(1) The Authority must issue an identity card to an authorised officer in the form specified in the regulations. The identity card must contain a photograph that is no more than 5 years old of the authorised officer.
(2) A person commits an offence of strict liability if:
(a) the person has been issued with an identity card; and
(b) the person ceases to be an authorised officer; and
(c) the person does not return the identity card to the Authority within 14 days after ceasing to be an authorised officer.
Penalty: 1 penalty unit.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2A) Subsection (2) does not apply if the identity card was lost or destroyed.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
(3) An authorised officer must carry the identity card at all times when exercising powers or performing functions as an authorised officer.
Subdivision B—Powers to enter land etc.
219 When authorised officers can enter premises
An authorised officer may enter premises in accordance with this Subdivision if the officer reasonably believes this is necessary for the performance of any of the Authority’s functions:
(a) conferred by:
(i) Part 2 (Management of Basin water resources); or
(ii) paragraph 172(1)(b) or (c); or
(b) referred to in regulations made for the purposes of this paragraph.
Note: Entry is not permitted to residential premises without an occupier’s consent (see paragraph 220(1)(b)).
220 Obligations of authorised officers before entering premises
(1) An authorised officer is not authorised to enter premises under section 219 unless:
(a) the officer has given reasonable written notice to the occupiers of the officer’s intention to enter the premises; and
(b) if the premises is residential premises—an occupier of the premises has voluntarily consented to the entry; and
(c) the officer has shown his or her identity card if required by an occupier; and
(d) the officer has given the occupiers a written statement of the occupiers’ rights and obligations in relation to the officer’s proposed entry on to the premises.
Entry in an emergency or with consent
(2) Paragraph (1)(a) does not apply:
(a) in an emergency; or
(b) if an occupier of the premises voluntarily consents to the authorised officer entering the premises.
Informed consent
(3) Before obtaining the consent of a person for the purposes of paragraph (1)(b) or (2)(b), the authorised officer must inform the person that he or she may refuse consent.
Withdrawing consent
(4) If an authorised officer is on premises by consent in accordance with paragraph (1)(b) or (2)(b), the authorised officer must leave the premises if any occupier of the premises asks the authorised officer to do so.
221 Powers of authorised officers while on premises
(1) After entering premises under section 219, the authorised officer may do anything reasonably necessary to perform the Authority’s functions described in section 219.
(2) Without limiting subsection (1), the officer may do any or all of the following things to the extent that the thing is reasonably necessary for the performance of the Authority’s functions described in section 219:
(a) inspect a water resource;
(b) affix or place monitoring equipment;
(c) take water from a water resource, but only to the extent necessary:
(i) to affix or place monitoring equipment; and
(ii) for the operation of that equipment;
(d) inspect and operate monitoring equipment;
(e) conduct meteorological and hydrological investigations;
(f) inspect water infrastructure;
(g) conduct tests;
(h) collect samples of water, sand, gravel, soil, minerals, rock, flora or fauna;
(i) take photographs, make video or audio recordings or make sketches;
(j) take onto the premises such equipment and materials as is required;
(k) if the premises is an area of land and the officer entered the land in a vehicle—use the vehicle on the land (whether or not on existing roads);
(l) clear vegetation.
(3) In this section:
monitoring equipment includes meteorological and hydrological measuring equipment.
222 Duties of authorised officers
An authorised officer entering premises under this Subdivision and doing a thing on that premises must:
(a) take all reasonable steps to ensure that the doing of the thing causes as little detriment and inconvenience, and does as little damage, as is practicable to the premises and to anything on, or growing or living on, the premises; and
(b) cooperate as far as practicable with an occupier of the premises; and
(c) remain on the premises only for such period as is reasonably necessary; and
(d) leave the premises, as nearly as practicable, in the condition in which it was immediately before the thing was done.
Note: A person who obstructs, hinders, intimidates or resists an authorised officer in the performance of the authorised officer’s functions or duties, or the exercise of the officer’s powers, under this Act may commit an offence (see section 149.1 of the Criminal Code) and may be liable to a civil penalty (see section 222C of this Act).
Subdivision C—Other matters
222A Privilege against self‑incrimination and legal professional privilege not abrogated
Self‑incrimination
(1) Nothing in this Division affects the right of a person to refuse to answer a question, give information, or produce a document, on the ground that the answer to the question, the information or the production of the document might tend to incriminate the person or make the person liable to a penalty.
Legal professional privilege
(2) Nothing in this Division affects the right of a person to refuse to answer a question, give information, or produce a document, on the ground that:
(a) the answer to the question or the information would be privileged from being given on the ground of legal professional privilege; or
(b) the document would be privileged from being produced on the ground of legal professional privilege.
222B Occupier entitled to be present during entry
(1) If:
(a) an authorised officer is entering premises under Subdivision B; and
(b) an occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
the occupier or other person is entitled to observe the activities of the authorised officer on the premises.
(2) The right to observe the authorised officer’s activities ceases if the occupier or other person impedes those activities.
(3) This section does not prevent the authorised officer, or the authorised officers, from carrying out activities at 2 or more areas of the premises at the same time.
222C Obstructing authorised officers
Civil penalty provision
A person is liable to a civil penalty if the person obstructs, hinders, intimidates or resists an authorised officer in the performance of the officer’s functions or duties, or the exercise of the officer’s powers, under this Act.
Note 1: In proceedings against a person for a contravention of a civil penalty provision, it is generally not necessary to prove the person’s state of mind (see section 154C).
Note 2: A person who is liable to a civil penalty under this section may also commit an offence against section 149.1 of the Criminal Code.
Civil penalty: 100 penalty units.
Division 3—Information gathering
222D Power to require information
(1) This section applies to a person that is an agency of the Commonwealth or an agency of a State if the Authority has reason to believe that information (the compellable information) relating to any of the following matters:
(a) the preparation and implementation of the Basin Plan;
(b) a matter:
(i) relevant to the performance of the Authority’s functions; and
(ii) specified in regulations made for the purposes of this paragraph;
is in the person’s possession, custody or control (whether held electronically or in any other form).
(2) The Authority may, in writing, require the person to give specified compellable information to the Authority:
(a) within a specified period of time (which must not be less than 14 days after the requirement is made); and
(b) in a specified form or manner.
Civil penalty provisions
(4) A person is liable to a civil penalty if:
(a) the person is subject to a requirement under subsection (2); and
(b) the person fails to comply with the requirement.
Note: In proceedings against a person for a contravention of a civil penalty provision, it is generally not necessary to prove the person’s state of mind (see section 154C).
Civil penalty: 100 penalty units.
(5) A person is liable to a civil penalty if:
(a) the person is subject to a requirement under subsection (2); and
(b) the person gives information to the Authority in compliance or purported compliance with that requirement; and
(c) the person does so knowing that the information:
(i) is false or misleading in a material particular; or
(ii) omits any matter or thing without which the information is misleading in a material particular.
Note: A person may commit an offence if the person provides false or misleading information or documents (see sections 137.1 and 137.2 of the Criminal Code).
Civil penalty: 100 penalty units.
Exception
(6) Subsection (4) does not apply to the extent that the person has a reasonable excuse. However, a person does not have a reasonable excuse merely because the information in question is:
(a) of a commercial nature; or
(b) subject to an obligation of confidentiality arising from a commercial relationship; or
(c) commercially sensitive.
Note: The person bears an evidential burden in relation to the matter in this subsection (see section 154E of this Act).
222E Prohibitions on disclosure of information do not apply
This Division has effect despite any law of the Commonwealth, a State or a Territory prohibiting disclosure of the information.
Part 10AA—Inspector‑General of Water Compliance (special powers)
Note: Section 9 clarifies the constitutional basis for this Part.
Division 1—Entry onto land etc.
Subdivision A—Authorised compliance officers
222G Appointment of authorised compliance officers
(1) The Inspector‑General may, by writing, appoint one or more individuals to be authorised compliance officers for the purposes of exercising the powers of an authorised compliance officer under this Division.
(2) To be eligible for appointment as an authorised compliance officer, an individual must:
(a) be any of the following:
(i) an APS employee;
(ii) an individual whose services are made available to the Inspector‑General under subsection 215S(2);
(iii) an individual who holds an office or position with a State or an authority of a State;
(iv) an individual whose services have been acquired by the Inspector‑General under a contract; and
(b) have a high level of expertise in one or more fields relevant to the performance of the duties of an authorised compliance officer under this Division.
(3) The Inspector‑General may appoint an individual mentioned in subparagraph (2)(a)(iii) to be an authorised compliance officer only if the relevant State or authority agrees to the appointment.
(4) The Inspector‑General must not appoint an individual mentioned in subparagraph (2)(a)(iv) to be an authorised compliance officer unless the Inspector‑General is satisfied that the individual is fit and proper to be an authorised compliance officer.
(5) In deciding, for the purposes of subsection (4), whether a person is fit and proper to be an authorised compliance officer, the Inspector‑General:
(a) must have regard to the matters prescribed by the regulations; and
(b) may also have regard to any other matter the Inspector‑General considers appropriate.
(6) Applications may be made to the Administrative Review Tribunal for review of a decision of the Inspector‑General, for the purposes of subsection (4), that an individual mentioned in subparagraph (2)(a)(iv) is not fit and proper to be an authorised compliance officer.
(7) In exercising powers or performing functions as an authorised compliance officer, an authorised compliance officer must comply with any written directions of the Inspector‑General.
222H Identity cards
(1) The Inspector‑General must issue an identity card to an authorised compliance officer.
(2) The identity card must:
(a) be in the form approved by the Inspector‑General; and
(b) contain a photograph that is no more than 5 years old of the authorised compliance officer.
(3) A person commits an offence of strict liability if:
(a) the person has been issued with an identity card under subsection (1); and
(b) the person ceases to be an authorised compliance officer; and
(c) the person does not return the identity card to the Inspector‑General within 14 days after ceasing to be an authorised compliance officer.
Penalty: 1 penalty unit.
(4) Subsection (3) does not apply if the identity card was lost or destroyed.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
(5) An authorised compliance officer must carry the identity card at all times when exercising powers or performing functions as an authorised compliance officer.
Subdivision B—Powers to enter land etc. for compliance purposes
223 Entering premises to monitor compliance
(1) An authorised compliance officer may enter any premises and exercise any or all of the powers described in subsection (2) for either or both of the following purposes:
(a) determining whether a designated compliance provision has been, or is being, complied with;
(b) determining whether information given in compliance, or purported compliance, with a designated compliance provision is correct.
(2) The authorised compliance officer’s powers are as follows:
(a) the powers set out in the paragraphs of subsection 221(2);
(b) to search the premises and any thing on the premises;
(c) the power to examine or observe any activity conducted on the premises;
(d) to inspect, examine and make copies of, or take extracts from, any documents.
(3) An authorised compliance officer is not authorised to enter premises under subsection (1) unless:
(a) an occupier of the premises has consented to the entry; or
(b) the entry is made under a monitoring warrant.
223A Securing evidence of a contravention
(1) An authorised compliance officer who has entered premises under subsection 223(1) may secure a thing for a period not exceeding 24 hours if:
(a) the thing is found during the exercise of powers on the premises under subsection 223(2); and
(b) an authorised compliance officer believes on reasonable grounds that:
(i) a designated compliance provision has been contravened with respect to the thing; or
(ii) the thing affords evidence of the contravention of a designated compliance provision; or
(iii) the thing is intended to be used for the purpose of contravening a designated compliance provision; or
(iv) the thing affords evidence that information given in compliance, or purported compliance, with a designated compliance provision is not correct; and
(c) the authorised compliance officer believes on reasonable grounds that:
(i) it is necessary to secure the thing in order to prevent it from being concealed, lost or destroyed before a warrant to seize the thing is obtained; and
(ii) it is necessary to secure the thing without a warrant because the circumstances are serious and urgent.
The thing may be secured by locking it up, placing a guard or any other means.
Extensions
(2) The authorised compliance officer may apply to a magistrate for an extension of the 24‑hour period if the authorised compliance officer believes on reasonable grounds that the thing needs to be secured for more than that period.
(3) Before making the application, the authorised compliance officer must give notice to the occupier of the premises, or another person who apparently represents the occupier, of the authorised compliance officer’s intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application.
(4) The 24‑hour period may be extended more than once.
Note: For the process by which a magistrate may extend the period, see section 232A.
223B Asking questions and seeking production of documents
Application
(1) This section applies if an authorised compliance officer enters premises for the purposes of determining whether:
(a) a designated compliance provision has been, or is being, complied with; or
(b) information given in compliance, or purported compliance, with a designated compliance provision is correct.
Entry with consent
(2) If the entry is authorised because the occupier of the premises consented to the entry, the authorised compliance officer may ask the occupier to answer any questions, and produce any document, relating to:
(a) the operation of the designated compliance provision; or
(b) the information.
Entry under a monitoring warrant
(3) If the entry is authorised by a monitoring warrant, the authorised compliance officer may require any person on the premises to answer any questions, and produce any document, relating to:
(a) the operation of the designated compliance provision; or
(b) the information.
(4) A person is not subject to a requirement under subsection (3) if:
(a) the person does not possess the information or document required; and
(b) the person has taken all reasonable steps available to the person to obtain the information or document required and has been unable to obtain it.
Fault‑based offence
(5) A person commits an offence if:
(a) the person is subject to a requirement under subsection (3); and
(b) the person fails to comply with the requirement.
Penalty for contravention of this subsection: 30 penalty units.