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ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 - SECT 439

Magistrate may permit a thing to be retained
(1)
If a thing is seized under section 429, and:

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

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

proceedings in respect of which the thing may afford evidence have not commenced, the authorised officer may apply to a magistrate for an order that he or she may retain the thing for a further period.

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

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

(b)
to enable evidence of an offence against this Act or the regulations to be secured for the purposes of a prosecution;

the magistrate may order that the authorised officer may retain the thing for a period specified in the order.

(3)
Before making the application, the authorised 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 authorised officer believes to have such an interest in the proposed application.

(4)
A function of making an order conferred on a magistrate by this section is conferred on the magistrate in a personal capacity and not as a court or a member of a court.

(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 of the Australian Capital Territory, the Administrator of the Northern Territory or the Administrator of Norfolk Island 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.


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