ILLEGAL LOGGING PROHIBITION BILL 2012

i Illegal Logging Prohibition Bill 2011 No. , 2011

Contents

Part 1--Preliminary

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

Crown to be bound ............................................................................. 3

Act does not extend to external Territories ........................................ 3

Concurrent operation of State and Territory laws .............................. 3

Guide to this Act ................................................................................ 3

7 Definitions

.........................................................................................

Part 2--Importing

Division 1--Importing illegally logged timber

Importing illegally logged timber ...................................................... 7

Importing illegally logged timber in regulated timber

products ............................................................................................. 7

10 Forfeiture

...........................................................................................

Application of the Customs Act 1901 ................................................ 8

Division 2--Importers' due diligence

12 Importing

regulated

timber products ................................................. 9

13 Customs

declaration

...........................................................................

Due diligence requirements for importing regulated timber

products ............................................................................................. 9

Part 3--Processing

Division 1--Processing illegally logged raw logs

15 Processing

illegally

logged raw logs ................................................ 11

16 Forfeiture

.........................................................................................

Division 2--Processors' due diligence

Processing raw logs ......................................................................... 13

Due diligence requirements for processing raw logs ....................... 13

Part 4--Monitoring, investigation and enforcement

Division 1--Inspectors

19 Appointment

inspectors ............................................................... 15

20 Identity

cards

...................................................................................

Division 2--Monitoring

Subdivision A--Overview

21 Simplified

outline

............................................................................

Illegal Logging Prohibition Bill 2011 No. , 2011 ii

Subdivision B--Monitoring powers

Inspector may enter premises by consent or under a warrant .......... 17

23 Monitoring

powers

of inspectors ..................................................... 18

24 Operating

electronic equipment ....................................................... 18

Expert assistance to operate electronic equipment ........................... 19

26 Securing

evidential material ............................................................ 21

Subdivision C--Persons assisting inspectors

27 Persons

assisting inspectors ............................................................. 22

Subdivision D--Monitoring warrants

28 Monitoring

warrants

........................................................................

Division 3--Investigation

Subdivision A--Overview

29 Simplified

outline

............................................................................

Subdivision B--Investigation powers

Inspector may enter premises by consent or under a warrant .......... 25

31 Investigation

powers of inspectors ................................................... 26

32 Operating

electronic equipment ....................................................... 26

Expert assistance to operate electronic equipment ........................... 28

Seizing other evidential material ..................................................... 29

Subdivision C--Persons assisting inspectors

35 Persons

assisting inspectors ............................................................. 29

Subdivision D--Matters relating to seizure

Copies of seized things to be provided ............................................ 30

37 Receipts

for

seized things ................................................................ 31

Return of seized things .................................................................... 31

Issuing officer may permit a thing to be retained ............................ 32

40 Disposal

things ............................................................................ 33

Compensation for acquisition of property ....................................... 33

Subdivision E--Investigation warrants

42 Investigation

warrants

......................................................................

Investigation warrants by telephone, fax etc. ................................... 35

44 Authority

warrant

........................................................................

Offence relating to warrants by telephone, fax etc. ......................... 36

Completing execution of an investigation warrant after

temporary cessation ......................................................................... 37

Completing execution of an investigation warrant stopped by

court order ........................................................................................ 38

iii Illegal Logging Prohibition Bill 2011 No. , 2011

Division 4--General provisions relating to monitoring and

investigation

Subdivision A--Overview

48 Simplified

outline

............................................................................

Subdivision B--Obligations of inspectors in entering premises

49 Consent

............................................................................................

Announcement before entry under warrant ..................................... 40

Inspector to be in possession of warrant .......................................... 40

Details of warrant etc. to be given to occupier................................. 41

Subdivision C--Additional powers of inspectors

Use of force in executing a warrant ................................................. 41

Inspector may ask questions and seek production of

documents ........................................................................................ 42

Subdivision D--Occupier's rights and responsibilities on entry

Occupier entitled to observe execution of warrant .......................... 43

Occupier to provide inspector with facilities and assistance ............ 43

Subdivision E--Other provisions

57 Powers

issuing officers ................................................................ 44

Compensation for damage to electronic equipment ......................... 44

Division 5--Civil penalty provisions

Subdivision A--Overview

59 Simplified

outline

............................................................................

Subdivision B--Obtaining a civil penalty order

Civil penalty orders .......................................................................... 46

61 Civil

enforcement of penalty ........................................................... 47

Conduct contravening more than one civil penalty provision .......... 47

63 Multiple

contraventions

...................................................................

Proceedings may be heard together ................................................. 48

Civil evidence and procedure rules for civil penalty orders ............. 48

Contravening a civil penalty provision is not an offence ................. 48

Subdivision C--Civil proceedings and criminal proceedings

Civil proceedings after criminal proceedings .................................. 48

68 Criminal

proceedings

during civil proceedings ............................... 48

69 Criminal

proceedings

after civil proceedings .................................. 49

Evidence given in civil proceedings not admissible in

criminal proceedings ........................................................................ 49

Subdivision D--Miscellaneous

Ancillary contravention of civil penalty provisions ......................... 50

Illegal Logging Prohibition Bill 2011 No. , 2011 iv

Continuing contraventions of civil penalty provisions .................... 50

Mistake of fact ................................................................................. 51

State of mind .................................................................................... 51

Division 6--Infringement notices

75 Simplified

outline

............................................................................

When an infringement notice may be given .................................... 53

Matters to be included in an infringement notice ............................. 54

Extension of time to pay amount ..................................................... 56

Withdrawal of an infringement notice ............................................. 56

Effect of payment of amount ........................................................... 58

Effect of this Division ...................................................................... 59

82 Further

provision

by regulation ....................................................... 59

Part 5--Miscellaneous

83 Publishing

reports

............................................................................

Review of operation of Act .............................................................. 60

85 Delegation

Secretary

...................................................................

86 Regulations

......................................................................................

Part 1 Preliminary

Section 2

2 Illegal Logging Prohibition Bill 2011 No. , 2011

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 and

2 and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Sections 3 to 8

The day after this Act receives the Royal

Assent.

3. Section 9

The day after the end of the period of 2 years

after the commencement of the provision(s)

covered by table item 2.

4. Sections 10

and 11

The day after this Act receives the Royal

Assent.

5. Sections 12 to

The day after the end of the period of 2 years

after the commencement of the provision(s)

covered by table item 2.

6. Sections 15

and 16

The day after this Act receives the Royal

Assent.

7. Sections 17

and 18

The day after the end of the period of 2 years

after the commencement of the provision(s)

covered by table item 2.

8. Sections 19 to

The day after this Act receives the Royal

Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

Preliminary Part 1

Section 3

Illegal Logging Prohibition Bill 2011 No. , 2011 3

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Crown to be bound

(1) This Act binds the Crown in each of its capacities.

(2) This Act does not make the Crown liable to a pecuniary penalty or

to be prosecuted for an offence.

4 Act does not extend to external Territories

This Act does not extend to the external Territories.

5 Concurrent operation of State and Territory laws

This Act is not intended to exclude or limit the operation of a law

of a State or Territory that is capable of operating concurrently

with this Act.

6 Guide to this Act

This Act prohibits the importation of illegally logged timber and

the processing of illegally logged raw logs.

This Act also requires importers of regulated timber products and

processors of raw logs to conduct due diligence in order to reduce

the risk that illegally logged timber is imported or processed.

Importers of regulated timber products must provide declarations,

at the time of import, to the Customs Minister about the due

diligence that they have undertaken.

Part 4 provides for inspectors to exercise monitoring, investigation

and enforcement powers for the purposes of this Act.

7 Definitions

In this Act:

Part 1 Preliminary

Section 7

4 Illegal Logging Prohibition Bill 2011 No. , 2011

Australia, when used in a geographical sense, does not include the

external Territories.

civil penalty order has the meaning given by subsection 60(4).

civil penalty provision has the meaning given by section 59.

Commonwealth authority means the following:

(a) a body corporate established for a public purpose by or under

an Act;

(b) a company in which a controlling interest is held by any one

of the following persons, or by 2 or more of the following

persons together:

(i)

the

Commonwealth;

(ii) a body covered by paragraph (a).

constitutional corporation means a corporation to which

paragraph 51(xx) of the Constitution applies.

contravention of this Act means:

(a) a contravention of an offence or civil penalty provision in

this Act; or

(b) a contravention of the Crimes Act 1914 or the Criminal Code

that relates to this Act.

Customs Minister means the Minister administering the Customs

Act 1901.

damage, in relation to data, includes damage by erasure of data or

addition of other data.

due diligence requirements:

(a) for importing regulated timber products--has the meaning

given by subsection 14(1); and

(b) for processing raw logs--has the meaning given by

subsection 18(1).

evidential burden, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

Preliminary Part 1

Section 7

Illegal Logging Prohibition Bill 2011 No. , 2011 5

evidential material means:

(a) a thing with respect to which this Act has been contravened

or is suspected, on reasonable grounds, to have been

contravened; or

(b) a thing that there are reasonable grounds for suspecting will

afford evidence of a contravention of this Act; or

intended to be used for the purpose of contravening this Act.

illegally logged, in relation to timber, means harvested in

contravention of laws in force in the place (whether or not in

Australia) where the timber was harvested.

import means import into Australia.

inspector means a person appointed under section 19.

investigation powers has the meaning given by sections 31, 32 and

34.

investigation warrant means a warrant issued under section 42 or

43.

issuing officer means:

(a) a magistrate; or

(b) a Judge of a court of a State or Territory; or

Australia has consented to act as an issuing officer for the

purposes of this Act and that consent is in force--the Judge

or Federal Magistrate.

monitoring powers has the meaning given by sections 23, 24 and

26.

monitoring warrant means a warrant issued under section 28.

occupier, of premises, includes the person apparently in charge of

the premises.

person assisting an inspector:

(a) in Division 2 of Part 3 (monitoring powers)--has the

meaning given by subsection 27(1); and

Part 1 Preliminary

Section 7

6 Illegal Logging Prohibition Bill 2011 No. , 2011

(b) in Division 3 of Part 3 (investigation powers)--has the

meaning given by subsection 35(1).

premises includes the following:

(a) a structure, building, vehicle, vessel or aircraft;

(b) a place (whether or not enclosed or built on);

regulated timber product has the meaning given by subsection

9(3).

relevant court means the Federal Court of Australia.

Secretary means the Secretary of the Department.

this Act includes the regulations.

timber product means a thing that is, is made from, or includes,

timber.

Importing Part 2

Importing illegally logged timber Division 1

Section 8

Illegal Logging Prohibition Bill 2011 No. , 2011 7

Part 2--Importing

Division 1--Importing illegally logged timber

8 Importing illegally logged timber

A person commits an offence if:

(a) the person imports a thing; and

(b) the thing is, is made from, or includes, illegally logged

timber; and

of this paragraph.

Penalty: 5 years imprisonment or 500 penalty units, or both.

9 Importing illegally logged timber in regulated timber products

(1) A person commits an offence if:

(a) the person imports a thing; and

(b) the thing is, is made from, or includes, illegally logged

timber; and

(d) the thing is not prescribed by the regulations for the purposes

of this paragraph.

Penalty: 5 years imprisonment or 500 penalty units, or both.

(2) The fault element for paragraph (1)(b) is negligence.

(3)

regulated timber product is a timber product prescribed by the

regulations.

10 Forfeiture

(1) A court may order all or any part of a thing to be forfeited to the

Commonwealth if:

(a) the court convicts a person of an offence against section 8 or

9 in respect of the thing or part; and

(b) the thing or part is the property of the person.

Part 2 Importing

Division 1 Importing illegally logged timber

Section 11

8 Illegal Logging Prohibition Bill 2011 No. , 2011

(2) The person is entitled to be heard in relation to the order.

(3) The thing or part may be dealt with or disposed of in any manner

that the Secretary thinks appropriate, but only after:

(a) if the periods provided for lodging appeals against the order

and the conviction have ended without such an appeal having

been lodged--the end of those periods; or

(b) if one or more such appeals have been lodged--the appeals

lapse or are finally determined.

11 Application of the Customs Act 1901

If:

(a) the importation of goods is an offence under section 8 or 9;

and

(b) the Secretary notifies the Chief Executive Officer of Customs

in writing that the Secretary wishes the Customs Act 1901 to

apply to that importation;

the Customs Act 1901 has effect as if the goods included in that

importation were goods described as forfeited to the Crown under

section 229 of that Act because they were prohibited imports

within the meaning of that Act.

Importing Part 2

Importers' due diligence Division 2

Section 12

Illegal Logging Prohibition Bill 2011 No. , 2011 9

Division 2--Importers' due diligence

12 Importing regulated timber products

A person commits an offence if:

(a) the person imports a thing; and

(b) the thing is a regulated timber product; and

requirements for importing the product.

Penalty: 300 penalty units.

13 Customs declaration

A person commits an offence if:

(a) the person imports a thing; and

(b) the thing is a regulated timber product; and

Minister, in the manner and form prescribed by the

regulations, about the person's compliance with the due

diligence requirements for importing the product.

Penalty: 100 penalty units.

14 Due diligence requirements for importing regulated timber

products

(1) The regulations must prescribe due diligence requirements for

importing regulated timber products.

(2) The requirements must be prescribed only for the purposes of

reducing the risk that imported regulated timber products are, are

made from, or include, illegally logged timber.

(3) The requirements may include requirements in relation to one or

more of the following:

(a) gathering information for the purposes of assessing that risk,

including in relation to the following:

(i) the kind, origin and details of harvest of timber;

Part 2 Importing

Division 2 Importers' due diligence

Section 14

10 Illegal Logging Prohibition Bill 2011 No. , 2011

(ii) the name and business addresses of, and other details

about, suppliers of timber or timber products;

(iii) evidence of compliance with the laws of the country in

which timber was harvested;

(iv) the completeness, accuracy or reliability of information

gathered;

(b) assessing and identifying that risk;

(d) making declarations to the Customs Minister under

section 13;

(e) providing statements of compliance;

(f)

auditing;

(g) taking remedial action in prescribed circumstances;

(h) providing reports and other information to the Minister;

(i)

publishing

information.

(4) Subsection (3) does not limit subsection (2).

(5) The regulations may provide for due diligence requirements for

importing regulated timber products to be satisfied, wholly or

partly, by compliance with specified laws, rules or processes,

including the following:

(a) laws, or processes under laws, in force in a State or Territory

or another country;

(b) rules or processes established or accredited by an industry or

certifying body;

(6) Paragraphs (5)(a) to (c) do not limit subsection (5).

Processing Part 3

Processing illegally logged raw logs Division 1

Section 15

Illegal Logging Prohibition Bill 2011 No. , 2011 11

Part 3--Processing

Division 1--Processing illegally logged raw logs

15 Processing illegally logged raw logs

(1) A person commits an offence if:

(a) the person processes a raw log into something other than a

raw log; and

(b) the person is a constitutional corporation, or the person

processes the raw log:

(i) in the course of, or for the purposes of, trade and

commerce with other countries, or among the States or

between a State and a Territory; or

(ii) in a Territory; or

(iii) on behalf of a constitutional corporation; or

(iv) for the purposes of supplying timber products to a

constitutional corporation; or

(v) on behalf of the Commonwealth or a Commonwealth

authority; or

(vi) for the purposes of supplying timber products to the

Commonwealth or a Commonwealth authority; and

(d) the person is not included in a class of persons prescribed by

the regulations for the purposes of this paragraph; and

(e) the process is not prescribed by the regulations for the

purposes of this paragraph.

Penalty: 5 years imprisonment or 500 penalty units, or both.

Exception--imported raw logs

(2) Subsection (1) does not apply if the raw log was imported into

Australia.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

Part 3 Processing

Division 1 Processing illegally logged raw logs

Section 16

12 Illegal Logging Prohibition Bill 2011 No. , 2011

16 Forfeiture

(1) A court may order all or any part of a thing to be forfeited to the

Commonwealth if:

(a) the court convicts a person of an offence against section 15 in

respect of the thing or part; and

(b) the thing or part is the property of the person.

(2) The person is entitled to be heard in relation to the order.

(3) The thing or part may be dealt with or disposed of in any manner

that the Secretary thinks appropriate, but only after:

(a) if the periods provided for lodging appeals against the order

and the conviction have ended without such an appeal having

been lodged--the end of those periods; or

(b) if one or more such appeals have been lodged--the appeals

lapse or are finally determined.

Processing Part 3

Processors' due diligence Division 2

Section 17

Illegal Logging Prohibition Bill 2011 No. , 2011 13

Division 2--Processors' due diligence

17 Processing raw logs

(1) A person commits an offence if:

(a) the person processes a raw log into something other than a

raw log; and

(b) the person is a constitutional corporation, or the person

processes the raw log:

(i) in the course of, or for the purposes of, trade and

commerce with other countries, or among the States or

between a State and a Territory; or

(ii) in a Territory; or

(iii) on behalf of a constitutional corporation; or

(iv) for the purposes of supplying timber products to a

constitutional corporation; or

(v) on behalf of the Commonwealth or a Commonwealth

authority; or

(vi) for the purposes of supplying timber products to the

Commonwealth or a Commonwealth authority; and

requirements for processing the raw logs.

Penalty: 300 penalty units.

Exception--imported raw logs

(2) Subsection (1) does not apply if the raw log was imported into

Australia.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

18 Due diligence requirements for processing raw logs

(1) The regulations must prescribe due diligence requirements for

processing raw logs.

(2) The requirements must be prescribed only for the purposes of

reducing the risk that illegally logged raw logs are processed.

Part 3 Processing

Division 2 Processors' due diligence

Section 18

14 Illegal Logging Prohibition Bill 2011 No. , 2011

(3) The requirements may include requirements in relation to one or

more of the following:

(a) gathering information for the purposes of assessing that risk,

including in relation to the following:

(i) the kind, origin and details of harvest of raw logs;

(ii) the name and business addresses of, and other details

about, suppliers of raw logs;

(iii) evidence of compliance with the laws of the State or

Territory in which raw logs were harvested;

(iv) the completeness, accuracy or reliability of information

gathered;

(b) assessing and identifying that risk;

(d) providing statements of compliance;

(e)

auditing;

(f) taking remedial action in prescribed circumstances;

(g) providing reports and other information to the Minister;

(h)

publishing

information.

(4) Subsection (3) does not limit subsection (2).

(5) The regulations may provide for due diligence requirements for

processing raw logs to be satisfied, wholly or partly, by compliance

with specified laws, rules or processes, including the following:

(a) laws, or processes under laws, in force in a State or Territory;

(b) rules or processes established or accredited by an industry

body;

(6) Paragraphs (5)(a) to (c) do not limit subsection (5).

Monitoring, investigation and enforcement Part 4

Inspectors Division 1

Section 19

Illegal Logging Prohibition Bill 2011 No. , 2011 15

Part 4--Monitoring, investigation and enforcement

Division 1--Inspectors

19 Appointment of inspectors

(1) The Secretary may, in writing, appoint a person as an inspector for

the purposes of this Act.

(2) The Secretary must not appoint a person as an inspector unless the

Secretary is satisfied that the person has suitable training or

experience to properly exercise the powers of an inspector.

(3) An inspector holds office for the period specified in the instrument

of appointment. The period must not exceed 2 years.

(4) An inspector must, in exercising powers as such, comply with any

directions of the Secretary.

(5) If a direction is given under subsection (4) in writing, the direction

is not a legislative instrument.

20 Identity cards

(1) The Secretary must issue an identity card to an inspector.

Form of identity card

(2) The identity card must:

(a) be in the form prescribed by the regulations; and

(b) contain a recent photograph of the inspector.

Offence

(3) A person commits an offence if:

(a) the person has been issued with an identity card; and

(b) the person ceases to be an inspector; and

within 14 days after ceasing to be an inspector.

Penalty: 1 penalty unit.

Part 4 Monitoring, investigation and enforcement

Division 1 Inspectors

Section 20

16 Illegal Logging Prohibition Bill 2011 No. , 2011

(4) An offence against subsection (3) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

Defence: card lost or destroyed

(5) Subsection (3) does not apply if the identity card was lost or

destroyed.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection: see subsection 13.3(3) of the Criminal Code.

Inspector must carry card

(6) An inspector must carry his or her identity card at all times when

exercising powers as an inspector.

Monitoring, investigation and enforcement Part 4

Monitoring Division 2

Section 21

Illegal Logging Prohibition Bill 2011 No. , 2011 17

Division 2--Monitoring

Subdivision A--Overview

21 Simplified outline

The following is a simplified outline of this Division:

This Division allows an inspector to monitor whether the

provisions of this Act have been, or are being, complied with.

It also allows an inspector to monitor whether information given in

compliance, or purported compliance, with a provision of this Act

is correct.

An inspector may enter premises for the purpose of monitoring.

Entry must be with the consent of the occupier of the premises or

under a monitoring warrant.

An inspector who enters premises may exercise monitoring

powers.

An inspector who enters premises may be assisted by other persons

if that assistance is necessary and reasonable.

Subdivision B--Monitoring powers

22 Inspector may enter premises by consent or under a warrant

(1) An inspector may enter any premises and exercise the monitoring

powers for either or both of the following purposes:

(a) determining whether this Act has been, or is being, complied

with;

(b) determining whether information given in compliance, or

purported compliance, with this Act is correct.

Note: The

monitoring powers are set out in sections 23, 24 and 26.

Part 4 Monitoring, investigation and enforcement

Division 2 Monitoring

Section 23

18 Illegal Logging Prohibition Bill 2011 No. , 2011

(2) However, an inspector is not authorised to enter the premises

unless:

(a) the occupier of the premises has consented to the entry and

the inspector has shown his or her identity card if required by

the occupier; or

(b) the entry is made under a monitoring warrant.

Note:

If entry to the premises is with the occupier's consent, the inspector

must leave the premises if the consent ceases to have effect: see

section 49.

23 Monitoring powers of inspectors

The following are the monitoring powers that an inspector may

exercise in relation to premises under section 22:

(a) the power to search the premises and any thing on the

premises;

(b) the power to examine or observe any activity conducted on

the premises;

conduct tests on any thing on the premises;

(d) the power to make any still or moving image or any

recording of the premises or any thing on the premises;

(e) the power to inspect any document on the premises;

(f) the power to take extracts from, or make copies of, any such

document;

(g) the power to take onto the premises such equipment and

materials as the inspector requires for the purpose of

exercising powers in relation to the premises;

(h) the power to sample any thing on the premises;

(i) the powers set out in subsections 24(1) and (3) and 26(2).

24 Operating electronic equipment

(1)

The

monitoring powers include the power to operate electronic

equipment on the premises if the inspector has reasonable grounds

to suspect that any of the following contains relevant data:

(a)

the

equipment;

(b) a disk, tape or other storage device that:

Monitoring, investigation and enforcement Part 4

Monitoring Division 2

Section 25

Illegal Logging Prohibition Bill 2011 No. , 2011 19

(i) is on the premises; and

(ii) can be used with the equipment or is associated with it.

Note:

For compensation for damage to electronic equipment, see section 58.

(2)

Relevant data means information that is relevant to determining

whether:

(a) this Act has been, or is being, complied with; or

(b) information given in compliance, or purported compliance,

with this Act is correct.

(3)

The

monitoring powers include the following powers in relation to

relevant data found in the exercise of the power under

subsection (1):

(a) the power to operate electronic equipment on the premises to

put the relevant data in documentary form and remove the

documents so produced from the premises;

(b) the power to operate electronic equipment on the premises to

transfer the relevant data to a disk, tape or other storage

device that:

(i) is brought to the premises for the exercise of the power;

(ii) is on the premises and the use of which for that purpose

has been agreed in writing by the occupier of the

premises;

and remove the disk, tape or other storage device from the

premises.

(4) An inspector may operate electronic equipment as mentioned in

subsection (1) or (3) only if the inspector believes on reasonable

grounds that the operation of the equipment can be carried out

without damage to the equipment.

25 Expert assistance to operate electronic equipment

(1) This section applies to premises to which a monitoring warrant

relates.

Part 4 Monitoring, investigation and enforcement

Division 2 Monitoring

Section 25

20 Illegal Logging Prohibition Bill 2011 No. , 2011

Securing equipment

(2) An inspector may do whatever is necessary to secure any electronic

equipment that is on the premises if the inspector believes on

reasonable grounds that:

(a) there is relevant data on the premises; and

(b) the relevant data may be accessible by operating the

equipment; and

(d) the relevant data may be destroyed, altered or otherwise

interfered with, if the inspector does not take action under

this subsection.

The equipment may be secured by locking it up, placing a guard or

any other means.

(3)

Relevant data means information relevant to determining whether:

(a) this Act has been, or is being, complied with; or

(b) information given in compliance, or purported compliance,

with this Act is correct.

(4) The inspector must give notice to the occupier of the premises, or

another person who apparently represents the occupier, of:

(a) the inspector's intention to secure the equipment; and

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

hours.

Period equipment may be secured

(5) The equipment may be secured until the earlier of the following

happens:

(a) the 24-hour period ends;

(b) the equipment has been operated by the expert.

Note:

For compensation for damage to electronic equipment, see section 58.

Extensions

(6) The inspector may apply to an issuing officer for an extension of

the 24-hour period if the inspector believes on reasonable grounds

that the equipment needs to be secured for longer than that period.

Monitoring, investigation and enforcement Part 4

Monitoring Division 2

Section 26

Illegal Logging Prohibition Bill 2011 No. , 2011 21

(7) Before making the application, the inspector must give notice to

the occupier of the premises, or another person who apparently

represents the occupier, of his or her intention to apply for an

extension. The occupier or other person is entitled to be heard in

relation to that application.

(8) The provisions of this Division relating to the issue of monitoring

warrants apply, with such modifications as are necessary, to the

issue of an extension.

(9) The 24-hour period may be extended more than once.

26 Securing evidential material

(1) This section applies if an inspector enters premises under a

monitoring warrant for either or both of the following purposes:

(a) determining whether this Act has been, or is being, complied

with;

(b) determining whether information given in compliance, or

purported compliance, with this Act is correct.

(2)

The

monitoring powers include the power to secure a thing for a

period not exceeding 24 hours if:

(a) the thing is found during the exercise of monitoring powers

on the premises; and

(b) an inspector believes on reasonable grounds that:

(i) the thing affords evidence of a contravention of this

Act; and

(ii) it is necessary to secure the thing in order to prevent it

from being concealed, lost or destroyed before a warrant

to seize the thing is obtained; and

(iii) it is necessary to secure the thing without a warrant

because the circumstances are serious and urgent.

(3) If an inspector believes on reasonable grounds that the thing needs

to be secured for more than 24 hours, the inspector may apply to an

issuing officer for an extension of that period.

(4) The inspector must give notice to the occupier of the premises, or

another person who apparently represents the occupier, of his or

Part 4 Monitoring, investigation and enforcement

Division 2 Monitoring

Section 27

22 Illegal Logging Prohibition Bill 2011 No. , 2011

her intention to apply for an extension. The occupier or other

person is entitled to be heard in relation to that application.

(5) The provisions of this Division relating to the issue of monitoring

warrants apply, with such modifications as are necessary, to the

issue of an extension.

(6) The 24-hour period may be extended more than once.

Subdivision C--Persons assisting inspectors

27 Persons assisting inspectors

Inspectors may be assisted by other persons

(1) An inspector may be assisted by other persons in exercising powers

or performing functions or duties under this Division and

Division 4, if that assistance is necessary and reasonable. A person

giving such assistance is a person assisting the inspector.

Powers, functions and duties of a person assisting the inspector

(2) A person assisting the inspector:

(a) may enter the premises; and

(b) may exercise powers and perform functions and duties under

this Division and Division 4 for the purposes of assisting the

inspector to determine whether:

(i) this Act has been, or is being, complied with; or

(ii) information given in compliance, or purported

compliance, with this Act is correct; and

assisting by the inspector.

(3) A power exercised by a person assisting the inspector as mentioned

in subsection (2) is taken for all purposes to have been exercised by

the inspector.

(4) A function or duty performed by a person assisting the inspector as

mentioned in subsection (2) is taken for all purposes to have been

performed by the inspector.

Monitoring, investigation and enforcement Part 4

Monitoring Division 2

Section 28

Illegal Logging Prohibition Bill 2011 No. , 2011 23

(5) If a direction is given under paragraph (2)(c) in writing, the

direction is not a legislative instrument.

Subdivision D--Monitoring warrants

28 Monitoring warrants

Application for warrant

(1) An inspector may apply to an issuing officer for a warrant under

this section in relation to premises.

Issue of warrant

(2) The issuing officer may issue the warrant if the issuing officer is

satisfied, by information on oath or affirmation, that it is

reasonably necessary that one or more inspectors should have

access to the premises for the purpose of determining whether:

(a) this Act has been, or is being, complied with; or

(b) information given in compliance, or purported compliance,

with this Act is correct.

(3) However, the issuing officer must not issue the warrant unless the

inspector or some other person has given to the issuing officer,

either orally or by affidavit, such further information (if any) as the

issuing officer requires concerning the grounds on which the issue

of the warrant is being sought.

Content of warrant

(4)

The

warrant

must:

(a) describe the premises to which the warrant relates; and

(b) state that the warrant is issued under this section; and

(d) authorise one or more inspectors (whether or not named in

the warrant) from time to time while the warrant remains in

force:

(i) to enter the premises; and

(ii) to exercise the powers set out in this Division and

Division 4 in relation to the premises; and

Monitoring, investigation and enforcement Part 4

Investigation Division 3

Section 29

Illegal Logging Prohibition Bill 2011 No. , 2011 25

Division 3--Investigation

Subdivision A--Overview

29 Simplified outline

The following is a simplified outline of this Division:

This Division allows an inspector to gather material that relates to

the contravention of this Act.

An inspector may enter premises if there are reasonable grounds

for suspecting that there may be material on the premises that

relates to a contravention of this Act.

Entry must be with the consent of the occupier of the premises or

under an investigation warrant.

An inspector who enters premises may exercise investigation

powers.

An inspector who enters premises may be assisted by other persons

if that assistance is necessary and reasonable.

Subdivision B--Investigation powers

30 Inspector may enter premises by consent or under a warrant

(1) If an inspector has reasonable grounds for suspecting that there

may be evidential material on any premises, the inspector may:

(a) enter the premises; and

(b) exercise the investigation powers.

Note: The

investigation powers are set out in sections 31, 32 and 34.

(2) However, an inspector is not authorised to enter the premises

unless:

(a) the occupier of the premises has consented to the entry and

the inspector has shown his or her identity card if required by

the occupier; or

Part 4 Monitoring, investigation and enforcement

Division 3 Investigation

Section 31

26 Illegal Logging Prohibition Bill 2011 No. , 2011

(b) the entry is made under an investigation warrant.

Note:

If entry to the premises is with the occupier's consent, the inspector

must leave the premises if the consent ceases to have effect: see

section 49.

31 Investigation powers of inspectors

The following are the investigation powers that an inspector may

exercise in relation to premises under section 30:

(a) if entry to the premises is with the occupier's consent--the

power to search the premises and any thing on the premises

for the evidential material the inspector has reasonable

grounds for suspecting may be on the premises;

(b) if entry to the premises is under an investigation warrant:

(i) the power to search the premises and any thing on the

premises for the kind of evidential material specified in

the warrant; and

(ii) the power to seize evidential material of that kind if the

inspector finds it on the premises;

conduct tests on evidential material referred to in

paragraph (a) or (b);

(d) the power to make any still or moving image or any

recording of the premises or evidential material referred to in

paragraph (a) or (b);

(e) the power to take onto the premises such equipment and

materials as the inspector requires for the purpose of

exercising powers in relation to the premises;

(f) the power to sample any thing on the premises;

(g) the powers set out in subsections 32(1) and (2) and

section 34.

32 Operating electronic equipment

(1)

The

investigation powers include the power to operate electronic

equipment on the premises if the inspector has reasonable grounds

for suspecting that any of the following contains evidential

material referred to in paragraph 31(a) or (b):

(a)

the

equipment;

Monitoring, investigation and enforcement Part 4

Investigation Division 3

Section 32

Illegal Logging Prohibition Bill 2011 No. , 2011 27

(b) a disk, tape or other storage device that:

(i) is on the premises; and

(ii) can be used with the equipment or is associated with it.

(2)

The

investigation powers include the following powers in relation

to evidential material described in subsection (1) found in the

exercise of the power under that subsection:

(a) if entry to the premises is under an investigation warrant--

the power to seize the equipment and the disk, tape or other

storage device referred to in that subsection;

(b) the power to operate electronic equipment on the premises to

put the evidential material in documentary form and remove

the documents so produced from the premises;

transfer the evidential material to a disk, tape or other storage

device that:

(i) is brought to the premises for the exercise of the power;

(ii) is on the premises and the use of which for that purpose

has been agreed in writing by the occupier of the

premises;

and remove the disk, tape or other storage device from the

premises.

(3) An inspector may operate electronic equipment as mentioned in

subsection (1) or (2) only if the inspector believes on reasonable

grounds that the operation of the equipment can be carried out

without damage to the equipment.

Note:

For compensation for damage to electronic equipment, see section 58.

(4) An inspector may seize equipment or a disk, tape or other storage

device as mentioned in paragraph (2)(a) only if:

(a) it is not practicable to put the evidential material in

documentary form as mentioned in paragraph (2)(b) or to

transfer the evidential material as mentioned in

paragraph (2)(c); or

(b) possession of the equipment or the disk, tape or other storage

device by the occupier could constitute an offence against a

law of the Commonwealth.

Part 4 Monitoring, investigation and enforcement

Division 3 Investigation

Section 33

28 Illegal Logging Prohibition Bill 2011 No. , 2011

33 Expert assistance to operate electronic equipment

(1) This section applies if an inspector enters premises under an

investigation warrant to search for evidential material.

Securing equipment

(2) The inspector may do whatever is necessary to secure any

electronic equipment that is on the premises if the inspector

believes on reasonable grounds that:

(a) there is evidential material of the kind specified in the

warrant on the premises; and

(b) the evidential material may be accessible by operating the

electronic equipment; and

(d) the evidential material may be destroyed, altered or otherwise

interfered with, if the inspector does not take action under

this subsection.

The equipment may be secured by locking it up, placing a guard or

any other means.

(3) The inspector must give notice to the occupier of the premises, or

another person who apparently represents the occupier, of:

(a) the inspector's intention to secure the equipment; and

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

hours.

Period equipment may be secured

(4) The equipment may be secured until the earlier of the following

happens:

(a) the 24-hour period ends;

(b) the equipment has been operated by the expert.

Note:

For compensation for damage to electronic equipment, see section 58.

Extensions

(5) The inspector may apply to an issuing officer for an extension of

the 24-hour period, if the inspector believes on reasonable grounds

that the equipment needs to be secured for longer than that period.

Monitoring, investigation and enforcement Part 4

Investigation Division 3

Section 34

Illegal Logging Prohibition Bill 2011 No. , 2011 29

(6) Before making the application, the inspector must give notice to

the occupier of the premises, or another person who apparently

represents the occupier, of the inspector's intention to apply for an

extension. The occupier or other person is entitled to be heard in

relation to that application.

(7) The provisions of this Division relating to the issue of investigation

warrants apply, with such modifications as are necessary, to the

issue of an extension.

(8) The 24-hour period may be extended more than once.

34 Seizing other evidential material

(1) This section applies if an inspector enters premises under an

investigation warrant to search for evidential material.

(2)

The

investigation powers include seizing a thing that is not

evidential material of the kind specified in the warrant if:

(a) in the course of searching for the kind of evidential material

specified in the warrant, the inspector finds the thing; and

(b) the inspector believes on reasonable grounds that the thing is

evidence of a contravention of this Act; and

necessary to seize the thing in order to prevent its

concealment, loss or destruction.

Subdivision C--Persons assisting inspectors

35 Persons assisting inspectors

Inspectors may be assisted by other persons

(1) An inspector may be assisted by other persons in exercising powers

or performing functions or duties under this Division and

Division 4, if that assistance is necessary and reasonable. A person

giving such assistance is a person assisting the inspector.

Powers, functions and duties of a person assisting the inspector

(2) A person assisting the inspector:

Part 4 Monitoring, investigation and enforcement

Division 3 Investigation

Section 36

30 Illegal Logging Prohibition Bill 2011 No. , 2011

(a) may enter the premises; and

(b) may exercise powers and perform functions and duties under

this Division and Division 4 in relation to evidential material;

and

assisting by the inspector.

(3) A power exercised by a person assisting the inspector as mentioned

in subsection (2) is taken for all purposes to have been exercised by

the inspector.

(4) A function or duty performed by a person assisting the inspector as

mentioned in subsection (2) is taken for all purposes to have been

performed by the inspector.

(5) If a direction is given under paragraph (2)(c) in writing, the

direction is not a legislative instrument.

Subdivision D--Matters relating to seizure

36 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 inspector seizes one or more of the following from the

premises under this Division:

(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 inspector to give a copy of the thing or

the information to the occupier or other person.

(3) The inspector must comply with the request as soon as practicable

after the seizure.

Monitoring, investigation and enforcement Part 4

Investigation Division 3

Section 37

Illegal Logging Prohibition Bill 2011 No. , 2011 31

(4) However, the inspector 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.

37 Receipts for seized things

(1) The inspector must provide a receipt for a thing that is seized under

this Division.

(2) One receipt may cover 2 or more things seized.

38 Return of seized things

(1) The Secretary must take reasonable steps to return a thing seized

under this Division 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;

Note:

See subsections (2) and (3) for exceptions to this rule.

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 Secretary 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

have not been completed (including an appeal to a court in

relation to those proceedings); or

(b) the thing may continue to be retained because of an order

under section 39; or

(by a law, or an order of a court, of the Commonwealth or of

Part 4 Monitoring, investigation and enforcement

Division 3 Investigation

Section 39

32 Illegal Logging Prohibition Bill 2011 No. , 2011

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).

39 Issuing officer may permit a thing to be retained

(1) The Secretary may apply to an issuing officer for an order

permitting the retention of a thing seized under this Division 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 an issuing officer

under this section.

(2) Before making the application, the Secretary 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 whom the

Secretary believes to have such an interest of the proposed

application.

Order to retain thing

(3) The issuing officer may order that the thing may continue to be

retained for a period specified in the order if the issuing officer is

satisfied that it is necessary for the thing to continue to be retained:

(a) for the purposes of an investigation as to whether this Act has

been contravened; or

(b) to enable evidence of a contravention of this Act to be

secured for the purposes of a prosecution or an action to

obtain a civil penalty order.

(4) The period specified must not exceed 3 years.

Monitoring, investigation and enforcement Part 4

Investigation Division 3

Section 40

Illegal Logging Prohibition Bill 2011 No. , 2011 33

40 Disposal of things

(1) The Secretary may dispose of a thing seized under this Division if:

(a) the Secretary has taken reasonable steps to return the thing to

a person; and

(b)

either:

(i) the Secretary has been unable to locate the person; or

(ii) the person has refused to take possession of the thing.

(2) The Secretary may dispose of the thing in such manner as the

Secretary thinks appropriate.

41 Compensation for acquisition of property

(1) If the operation of section 40 would result in an acquisition of

property from a person otherwise than on just terms, the

Commonwealth is liable to pay a reasonable amount of

compensation to the person.

(2) If the Commonwealth and the person do not agree on the amount

of the compensation, the person may institute proceedings in the

Federal Court of Australia or another court of competent

jurisdiction for the recovery from the Commonwealth of such

reasonable amount of compensation as the court determines.

(3) In this section:

acquisition of property has the same meaning as in paragraph

51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the

Constitution.

Subdivision E--Investigation warrants

42 Investigation warrants

Application for warrant

(1) An inspector may apply to an issuing officer for a warrant under

this section in relation to premises.

Part 4 Monitoring, investigation and enforcement

Division 3 Investigation

Section 42

34 Illegal Logging Prohibition Bill 2011 No. , 2011

Issue of warrant

(2) The issuing officer may issue the warrant if the issuing officer is

satisfied, by information on oath or affirmation, that there are

reasonable grounds for suspecting that there is, or there may be

within the next 72 hours, evidential material on the premises.

(3) However, the issuing officer must not issue the warrant unless the

inspector or some other person has given to the issuing officer,

either orally or by affidavit, such further information (if any) as the

issuing officer requires concerning the grounds on which the issue

of the warrant is being sought.

Content of warrant

(4)

The

warrant

must:

(a) state the contravention or contraventions to which the

warrant relates; and

(b) describe the premises to which the warrant relates; and

(d) specify the kinds of evidential material that are to be

searched for under the warrant; and

(e) state that the evidential material specified may be seized

under the warrant; and

(f) state that any evidential material found in the course of

executing the warrant that the person executing the warrant

believes on reasonable grounds it is necessary to seize in

order to prevent its concealment, loss or destruction, may be

seized under the warrant; and

(g) name one or more inspectors; and

(h) authorise the inspectors named in the warrant:

(i) to enter the premises; and

(ii) to exercise the powers set out in this Division and

Division 4 in relation to the premises; and

(i) state whether entry is authorised to be made at any time of

the day or during specified hours of the day; and

(j) specify the day (not more than 1 week after the issue of the

warrant) on which the warrant ceases to be in force.

Monitoring, investigation and enforcement Part 4

Investigation Division 3

Section 43

Illegal Logging Prohibition Bill 2011 No. , 2011 35

43 Investigation warrants by telephone, fax etc.

Application for warrant

(1) An inspector may apply to an issuing officer by telephone, fax or

other electronic means for a warrant under section 42 in relation to

premises:

(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 issuing officer may require communication by voice to the

extent that it is practicable in the circumstances.

(3) Before applying for the warrant, the inspector must prepare an

information of the kind mentioned in subsection 42(2) in relation to

the premises that sets out the grounds on which the warrant is

sought. If it is necessary to do so, the inspector may apply for the

warrant before the information is sworn or affirmed.

Issuing officer may complete and sign warrant

(4) The issuing officer may complete and sign the same warrant that

would have been issued under section 42 if the issuing officer is

satisfied that there are reasonable grounds for doing so:

(a) after considering the terms of the information; and

(b) after receiving such further information (if any) as the issuing

officer requires concerning the grounds on which the issue of

the warrant is being sought.

(5) After completing and signing the warrant, the issuing officer must

inform the inspector, by telephone, fax or other electronic means,

of:

(a) the terms of the warrant; and

(b) the day on which and the time at which the warrant was

signed.

Obligations on inspector

(6) The inspector must then do the following:

Part 4 Monitoring, investigation and enforcement

Division 3 Investigation

Section 44

36 Illegal Logging Prohibition Bill 2011 No. , 2011

(a) complete a form of warrant in the same terms as the warrant

completed and signed by the issuing officer;

(b) state on the form the following:

(i) the name of the issuing officer;

(ii) the day on which, and the time at which, the warrant

was signed;

(i) the form of warrant completed by the inspector;

(ii) the information referred to in subsection (3), which

must have been duly sworn or affirmed.

(7) The inspector must comply with paragraph (6)(c) by the end of the

day after the earlier of the following:

(a) the day on which the warrant ceases to be in force;

(b) the day on which the warrant is executed.

Issuing officer to attach documents together

(8) The issuing officer must attach the documents provided under

paragraph (6)(c) to the warrant signed by the issuing officer.

44 Authority of warrant

(1) A form of warrant duly completed under subsection 43(6) is

authority for the same powers as are authorised by the warrant

signed by the issuing officer under subsection 43(4).

(2) In any proceedings, a court is to assume (unless the contrary is

proved) that an exercise of power was not authorised by a warrant

under section 43 if:

(a) it is material, in those proceedings, for the court to be

satisfied that the exercise of power was authorised by that

section; and

(b) the warrant signed by the issuing officer authorising the

exercise of the power is not produced in evidence.

45 Offence relating to warrants by telephone, fax etc.

An inspector must not:

Monitoring, investigation and enforcement Part 4

Investigation Division 3

Section 46

Illegal Logging Prohibition Bill 2011 No. , 2011 37

(a) state in a document that purports to be a form of warrant

under section 43 the name of an issuing officer unless that

issuing officer signed the warrant; or

(b) state on a form of warrant under that section a matter that, to

the inspector's knowledge, departs in a material particular

from the terms of the warrant signed by the issuing officer

under that section; or

that purports to be a form of warrant under that section that

the inspector knows departs in a material particular from the

terms of a warrant signed by an issuing officer under that

section; or

(d) purport to execute, or present to another person, a document

that purports to be a form of warrant under that section where

the inspector knows that no warrant in the terms of the form

of warrant has been completed and signed by an issuing

officer; or

(e) give to an issuing officer a form of warrant under that section

that is not the form of warrant that the inspector purported to

execute.

Penalty: Imprisonment for 2 years.

46 Completing execution of an investigation warrant after

temporary cessation

(1) This section applies if an inspector, and all persons assisting, who

are executing an investigation warrant in relation to premises

temporarily cease its execution and leave the premises.

(2) The inspector, and persons assisting, may complete the execution

of the warrant if:

(a) the warrant is still in force; and

(b) the inspector 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 an issuing

officer under subsection (5); or

Part 4 Monitoring, investigation and enforcement

Division 3 Investigation

Section 47

38 Illegal Logging Prohibition Bill 2011 No. , 2011

(iii) for a longer period if the occupier of the premises

consents in writing.

Application for extension in emergency situation

(3) An inspector, or person assisting, may apply to an issuing officer

for an extension of the 12-hour period mentioned in

subparagraph (2)(b)(ii) if:

(a) there is an emergency situation; and

(b) the inspector or person assisting believes on reasonable

grounds that the inspector 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

inspector or person assisting must give notice to the occupier of the

premises of his or her intention to apply for an extension.

Extension in emergency situation

(5) An issuing officer may extend the period during which the

inspector and persons assisting may be away from the premises if:

(a) an application is made under subsection (3); and

(b) the issuing officer is satisfied, by information on oath or

affirmation, that there are exceptional circumstances that

justify the extension; and

warrant ceases to be in force.

47 Completing execution of an investigation warrant stopped by

court order

An inspector, 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.

Monitoring, investigation and enforcement Part 4

General provisions relating to monitoring and investigation Division 4

Section 48

Illegal Logging Prohibition Bill 2011 No. , 2011 39

Division 4--General provisions relating to monitoring and

investigation

Subdivision A--Overview

48 Simplified outline

The following is a simplified outline of this Division:

An occupier's consent to an inspector entering premises for the

purposes of monitoring must be voluntary. Inspectors must abide

by the terms of that consent.

An inspector who enters premises under a warrant must give

details of the warrant to the occupier of the premises.

The occupier of the premises may observe the execution of a

monitoring or an investigation warrant and must provide

reasonable facilities and assistance for the effective execution of

the warrant.

Subdivision B--Obligations of inspectors in entering premises

49 Consent

(1) Before obtaining the consent of an occupier to enter premises for

the purposes of paragraph 22(2)(a) or 30(2)(a), an inspector must

inform the occupier that the occupier may refuse consent.

(2) A consent has no effect unless the consent is voluntary.

(3) A consent may be expressed to be limited to entry during a

particular period. If so, the consent has effect for that period unless

the consent is withdrawn before the end of that period.

(4) A consent that is not limited as mentioned in subsection (3) has

effect until the consent is withdrawn.

(5) If an inspector entered premises because of the consent of the

occupier of the premises, the inspector, and any person assisting

Part 4 Monitoring, investigation and enforcement

Division 4 General provisions relating to monitoring and investigation

Section 50

40 Illegal Logging Prohibition Bill 2011 No. , 2011

the inspector, must leave the premises if the consent ceases to have

effect.

50 Announcement before entry under warrant

(1) Before entering premises under a monitoring warrant or an

investigation warrant, an inspector must:

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

and

(b) show his or her identity card to the occupier of the premises,

or to another person who apparently represents the occupier,

if the occupier or other person is present at the premises; and

to the premises.

(2) However, an inspector is not required to comply with

subsection (1) if the inspector believes on reasonable grounds that

immediate entry to the premises is required:

(a) to ensure the safety of a person; or

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

frustrated.

(3)

If:

(a) an inspector does not comply with subsection (1) because of

subsection (2); and

(b) the occupier of the premises, or another person who

apparently represents the occupier, is present at the premises;

the inspector must, as soon as practicable after entering the

premises, show his or her identity card to the occupier or other

person.

51 Inspector to be in possession of warrant

(1) An inspector executing a monitoring warrant must be in possession

of the warrant issued by the issuing officer under section 28, or a

copy of the warrant as so issued.

(2) An inspector executing an investigation warrant must be in

possession of:

Monitoring, investigation and enforcement Part 4

General provisions relating to monitoring and investigation Division 4

Section 52

Illegal Logging Prohibition Bill 2011 No. , 2011 41

(a) the warrant issued by the issuing officer under section 42, or

a copy of the warrant as so issued; or

(b) the form of warrant completed under subsection 43(6), or a

copy of the form as so completed.

52 Details of warrant etc. to be given to occupier

(1) An inspector must comply with subsection (2) if:

(a) a monitoring warrant or an investigation warrant is being

executed in relation to premises; and

(b) the occupier of the premises, or another person who

apparently represents the occupier, is present at the premises.

(2) The inspector executing the warrant must, as soon as practicable:

(a) do one of the following:

(i) if the warrant is a monitoring warrant issued under

section 28--make a copy of the warrant available to the

occupier or other person (which need not include the

signature of the issuing officer who issued it);

(ii) if the warrant is an investigation warrant issued under

section 42--make a copy of the warrant available to the

occupier or other person (which need not include the

signature of the issuing officer who issued it);

(iii) if the warrant is an investigation warrant signed under

section 43--make a copy of the form of warrant

completed under subsection 43(6) available to the

occupier or other person; and

(b) inform the occupier or other person of the rights and

responsibilities of the occupier or other person under

Subdivision D.

Subdivision C--Additional powers of inspectors

53 Use of force in executing a warrant

In executing a monitoring warrant or an investigation warrant:

(a) an inspector may use such force against persons and things as

is necessary and reasonable in the circumstances; and

Part 4 Monitoring, investigation and enforcement

Division 4 General provisions relating to monitoring and investigation

Section 54

42 Illegal Logging Prohibition Bill 2011 No. , 2011

(b) a person assisting the inspector may use such force against

things as is necessary and reasonable in the circumstances.

54 Inspector may ask questions and seek production of documents

Application

(1) This section applies if:

(a) an inspector enters premises for the purposes of determining

whether:

(i) this Act has been, or is being, complied with; or

(ii) information given in compliance, or purported

compliance, with this Act is correct; or

(b) an inspector enters premises to search for evidential material.

Entry with consent

(2) If the entry is authorised because the occupier of the premises

consented to the entry, the inspector may ask the occupier to

answer any questions, and produce any document, relating to:

(a) compliance with this Act; or

(b) information given in compliance, or purported compliance,

with this Act; or

(c)

evidential

material.

Entry under a warrant

(3) If the entry is authorised by a monitoring or an investigation

warrant, the inspector may require any person on the premises to

answer any questions, and produce any document, relating to:

(a) in the case of a monitoring warrant:

(i) compliance with this Act; or

(ii) information given in compliance, or purported

compliance, with this Act; or

(b) in the case of an investigation warrant--evidential material

of the kind specified in the warrant.

Monitoring, investigation and enforcement Part 4

General provisions relating to monitoring and investigation Division 4

Section 55

Illegal Logging Prohibition Bill 2011 No. , 2011 43

Offence

(4) A person commits an offence if:

(a) the person is subject to a requirement under subsection (3);

and

(b) the person fails to comply with the requirement.

Penalty for contravention of this subsection: 30 penalty units.

Subdivision D--Occupier's rights and responsibilities on entry

55 Occupier entitled to observe execution of warrant

(1) The occupier of premises to which a monitoring warrant or an

investigation warrant relates, or other person who apparently

represents the occupier, is entitled to observe the execution of the

warrant if the occupier or other person is present at the premises

while the warrant is being executed.

(2) The right to observe the execution of the warrant ceases if the

occupier or other person impedes that execution.

(3) This section does not prevent the execution of the warrant in 2 or

more areas of the premises at the same time.

56 Occupier to provide inspector with 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 inspector executing the warrant; and

(b) any person assisting the inspector;

with all reasonable facilities and assistance for the effective

exercise of their powers.

(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.

Part 4 Monitoring, investigation and enforcement

Division 4 General provisions relating to monitoring and investigation

Section 57

44 Illegal Logging Prohibition Bill 2011 No. , 2011

Subdivision E--Other provisions

57 Powers of issuing officers

Powers conferred personally

(1) A power conferred on an issuing officer by this Part is conferred on

the issuing officer:

(a) in a personal capacity; and

(b) not as a court or a member of a court.

Powers need not be accepted

(2) The issuing officer need not accept the power conferred.

Protection and immunity

(3) An issuing officer exercising a power conferred by this Part has the

same protection and immunity as if the issuing officer were

exercising the power:

(a) as the court of which the issuing officer is a member; or

(b) as a member of the court of which the issuing officer is a

member.

58 Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of electronic equipment being operated as

mentioned in Division 2 or 3:

(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.

Monitoring, investigation and enforcement Part 4

General provisions relating to monitoring and investigation Division 4

Section 58

Illegal Logging Prohibition Bill 2011 No. , 2011 45

(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 or another court of competent jurisdiction 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, provided

any appropriate warning or guidance on the operation of the

equipment.

Part 4 Monitoring, investigation and enforcement

Division 5 Civil penalty provisions

Section 59

46 Illegal Logging Prohibition Bill 2011 No. , 2011

Division 5--Civil penalty provisions

Subdivision A--Overview

59 Simplified outline

The following is a simplified outline of this Division:

This Division deals with the use of civil penalties to enforce civil

penalty provisions. A civil penalty provision is a provision of the

regulations that is declared by the regulations to be a civil penalty

provision.

Civil penalty orders may be sought from a court in relation to

contraventions of civil penalty provisions.

Subdivision B--Obtaining a civil penalty order

60 Civil penalty orders

Application for order

(1) The Secretary may apply to a relevant court for an order that a

person, who is alleged to have contravened a civil penalty

provision, pay the Commonwealth a pecuniary penalty.

(2) The Secretary must make the application within 4 years of the

alleged contravention.

Court may order person to pay pecuniary penalty

(3) If the relevant court is satisfied that the person has contravened the

civil penalty provision, the court may order the person to pay to the

Commonwealth such pecuniary penalty for the contravention as the

court determines to be appropriate.

Note:

Subsection (5) sets out the maximum penalty that the court may order

the person to pay.

(4) An order under subsection (3) is a civil penalty order.

Monitoring, investigation and enforcement Part 4

Civil penalty provisions Division 5

Section 61

Illegal Logging Prohibition Bill 2011 No. , 2011 47

Determining pecuniary penalty

(5) The pecuniary penalty must not be more than:

(a) if the person is a body corporate--5 times the pecuniary

penalty specified for the civil penalty provision; and

(b) otherwise--the pecuniary penalty specified for the civil

penalty provision.

(6) In determining the pecuniary penalty, the court must take into

account all relevant matters, including:

(a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered because

of the contravention; and

(d) whether the person has previously been found by a court to

have engaged in any similar conduct.

61 Civil enforcement of penalty

(1) A pecuniary penalty is a debt payable to the Commonwealth.

(2) The Commonwealth may enforce a civil penalty order as if it were

an order made in civil proceedings against the person to recover a

debt due by the person. The debt arising from the order is taken to

be a judgement debt.

62 Conduct contravening more than one civil penalty provision

(1) If conduct constitutes a contravention of 2 or more civil penalty

provisions, proceedings may be instituted under this Division

against a person in relation to the contravention of any one or more

of those provisions.

(2) However, the person is not liable to more than one pecuniary

penalty under this Division in relation to the same conduct.

63 Multiple contraventions

(1) A relevant court may make a single civil penalty order against a

person for multiple contraventions of a civil penalty provision if

Part 4 Monitoring, investigation and enforcement

Division 5 Civil penalty provisions

Section 64

48 Illegal Logging Prohibition Bill 2011 No. , 2011

proceedings for the contraventions are founded on the same facts,

or if the contraventions form, or are part of, a series of

contraventions of the same or a similar character.

Note:

For continuing contraventions of civil penalty provisions, see

section 72.

(2) However, the penalty must not exceed the sum of the maximum

penalties that could be ordered if a separate penalty were ordered

for each of the contraventions.

64 Proceedings may be heard together

A relevant court may direct that 2 or more proceedings for civil

penalty orders are to be heard together.

65 Civil evidence and procedure rules for civil penalty orders

A relevant court must apply the rules of evidence and procedure

for civil matters when hearing proceedings for a civil penalty

order.

66 Contravening a civil penalty provision is not an offence

A contravention of a civil penalty provision is not an offence.

Subdivision C--Civil proceedings and criminal proceedings

67 Civil proceedings after criminal proceedings

A relevant court may not make a civil penalty order against a

person for a contravention of a civil penalty provision if the person

has been convicted of an offence constituted by conduct that is the

same, or substantially the same, as the conduct constituting the

contravention.

68 Criminal proceedings during civil proceedings

(1) Proceedings for a civil penalty order against a person for a

contravention of a civil penalty provision are stayed if:

Monitoring, investigation and enforcement Part 4

Civil penalty provisions Division 5

Section 69

Illegal Logging Prohibition Bill 2011 No. , 2011 49

(a) criminal proceedings are commenced or have already been

commenced against the person for an offence; and

(b) the offence is constituted by conduct that is the same, or

substantially the same, as the conduct alleged to constitute

the contravention.

(2) The proceedings for the order (the civil proceedings) may be

resumed if the person is not convicted of the offence. Otherwise:

(a) the civil proceedings are dismissed; and

(b) costs must not be awarded in relation to the civil proceedings.

69 Criminal proceedings after civil proceedings

Criminal proceedings may be commenced against a person for

conduct that is the same, or substantially the same, as conduct that

would constitute a contravention of a civil penalty provision

regardless of whether a civil penalty order has been made against

the person in relation to the contravention.

70 Evidence given in civil proceedings not admissible in criminal

proceedings

(1) Evidence of information given, or evidence of production of

documents by an individual, is not admissible in criminal

proceedings against the individual if:

(a) the individual previously gave the evidence or produced the

documents in proceedings for a civil penalty order against the

individual for an alleged contravention of a civil penalty

provision (whether or not the order was made); and

(b) the conduct alleged to constitute the offence is the same, or

substantially the same, as the conduct alleged to constitute

the contravention.

(2) However, subsection (1) does not apply to criminal proceedings in

relation to the falsity of the evidence given by the individual in the

proceedings for the civil penalty order.

Part 4 Monitoring, investigation and enforcement

Division 5 Civil penalty provisions

Section 71

50 Illegal Logging Prohibition Bill 2011 No. , 2011

Subdivision D--Miscellaneous

71 Ancillary contravention of civil penalty provisions

(1) A person must not:

(a) attempt to contravene a civil penalty provision; or

(b) aid, abet, counsel or procure a contravention of a civil

penalty provision; or

a civil penalty provision; or

(d) be in any way, directly or indirectly, knowingly concerned in,

or party to, a contravention of a civil penalty provision; or

(e) conspire with others to effect a contravention of a civil

penalty provision.

Note:

Section 74 (which provides that a person's state of mind does not need

to be proven in relation to a civil penalty provision) does not apply to

subsection (1) of this section.

Civil penalty

(2) A person who contravenes subsection (1) in relation to a civil

penalty provision is taken to have contravened the provision.

72 Continuing contraventions of civil penalty provisions

(1) If an act or thing is required under a civil penalty provision to be

done:

(a) within a particular period; or

(b) before a particular time;

then the obligation to do that act or thing continues until the act or

thing is done (even if the period has expired or the time has

passed).

(2) A person who contravenes a civil penalty provision that requires an

act or thing to be done:

(a) within a particular period; or

(b) before a particular time;

Monitoring, investigation and enforcement Part 4

Civil penalty provisions Division 5

Section 73

Illegal Logging Prohibition Bill 2011 No. , 2011 51

commits a separate contravention of that provision in respect of

each day during which the contravention occurs (including the day

the relevant civil penalty order is made or any later day).

73 Mistake of fact

(1) A person is not liable to have a civil penalty order made against the

person for a contravention of a civil penalty provision if:

(a) at or before the time of the conduct constituting the

contravention, the person:

(i) considered whether or not facts existed; and

(ii) was under a mistaken but reasonable belief about those

facts; and

(b) had those facts existed, the conduct would not have

constituted a contravention of the civil penalty provision.

(2) For the purposes of subsection (1), a person may be regarded as

having considered whether or not facts existed if:

(a) the person had considered, on a previous occasion, whether

those facts existed in the circumstances surrounding that

occasion; and

(b) the person honestly and reasonably believed that the

circumstances surrounding the present occasion were the

same, or substantially the same, as those surrounding the

previous occasion.

(3) A person who wishes to rely on subsection (1) or (2) in

proceedings for a civil penalty order bears an evidential burden in

relation to that matter.

74 State of mind

(1) In proceedings for a civil penalty order against a person for a

contravention of a civil penalty provision (other than subsection

71(1)), it is not necessary to prove:

(a) the person's intention; or

(b) the person's knowledge; or

(d) the person's negligence; or

Monitoring, investigation and enforcement Part 4

Infringement notices Division 6

Section 75

Illegal Logging Prohibition Bill 2011 No. , 2011 53

Division 6--Infringement notices

75 Simplified outline

The following is a simplified outline of this Division:

This Division deals with the use of infringement notices in the

enforcement of provisions.

A person can be given an infringement notice in relation to a

contravention of this Act.

A person who is given an infringement notice can choose to pay an

amount as an alternative to having court proceedings brought

against the person for a contravention of this Act. If the person

does not choose to pay the amount, proceedings can be brought

against the person in relation to the contravention.

76 When an infringement notice may be given

(1) If an inspector has reasonable grounds to believe that a person has

contravened this Act, the inspector may give to the person an

infringement notice for the alleged contravention.

(2) The infringement notice must be given within 12 months after the

day on which the contravention is alleged to have taken place.

(3) A single infringement notice must relate only to a single

contravention of a provision unless subsection (4) applies.

(4) An inspector may give a person a single infringement notice

relating to multiple contraventions of a single provision if:

(a) the provision requires the person to do a thing within a

particular period or before a particular time; and

(b) the person fails or refuses to do that thing within that period

or before that time; and

(d) each contravention is constituted by the failure or refusal on

one of those days.

Part 4 Monitoring, investigation and enforcement

Division 6 Infringement notices

Section 77

54 Illegal Logging Prohibition Bill 2011 No. , 2011

Note:

For continuing offences, see subsection 4K(2) of the Crimes Act 1914.

For continuing contraventions of civil penalty provisions, see

section 72 of this Act.

(5) If a single provision can constitute both a civil penalty provision

and an offence provision, the infringement notice must relate to the

provision as an offence provision.

77 Matters to be included in an infringement notice

(1) An infringement notice must:

(a) be identified by a unique number; and

(b) state the day on which it is given; and

(d) state the name and position of the person who gave the

notice; and

(e) give brief details of the alleged contravention, including:

(i) the provision that was allegedly contravened; and

(ii) the maximum penalty that a court could impose for the

contravention; and

(iii) the time (if known) and day of, and the place of, the

alleged contravention; and

(f) state the amount that is payable under the notice; and

(g) give an explanation of how payment of the amount is to be

made; and

(h) state that, if the person to whom the notice is given pays the

amount within 28 days after the day the notice is given, then

(unless the notice is withdrawn):

(i) if the provision is an offence provision and does not also

constitute a civil penalty provision--the person will not

be liable to be prosecuted in a court for the alleged

contravention; or

(ii) if the provision is an offence provision that can also

constitute a civil penalty provision--the person is not

liable to be prosecuted in a court, and proceedings

seeking a civil penalty order will not be brought, in

relation to the alleged contravention; or

Monitoring, investigation and enforcement Part 4

Infringement notices Division 6

Section 77

Illegal Logging Prohibition Bill 2011 No. , 2011 55

(iii) if the provision is a civil penalty provision--

proceedings seeking a civil penalty order will not be

brought in relation to the alleged contravention; and

(i) state that payment of the amount is not an admission of guilt

or liability; and

(j) state that the person may apply to the Secretary to have the

period in which to pay the amount extended; and

(k) state that the person may choose not to pay the amount and, if

the person does so:

(i) if the provision is an offence provision and does not also

constitute a civil penalty provision--the person may be

prosecuted in a court for the alleged contravention; or

(ii) if the provision is an offence provision and can also

constitute a civil penalty provision--the person may be

prosecuted in a court, or proceedings seeking a civil

penalty order may be brought, in relation to the alleged

contravention; or

(iii) if the provision is a civil penalty provision--

proceedings seeking a civil penalty order may be

brought in relation to the alleged contravention; and

(l) set out how the notice can be withdrawn; and

(m) state that if the notice is withdrawn:

(i) if the provision is an offence provision and does not also

constitute a civil penalty provision--the person may be

prosecuted in a court for the alleged contravention; or

(ii) if the provision is an offence provision and can also

constitute a civil penalty provision--the person may be

prosecuted in a court, or proceedings seeking a civil

penalty order may be brought, in relation to the alleged

contravention; or

(iii) if the provision is a civil penalty provision--

proceedings seeking a civil penalty order may be

brought in relation to the alleged contravention; and

(n) state that the person may make written representations to the

Secretary seeking the withdrawal of the notice.

(2) For the purposes of paragraph (1)(f), the amount to be stated in the

notice for the alleged contravention of the provision must be equal

Part 4 Monitoring, investigation and enforcement

Division 6 Infringement notices

Section 78

56 Illegal Logging Prohibition Bill 2011 No. , 2011

to one-fifth of the maximum pecuniary penalty that a court could

impose on the person for that contravention.

78 Extension of time to pay amount

(1) A person to whom an infringement notice has been given may

apply to the Secretary for an extension of the period referred to in

paragraph 77(1)(h).

(2) If the application is made before the end of that period, the

Secretary may, in writing, extend that period. The Secretary may

do so before or after the end of that period.

(3) If the Secretary extends that period, a reference in this Division, or

in a notice or other instrument under this Division, to the period

referred to in paragraph 77(1)(h) is taken to be a reference to that

period so extended.

(4) If the Secretary does not extend that period, a reference in this

Division, or in a notice or other instrument under this Division, to

the period referred to in paragraph 77(1)(h) is taken to be a

reference to the period that ends on the later of the following days:

(a) the day that is the last day of the period referred to in

paragraph 77(1)(h);

(b) the day that is 7 days after the day the person was given

notice of the Secretary's decision not to extend.

(5) The Secretary may extend the period more than once under

subsection (2).

79 Withdrawal of an infringement notice

Representations seeking withdrawal of notice

(1) A person to whom an infringement notice has been given may

make written representations to the Secretary seeking the

withdrawal of the notice.

Monitoring, investigation and enforcement Part 4

Infringement notices Division 6

Section 79

Illegal Logging Prohibition Bill 2011 No. , 2011 57

Withdrawal of notice

(2) The Secretary may withdraw an infringement notice given to a

person (whether or not the person has made written representations

seeking the withdrawal).

(3) When deciding whether or not to withdraw an infringement notice

(the relevant infringement notice), the Secretary:

(a) must take into account any written representations seeking

the withdrawal that were given by the person to the

Secretary; and

(b) may take into account the following:

(i) whether a court has previously imposed a penalty on the

person for a contravention of a provision enforceable

under this Division;

(ii) the circumstances of the alleged contravention;

(iii) whether the person has paid an amount, stated in an

earlier infringement notice, for a contravention of a

provision enforceable under this Division if the

contravention is constituted by conduct that is the same,

or substantially the same, as the conduct alleged to

constitute the contravention in the relevant infringement

notice;

(iv) any other matter the Secretary considers relevant.

Notice of withdrawal

(4) Notice of the withdrawal of the infringement notice must be given

to the person. The withdrawal notice must state:

(a) the person's name and address; and

(b) the day the infringement notice was given; and

(d) that the infringement notice is withdrawn; and

(e)

that:

(i) if the provision is an offence provision and does not also

constitute a civil penalty provision--the person may be

prosecuted in a court for the alleged contravention; or

(ii) if the provision is an offence provision and can also

constitute a civil penalty provision--the person may be

Part 4 Monitoring, investigation and enforcement

Division 6 Infringement notices

Section 80

58 Illegal Logging Prohibition Bill 2011 No. , 2011

prosecuted in a court, or proceedings seeking a civil

penalty order may be brought, in relation to the alleged

contravention; or

(iii) if the provision is a civil penalty provision--

proceedings seeking a civil penalty order may be

brought in relation to the alleged contravention.

Refund of amount if infringement notice withdrawn

(5)

If:

(a) the Secretary withdraws the infringement notice; and

(b) the person has already paid the amount stated in the notice;

the Commonwealth must refund to the person an amount equal to

the amount paid.

(6) Evidence or information that the person, or a representative of the

person, gives to the Secretary in the course of making

representations under this section is not admissible in evidence

against the person or representative in any proceedings (other than

proceedings for an offence based on the evidence or information

given being false or misleading).

80 Effect of payment of amount

(1) If the person to whom an infringement notice for an alleged

contravention of a provision is given pays the amount stated in the

notice before the end of the period referred to in paragraph

77(1)(h):

(a) any liability of the person for the alleged contravention is

discharged; and

(b)

either:

(i) if the provision is an offence provision--the person may

not be prosecuted in a court for the alleged

contravention; or

(ii) if the provision is a civil penalty provision--

proceedings seeking a civil penalty order may not be

brought against the person in relation to the alleged

contravention; and

Monitoring, investigation and enforcement Part 4

Infringement notices Division 6

Section 81

Illegal Logging Prohibition Bill 2011 No. , 2011 59

for the alleged contravention; and

(d) if the provision is an offence provision--the person is not

regarded as having been convicted of the alleged offence.

(2) Subsection (1) does not apply if the notice has been withdrawn.

81 Effect of this Division

This Division does not:

(a) require an infringement notice to be given to a person for an

alleged contravention of a provision enforceable under this

Division; or

(b) affect the liability of a person for an alleged contravention of

a provision enforceable under this Division if:

(i) the person does not comply with an infringement notice

given to the person for the contravention; or

(ii) an infringement notice is not given to the person for the

contravention; or

(iii) an infringement notice is given to the person for the

contravention and is subsequently withdrawn; or

person for an alleged contravention of a provision

enforceable under this Division; or

(d) limit a court's discretion to determine the amount of a

penalty to be imposed on a person who is found to have

contravened a provision enforceable under this Division.

82 Further provision by regulation

The regulations may make further provision in relation to

infringement notices given in relation to contraventions of

provisions to which this Division applies.

Part 5 Miscellaneous

Section 83

60 Illegal Logging Prohibition Bill 2011 No. , 2011

Part 5--Miscellaneous

83 Publishing reports

(1) The Secretary may publish reports about the operation of this Act.

(2) Subsection (1) does not require or authorise the disclosure of

information for the purposes of the Privacy Act 1988.

84 Review of operation of Act

(1) The Minister must cause a review to be undertaken of the first 5

years of the operation of this Act.

(2) The persons undertaking the review must give the Minister a

written report of the review within 12 months after the end of the 5

year period.

(3) The Minister must cause a copy of the report of the review to be

laid before each House of the Parliament within 15 sitting days of

that House after its receipt by the Minister.

85 Delegation by Secretary

(1) The Secretary may, in writing, delegate the Secretary's powers and

functions under this Act to an SES employee, or acting SES

employee, in the Department.

(2) A person exercising powers or functions under a delegation under

subsection (1) must comply with any directions of the Secretary.

86 Regulations

(1) The Governor-General may make regulations prescribing matters:

(a) required or permitted to be prescribed by this Act; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) Without limiting subsection (1), the regulations may:

(a) prescribe fees in respect of any matter under this Act; and

Commonwealth of Australia Bills

ILLEGAL LOGGING PROHIBITION BILL 2012