Commonwealth Numbered Acts

AGRICULTURE, FISHERIES AND FORESTRY LEGISLATION AMENDMENT ACT (NO. 1) 1999 NO. 4, 1999 - SCHEDULE 3--Amendment

1 Section 3

Insert:

enter , in relation to an aircraft, vehicle or ship, includes go on board.

2 Section 3 (definition of establishment )

Repeal the definition, substitute:

establishment includes premises.

3 Section 3

Insert:

evidential material means any of the following things, including such a thing in electronic form:

(a) a thing with respect to which an offence against this Act has been committed or is suspected, on reasonable grounds, to have been committed;

(b) a thing as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of an offence against this Act;

(c) a thing as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing an offence against this Act.

Insert:

executing officer , for a warrant, means the person named in the warrant as being responsible for executing the warrant.

5 Section 3

Insert:

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

6 Section 3

Insert:

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

7 Section 3 (paragraph (a) of the definition of offence against this Act )

Repeal the paragraph.

8 Section 3 (paragraphs (b) and (c) of the definition of offence against this Act )

Omit "or the regulations".

9 Section 3

Insert:

officer assisting , in relation to a warrant, means:

(a) an authorized officer who is assisting in executing the warrant; or

(b) a person who is not an authorized officer, but who has been authorized by the relevant executing officer to assist in executing the warrant.

Repeal the definition, substitute:

premises includes the following:

(a) a building, aircraft, vehicle or ship;

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

(c) a part of a thing or place referred to in paragraph (a) or (b).

Insert:

preparation , in relation to prescribed goods, includes the following:

(a) the slaughter or killing of animals and the dressing of carcasses from which prescribed goods are obtained;

(b) the processing, packing or storage of prescribed goods;

(c) the treatment of prescribed goods;

(d) the handling or loading of prescribed goods.

Insert:

this Act includes the regulations.

13 After subsection 7(3)

Insert:

(3A) Without limiting the generality of subsection (2), regulations made for the purposes of subsection (1):

(a) may provide that the export of prescribed goods, or the export of prescribed goods to a specified place, is prohibited unless the goods have been prepared in accordance with an arrangement that has been approved by the Secretary; and

(b) may make provision for and in relation to:

(i) the approval of an arrangement subject to specified conditions or restrictions; or

(ii) the variation, suspension or revocation of an approval of an arrangement; or

(iii) the variation, suspension or revocation of any or all of the conditions or restrictions to which an approval of an arrangement is subject, or the imposition of further conditions or restrictions; or

(iv) persons (including persons approved by the Secretary under the regulations and authorized officers) who may exercise powers and perform functions under, or for the purposes of, an approved arrangement.

Omit "subparagraph (3)(b)(ii)", substitute "subparagraphs (3)(b)(ii) and (3A)(b)(i)".

15 Part III (heading)

Repeal the heading, substitute:

Part III--Enforcement 16 Sections 10 and 11

Repeal the sections, substitute:

Division 1--General powers SECT 10 General powers of authorized officers in relation to premises The powers an authorized officer may exercise under paragraphs 10A(1)(b) and 10D(1)(b) in relation to particular premises are as follows:

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

(b) to inspect, examine and take samples of any thing on the premises;

(c) to take photographs (including video or audio recordings) or to make sketches of the premises or any thing on the premises;

(d) to take extracts from, or make copies of, any document, book or record on the premises;

(e) to secure the premises or any thing on the premises.

(a) enter:

(i) any registered premises; or

(ii) any other premises with the consent of the occupier; and

(b) exercise the powers set out in section 10.

SECT 10B Monitoring warrants (1) An authorized officer may apply to a magistrate for a warrant under this section in relation to particular premises.

(2) Subject to subsection (3), the magistrate may issue a warrant if satisfied, by information on oath or affirmation, that it is reasonably necessary that the authorized officer should have access to the premises for the purpose of finding out whether any or all of the provisions of this Act are being complied with.

(3) The magistrate must not issue a warrant unless the authorized officer or another person has given the magistrate, either orally (on oath or affirmation) or by affidavit, such further information as the magistrate requires about the grounds on which the issue of the warrant is being sought.

(4) A warrant must:

(a) authorize an authorized officer named in the warrant, with such assistance and by such force as is necessary and reasonable, from time to time, while the warrant remains in force, to enter the premises and exercise powers of the kind set out in section 10 in relation to the premises; and

(b) state whether an entry under the warrant is authorized to be made at any time of the day or night or during specified hours of the day or night; and

(c) specify the day (not more than 6 months after the issue of the warrant) on which the warrant ceases to have effect; and

(d) state the purpose for which the warrant is issued.

(2) If the authorized officer suspects, on reasonable grounds, that:

(a) particular evidential material is in or on the premises; and

(b) it is necessary to seize the evidential material in order to prevent it from being concealed, lost or destroyed; and

(c) it is necessary to do so without the authority of a warrant under section 10E because the circumstances are serious and urgent;

Division 3--Offence-related searches and seizures SECT 10D Registered premises and premises entered by consent--offence-related searches and seizures (1) Subject to subsection (2), if an authorized officer has reasonable grounds for suspecting that there may be, on any premises, particular evidential material, the officer, at any time and with any necessary help, may:

(a) enter the premises; and

(b) exercise the powers set out in section 10; and

(c) seize that evidential material, if the officer finds it on the premises.

(a) the premises are registered premises; or

(b) the occupier of the premises has consented to the entry.

SECT 10E Offence-related warrants (1) An authorized officer may apply to a magistrate for a warrant under this section in relation to particular premises.

(2) Subject to subsection (3), a magistrate may issue the warrant if satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, any evidential material at the premises.

(3) A magistrate must not issue a warrant unless the authorized officer or some other person has given the magistrate, either orally (on oath or affirmation) or by affidavit, such further information as the magistrate requires about the grounds on which the issue of the warrant is being sought.

(4) The warrant must:

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

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

(c) describe the kinds of evidential material that are to be searched for under the warrant; and

(d) state the name of the authorized officer who is to be responsible for executing the warrant; and

(e) state the period for which the warrant remains in force, which must not be more than 7 days; and

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

(a) evidential material in relation to an offence to which the warrant relates; or

(b) evidential material in relation to another offence against this Act;

(6) Paragraph (4)(e) does not prevent the issue of successive warrants in relation to the same premises.

(7) If the application for the warrant is made under section 10F, this section applies as if:

(a) subsection (2) referred to 48 hours rather than 72 hours; and

(b) paragraph (4)(e) referred to 48 hours rather than 7 days.

(a) to enter the premises; and

(b) to exercise powers of the kind set out in paragraphs 10(b) to (e) (inclusive); and

(c) to search the premises and any thing on the premises for the kinds of evidential material specified in the warrant, and to seize things of those kinds found at the premises; and

(d) to seize other things found at the premises in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be:

(i) evidential material in relation to an offence to which the warrant relates; or

(ii) evidential material in relation to another offence against this Act;

(2) If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.

(3) If things are seized under a warrant, the warrant authorizes the executing officer to make the things available to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate.

Division 4--Warrants granted by telephone or other electronic means SECT 10G Warrants may be granted by telephone or other electronic means (1) An authorized officer may apply to a magistrate for a warrant under section 10B or 10E by telephone, facsimile or other electronic means:

(a) in an urgent case; or

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

(3) An application under this section must include all information required to be provided in an ordinary application for a warrant under section 10B or 10E, as the case requires, but the application may, if necessary, be made before the information is sworn or affirmed.

(4) If a magistrate to whom an application is made under this section is satisfied:

(a) after having considered the information mentioned in subsection (3); and

(b) after having received any further information that the magistrate requires about the grounds on which the issue of the warrant is being sought;

(5) If a magistrate signs a warrant under subsection (4):

(a) the magistrate must notify the authorized officer, by telephone, facsimile or other electronic means, of the terms of the warrant and the date on which and the time at which it was signed, and write on it the reasons for the granting of the warrant; and

(b) the officer must complete a form of warrant in the terms notified to the officer by the magistrate and write on it the name of the magistrate and the date on which and the time at which the warrant was signed.

(7) The magistrate must attach to the documents provided under subsection (6) the warrant signed by the magistrate.

(8) A form of warrant duly completed by an authorized officer under subsection (5) is, if it is in accordance with the terms of the warrant signed by the magistrate, authority for any entry, search, seizure, or other exercise of power that the warrant so signed authorizes.

(9) If:

(a) it is material, in any proceedings, for a court to be satisfied that an exercise of power was authorized under this section; and

(b) the warrant signed by the magistrate under this section authorizing the exercise of power is not produced in evidence;

Division 5--Stopping and searching aircraft, vehicles or ships SECT 10H Searches without warrant in emergency situations (1) This section applies if an authorized officer suspects, on reasonable grounds, that:

(a) particular evidential material is in or on an aircraft, vehicle or ship; and

(b) it is necessary to exercise a power under subsection (2) in order to prevent the evidential material being concealed, lost or destroyed; and

(c) it is necessary to exercise the power without the authority of a warrant under section 10E because the circumstances are serious and urgent.

(a) stop and detain the aircraft, vehicle or ship; and

(b) search the aircraft, vehicle or ship and any thing in or on the aircraft, vehicle or ship, for the evidential material; and

(c) seize the evidential material if he or she finds it there.

(a) it is necessary to seize it in order to prevent its concealment, loss or destruction; and

(b) it is necessary to seize it without the authority of a warrant under section 10E because the circumstances are serious and urgent.

SECT 10J How an authorized officer exercises a power under section 10H When an authorized officer exercises a power under section 10H in relation to an aircraft, vehicle or ship, he or she:

(a) may use such assistance as is necessary; and

(b) must search the aircraft, vehicle or ship in a public place or in some other place to which members of the public have ready access; and

(c) must not detain the aircraft, vehicle or ship for longer than is necessary and reasonable to search it and any thing found in or on the aircraft, vehicle or ship; and

(d) may use such force as is necessary and reasonable in the circumstances, but must not damage the aircraft, vehicle or ship or any thing found in or on the aircraft, vehicle or ship by forcing open a part of the aircraft, vehicle or ship or thing unless:

(i) the person (if any) apparently in charge of the aircraft, vehicle or ship has been given a reasonable opportunity to open that part or thing; or

(ii) it is not possible to give that person such an opportunity.

(a) the executing officer may obtain such assistance as is necessary and reasonable in the circumstances; and

(b) the executing officer, or an authorized officer who is assisting in executing the warrant, may use such force against persons and things as is necessary and reasonable in the circumstances; and

(c) a person who is not an authorized officer, but who has been authorized to assist in executing the warrant, may use such force against things as is necessary and reasonable in the circumstances.

(a) announce that he or she is authorized by the warrant to enter the premises; and

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

(a) the safety of a person (including the authorized officer); or

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

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

(3) The copy of the warrant referred to in subsection (1) need not include the signature of the magistrate who issued the warrant.

SECT 11C Occupier entitled to be present during search under warrants (1) If a warrant issued in relation to premises is being executed and the occupier of the premises, or another person who apparently represents the occupier, is present at the premises, the person is, subject to Part 1C of the Crimes Act 1914 , entitled to observe the search being conducted.

(2) The right to observe the search being conducted ceases if the person impedes the search.

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

SECT 11D Use of equipment to examine or process things (1) A person who enters premises under this Part may bring to the premises and use any equipment reasonably necessary for the examination or processing of things found at the premises for the purposes of exercising a power conferred on the person under this Part.

(2) If:

(a) it is not practicable to examine or process the things at the premises; or

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

(3) If things containing electronically stored information are moved to another place under subsection (2), the person referred to in subsection (1) must, if it is practicable to do so:

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

(b) allow the occupier, or a representative of the occupier, to be present during the examination or processing.

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

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

(2) If the person, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:

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

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

(c) if the material can be transferred to a disk, tape or other storage device that:

(i) is brought to the premises; or

(ii) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;

(3) A person may seize equipment under paragraph (2)(a) only if:

(a) it is not practicable to put the material in documentary form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c); or

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

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

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

(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;

(5) The person must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.

(6) The equipment may be secured:

(a) for a period not exceeding 24 hours; or

(b) until the equipment has been operated by the expert;

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

(8) The person must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.

SECT 11F Compensation for damage to equipment (1) If:

(a) equipment is damaged because of being operated as mentioned in section 11D or 11E; and

(b) the damage was caused by:

(i) insufficient care being exercised in selecting the person who was to operate the equipment; or

(ii) insufficient care being exercised by the person (other than the occupier or a person employed by the occupier) operating the equipment;

(2) Compensation is payable out of money appropriated by the Parliament for the purpose.

(3) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and the employees and agents of the occupier, if they were available at the time, had provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances.

SECT 11G Copies of seized things to be given (1) Subject to subsection (2), if a person who enters premises under this Part seizes:

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

(b) a storage device the information in which can readily be copied;

(2) Subsection (1) does not apply if:

(a) the thing that has been seized was seized under paragraph 11E(2)(b) or (c); or

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

(a) the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or

(b) the period of 60 days after its seizure ends;

(2) At the end of the 60 days specified in subsection (1), the person must take reasonable steps to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it) unless:

(a) proceedings in which the thing may be used in evidence were begun 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 officer may retain the thing because of an order under section 11J; or

(c) the officer is otherwise authorized or required (by a law, or an order of a court, of the Commonwealth, or of a State or a Territory) to retain, destroy or dispose of the thing.

(a) before the end of 60 days after the seizure; or

(b) before the end of a period previously stated in an order of a magistrate under this section;

(2) If the magistrate is satisfied that it is necessary for the authorized officer to continue to keep the thing:

(a) for the purposes of an investigation as to whether an offence has been committed; or

(b) to enable evidence of an offence to be secured for the purposes of a prosecution;

(3) Before making the application, the authorized officer must:

(a) take reasonable steps to discover who has an interest in the retention of the thing; and

(b) if it is practicable to do so, notify each person who the authorized officer believes to have such an interest of the proposed application.

(5) Without limiting the generality of subsection (4), an order made by a magistrate under this section has effect only by virtue of this Act and is not taken, by implication, to be made by a court.

(6) A magistrate performing a function of, or connected with, making an order under this section has the same protection and immunity as if he or she were performing that function as, or as a member of, a court (being the court of which the magistrate is a member).

(7) The Governor-General may make arrangements with the Governor of a State, the Chief Minister for the Australian Capital Territory or the Administrator of the Northern Territory for the performance, by all or any of the persons who from time to time hold office as magistrates in that State or Territory, of the function of making orders under this section.

SECT 11K Release of seized goods The Secretary may authorize any evidential material seized under this Part to be released to the owner, or to the person from whose possession it was seized, either unconditionally or on any conditions that the Secretary thinks fit.

SECT 11L Authorized officer must produce identity card An authorized officer may not exercise any powers under this Part in relation to premises (other than premises entered under a warrant) if:

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

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

(2) An entry by an authorized officer in consequence of the consent of a person is not lawful unless the person voluntarily consented to the entry.

SECT 11N Receipts for things seized (1) If a thing is seized under this Part, or moved under subsection 11D(2), an authorized officer must provide a receipt for the thing.

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

Division 7--Offences SECT 11P Power of authorized officer to require information or documents (1) Subject to subsection (2), an authorized officer who has entered registered premises or any other premises under a warrant may, to the extent that is reasonably necessary for the purpose of finding out whether any or all of the provisions of this Act are being complied with, require a person to give information to the officer and to produce any documents referred to by the officer.

(2) An authorized officer who has entered any premises with the consent of the occupier may ask the occupier to give information to the officer and to produce any documents referred to by the officer.

(3) An authorized officer is not entitled to make a requirement of a person under subsection (1) unless the officer produces his or her identity card for inspection by the person.

(4) A person must not fail to comply with a requirement under subsection (1).

Penalty: 30 penalty units.

(2) Without limiting subsection (1), the information or documents referred to in the notice may relate to:

(a) the preparation of any prescribed goods that have been, or are proposed to be, exported; or

(b) the material or ingredients of which such goods are or are proposed to be composed, or from which they are or are proposed to be derived; or

(c) any animals that are proposed to be used, or have been used, in the preparation of such goods; or

(d) the source of:

(i) any prescribed goods of the kind mentioned in paragraph (a); or

(ii) any material or ingredients of the kind mentioned in paragraph (b); or

(iii) any animals of the kind mentioned in paragraph (c).

Penalty: Imprisonment for 12 months.

Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.

(5) However, if the information is given or the document is produced by an individual, the information or the production of the document, and any information or thing (including any document) obtained as a direct or indirect result of the giving of the information or the production of the document, as the case may be, is not admissible in evidence against the individual in proceedings other than proceedings for an offence against section 16.

17 Section 12

After "powers", insert ", or in the performance of the authorized officer's functions,".

18 Subsection 13(1)

Repeal the subsection (but not the penalty), substitute:

(1) Subject to subsection (2), the owner or occupier of premises entered by an authorized officer under this Part must, if requested by an authorized officer to do so, provide reasonable assistance to the authorized officer for the purpose of the exercise of the authorized officer's powers under this Part in relation to the premises.

19 Subsection 19(1)

After "powers", insert "or functions".

20 Subsection 19(2)

After "power", insert "or function".

21 Subsection 19(3)

After "power", insert ", or the performance of a function,".

22 Section 20

Omit all the words from and including "the purpose of" to and including "in the instrument", substitute:

the purpose of:

(a) the exercise by that person or those persons of the powers of an authorized officer under this Act or of such of those powers as are specified in the instrument; or

(b) the performance by that person or those persons of the functions of an authorized officer under this Act or of such of those functions as are specified in the instrument.

After "authority", insert ", or in the performance or purported performance of any function,".

24 Subsections 22(1) and (2)

Omit "or the regulations".

25 Paragraph 23(1)(b)

Omit "or the regulations".

26 Subsections 24A(1), (3), (6) and (7)

Omit "or the regulations".

27 Paragraph 25(2)(a)

Omit "of:", substitute "of premises;".

28 Subparagraphs 25(2)(a)(i) and (ii)

Repeal the subparagraphs.

29 Paragraph 25(2)(e)

Omit "or the regulations".

30 Paragraph 25(2)(f)

Omit "$1,000", substitute "50 penalty units".

31 After paragraph 25(5)(a)

Insert:

(ab) any matter contained in any instrument or writing that:

(i) sets out the requirements for the preparation of prescribed goods in Australia that are to be imported into a country; and

(ii) is made by the authority or body in that country responsible for regulating the importation of prescribed goods into that country;

32 Persons exercising certain powers and functions

(1) If, immediately before the commencement of this Schedule, an order conferred, or purported to confer, a power or function on an authorized officer, the order, in so far as it conferred or purported to confer the power or function, is taken to have been validly made for all purposes and continues to have effect according to its terms on and after that commencement.

(2) If, before the commencement of this Schedule:

(a) a person had been approved, or was included in a class of persons that had been approved, under an order to exercise a power or perform a function that was otherwise required under the order to be performed or exercised by an authorized officer; and

(b) the approval had not been revoked;