224 Entering premises to search for evidential material
(1) An authorised compliance officer may:
(a) enter premises; and
(b) exercise any or all of the powers described in subsections (2) and (3);
if the authorised compliance officer has reasonable grounds for suspecting that there may be evidential material on the premises.
Note: For evidential material, see subsection 4(1).
(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, for the evidential material;
(c) to inspect, examine and make copies of, take extracts from, take measurements of, conduct tests on or take samples of, the evidential material;
(d) to seize evidential material of that kind if the authorised compliance officer finds it on the premises.
(3) If:
(a) in the course of searching for a particular thing in accordance with an investigation warrant, an authorised compliance officer finds another thing that the authorised compliance officer believes on reasonable grounds to be evidential material; and
(b) the authorised compliance officer believes, on reasonable grounds, that it is necessary to do any or all of the following tasks:
(i) inspect the other thing;
(ii) examine and make copies of the other thing;
(iii) take extracts from, or take measurements of, the other thing;
(iv) conduct tests on, or take samples of, the other thing;
(v) seize the other thing;
in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating a contravention of a designated compliance provision;
the warrant is taken to authorise the authorised compliance officer to do that other task or tasks.
(4) 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 an investigation warrant.
224A Asking questions and seeking production of documents
Application
(1) This section applies if an authorised compliance officer enters premises to search for evidential material.
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 evidential material.
(3) If the entry is authorised by an investigation warrant, the authorised compliance officer may require any person on the premises to answer any questions, and produce any document, relating to evidential material of the kind specified in the warrant.
(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.
225 Monitoring warrants
(1) An authorised compliance officer may apply to a magistrate for a warrant under this section in relation to premises.
(2) Subject to subsection (3), the magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that it is reasonably necessary that one or more authorised compliance officers should have access to the 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.
(3) The magistrate must not issue the warrant unless the authorised compliance officer or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.
Content of warrant
(4) The warrant must:
(a) describe the premises to which the warrant relates; and
(b) state that the warrant is issued under this section; and
(c) state the purpose for which the warrant is issued; and
(d) authorise one or more authorised compliance officers (whether or not named in the warrant) from time to time while the warrant remains in force:
(i) to enter the premises; and
(ii) to exercise the powers set out in subsection 223(2) and sections 223A, 223B, 231 and 232 in relation to the premises; and
(e) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and
(f) specify the day (not more than 3 months after the issue of the warrant) on which the warrant ceases to be in force.
226 Investigation warrants
(1) An authorised compliance officer may apply to a magistrate for a warrant under this section in relation to premises.
(2) Subject to subsection (3), the magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, evidential material in or on the premises.
(3) The magistrate must not issue the warrant unless the authorised compliance officer or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.
Content of warrant
(4) The warrant must:
(a) state the offence provision or offence provisions, or civil penalty provision or civil penalty provisions, to which the warrant relates; and
(b) describe the premises to which the warrant relates; and
(c) state that the warrant is issued under this section; and
(d) specify the kinds of evidential material to be searched for under the warrant; and
(e) state that evidential material of the kind specified may be seized under the warrant; and
(f) state that the person executing the warrant may seize any other thing found in the course of executing the warrant if the person believes on reasonable grounds that the thing is evidential material of a kind not specified in the warrant; and
(g) name one or more authorised compliance officers; and
(h) authorise the authorised compliance officers named in the warrant:
(i) to enter the premises; and
(ii) to exercise the powers referred to in subsections 224(2) and (3) and sections 224A, 231 and 232 in relation to the premises; and
(i) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and
(j) specify the day (not more than 1 week after the issue of the warrant) on which the warrant ceases to be in force.
227 Investigation warrants by telephone, telex, fax etc.
(1) If, in an urgent case, an authorised compliance officer considers it necessary to do so, the authorised compliance officer may apply to a magistrate by telephone, telex, fax or other electronic means for a warrant under section 226 in relation to premises.
(2) The magistrate may require communication by voice to the extent that it is practicable in the circumstances.
(3) Before applying for the warrant, the authorised compliance officer must prepare an information of the kind mentioned in subsection 226(2) in relation to the premises that sets out the grounds on which the warrant is sought.
(4) If it is necessary to do so, the authorised compliance officer may apply for the warrant before the information is sworn or affirmed.
(5) If the magistrate is satisfied:
(a) after having considered the terms of the information; and
(b) after having received such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought;
that there are reasonable grounds for issuing the warrant, the magistrate may complete and sign the same warrant that the magistrate would issue under section 226 if the application had been made under that section.
(6) If the magistrate completes and signs the warrant:
(a) the magistrate must:
(i) tell the authorised compliance officer what the terms of the warrant are; and
(ii) tell the authorised compliance officer the day on which and the time at which the warrant was signed; and
(iii) tell the authorised compliance officer the day (not more than one week after the magistrate completes and signs the warrant) on which the warrant ceases to have effect; and
(iv) record on the warrant the reasons for issuing the warrant; and
(b) the authorised compliance officer must:
(i) complete a form of warrant in the same terms as the warrant completed and signed by the magistrate; and
(ii) write on the form the name of the magistrate and the day on which and the time at which the warrant was signed.
(7) The authorised compliance officer must also, not later than the day after the day of expiry or execution of the warrant, whichever is the earlier, send to the magistrate:
(a) the form of warrant completed by the authorised compliance officer; and
(b) the information referred to in subsection (3), which must have been duly sworn or affirmed.
(8) When the magistrate receives those documents, the magistrate must:
(a) attach them to the warrant that the magistrate completed and signed; and
(b) deal with them in the way in which the magistrate would have dealt with the information if the application had been made under section 226.
(9) A form of warrant duly completed under subsection (6) is authority for any entry, search, seizure or other exercise of a power that the warrant signed by the magistrate authorises.
(10) If:
(a) it is material, in any proceedings, for a court to be satisfied that an exercise of a power was authorised by this section; and
(b) the warrant signed by the magistrate authorising the exercise of the power is not produced in evidence;
the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.
Authorised compliance officers may be assisted by other persons
(1) An authorised compliance officer may be assisted by other persons in exercising powers or performing functions or duties under this Subdivision at premises, if that assistance is necessary and reasonable. A person giving such assistance is a person assisting the authorised compliance officer.
Powers, functions and duties of a person assisting
(2) A person assisting the authorised compliance officer:
(a) may enter the premises; and
(b) may exercise powers under this Subdivision:
(i) if the premises were entered under subsection 223(1)—for the purposes of assisting the authorised compliance officer to determine whether a designated compliance provision has been, or is being, complied with or information given in compliance, or purported compliance, with a designated compliance provision is correct; or
(ii) if the premises were entered under subsection 224(1)—in relation to evidential material; and
(c) may exercise powers and perform functions and duties under this Subdivision that are incidental to the powers mentioned in subparagraph (b)(i) or (ii); and
(d) must do so in accordance with any direction given by the authorised compliance officer to the person assisting.
(3) A power exercised by a person assisting the authorised compliance officer as mentioned in subsection (2) is taken for all purposes to have been exercised by the authorised compliance officer.
(4) A function or duty performed by a person assisting the authorised compliance officer as mentioned in subsection (2) is taken for all purposes to have been performed by the authorised compliance officer.
(5) If a direction is given under paragraph (2)(d) in writing, the direction is not a legislative instrument.
229 Obligations of authorised compliance officers—entry by consent
(1) An authorised compliance officer is not authorised to enter premises under paragraph 223(3)(a) or 224(4)(a) unless an occupier of the premises has voluntarily consented to the entry.
(2) Before obtaining the consent of an occupier for the purposes of subsection (1), the authorised compliance officer must inform the person that he or she may refuse consent.
(2A) A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(3) If an authorised compliance officer is on premises by consent in accordance with subsection (1), the authorised compliance officer must leave the premises if any occupier of the premises asks the authorised compliance officer to do so.
(4) If:
(a) an authorised compliance officer is on premises by consent in accordance with subsection (1); and
(b) the authorised compliance officer has not shown the occupier of the premises the officer’s identity card before entering the premises;
the authorised compliance officer must do so on, or as soon as is reasonably practicable after, entering the premises.
230 Obligations of authorised compliance officers—entry by warrant
Announcement before entry
(1) An authorised compliance officer must, before entering premises under a monitoring warrant or an investigation warrant:
(a) announce that the authorised compliance officer is authorised to enter the premises; and
(ab) show the authorised compliance officer’s identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and
(b) give any person at the premises an opportunity to allow entry to the premises.
(2) An authorised compliance officer who is executing an investigation warrant 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.
(2A) If:
(a) an authorised compliance officer does not comply with subsection (1) because of subsection (2); and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
the authorised compliance officer must, as soon as practicable after entering the premises, show his or her identity card to the occupier or other person.
(3) If, when an authorised compliance officer is executing the warrant, an occupier of the premises, or another person who apparently represents the occupier, is present at the premises, the authorised compliance officer must, as soon as practicable:
(a) make a copy of the warrant available to the occupier or other person; and
(b) inform the occupier or other person, in writing, of the responsibilities and rights of the occupier or other person under sections 233C and 237.
(4) The authorised compliance officer must identify himself or herself to that person.
(5) The copy of the warrant referred to in subsection (3) need not include the signature of the magistrate who issued the warrant.
231 Use of equipment at premises
(1) This section applies if:
(a) an authorised compliance officer enters premises under subsection 223(1) or 224(1); and
(b) the authorised compliance officer believes on reasonable grounds that the authorised compliance officer can operate equipment at the premises without damaging the equipment.
(2) The authorised compliance officer may operate the equipment to:
(a) see whether the following may be accessible by doing so:
(i) if the premises were entered under subsection 223(1)—relevant information;
(ii) if the premises were entered under subsection 224(1)—evidential material; and
(b) put the relevant information or evidential material in documentary form; and
(c) copy the relevant information or evidential material to a storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises.
The authorised compliance officer may then take the storage device from the premises.
(3) In subsection (2), relevant information means information relevant to 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.
(4) If:
(a) the premises were entered under an investigation warrant; and
(b) the authorised compliance officer suspects on reasonable grounds that the equipment or a storage device on the premises is or contains evidential material;
the authorised compliance officer may seize the equipment or the storage device.
(5) An authorised compliance officer may seize equipment or a storage device under subsection (4) only if:
(a) it is not practicable to put the evidential material in documentary form as mentioned in paragraph (2)(b) or copy the evidential material as mentioned in paragraph (2)(c); or
(b) possession of the equipment or the storage device by the occupier could constitute an offence against a law of the Commonwealth.
232 Expert assistance to operate equipment at premises
(1) If an authorised compliance officer enters premises under a warrant issued under this Subdivision and the officer believes on reasonable grounds that:
(a) the following may be accessible by operating equipment at the premises:
(i) in the case of a monitoring warrant—relevant information (within the meaning of subsection 231(3));