FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND VETERANS' AFFAIRS LEGISLATION AMENDMENT (2006 BUDGET MEASURES) BILL 2006

2004-2005-2006

The Parliament of the
Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Families, Community Services and Indigenous Affairs and Veterans' Affairs Legislation Amendment (2006 Budget Measures) Bill 2006

No. , 2006

(Families, Community Services and Indigenous Affairs)

A Bill for an Act to amend the law relating to social security, veterans' entitlements, family assistance, student assistance, aged care and child support, and for related purposes

Families, Community Services and Indigenous Affairs and Veterans' Affairs Legislation Amendment (2006 Budget Measures) Bill 2006 No. , 2006

Families, Community Services and Indigenous Affairs and Veterans' Affairs Legislation Amendment (2006 Budget Measures) Bill 2006 No. , 2006
Contents

1 Short title 1

2 Commencement 1

3 Schedule(s) 2
Schedule 1--Inclusion of land adjacent to a dwelling-house in a principal home 3
Social Security Act 1991 3
Veterans' Entitlements Act 1986 13
Schedule 2--Search and seizure 26
A New Tax System (Family Assistance) (Administration) Act 1999 26
Social Security (Administration) Act 1999 45
Student Assistance Act 1973 64
Schedule 3--Crisis payment 84
Social Security Act 1991 84
Schedule 4--Miscellaneous 86
Aged Care Act 1997 86
Child Support (Assessment) Act 1989 86
Child Support (Registration and Collection) Act 1988 86
Social Security (Administration) Act 1999 87

Schedule 4 Miscellaneous

Miscellaneous Schedule 4

Families, Community Services and Indigenous Affairs and Veterans' Affairs Legislation Amendment (2006 Budget Measures) Bill 2006 No. , 2006

Families, Community Services and Indigenous Affairs and Veterans' Affairs Legislation Amendment (2006 Budget Measures) Bill 2006 No. , 2006

Families, Community Services and Indigenous Affairs and Veterans' Affairs Legislation Amendment (2006 Budget Measures) Bill 2006 No. , 2006
A Bill for an Act to amend the law relating to social security, veterans' entitlements, family assistance, student assistance, aged care and child support, and for related purposes
The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Families, Community Services and Indigenous Affairs and Veterans' Affairs Legislation Amendment (2006 Budget Measures) Act 2006.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information

Column 1
Column 2
Column 3

Provision(s)
Commencement
Date/Details

1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table
The day on which this Act receives the Royal Assent.

2. Schedule 1

1 January 2007.

1 January 2007

3. Schedule 2
The 28th day after the day on which this Act receives the Royal Assent.

4. Schedules 3 and 4
The day on which this Act receives the Royal Assent.

Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1--Inclusion of land adjacent to a dwelling-house in a principal home

Social Security Act 1991

1 Subsection 4(6A) (note)
Omit "section 11", substitute "sections 11 and 11A".

2 Paragraph 8(8)(zn) (note 2)
Omit "11(6A) and (7)", substitute "11A(8) and (9)".

3 Subsection 11(1) (definition of principal home)
Omit "subsections (5) to (7)", substitute "section 11A".

4 Subsection 11(1) (definition of reasonable security of tenure)
Omit "subsection (8)", substitute "subsection 11A(10)".

5 Subsections 11(5) to (8)
Repeal the subsections.

6 After section 11
Insert:

11A Principal home definition for the purpose of the assets test
Principal home

(1) A reference in this Act to the principal home of a person includes a reference to:

(a) if the principal home is a dwelling-house--the land adjacent to the dwelling-house to the extent that:

(i) the land is held under the same title document as the land on which the dwelling-house is located; and

(ii) the private land use test in subsection (3) is satisfied in relation to the land or, if the person is one to whom the extended land use test applies in relation to the land, the extended land use test in subsection (6) is satisfied in relation to the land; or

(b) if the principal home is a flat or home unit--a garage or storeroom that is used primarily for private or domestic purposes in association with the flat or home unit.

(2) The Secretary may determine that land is to be treated, for the purpose of subparagraph (1)(a)(i), as if it were held on the same title document as other land if any of the following apply:

(a) the dwelling-house is located on both blocks of land;

(b) the dwelling-house is located on one of the blocks of land but that block and the other block, taken together, are a place, or are part of a place, that is protected under a law of the Commonwealth, or of a State or Territory, because of its natural, historic or indigenous heritage;

(c) the alienation of one of the blocks of land without the other would seriously undermine the function of the house as a dwelling.

Note: A mere loss of amenity, such as the loss of a swimming pool, garden, tennis court or view, would not seriously undermine the function of a house as a dwelling.

Private land use test

(3) The private land use test is satisfied in relation to land if:

(a) the area of the land, together with the area of the ground floor of the dwelling-house, is not more than 2 hectares; and

(b) the land is used primarily for private or domestic purposes in association with the dwelling-house.

To whom does the extended land use test apply?

(4) The extended land use test applies to a person in relation to land adjacent to the dwelling-house if:

(a) the person has reached pension age; and

(b) the person is qualified for an age pension or carer payment and that pension or payment is payable to the person; and

(5) Where a person (the first person) to whom the extended land use test applies in relation to land adjacent to the dwelling-house in which the person lives is a member of a couple:

(a) the extended land use test applies to the first person's partner (the second person); and

(b) the extended land use test continues to apply to the second person if the first person and the second person cease to be members of a couple for any reason, provided the dwelling-house continues to be the second person's principal home.

Extended land use test

(6) The extended land use test is satisfied in relation to land if:

(a) the area of the land, together with the area of the ground floor of the dwelling-house, is more than 2 hectares; and

(b) the Secretary determines that, given the circumstances of the person to whom the test is applied in relation to the land, the person is making effective use of the land.

(7) In determining whether a person is making effective use of the land, the Secretary is to take into account the following matters:

(a) where the land is located;

(b) the size of the block of land;

(d) the person's health;

(e) whether the land contains a dwelling-house occupied by a family member of the person, or a child of a family member of the person, receiving an income support payment;

(f) whether the land is being used to support:

(i) a family member of the person; or

(ii) a child of a family member of the person;

(g) any current commercial use of the land;

(h) any potential commercial use of the land;

(i) whether the person's capacity to make commercial use of the land is diminished because the person, or the person's partner, has responsibility for the care of another person;

(j) whether the block of land is an amalgamation of 2 or more blocks and, if so:

(i) when the amalgamation occurred; and

(ii) whether the amalgamation reduced the potential for the land to produce personal income or to support the person;

(k) environmental issues relating to the land;

(l) any other matter that the Secretary considers relevant.

Effect of absences from principal home

(8) A residence of a person is taken to be the person's principal home during:

(a) if the Secretary is satisfied that the residence was previously the person's principal home but that the person left it for the purpose of going into a care situation--any period during which:

(i) the person is accruing a liability to pay an accommodation charge (or would be accruing such a liability, assuming that no sanctions under Part 4.4 of the Aged Care Act 1997 were currently being imposed on the provider of the care concerned); and

(ii) the person, or the person's partner, is earning, deriving or receiving rent for the residence from another person; and

Note 1: For rent, see subsection 13(2).

Note 2: A person can be liable to pay an accommodation charge only if certain conditions are met: see Division 57A of the Aged Care Act 1997.

(b) if the Secretary is satisfied that the residence was previously the person's principal home but that the person left it for the purpose of going into a care situation--any period during which:

(i) the person is liable to pay all or some of an accommodation bond by periodic payments (or would be liable to do so, assuming that no sanctions under Part 4.4 of the Aged Care Act 1997 were currently being imposed on the provider of the care concerned); and

(ii) the person, or the person's partner, is earning, deriving or receiving rent for the residence from another person; and

(c) any period during which the residence is, because of paragraph (a) or (b), the principal home of the person's partner.

Note: This subsection is not meant to imply that a person may have more than one principal home at the same time.

(9) A residence of a person is to be taken to continue to be the person's principal home during:

(a) any period (not exceeding 12 months) during which the person is temporarily absent from the residence; and

(b) if the person is in a care situation or residential care--the period of 2 years beginning when the person started to be in a care situation or residential care; and

(i) the person is in a care situation or residential care; and

(ii) the residence is, or because of paragraph (a) or (b) continues to be, the principal home of the person's partner; and

(d) if:

(i) the person is in a care situation or residential care; and

(ii) the person's partner dies while in a care situation or residential care; and

(iii) the person's partner had been in a care situation or residential care for less than 2 years;

the period of 2 years beginning at the time the person's partner started to be in a care situation or residential care; and

(e) where:

(i) the person is in a care situation or residential care; and

(ii) the person's partner dies while in a care situation or residential care;

the period of 2 years from the partner's death; and

(f) any period of up to 2 years while the person is absent from the residence and is personally providing a substantial level of care in another private residence for another person who needs, or in the Secretary's opinion is likely to need, that level of care in a private residence for at least 14 consecutive days.

Note: For in a care situation, see subsection 13(9); for in residential care see subsection 23(4CA).

Reasonable security of tenure

(10) If a person has a right or interest in the person's principal home, the person is to be taken to have a right or interest that gives the person reasonable security of tenure in the home unless the Secretary is satisfied that the right or interest does not give the person reasonable security of tenure in the home.

Definition of title document

(11) In this section:

title document, in relation to land, means:

(a) in relation to land title which is registered under a Torrens system of registration--the certificate of title for the land; or

(b) in any other case--the last instrument by which title to the land was conveyed.

Application of Legislative Instruments Act 2003

(12) A determination under subsection (2) or paragraph (6)(b) is not a legislative instrument.

7 Subsections 12A(2A) and (2B)
Omit "the adjacent private land", substitute "any adjacent area of land used primarily for private or domestic purposes in association with that dwelling-house".

8 Subsection 13(1) (note to definition of ineligible homeowner)
Omit "subsections 11(5) to (7)", substitute "section 11A".

9 Subparagraph 13(2)(a)(iii)
Omit "subsection 11(6A) or (7)", substitute "subsection 11A(8) or (9)".

10 Subsection 13(2) (note)
Omit "subsections 11(5) to (7)", substitute "section 11A".

11 Subsection 13(3A) (note)
Omit "subsection 11(6A) or (7)", substitute "subsection 11A(8) or (9)".

12 Subsection 13(3B) (note)
Omit "subsection 11(6A) or (7)", substitute "subsection 11A(8) or (9)".

13 Subsection 1118(1) (note 2)
Omit "subsections (5) to (7)", substitute "section 11A".

14 Subsection 1118(1) (note 3)
Omit "subsection 11(8)", substitute "subsection 11A(10)".

15 Subsection 1185C(2)
Omit "the adjacent private land" (wherever occurring), substitute "any adjacent area of land used primarily for private or domestic purposes in association with that dwelling-house".

16 Paragraphs 1185S(5)(b) and (d)
Omit "the adjacent private land", substitute "any adjacent area of land used primarily for private or domestic purposes in association with that dwelling-house".

17 Paragraph 1208J(1)(a)
Omit "section 11", substitute "sections 11 and 11A".

18 Paragraph 1208X(a)
Omit "section 11", substitute "sections 11 and 11A".

19 Transitional arrangements--one title rule
(1) Section 11A of the Social Security Act 1991, inserted by item 6 of this Schedule, applies in relation to a person as if it did not include subparagraph 11A(1)(a)(i) in the cases set out in this item.

(2) The first case is where:

(a) the person is receiving a social security payment immediately before 1 January 2007; and

(b) that payment would cease to be payable to the person, or would be payable to the person at a lower rate, on 1 January 2007, if:

(i) subparagraph 11A(1)(a)(i) were applied; and

(ii) there were no determination in effect on that day under paragraph 11A(6)(b) of the Social Security Act 1991, inserted by item 6 of this Schedule, in relation to land adjacent to the dwelling-house in which the person lived immediately before 1 January 2007; and

(d) the person does not cease to receive a social security payment.

(3) The second case is where:

(a) the person is receiving a social security payment immediately before 1 January 2007; and

(b) the payment has been paid at a particular rate immediately before 1 January 2007 because land adjacent to the dwelling-house in which the person lived at that time was not included in the person's principal home because it was not held on the same title document as the land on which the dwelling-house was located; and

(d) the person does not cease to receive a social security payment.

20 Transitional arrangements--effective use test
(1) If:

(a) a person is receiving a social security payment immediately before 1 January 2007; and

(b) the person notifies the Secretary during the notification period of circumstances relevant to the determination by the Secretary under paragraph 11A(6)(b) of the Social Security Act 1991, inserted by item 6 of this Schedule, of whether the person is making effective use of land adjacent to the dwelling-house in which the person lives; and

(c) the Secretary makes a determination under that paragraph that the person is making effective use of the land (the effective use determination); and

(d) the rate at which the payment is payable to the person increases as a result of the effective use determination; and

(e) a determination is made under section 78 of the Social Security (Administration) Act 1999 increasing the rate at which the payment is to be paid to the person because of the effective use determination;
the determination under section 78 of that Act takes effect on 1 January 2007 or, if a later day is specified in the determination, that later day.

(2) If:

(a) a person is not receiving a social security payment immediately before 1 January 2007; and

(b) the person makes a claim for a social security payment during the notification period; and

(c) the person notifies the Secretary (whether in the claim or otherwise) during the notification period of circumstances relevant to the determination by the Secretary under paragraph 11A(6)(b) of the Social Security Act 1991, inserted by item 6 of this Schedule, of whether the person is making effective use of land adjacent to the dwelling-house in which the person lives; and

(d) the Secretary makes a determination under that paragraph that the person is making effective use of the land (the effective use determination);
then:

(e) the effective use determination takes effect on 1 January 2007 or, if a later day is specified in the determination, that later day; and

(f) the person's start day in relation to the social security payment is the earlier of:

(i) the day on which the effective use determination takes effect; and

(ii) the day worked out in accordance with Schedule 2 to the Social Security (Administration) Act 1999 as the start day in relation to the payment.

(3) If:

(a) a person is not receiving a social security payment immediately before 1 January 2007; and

(b) the person makes a claim for a social security payment during the notification period; and

(i) the person is not qualified for the payment; or

(ii) the payment is not payable to the person; and

(d) the person was qualified for the payment, and the payment was payable to the person, during a period (the claim period) that fell before that day and within the notification period; and

(e) the extended land use test applied to the person under subsection 11A(4) or (5) of the Social Security Act 1991, inserted by item 6 of this Schedule, during all or part of the claim period; and

(f) the person notifies the Secretary (whether in the claim or otherwise) during the notification period of circumstances that would have been relevant, during all or part of the claim period, to a determination by the Secretary under paragraph 11A(6)(b) of the Social Security Act 1991, inserted by item 6 of this Schedule, of whether the person is making effective use of land adjacent to the dwelling-house in which the person lives;
then:

(g) the Secretary may make a determination in relation to the claim period or a specified part of the claim period, that the person was making effective use of the land during the period or that part of the period, and that determination has effect in relation to the period or that part of the period as if it were a determination under paragraph 11A(6)(b) of the Social Security Act 1991; and

(h) the Secretary may grant the claim; and

(i) the person's start day in relation to the social security payment is the first day of the claim period or the specified part of the claim period.

(4) The Secretary may determine in writing that a person is to be treated for the purposes of paragraph (1)(b) as if the person notified the Secretary within the notification period of the circumstances mentioned in that paragraph if:

(a) the person notifies the Secretary of those circumstances between 1 April 2007 and 30 June 2007 (inclusive); and

(b) the Secretary is satisfied that special circumstances apply in respect of the person.

(5) The Secretary may determine in writing that a person is to be treated:

(a) for the purposes of paragraph (2)(b) or (3)(b), as if the person had made a claim for a social security payment within the notification period; and

(b) for the purposes of paragraph (2)(c) or (3)(f), as if the person notified the Secretary within the notification period of the circumstances mentioned in that paragraph;
if:

(d) the person notifies the Secretary in relation to the circumstances between 1 April 2007 and 30 June 2007 (inclusive); and

(e) the Secretary is satisfied that special circumstances apply in respect of the person.

(6) In this item:

notification period means the period commencing on 1 January 2007 and ending on 31 March 2007.

Veterans' Entitlements Act 1986

21 Section 5 (item relating to interest that gives reasonable security of tenure)
Repeal the item.

22 Section 5 (item relating to principal home)
Repeal the item, substitute:

principal home

5LA

23 Section 5
Insert:

reasonable security of tenure

5LA(10)

24 Subsection 5E(4A) (note)
Omit "section 5L", substitute "sections 5L and 5LA".

25 Paragraph 5H(8)(nc) (note 3)
Omit "subsections 5L(6A) and (7)", substitute "subsections 5LA(8) and (9)".

26 Subsection 5L(1) (definition of interest that gives reasonable security of tenure)
Repeal the definition.

27 Subsection 5L(1) (definition of principal home)
Omit "subsections (5) to (7)", substitute "section 5LA".

28 Subsection 5L(1)
Insert:

reasonable security of tenure has the meaning given by subsection 5LA(10).

29 Subsections 5L(5) to (8)
Repeal the subsections.

30 After section 5L
Insert:

5LA Principal home definition for the purpose of the assets test
Principal home

(1) A reference in this Act to the principal home of a person includes a reference to:

(a) if the principal home is a dwelling-house--the land adjacent to the dwelling-house to the extent that:

(i) the land is held on the same title document as the land on which the dwelling-house is located; and

(b) if the principal home is a flat or home unit--a garage or storeroom that is used primarily for private or domestic purposes in association with the flat or home unit.

(2) The Commission may determine that land is to be treated, for the purpose of subparagraph (1)(a)(i), as if it were held on the same title document as other land if any of the following apply:

(a) the dwelling-house is located on both blocks of land;

(c) the alienation of one of the blocks of land without the other would seriously undermine the function of the house as a dwelling.

Note: A mere loss of amenity, such as the loss of a swimming pool, garden, tennis court or view, would not seriously undermine the function of a house as a dwelling.

Private land use test

(3) The private land use test is satisfied in relation to land if:

(a) the area of land, together with the area of the ground floor of the dwelling-house, is not more than 2 hectares; and

(b) the land is used primarily for private or domestic purposes in association with the dwelling-house.

To whom does the extended land use test apply?

(4) The extended land use test applies to a person in relation to land adjacent to the dwelling-house if:

(a) the person has reached the qualifying age; and

(b) the person is eligible to receive a service pension or income support supplement and that pension or supplement is payable to the person; and

Note: Paragraph (a)--for the qualifying age for a service pension and income support supplement, see subsection 45A(2).

(5) Where a person (the first person) to whom the extended land use test applies in relation to land adjacent to the dwelling-house in which the person lives is a member of a couple:

(a) the extended land use test applies to the first person's partner (the second person); and

Extended land use test

(6) The extended land use test is satisfied in relation to land if:

(a) the area of the land, together with the area of the ground floor of the dwelling-house, is more than 2 hectares; and

(b) the Commission determines that, given the circumstances of the person to whom the test is applied in relation to the land, the person is making effective use of the land.

(7) In determining whether a person is making effective use of the land, the Commission is to take into account the following matters:

(a) where the land is located;

(b) the size of the block of land;

(d) the person's health;

(e) whether the land contains a dwelling-house occupied by a family member of the person, or a child of a family member of the person, receiving an income support payment (within the meaning of the Social Security Act 1991);

(f) whether the land is being used to support:

(i) a family member of the person; or

(ii) a child of a family member of the person;

(g) any current commercial use of the land;

(h) any potential commercial use of the land;

(i) whether the person's capacity to make commercial use of the land is diminished because the person, or the person's partner, has responsibility for the care of another person;

(j) whether the block of land is an amalgamation of 2 or more blocks and, if so:

(i) when the amalgamation occurred; and

(ii) whether the amalgamation reduced the potential for the land to produce personal income or to support the person;

(k) environmental issues relating to the land;

(l) any other matter that the Commission considers relevant.

Effect of absences from principal home

(8) A residence of a person is taken to be the person's principal home during:

(a) if the Commission is satisfied that the residence was previously the person's principal home but that the person left it for the purpose of going into a care situation or becoming an aged care resident--any period during which:

(ii) the person, or the person's partner, is earning, deriving or receiving rent for the residence from another person; and

(b) if the Commission is satisfied that the residence was previously the person's principal home but that the person left it for the purpose of going into a care situation or becoming an aged care resident--any period during which:

(ii) the person, or the person's partner, is earning, deriving or receiving rent for the residence from another person; and

(c) any period during which the residence is, because of paragraph (a) or (b), the principal home of the person's partner.

Note 1: Accommodation charge and accommodation bond have the same meaning as in the Aged Care Act 1997: see subsection 5L(1).

Note 2: For rent, see subsection 5N(2). For in a care situation, see subsection 5NC(2). For aged care resident, see subsection 5NC(5).

Note 3: This subsection is not meant to imply that a person may have more than one principal home at the same time.

Note 4: A person can be liable to pay an accommodation charge only if certain conditions are met: see Division 57A of the Aged Care Act 1997. For rules about accommodation bonds, see Division 57 of that Act.

(9) A residence of a person is to be taken to continue to be the person's principal home during:

(a) any period (not exceeding 12 months) during which the person is temporarily absent from the residence; and

(b) if the person is in a care situation or is an aged care resident--the period of 2 years beginning when the person started to be in a care situation or an aged care resident; and

(i) the person is in a care situation or is an aged care resident; and

(ii) the residence is, or because of paragraph (a) or (b) continues to be, the principal home of the person's partner or non-illness separated spouse; and

(d) if:

(i) the person is in a care situation or is an aged care resident; and

(ii) while paragraph (c) applies, the person's partner or non-illness separated spouse dies while in a care situation or while an aged care resident; and

(iii) the person's partner or non-illness separated spouse had been in a care situation or an aged care resident for less than 2 years;

the period of 2 years beginning at the time the person's partner or non-illness separated spouse started to be in a care situation or an aged care resident; and

(e) where:

(i) the person is in a care situation or is an aged care resident; and

(ii) while paragraph (c) applies, the person's partner or non-illness separated spouse dies (but not while in a care situation or while an aged care resident);

the period of 2 years from that death; and

(f) any period of up to 2 years while the person is absent from the residence and is personally providing community-based care for another person.

Note 1: For in a care situation, see subsection 5NC(2).

Note 2: For aged care resident, see subsection 5NC(5).

Reasonable security of tenure

(10) If a person has a right or interest in the person's principal home, the person is to be taken to have a right or interest that gives the person reasonable security of tenure in the home unless the Commission is satisfied that the right or interest does not give the person reasonable security of tenure in the home.

Definition of title document

(11) In this section:

title document, in relation to land, means:

(a) in relation to land title which is registered under a Torrens system of registration--the certificate of title for the land; or

(b) in any other case--the last instrument by which title to the land was conveyed.

Application of Legislative Instruments Act 2003

(12) A determination under subsection (2) or paragraph (6)(b) is not a legislative instrument.

31 Subsection 5MA(2A)
Omit "the adjacent private land", substitute "any adjacent area of land used primarily for private or domestic purposes in association with that dwelling-house".

32 Subsection 5MA(2B)
Omit "the adjacent private land", substitute "any adjacent area of land used primarily for private or domestic purposes in association with that dwelling-house".

33 Subsection 5N(1) (definition of ineligible property owner) (note)
Omit "subsections 5L(5) to (7)", substitute "section 5LA".

34 Subparagraph 5N(2)(a)(iii)
Omit "subsection 5L(6A) or (7)", substitute "subsection 5LA(8) or (9)".

35 Subsection 5N(2) (note)
Omit "subsections 5L(5) to (7)", substitute "section 5LA".

36 Subsection 5N(3A) (note)
Omit "subsection 5L(6A) or (7)", substitute "subsection 5LA(8) or (9)".

37 Subsection 5N(3B) (note)
Omit "subsection 5L(6A) or (7)", substitute "subsection 5LA(8) or (9)".

38 Subsection 49B(2)
Omit "the adjacent private land" (wherever occurring), substitute "any adjacent area of land used primarily for private or domestic purposes in association with that dwelling-house".

39 Subsection 49R(5)
Omit "the adjacent private land" (wherever occurring), substitute "any adjacent area of land used primarily for private or domestic purposes in association with that dwelling-house".

40 Paragraph 52(1)(n) (note)
Omit "section 5L", substitute "sections 5L and 5LA".

41 Paragraph 52ZZV(1)(a)
Omit "section 5L", substitute "sections 5L and 5LA".

42 Paragraph 52ZZZI(a)
Omit "section 5L", substitute "sections 5L and 5LA".

43 Subclause 17A(2) of Schedule 5 (note 2)
Omit "subsections 5L(6A) and (7)", substitute "subsections 5LA(8) and (9)".

44 Transitional arrangements--one title rule
(1) Section 5LA of the Veterans' Entitlements Act 1986, inserted by item 30 of this Schedule, applies in relation to a person as if it did not include subparagraph 5LA(1)(a)(i) in the cases set out in this item.

(2) The first case is where:

(a) the person is receiving a service pension or income support supplement immediately before 1 January 2007; and

(b) that payment would cease to be payable to the person, or would be payable to the person at a lower rate, on 1 January 2007, if:

(i) subparagraph 5LA(1)(a)(i) were applied; and

(ii) there were no determination in effect on that day under paragraph 5LA(6)(b) of the Veterans' Entitlements Act 1986, inserted by item 30 of this Schedule, in relation to land adjacent to the dwelling-house in which the person lived immediately before 1 January 2007; and

(d) the person does not cease to receive a service pension or income support supplement.

(3) The second case is where:

(a) the person is receiving a service pension or income support supplement immediately before 1 January 2007; and

(d) the person does not cease to receive a service pension or income support supplement.

45 Transitional arrangements--effective use test
(1) If:

(a) a person is receiving a service pension or income support supplement immediately before 1 January 2007; and

(b) the person notifies the Commission during the notification period of circumstances relevant to the determination by the Commission under paragraph 5LA(6)(b) of the Veterans' Entitlements Act 1986, inserted by item 30 of this Schedule, of whether the person is making effective use of land adjacent to the dwelling-house in which the person lives; and

(c) the Commission makes a determination under that paragraph that the person is making effective use of that land (the effective use determination); and

(d) the rate at which the pension or supplement is payable to the person increases as a result of the effective use determination; and

(e) a determination is made under section 56C of the Veterans' Entitlements Act 1986 increasing the rate at which the pension or supplement is to be paid to the person because of the effective use determination;
the determination under section 56C of that Act has effect on 1 January 2007 or, if a later day is specified in the determination, that later day.

(2) If:

(a) a person is not receiving a service pension or income support supplement immediately before 1 January 2007; and

(b) the person makes a claim for a service pension or income support supplement during the notification period; and

(c) the person notifies the Commission (whether in the claim or otherwise) during the notification period of circumstances relevant to the determination by the Commission under paragraph 5LA(6)(b) of the Veterans' Entitlements Act 1986, inserted by item 30 of this Schedule, of whether the person is making effective use of land adjacent to the dwelling-house in which the person lives; and

(d) the Commission makes a determination under that paragraph that the person is making effective use of the land (the effective use determination);
then:

(e) the effective use determination takes effect on 1 January 2007 or, if a later day is specified in the determination, that later day; and

(f) if the service pension is an age service pension--the day on which the determination under section 36L of the Veterans' Entitlements Act 1986 in relation to that pension takes effect is the earlier of:

(i) the day on which the determination would take effect under section 36M of that Act, but for this item; and

(ii) the day on which the effective use determination takes effect; and

(g) if the service pension is an invalidity service pension--the day on which the determination under section 37L of the Veterans' Entitlements Act 1986 in relation to that pension takes effect is the earlier of:

(i) the day on which the determination would take effect under section 37M of that Act, but for this item; and

(ii) the day on which the effective use determination takes effect; and

(h) if the service pension is a partner service pension--the day on which the determination under section 38L of the Veterans' Entitlements Act 1986 in relation to that pension takes effect is the earlier of:

(i) the day on which the determination would take effect under section 38M of that Act, but for this item; and

(ii) the day on which the effective use determination takes effect; and

(i) in relation to the income support supplement--the day on which the determination under section 45Q of the Veterans' Entitlements Act 1986 in relation to the income support supplement takes effect is the earlier of:

(i) the day on which the determination would take effect under section 45R of that Act, but for this item; and

(ii) the day on which the effective use determination takes effect.

(3) If:

(a) a person is not receiving a service pension or income support supplement immediately before 1 January 2007; and

(b) the person makes a claim for a service pension or income support supplement during the notification period; and

(i) the person is not eligible to receive the pension or supplement; or

(ii) the pension or supplement is not payable to the person; and

(d) the person was eligible to receive the pension or supplement, and the pension or supplement was payable to the person, during a period (the claim period) that fell before that day and within the notification period; and

(e) the extended land use test applied to the person under subsection 5LA(4) or (5) of the Veterans' Entitlements Act 1986, inserted by item 30 of this Schedule, during all or part of the claim period; and

(f) the person notifies the Commission (whether in the claim or otherwise) during the notification period of circumstances that would have been relevant, during all or part of the claim period, to a determination by the Commission under paragraph 5LA(6)(b) of the Veterans' Entitlements Act 1986, inserted by item 30 of this Schedule, of whether the person is making effective use of land adjacent to the dwelling-house in which the person lives;
then:

(g) the Commission may make a determination in relation to the claim period or a specified part of the claim period, that the person was making effective use of the land during the period or that part of the period, and that determination has effect in relation to the period or that part of the period as if it were a determination under paragraph 5LA(6)(b) of the Veterans' Entitlements Act 1986; and

(h) the Commission may make a determination granting the claim; and

(i) the day on which the determination under section 36L, 37L, 38L or 45Q of the Veterans' Entitlements Act 1986 takes effect (despite sections 36M, 37M, 38M and 45R of that Act) is the first day of the claim period or the specified part of the claim period.

(4) The Commission may determine in writing that a person is to be treated for the purposes of paragraph (1)(b) as if the person notified the Commission within the notification period of the circumstances mentioned in that paragraph if:

(a) the person notifies the Commission of those circumstances between 1 April 2007 and 30 June 2007 (inclusive); and

(b) the Commission is satisfied that special circumstances apply in respect of the person.

(5) The Commission may determine in writing that a person is to be treated:

(a) for the purposes of paragraph (2)(b) or (3)(b), as if the person had made a claim for a service pension or income support supplement within the notification period; and

(b) for the purposes of paragraph (2)(c) or (3)(f), as if the person notified the Commission within the notification period of the circumstances mentioned in that paragraph; and
if:

(d) the person notifies the Commission in relation to the circumstances between 1 April 2007 and 30 June 2007 (inclusive); and

(e) the Commission is satisfied that special circumstances apply in respect of the person.

(6) In this item:

notification period means the period commencing on 1 January 2007 and ending on 31 March 2007.

Schedule 2--Search and seizure

A New Tax System (Family Assistance) (Administration) Act 1999

1 Subsection 3(1)
Insert:

assisting officer, in relation to a search of premises, means:

(a) a person who:

(i) is an authorised officer; and

(ii) is assisting in searching the premises; or

(b) a person who has been authorised by the authorised officer who is searching the premises to assist in searching the premises.

2 Subsection 3(1)
Insert:

authorised officer means a person authorised under section 221A.

3 Subsection 3(1)
Insert:

data, in Part 4A, has the same meaning as in Part IAA of the Crimes Act 1914.

4 Subsection 3(1)
Insert:

data held in a computer has the same meaning as in Part IAA of the Crimes Act 1914.

5 Subsection 3(1)
Insert:

data storage device has the same meaning as in Part IAA of the Crimes Act 1914.

6 Subsection 3(1)
Insert:

evidential material means a thing relevant to an offence against:

(a) family assistance law; or

(b) Part 7.3 of the Criminal Code in so far as the fraudulent conduct concerned relates to a matter under the family assistance law.

7 Subsection 3(1)
Insert:

magistrate means a magistrate who is remunerated by salary or otherwise.

8 Subsection 3(1)
Insert:

occupier of premises means the person apparently in charge of the premises.

9 Subsection 3(1)
Insert:

premises includes a place, vehicle, vessel and aircraft.

10 After Part 4
Insert:

Part 4A--Searches of premises
Division 1--Searches without a search warrant

103A Offence-related searches

(1) An authorised officer and an assisting officer may enter any premises (other than in the circumstances mentioned in section 219K) if:

(a) the authorised officer has reasonable grounds for suspecting that evidential material may be on or in the premises; and

(b) the occupier of the premises consents to the entry.

(2) Before obtaining the occupier's consent, the authorised officer must tell the occupier that he or she may refuse consent, or withdraw his or her consent at any time.

(3) An authorised officer and an assisting officer who enter premises under subsection (1) may:

(a) search the premises for the evidential material; and

(b) if the authorised officer or assisting officer finds the evidential material on or in the premises--seize it.

(4) The authorised officer and assisting officer must leave the premises if asked by the occupier to do so.

Division 2--Search warrants
Subdivision A--Applying for a search warrant

103B Authorised officer may apply for a search warrant
Application for warrant to search premises

(1) An authorised officer may apply to a magistrate for a search warrant to search premises if the authorised officer has reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material on the premises.

Note: In special circumstances and urgent cases, an application may be made by telephone, fax, email or other electronic means: see section 103E.

Information in support of application

(2) An authorised officer must give the magistrate information on oath or by affirmation to support the grounds for an application under subsection (1).

(3) If the authorised officer applying for a search warrant (or another authorised officer who will be an assisting officer in relation to the search warrant) has, at any time in the previous 5 years, applied for a search warrant under this section in relation to the same premises, the authorised officer must state particulars of that application, and its outcome, in the information given under subsection (2).

Subdivision B--Issue of a search warrant

103C When search warrants may be issued
Issue of a warrant to search premises

(1) If:

(a) an authorised officer makes an application to a magistrate under subsection 103B(1); and

(b) the magistrate is satisfied, on the information given under subsection 103B(2), that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, evidential material on the premises in relation to which the application is made;
the magistrate may issue a search warrant authorising the authorised officer to search the premises.

Issue of a warrant by State/Territory magistrates

(2) A magistrate in a State or internal Territory may:

(a) issue a search warrant in relation to premises in that State or Territory; or

(b) issue a search warrant in relation to premises in an external Territory; or

(c) issue a search warrant in relation to premises in another State or internal Territory (including the Jervis Bay Territory) if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate.

(3) A magistrate in New South Wales or the Australian Capital Territory may issue a search warrant in relation to premises in the Jervis Bay Territory.

(4) A magistrate must not issue a search warrant under this Part unless the conferral of the power to do so is in accordance with an agreement between the Commonwealth and the State or Territory concerned.

Issue of a warrant by magistrates

(5) The function of issuing a search warrant is conferred on a magistrate in a personal capacity and not as a court or a member of a court. The magistrate need not accept the function conferred.

(6) A magistrate performing a function of, or connected with, issuing a search warrant has the same protection and immunity as if he or she were performing that function as, or as a member of, the court of which the magistrate is a member.

103D Content of warrants
Contents of warrant

(1) If a magistrate issues a search warrant under section 103C, the magistrate is to state in the warrant:

(a) the offence to which the warrant relates; and

(b) a description of the premises to which the warrant relates; and

(d) the name of the authorised officer who, unless he or she inserts the name of another authorised officer in the warrant, is to be responsible for executing the warrant; and

(e) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (c)) found at the premises in the course of the search that the authorised officer or an assisting officer believes on reasonable grounds to be evidential material in relation to the offence to which the warrant relates if the authorised officer or the assisting officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

(f) the time at which the warrant expires; and

(g) whether the warrant may be executed at any time or only during particular hours.

(2) The time stated in the warrant as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.

Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified in the warrant must not be later than midnight on Monday in the following week.

Successive warrants

(3) Paragraph (1)(f) does not prevent the issue of successive warrants in relation to the same premises.

103E Application by telephone etc. and issue of warrant

(1) An authorised officer may apply to a magistrate for a search warrant by telephone, fax, email or other electronic means:

(a) in an urgent case; or

(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

(2) The magistrate:

(a) may require communication by voice to the extent that it is practicable in the circumstances; and

(b) may make a recording of the whole or any part of any such communication by voice.

(3) An application under this section must include all information that is required in an ordinary application for a search warrant, but the application may, if necessary, be made before the information is sworn or affirmed.

(4) If an application is made under this section:

(a) sections 103B and 103C apply as if subsection 103B(1) and 103C(1) referred to 48 hours rather than 72 hours; and

(b) section 103D applies as if subsection 103D(2) referred to the end of the 48th hour rather than the end of the seventh day.

(5) If an application is made to a magistrate under this section and the magistrate, after considering the information and having received and considered such further information (if any) as the magistrate required, is satisfied that:

(a) a search warrant in the terms of the application should be issued urgently; or

(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the magistrate may complete and sign the same form of search warrant that would be issued under section 103C.

(6) If the magistrate decides to issue the search warrant, the magistrate is to inform the applicant, by telephone, fax, email or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.

(7) The applicant must then complete a form of search warrant in terms substantially corresponding to those given by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the warrant was signed.

(8) The applicant must give or transmit to the magistrate:

(a) the form of search warrant completed by the applicant; and

(b) if the information referred to in subsection (3) was not sworn or affirmed--that information duly sworn or affirmed.

(9) The applicant must do so not later than the day after the warrant expires or the day after the day on which the search warrant was executed, whichever is the earlier.

(10) The magistrate is to attach to the documents provided under subsection (8) the form of search warrant he or she has completed.

(11) If:

(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a search warrant issued under this section was duly authorised; and

(b) the form of search warrant signed by the magistrate is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.

(12) In this section:

applicant means the authorised officer who applied for the search warrant.

103F The things authorised by a search warrant

A search warrant in force in relation to premises authorises the authorised officer executing the warrant or an assisting officer to do any of the following:

(a) to enter the premises;

(b) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found on the premises;

(c) to seize other things found on the premises in the course of the search that the authorised officer or the assisting officer believes on reasonable grounds to be a thing relevant to the offence to which the warrant relates if the authorised officer or the assisting officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.

Subdivision C--General provisions about executing a search warrant

103G Announcement before entry

(1) An authorised officer executing the search warrant must, before any person enters premises under the warrant:

(a) announce that he or she is authorised to enter the premises; and

(b) give any person at the premises an opportunity to allow entry to the premises.

(2) An authorised officer 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 (including an authorised officer or assisting officer); or

(b) to ensure that the effective execution of the warrant is not frustrated.

103H Warrant to be executed within permitted hours

If a search warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.

103J Availability of assistance and use of force in executing a warrant

(1) In executing a search warrant, the authorised officer executing the warrant may:

(a) obtain the assistance that is necessary and reasonable in the circumstances; and

(b) use the force against persons and things that is necessary and reasonable in the circumstances.

(2) In executing a search warrant:

(a) if an assisting officer is also an authorised officer--the assisting officer may use the force against persons and things that is necessary and reasonable in the circumstances; and

(b) if an assisting officer is not an authorised officer--the assisting officer may use the force against things that is necessary and reasonable in the circumstances.

103K Copy of warrant to be shown to occupier etc.

(1) If the occupier of the premises, or another person who apparently represents the occupier, is present at the premises, the authorised officer executing the search warrant or an assisting officer must make a copy of the warrant available to the person.

(2) The authorised officer must identify himself or herself to the person at the premises.

(3) The copy of the search warrant need not include the signature of the magistrate who issued it.

103L Occupier entitled to watch search

(1) The occupier of the premises, or another person who apparently represents the occupier, who is present at the premises, is entitled to watch the search.

(2) Subsection (1) is subject to Part IC of the Crimes Act 1914.

(3) The right to watch the search being conducted ceases if the person impedes the search.

(4) This section does not prevent 2 or more areas of the premises being searched at the same time.

103M Specific powers available to person executing a warrant

(1) The authorised officer executing the search warrant or an assisting officer may take photographs or video recordings of the premises or things on the premises:

(a) for a purpose incidental to the execution of the warrant; or

(b) with the written consent of the occupier of the premises.

(2) The authorised officer executing the search warrant and all assisting officers may, if the warrant is still in force, finish executing the warrant after all of them temporarily stop executing it and leave the premises:

(a) for not more than one hour; or

(b) for a longer period with the written consent of the occupier of the premises.

(3) The execution of a search warrant that is stopped by an order of a court may be completed if:

(a) the order is later revoked or reversed on appeal; and

(b) the warrant is still in force.

103N Use of equipment to examine or process things

(1) The authorised officer executing the search warrant or an assisting officer may bring to the premises any equipment (including electronic equipment) reasonably necessary to examine or process things found at the premises in order to determine whether they are things that may be seized under the warrant.

(2) A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if:

(a) both of the following apply:

(i) 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;

(ii) there are reasonable grounds to believe that the thing contains or constitutes evidential material; or

(b) the occupier of the premises consents in writing.

(3) If things are moved to another place for the purpose of examination or processing, the authorised officer must, if it is practicable to do so:

(a) inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and

(b) allow the occupier or his or her representative to be present during the examination or processing.

(4) The thing may be moved to another place for examination or processing for no longer than 72 hours.

(5) An authorised officer may apply to a magistrate for one or more extensions of that time if the authorised officer believes on reasonable grounds that the thing cannot be examined or processed within 72 hours or that time as previously extended.

(6) The authorised officer must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard in relation to the application.

(7) The authorised officer executing the search warrant or an assisting officer may operate equipment (including electronic equipment) already on the premises to examine or process a thing found on the premises in order to determine whether it may be seized under the warrant, if the authorised officer or the assisting officer believes on reasonable grounds that:

(a) the equipment is suitable for the examination or processing; and

(b) the examination or processing can be carried out without damaging the equipment or thing.

(8) A notice of the application given to the occupier of the premises is not a legislative instrument.

103P Use of electronic equipment at premises without expert assistance

(1) The authorised officer executing the search warrant or an assisting officer may operate electronic equipment on the premises to access data (including data not held at the premises) if he or she believes on reasonable grounds that:

(a) the data might constitute evidential material; and

(b) the equipment can be operated without damaging it.

Note: An authorised officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 103R.

(2) If the authorised officer or the assisting officer believes on reasonable grounds that any data accessed by operating the electronic equipment might constitute evidential material, he or she may:

(a) copy the data to a disk, tape or other associated device brought to the premises; or

(b) if the occupier of the premises agrees in writing--copy the data to a disk, tape or other associated device at the premises;
and take the device from the premises.

(3) If:

(a) the authorised officer or the assisting officer takes the device from the premises; and

(b) the Secretary is satisfied that the data is not required (or is no longer required) for:

(i) investigating the offence to which the warrant relates; or

(ii) judicial proceedings or administrative review proceedings; or

(iii) resolving a complaint under the Privacy Act 1988;
the Secretary must arrange for:

(d) the destruction of any other reproduction of the data in the control of an agency.

(4) If the authorised officer or the assisting officer, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:

(a) seize the equipment and any disk, tape or other associated device; or

(b) if the material can, by using facilities at the premises, be put in documentary form--operate the facilities to put the material in that form and seize the documents so produced.

(5) A person may seize equipment under paragraph (4)(a) only if:

(a) it is not practicable to put the material in documentary form as referred to in paragraph (4)(b); or

(b) possession of the equipment by the occupier could constitute an offence.

103Q Use of electronic equipment at premises with expert assistance

(1) If the authorised officer executing the search warrant or an assisting officer believes on reasonable grounds that:

(a) evidential material may be accessible by operating electronic equipment at the premises; and

(b) expert assistance is required to operate the equipment; and

(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.

(2) The authorised officer or the assisting officer must notify the occupier of the premises, in writing, of:

(a) his or her intention to secure the equipment; and

(b) the fact that the equipment may be secured for up to 24 hours.

(3) The equipment may be secured for up to 24 hours to allow the equipment to be operated by an expert.

(4) If the authorised officer or the assisting officer believes on reasonable grounds that expert assistance will not be available within 24 hours, he or she may apply to a magistrate for an extension of that period.

(5) The authorised officer or the assisting officer must notify the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.

(6) The provisions of this Division in relation to the issuing of search warrants apply, with such modifications as are necessary, to the issuing of an extension.

(7) A notification given to the occupier of the premises under this section is not a legislative instrument.

103R Person with knowledge of a computer or a computer system to assist access etc.

(1) The authorised officer executing the search warrant may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the authorised officer or an assisting officer to do one or more of the following:

(a) access data held in a computer, or accessible from a computer, that is on premises in relation to which the warrant is in force;

(b) copy the data to a data storage device;

(2) The magistrate may grant the order if he or she is satisfied that:

(a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer; and

(b) the specified person is:

(i) reasonably suspected of having committed the offence stated in the warrant; or

(ii) the owner or lessee of the computer; or

(iii) an employee of the owner or lessee of the computer; and

(i) the computer or a computer network of which the computer forms a part; or

(ii) measures applied to protect data held in, or accessible from, the computer.

(3) A person commits an offence if the person fails to comply with the order.

Penalty: Imprisonment for 6 months.

103S Accessing data held on other premises--notification to occupier of those premises

(1) If:

(a) data that is held on premises (other than the premises in relation to which the warrant is in force) is accessed under subsection 103P(1); and

(b) it is practicable to notify the occupier of the other premises that the data has been accessed under a warrant;
the authorised officer executing the search warrant must:

(d) if the authorised officer has arranged, or intends to arrange, for continued access to the data under subsection 103P(2) or (4)--include that information in the notification.

(2) A notification under subsection (1) must include sufficient information to allow the occupier of the other premises to contact the authorised officer.

103T Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of equipment being operated as mentioned in section 103N, 103P or 103Q:

(i) damage is caused to the equipment; or

(ii) the 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) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.

(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier's employees or agents, if they were available at the time, had provided any appropriate warning or guidance on the operation of the equipment.

(5) Compensation is payable out of money appropriated by the Parliament.

(6) For the purpose of subsection (1):

damage, in relation to data, includes damage by erasure of data or addition of other data.

103U Copies of seized things to be provided

(1) If the authorised officer executing the search warrant or an assisting officer seizes:

(a) a document, film, computer file or other thing that can be readily copied; or

(b) a device storing information that can be readily copied;
the authorised officer or the assisting officer must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.

(2) However, subsection (1) does not apply if:

(a) the thing that has been seized was seized under subsection 103P(2) or paragraph 103P(4)(b); or

(b) possession of the document, film, computer file, thing or information by the occupier could constitute an offence.

103V Receipts of things seized under warrant

(1) If a thing is seized under a search warrant or moved under subsection 103N(2), the authorised officer executing the warrant or an assisting officer must provide a receipt for the thing.

(2) If 2 or more things are seized or moved, they may be covered by the one receipt.

Subdivision D--Offences

103W Making false statements in warrants

A person commits an offence if:

(a) the person makes a statement in applying for a search warrant; and

(b) the person knows that the statement is false or misleading in a material particular.

Penalty: Imprisonment for 2 years.

103X Offence for stating incorrect names in telephone warrants

A person commits an offence if:

(a) the person states a name of a magistrate in a document; and

(b) the document purports to be a form of search warrant under section 103E; and

Penalty: Imprisonment for 2 years.

103Y Offence for unauthorised form of warrant

A person commits an offence if:

(a) the person states a matter in a form of search warrant under section 103E; and

(b) the person knows that the matter departs in a material particular from the form authorised by the magistrate.

Penalty: Imprisonment for 2 years.

103Z Offence for executing etc. an unauthorised form of warrant

A person commits an offence if:

(a) the person executes or presents a document to another person; and

(b) the document purports to be a form of search warrant under section 103E; and

(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.

Penalty: Imprisonment for 2 years.

103ZA Offence for giving unexecuted form of warrant

A person commits an offence if:

(a) the person gives a magistrate a form of search warrant under section 103E; and

(b) the document is not the form of search warrant that the person executed.

Penalty: Imprisonment for 2 years.

Subdivision E--Miscellaneous

103ZB Other laws about search or seizure not affected

(1) This Division is not intended to limit or exclude the operation of another law of the Commonwealth relating to:

(a) the search of premises; or

(b) the seizure of things.

(2) To avoid doubt, even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.

103ZC Law relating to legal professional privilege not affected

This Division does not affect the law relating to legal professional privilege.

11 Sections 219H and 219J
Repeal the sections.

12 Subsection 219K(2)
Omit "and the officer has shown his or her identity card if required by the occupier".

13 After section 221
Insert:

221A Appointment of authorised officers

(1) The Secretary may, in writing, authorise a person to be an authorised officer for either or both of the following the purposes:

(a) Part 4A;

(b) exercising powers referred to in section 219K.

(2) The person must be an officer the Secretary considers has suitable qualifications or experience.

(3) In exercising powers as an authorised officer, an authorised officer must comply with any directions given by the Secretary.

(4) If the Secretary gives a direction under subsection (3) in writing, the direction is not a legislative instrument.

221B Identity cards
Issue of identity card

(1) The Secretary must issue an identity card to a person who is an authorised officer for either or both of the following purposes:

(a) Part 4A;

(b) exercising powers referred to in section 219K.

Form of identity card

(2) An identity card:

(a) must be in a form approved by the Secretary; and

(b) must contain a recent photograph of the authorised officer.

Identity card to be carried and produced on request

(3) An authorised officer must carry the identity card at all times when exercising powers as an authorised officer in accordance with Part 4A or section 219K.

(4) An authorised officer is not entitled to exercise any powers under Part 4A or section 219K in relation to premises if:

(a) the occupier of the premises requires the authorised officer to produce his or her identity card for inspection by the occupier; and

(b) the authorised officer fails to comply with the requirement.

Offence

(5) A person commits an offence 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 Secretary as soon as reasonably practicable after ceasing to be an authorised officer.

Penalty: 1 penalty unit.

Social Security (Administration) Act 1999

14 After Part 4
Insert:

Part 4A--Searches of premises
Division 1--Searches without a search warrant

190 Offence-related searches

(1) An authorised officer and an assisting officer may enter any premises if:

(a) the authorised officer has reasonable grounds for suspecting that evidential material may be on or in any premises; and

(b) the occupier of the premises consents to the entry.

(2) Before obtaining the occupier's consent, the authorised officer must tell the occupier that he or she may refuse consent, or withdraw his or her consent at any time.

(3) An authorised officer and assisting officer who enter premises under subsection (1) may:

(a) search the premises for the evidential material; and

(b) if the authorised officer or assisting officer finds the evidential material on or in the premises--seize it.

(4) The authorised officer and assisting officer must leave the premises if asked by the occupier to do so.

Division 2--Search warrants
Subdivision A--Applying for a search warrant

190A Authorised officer may apply for a search warrant
Application for warrant to search premises

Note: In special circumstances and urgent cases, an application may be made by telephone, fax, email or other electronic means: see section 190D.

Information in support of application

(2) An authorised officer must give the magistrate information on oath or by affirmation to support the grounds for an application under subsection (1).

(3) If the authorised officer applying for a search warrant (or another authorised officer who will be an assisting officer in relation to the search warrant) has, at any time in the previous 5 years, applied for a search warrant under this section in relation to the same premises, the authorised officer must state particulars of those applications, and their outcome, in the information given under subsection (2).

Subdivision B--Issue of a search warrant

190B When search warrants may be issued
Issue of a warrant to search premises

(1) If:

(a) an authorised officer makes an application to a magistrate under subsection 190A(1); and

(b) the magistrate is satisfied, on the information given under subsection 190A(2), that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, evidential material on the premises in relation to which the application is made;
the magistrate may issue a search warrant authorising the authorised officer to search the premises.

Issue of a warrant by State/Territory magistrates

(2) A magistrate in a State or internal Territory may:

(a) issue a search warrant in relation to premises in that State or Territory; or

(b) issue a search warrant in relation to premises in an external Territory; or

(3) A magistrate in New South Wales or the Australian Capital Territory may issue a search warrant in relation to premises in the Jervis Bay Territory.

Issue of a warrant by magistrates

(5) The function of issuing a search warrant is conferred on a magistrate in a personal capacity and not as a court or a member of a court. The magistrate need not accept the function conferred.

190C Content of warrants
Contents of warrant

(1) If a magistrate issues a search warrant under section 190B, the magistrate is to state in the warrant:

(a) the offence to which the warrant relates; and

(b) a description of the premises to which the warrant relates; and

(d) the name of the authorised officer who, unless he or she inserts the name of another authorised officer in the warrant, is to be responsible for executing the warrant; and

(f) the time at which the warrant expires; and

(g) whether the warrant may be executed at any time or only during particular hours.

(2) The time stated in the warrant as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.

Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified in the warrant must not be later than midnight on Monday in the following week.

Successive warrants

(3) Paragraph (1)(f) does not prevent the issue of successive warrants in relation to the same premises.

190D Application by telephone etc. and issue of warrant

(1) An authorised officer may apply to a magistrate for a search warrant by telephone, fax, email or other electronic means:

(a) in an urgent case; or

(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

(2) The magistrate:

(a) may require communication by voice to the extent that it is practicable in the circumstances; and

(b) may make a recording of the whole or any part of any such communication by voice.

(4) If an application is made under this section:

(a) sections 190A and 190B apply as if subsection 190A(1) and 190B(1) referred to 48 hours rather than 72 hours; and

(b) section 190C applies as if subsection 190C(2) referred to the end of the 48th hour rather than the end of the seventh day.

(a) a search warrant in the terms of the application should be issued urgently; or

(8) The applicant must give or transmit to the magistrate:

(a) the form of search warrant completed by the applicant; and

(b) if the information referred to in subsection (3) was not sworn or affirmed--that information duly sworn or affirmed.

(9) The applicant must do so not later than the day after the warrant expires or the day after the day on which the search warrant was executed, whichever is the earlier.

(10) The magistrate is to attach to the documents provided under subsection (8) the form of search warrant he or she has completed.

(11) If:

(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a search warrant issued under this section was duly authorised; and

(b) the form of search warrant signed by the magistrate is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.

(12) In this section:

applicant means the authorised officer who applied for the search warrant.

190E The things authorised by a search warrant

A search warrant in force in relation to premises authorises the authorised officer executing the warrant or an assisting officer to do any of the following:

(a) to enter the premises;

(b) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found on the premises;

Subdivision C--General provisions about executing a search warrant

190F Announcement before entry

(1) An authorised officer executing the search warrant must, before any person enters premises under the warrant:

(a) announce that he or she is authorised to enter the premises; and

(b) give any person at the premises an opportunity to allow entry to the premises.

(2) An authorised officer 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 (including an authorised officer or assisting officer); or

(b) to ensure that the effective execution of the warrant is not frustrated.

190G Warrant to be executed within permitted hours

If a search warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.

190H Availability of assistance and use of force in executing a warrant

(1) In executing a search warrant, the authorised officer executing the warrant may:

(a) obtain the assistance that is necessary and reasonable in the circumstances; and

(b) use the force against persons and things that is necessary and reasonable in the circumstances.

(2) In executing a search warrant:

(a) if an assisting officer is also an authorised officer--the assisting officer may use the force against persons and things that is necessary and reasonable in the circumstances; and

(b) if an assisting officer is not an authorised officer--the assisting officer may use the force against things that is necessary and reasonable in the circumstances.

190J Copy of warrant to be shown to occupier etc.

(2) The authorised officer must identify himself or herself to the person at the premises.

(3) The copy of the search warrant need not include the signature of the magistrate who issued it.

190K Occupier entitled to watch search

(1) The occupier of the premises, or another person who apparently represents the occupier, who is present at the premises, is entitled to watch the search.

(2) Subsection (1) is subject to Part IC of the Crimes Act 1914.

(3) The right to watch the search being conducted ceases if the person impedes the search.

(4) This section does not prevent 2 or more areas of the premises being searched at the same time.

190L Specific powers available to person executing a warrant

(1) The authorised officer executing the search warrant or an assisting officer may take photographs or video recordings of the premises or things on the premises:

(a) for a purpose incidental to the execution of the warrant; or

(b) with the written consent of the occupier of the premises.

(a) for not more than one hour; or

(b) for a longer period with the written consent of the occupier of the premises.

(3) The execution of a search warrant that is stopped by an order of a court may be completed if:

(a) the order is later revoked or reversed on appeal; and

(b) the warrant is still in force.

190M Use of equipment to examine or process things