice given under subsection (2)(c) to appear to provide information or to give evidence orally. (18) A person must not— (a) threaten, intimidate or coerce another person; or (b) cause or procure damage, loss or disadvantage to another person, because that other person— (c) proposes to provide information, give evidence or produce a document in response to a notice under this section; or (d) proposes to appear, or has appeared, in response to a notice under this section. See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website. (19) In this section— acting SES employee has the same meaning as in the Public Service Act 1999 of the Commonwealth; SES employee has the same meaning as in the Public Service Act 1999 of the Commonwealth. Division 4—Regulatory information notices, general regulatory information orders and price information orders