Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsafter section 134, insert
134A Building inspectors—powers on entry
(1) A building inspector who enters premises under this part may, for this Act, do 1 or more of the following in relation to the premises, anything on the premises, and the land around the premises:
(a) inspect or examine;
(b) inspect and copy, or take an extract from, any document at the premises;
(c) take measurements or conduct tests;
(d) take samples;
(e) take photographs, films, audio, video or other recordings;
(f) take onto the premises any people, equipment or material the inspector reasonably needs to exercise the inspector's functions under this Act;
(g) require the occupier, or anyone at the premises, to give information, answer questions, or produce documents or anything else, reasonably needed to exercise the inspector's functions under this Act.
Note The Legislation Act
, s 170 and s 171 deal with the application of the privilege against self-incrimination and client legal privilege.
(2) A person must take all reasonable steps to comply with a requirement made of the person under subsection (1) (g).
Maximum penalty: 50 penalty units.
134B Building inspectors—power to seize things
(1) A building inspector who enters premises under this part with the occupier's consent may seize anything at the premises if—
(a) the inspector is satisfied on reasonable grounds that the thing is connected with an offence against this Act; and
(b) seizure of the thing is consistent with the purpose of the entry told to the occupier when seeking the occupier's consent.
(2) A building inspector who enters premises under a warrant under this part may seize anything at the premises that the inspector is authorised to seize under the warrant.
(3) A building inspector who enters premises under this part (whether with the occupier's consent, under a warrant or otherwise) may seize anything at the premises if satisfied on reasonable grounds that—
(a) the thing is connected with an offence against this Act; and
(b) the seizure is necessary to prevent the thing from being—
(i) concealed, lost or destroyed; or
(ii) used to commit, continue or repeat the offence.
(4) Also, a building inspector who enters premises under this part (whether with the occupier's consent or otherwise) may seize anything at the premises if satisfied on reasonable grounds that the thing—
(a) puts the health or safety of people at risk; or
(b) may cause damage to property or the environment.
(5) The powers of a building inspector under subsections (3) and (4) are additional to any powers of the inspector under subsection (1) or any other territory law.
(6) Having seized a thing, a building inspector may—
(a) remove the thing from the premises where it was seized (the place of seizure ) to another place; or
(b) leave the thing at the place of seizure but restrict access to it.
(7) A person commits an offence if—
(a) the person interferes with a seized thing, or anything containing a seized thing, to which access has been restricted under subsection (6); and
(b) the person does not have a building inspector's approval to interfere with the thing.
Maximum penalty: 50 penalty units.
(8) An offence against this section is a strict liability offence.
134C Building inspectors—receipt for things seized
(1) As soon as practicable after a thing is seized by a building inspector under this part, the inspector must give a receipt for it to the person from whom it was seized.
(2) If, for any reason, it is not practicable to comply with subsection (1), the building inspector must leave the receipt, secured conspicuously at the place of seizure.
134D Access to things seized
A person who would, apart from the seizure, be entitled to a thing seized under this part may—
(a) inspect it; and
(b) if it is a document—take extracts from it or make copies of it.
134E Return of things seized
(1) A thing seized under this part must be returned to its owner, or reasonable compensation must be paid to the owner by the Territory for the loss of the thing, if—
(a) a prosecution for an offence relating to the thing is not instituted within 90 days of the seizure; or
(b) the court does not find the offence proved in a prosecution for an offence relating to the thing.
(2) A thing seized under this part is forfeited to the Territory if a court—
(a) finds an offence relating to the thing to be proved; and
(b) orders the forfeiture.
(3) If subsection (2) (a) applies, but a court does not order forfeiture of the thing seized, the construction occupations registrar must return the thing to its owner or the Territory must pay reasonable compensation to the owner for the loss of the thing.
Division 7.4 Search warrants
134F Warrants generally
(1) A building inspector may apply to a magistrate for a warrant to enter premises.
(2) The application must be sworn and state the grounds on which the warrant is sought.
(3) The magistrate may refuse to consider the application until the inspector gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.
(4) The magistrate may issue a warrant only if satisfied there are reasonable grounds for suspecting—
(a) there is a particular thing or activity connected with an offence against this Act; and
(b) the thing or activity is, or is being engaged in, at the premises, or may be, or may be engaged in, at the premises within the next 14 days.
(5) The warrant must state—
(a) that a building inspector may, with any necessary assistance and force, enter the premises and exercise the inspector's powers under this part; and
(b) the offence for which the warrant is issued; and
(c) the things that may be seized under the warrant; and
(d) the hours when the premises may be entered; and
(e) the date, within 14 days after the day of the warrant's issue, that the warrant ends.
(6) In this section:
"connected"—an activity is connected with an offence if—
(a) the offence has been committed by engaging or not engaging in it; or
(b) it will provide evidence of the commission of the offence.
134G Warrants—application made other than in person
(1) A building inspector may apply for a warrant by phone, fax, radio or other form of communication if the inspector considers it necessary because of—
(a) urgent circumstances; or
(b) other special circumstances.
(2) Before applying for the warrant, the building inspector must prepare an application stating the grounds on which the warrant is sought.
(3) The building inspector may apply for the warrant before the application is sworn.
(4) After issuing the warrant, the magistrate must immediately fax a copy to the building inspector if it is practicable to do so.
(5) If it is not practicable to fax a copy to the building inspector—
(a) the magistrate must—
(i) tell the building inspector what the terms of the warrant are; and
(ii) tell the building inspector the date and time the warrant was issued; and
(b) the building inspector must complete a form of warrant (the warrant form ) and write on it—
(i) the magistrate's name; and
(ii) the date and time the magistrate issued the warrant; and
(iii) the warrant's terms.
(6) The faxed copy of the warrant, or the warrant form properly completed by the building inspector, authorises the entry and exercise of the inspector's powers under this part.
(7) The building inspector must, at the first reasonable opportunity, send to the magistrate—
(a) the sworn application; and
(b) if the inspector completed a warrant form—the completed warrant form.
(8) On receiving the documents, the magistrate must attach them to the warrant.
(9) A court must find that a power exercised by a building inspector was not authorised by a warrant under this section if—
(a) the question arises in a proceeding before the court whether the exercise of power was authorised by a warrant; and
(b) the warrant is not produced in evidence; and
(c) it is not proved that the exercise of power was authorised by a warrant under this section.
134H Search warrants—announcement before entry
(1) A building inspector must, before anyone enters premises under a search warrant—
(a) announce that the inspector is authorised to enter the premises; and
(b) give anyone at the premises an opportunity to allow entry to the premises; and
(c) if an occupier of the premises, or someone else who apparently represents the occupier, is present at the premises—identify himself or herself to the person.
(2) The building inspector is not required to comply with subsection (1) if the inspector believes on reasonable grounds that immediate entry to the premises is required to ensure—
(a) the safety of anyone (including the inspector or any person assisting); or
(b) that the effective execution of the warrant is not frustrated.
134I Details of search warrant to be given to occupier etc
If an occupier of premises, or someone else who apparently represents the occupier, is present at the premises while a search warrant is being executed, the building inspector or a person assisting must make available to the person—
(a) a copy of the warrant; and
(b) a document setting out the rights and obligations of the person.
134J Occupier entitled to be present during search etc
(1) If an occupier of premises, or someone else who apparently represents the occupier, is present at the premises while a search warrant is being executed, the occupier or the other person is entitled to observe the search being conducted.
(2) However, the person is not entitled to observe the search if—
(a) to do so would impede the search; or
(b) the person is under arrest, and allowing the person to observe the search being conducted would interfere with the objectives of the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
134K Moving things to another place for examination or processing
(1) A thing found at premises entered under a search warrant may be moved to another place for examination or processing to decide whether it may be seized under the warrant if—
(a) both of the following apply:
(i) there are reasonable grounds for believing that the thing is or contains something to which the warrant relates;
(ii) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; or
(b) the occupier of the premises agrees in writing.
(2) The thing may be moved to another place for examination or processing for not longer than 72 hours.
(3) A building inspector may apply to a magistrate for an extension of time if the inspector believes on reasonable grounds that the thing cannot be examined or processed within 72 hours.
(4) The building inspector must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard on the application.
(5) If a thing is moved to another place under this section, the building inspector must, if practicable—
(a) tell the occupier of the premises the address of the place where, and time when, the examination or processing will be carried out; and
(b) allow the occupier or the occupier's representative to be present during the examination or processing.
(6) The provisions of this part relating to the issue of search warrants apply, with any necessary changes, to the giving of an extension under this section.