(ii) in the case of an investigation warrant—evidential material; and
(b) expert assistance is required to operate the equipment; and
(c) if the authorised compliance officer does not take action under this subsection, the relevant information or evidential material may be destroyed, altered or otherwise interfered with;
the authorised compliance officer may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
(2) The authorised compliance officer must give notice to the occupier of the premises of the officer’s intention to secure the equipment and of the fact that the equipment may be secured for up to 24 hours.
(3) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
(4) If the authorised compliance officer believes on reasonable grounds that the expert assistance will not be available within 24 hours, the officer may apply to the magistrate for an extension of that period.
(5) The authorised compliance officer must give notice to the occupier of the premises of the officer’s intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.
(6) 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.
232A Extension of periods in which things secured
Application
(1) This section applies where an authorised compliance officer applies to a magistrate under subsection 223A(2) or 232(4) for an extension of the period during which a thing may be secured.
Granting extension
(2) The magistrate may, by order, grant an extension of the period if the magistrate is satisfied, by information on oath or affirmation, that:
(a) if the thing is secured under section 223A—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; or
(b) if the thing is equipment that is secured under section 232—it is necessary to secure the thing:
(i) to ensure that relevant information is not destroyed, altered or otherwise interfered with; or
(ii) to prevent evidential material from being destroyed, altered or otherwise interfered with.
(3) However, the magistrate must not grant the extension 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 extension is being sought.
(a) describe the thing to which the order relates; and
(b) state the period for which the extension is granted; and
(c) state that the order is made under this section; and
(d) state that the authorised compliance officer is authorised to secure the thing for that period.
233 Compensation for damage
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in this Subdivision:
(i) damage is caused to the equipment; or
(ii) data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) Compensation is payable to the owner of the equipment, or the user of the data or programs, for the damage or corruption out of money appropriated by the Parliament.
(2A) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court referred to in section 138 for such reasonable amount of compensation as the court determines.
(3) In determining the amount of compensation payable, regard is to be had to whether an occupier of the premises and his or her employees and agents, if they were available at the time, had provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances.
233A Completing execution of warrant after temporary cessation
(1) This section applies if an authorised compliance officer, and all persons assisting, who are executing an investigation warrant in relation to premises temporarily cease its execution and leave the premises.
(2) The authorised compliance officer, and persons assisting, may complete the execution of the warrant if:
(a) the warrant is still in force; and
(b) the authorised compliance officer and persons assisting are absent from the premises:
(i) for not more than 1 hour; or
(ii) if there is an emergency situation, for not more than 12 hours or such longer period as allowed by a magistrate under subsection (5); or
(iii) for a longer period if the occupier of the premises consents in writing.
Application for extension in emergency situation
(3) An authorised compliance officer may apply to a magistrate for an extension of the 12‑hour period mentioned in subparagraph (2)(b)(ii) if:
(a) there is an emergency situation; and
(b) the authorised compliance officer believes on reasonable grounds that the authorised compliance officer and the persons assisting will not be able to return to the premises within that period.
(4) If it is practicable to do so, before making the application, the authorised compliance officer or person assisting must give notice to the occupier of the premises of the intention to apply for an extension.
Extension in emergency situation
(5) A magistrate may extend the period during which the authorised compliance officer and persons assisting may be away from the premises if:
(a) an application is made under subsection (3); and
(b) the magistrate is satisfied, by information on oath or affirmation, that there are exceptional circumstances that justify the extension; and
(c) the extension would not result in the period ending after the warrant ceases to be in force.
233B Completing execution of warrant stopped by court order
An authorised compliance officer, and any persons assisting, may complete the execution of an investigation warrant that has been stopped by an order of a Court if:
(a) the order is later revoked or reversed on appeal; and
(b) the warrant is still in force when the order is revoked or reversed.
233C Responsibility to provide facilities and assistance
(1) The occupier of premises to which a monitoring warrant or an investigation warrant relates, or another person who apparently represents the occupier, must provide:
(a) an authorised compliance officer executing the warrant; and
(b) any person assisting the authorised compliance officer;
with all reasonable facilities and assistance for the effective exercise of their powers.
Fault‑based offence
(2) A person commits an offence if:
(a) the person is subject to subsection (1); and
(b) the person fails to comply with that subsection.
Penalty for contravention of this subsection: 30 penalty units.
233D Copies of seized things to be provided
(1) This section applies if:
(a) an investigation warrant is being executed in relation to premises; and
(b) an authorised compliance officer seizes one or more of the following from the premises under this Subdivision:
(i) a document, film, computer file or other thing that can be readily copied;
(ii) a storage device, the information in which can be readily copied.
(2) The occupier of the premises, or another person who apparently represents the occupier and who is present when the warrant is executed, may request the authorised compliance officer to give a copy of the thing or the information to the occupier or other person.
(3) The authorised compliance officer must comply with the request as soon as practicable after the seizure.
(4) However, the authorised compliance officer is not required to comply with the request if possession of the document, film, computer file, thing or information by the occupier or other person could constitute an offence against a law of the Commonwealth.
233E Receipts for seized things
(1) An authorised compliance officer must provide a receipt for a thing that is seized under this Subdivision.
(2) One receipt may cover 2 or more things seized.
233F Return of seized things
(1) The Inspector‑General must take reasonable steps to return a thing seized under this Subdivision when the earliest of the following happens:
(a) the reason for the thing’s seizure no longer exists;
(b) it is decided that the thing is not to be used in evidence;
(c) the period of 60 days after the thing’s seizure ends.
Note: For exceptions to this rule, see subsections (2) and (3).
Exceptions
(2) Subsection (1):
(a) is subject to any contrary order of a Court; and
(b) does not apply if the thing:
(i) is forfeited or forfeitable to the Commonwealth; or
(ii) is the subject of a dispute as to ownership.
(3) The Inspector‑General is not required to take reasonable steps to return a thing because of paragraph (1)(c) if:
(a) proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and those proceedings (and any appeal from those proceedings) have not been completed; or
(b) the thing may continue to be retained because of an order under section 233G; or
(c) the Commonwealth or the Inspector‑General is otherwise authorised (by a law, or an order of a Court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the thing.
Return of thing
(4) A thing that is required to be returned under this section must be returned to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
233G Magistrate may permit a thing to be retained
(1) The Inspector‑General may apply to a magistrate for an order permitting the retention of a thing seized under this Subdivision for a further period if proceedings in respect of which the thing may afford evidence have not commenced before the end of:
(a) 60 days after the seizure; or
(b) a period previously specified in an order of a magistrate under this section.
(2) Before making the application, the Inspector‑General must:
(a) take reasonable steps to discover who has an interest in the retention of the thing; and
(b) if it is practicable to do so, notify each person who the Inspector‑General believes to have such an interest of the proposed application.
(3) Any person notified under paragraph (2)(b) is entitled to be heard in relation to the application.
Order to retain thing
(4) The magistrate may order that the thing may continue to be retained for a period specified in the order if the magistrate is satisfied that it is necessary for the thing to continue to be retained:
(a) for the purposes of an investigation as to whether a designated compliance provision has been contravened; or
(b) to enable evidence of a contravention mentioned in paragraph (a) to be secured for the purposes of a prosecution or an action to obtain a pecuniary penalty order.
(5) The period specified must not exceed 3 years.
233H Disposal of things
(1) The Inspector‑General may dispose of a thing seized under this Subdivision if:
(a) the Inspector‑General has taken reasonable steps to return the thing to a person; and
(b) either:
(i) the Inspector‑General has been unable to locate the person; or
(ii) the person has refused to take possession of the thing.
(2) The Inspector‑General may dispose of the thing in such manner as the Inspector‑General thinks appropriate.
234 Offences relating to warrants
(1) A person commits an offence if:
(a) the person is an authorised compliance officer; and
(b) the person makes, in an application for a monitoring warrant or an investigation warrant, a statement that the person knows to be false or misleading in a material particular.
Penalty: Imprisonment for 2 years or 120 penalty units.
(2) A person commits an offence if the person is an authorised compliance officer and the person:
(a) states in a document that purports to be a form of warrant under section 227 the name of a magistrate unless that magistrate issued the warrant; or
(b) states on a form of warrant under that section a matter that, to the authorised compliance officer’s knowledge, departs in a material particular from the form authorised by the magistrate; or
(c) purports to execute, or present to another person, a document that purports to be a form of warrant under that section that the authorised compliance officer knows:
(i) has not been approved by a magistrate under that section; or
(ii) departs in a material particular from the terms authorised by a magistrate under that section; or
(d) gives to a magistrate a form of warrant under that section that is not the form of warrant that the authorised compliance officer purported to execute.
Penalty: Imprisonment for 2 years or 120 penalty units.
Subdivision C—Powers of magistrates
235 Powers of magistrates
Powers conferred personally
(1) A power conferred on a magistrate by Subdivision B is conferred on the magistrate:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
Powers need not be accepted
(2) The magistrate need not accept the power conferred.
Protection and immunity
(3) A magistrate exercising a power conferred by Subdivision B has the same protection and immunity as if the magistrate were exercising the power:
(a) as the court of which the magistrate is a member; or
(b) as a member of the court of which the magistrate is a member.
Subdivision D—Other matters
236 Division not to abrogate privilege against self‑incrimination or legal professional privilege
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.
237 Occupier entitled to be present during entry
(1) If:
(a) an authorised compliance 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 person is entitled to observe the activities of the authorised compliance officer on the premises.
(2) The right to observe the authorised compliance officer’s activities ceases if the person impedes those activities.
(3) This section does not prevent the authorised compliance officer, or the authorised compliance officers, from carrying out activities at 2 or more areas of the premises at the same time.
237A Obstructing authorised compliance officers
Civil penalty provision
A person is liable to a civil penalty if the person obstructs, hinders, intimidates or resists an authorised compliance 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
238 Power to require information
(1) This section applies to a person if the Inspector‑General has reason to believe that information (the compellable information) relating to any of the following matters:
(a) the investigation of a designated compliance provision;
(b) an audit being conducted under section 73L or 135R;
(c) a matter:
(i) relevant to the performance of the Inspector‑General’s functions (other than the functions referred to in any of paragraphs 215C(1)(a) to (c)); 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 Inspector‑General may, in writing, require the person to give specified compellable information to the Inspector‑General:
(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.
Fault‑based offence
(3) A person commits an offence if:
(a) the person is subject to a requirement under subsection (2); and
(b) the person fails to comply with the requirement.
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
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 Inspector‑General 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