New South Wales Consolidated Acts New South Wales Consolidated Actssections 48, 84, 103, 148 and 173
In
this Schedule--
"authorised officer" has the same meaning as in the
Law Enforcement (Powers and Responsibilities) Act 2002 .
"authorised person" see clauses 3 and 4.
"film" includes photograph, videotape and record an image in any way.
"general power" see clause 13(1).
"inspect" , in relation to a thing, includes open the thing and examine its
contents.
"occupier" , of a place, includes the following--
(a) if there is more than 1 person who apparently occupies the place--any 1 of the persons,
(b) any person at the place who is apparently acting with the authority of a person who apparently occupies the place,
(c) if no-one apparently occupies the place--any person who is an owner of the place.
(a) a building or other structure, and
(b) part of a building or other structure, and
(c) a caravan or vehicle, and
(d) premises held under more than 1 title or by more than 1 owner.
(a) that the public is entitled to use, is open to members of the public or is used by the public, whether or not on payment of money, or
(b) the occupier of which allows, whether or not on payment of money, members of the public to enter.
An authorised person has the following functions--
(a) to facilitate the exercise of powers under this Act,
(b) for Part 5 of the Act--to monitor and accredit agencies and persons providing out-of-home care,
(b1) for Part 7 of the Act--to monitor and accredit organisations and persons providing adoption services,
(c) otherwise--to investigate, monitor and enforce compliance with this Act.
The Children's Guardian is an
"authorised person" .
The Children's Guardian
may appoint an officer of the Children's Guardian as an
"authorised person" .
If--
(a) a provision of this Act refers to the exercise of a power by an authorised person, and
(b) there is no reference to a specific power,the reference is to the exercise of all or any authorised persons' powers under this Act or a warrant, to the extent the powers are relevant.
A reference in this Schedule to a document includes a reference to an image or text--
(a) produced from an electronic document, or
(b) not yet produced, but reasonably capable of being produced, from an electronic document, with or without the aid of an article or device.
(1) An authorised person may enter a place if--(a) an occupier at the place consents under Division 2 to the entry and clause 10 has been complied with by the authorised person, or(b) it is a public place and the entry is made when the place is open to the public, or(c) it is for the purposes of the exercise of the functions the Children's Guardian to accredit designated agencies and to monitor their responsibilities under this Act or the regulations, or(d) for entry for an investigation under Part 3A or 4 of this Act--the entry is to premises occupied or used by a relevant entity being investigated by the Children's Guardian, or(e) for entry to investigate a complaint or an offence under Part 6 of this Act--the entry is authorised under Part 8 of this Schedule, or(f) for entry for a matter under Part 9 of this Act--the entry is authorised under a warrant issued under clause 31.
(2) If the power to enter arises only because an occupier of the place consented to the entry, the power is subject to any conditions of the consent and ceases if the consent is withdrawn.
(3) The consent may provide for re-entry and is subject to the conditions of the consent.
This Division applies if an authorised person intends to ask an occupier of a place to consent to the authorised person entering the place.
For the purpose of asking the occupier for the consent, an authorised person may, without the occupier's consent or a warrant--
(a) enter land around premises at the place to the extent that is reasonable to contact the occupier, or
(b) enter part of the place the authorised person reasonably considers members of the public are ordinarily allowed to enter when they wish to contact an occupier of the place.
Before asking for the consent, the authorised person must--
(a) explain to the occupier the purpose of the entry, including the powers intended to be exercised, and
(b) tell the occupier that--(i) the occupier is not required to consent, and(ii) the consent may be given subject to conditions and may be withdrawn at any time.
(1) If the consent is given, the authorised person may ask the occupier to sign an acknowledgement of the consent.
(2) The acknowledgement must state--(a) the purpose of the entry, including the powers to be exercised, and(b) that the occupier has been given an explanation about the purpose of the entry, including the powers intended to be exercised, and(c) that the occupier has been told--(i) that the occupier is not required to consent, and(ii) that the consent may be given subject to conditions and may be withdrawn at any time, and(d) that the occupier gives the authorised person consent to enter the place and exercise the powers, and(e) the day and time the consent was given, and(f) any conditions of the consent.
(3) If the occupier signs the acknowledgement, the authorised person must, as soon as practicable but no later than 1 business day after the acknowledgement is signed, give a copy to the occupier.
(4) If--(a) an issue arises in a proceeding about whether the occupier consented to the entry, and(b) a signed acknowledgement complying with subclause (2) for the entry is not produced in evidence,the onus of proof is on the person relying on the lawfulness of the entry to prove the occupier consented.
(1) The powers under this Part may be exercised if an authorised person enters a place.
(2) However, if the authorised person enters under clause 7(1)(a), the powers under this Part are subject to any conditions of the consent.
(1) The authorised person may do any of the following (each a
"general power" )--(a) search any part of the place,(b) inspect, examine or film any part of the place or anything at the place,(c) take an extract from, or copy, a document at the place or take the document to another place to copy,(d) remain at the place for the time necessary to achieve the purpose of the entry.
(2) The authorised person may take any necessary steps to allow the exercise of a general power.
(3) If the authorised person takes a document from the place to copy it, the authorised person must copy the document and return the document to the place as soon as practicable.
(1) This clause applies if--(a) an authorised person reasonably believes--(i) an offence against this Act has been committed, and(ii) a person may be able to give information about the offence, or(b) the Children's Guardian is monitoring a person, entity or organisation in the exercise of the Children's Guardian's functions, or(c) an authorised person reasonably believes a person may be able to give information about a matter being investigated by the Children's Guardian in the exercise of the Children's Guardian's functions.
(2) The authorised person may, by written notice given to the person, require the person to--(a) give the authorised person stated information related to an offence, a matter being monitored or a matter being investigated, at a stated reasonable time and place, or(b) attend before the authorised person at a stated reasonable time and place to answer questions, or produce a document or thing, related to the offence, matter being monitored or matter being investigated.
(3) The notice must--(a) specify or describe the document or thing the person must produce, and(b) state the time and place the person must attend.
(4) For information that is an electronic document, the requirement is satisfied by giving a clear image or written version of the electronic document.
(1) A person of whom a requirement is made under clause 14(2)(a) must comply with the requirement unless the person has a reasonable excuse.: Maximum penalty--10 penalty units.
(2) It is a reasonable excuse for an individual not to give the information if giving the information might tend to incriminate the individual or expose the individual to a penalty.
(1) A person of whom a requirement is made under clause 14(2)(b) must not fail, without reasonable excuse, to--(a) attend as required by the notice, and(b) continue to attend as required by the authorised person until excused from further attendance, and(c) answer a question the person is required to answer by the authorised person, and(d) produce a document the person is required by the notice to produce.: Maximum penalty--10 penalty units.
(2) It is a reasonable excuse for an individual to fail to answer a question or produce a document if answering the question or producing the document might tend to incriminate the individual or expose the individual to a penalty.
In exercising a power, an authorised person must take all reasonable steps to cause as little inconvenience, and do as little damage, as possible.
A person must not impersonate an authorised person.
: Maximum penalty--10 penalty units.
(1) An authorised person, and any police officer or medical practitioner accompanying the person, may observe and converse with any person present in any premises or at any place entered by the person.
(2) Nothing in subclause (1) authorises the examination of a person.
(1) This Part applies if the entry to premises is for premises occupied or used by a relevant entity being investigated by the Children's Guardian under Part 3A or 4 of this Act.
(2) This Part does not limit the operation of Parts 1-6 of this Schedule.
An authorised person may--
(a) enter and inspect the premises occupied or used by a relevant entity, and
(b) inspect any document or thing in the premises.
The authorised person must not exercise powers under clause 21 if it appears to the authorised person that section 62 of this Act would apply as if the entry and inspection were a requirement under section 62(1).
(1) This Part applies in relation to an inspection of premises under Part 6 of this Act.
(2) This Part does not limit the operation of Parts 1-6 of this Schedule.
(3) Nothing in this Part authorises the entry of a dwelling.
An authorised person may, at any time, enter and inspect premises without the need for any authority other than that conferred by this clause for the purpose of--
(a) ensuring that the provisions of Part 6 of this Act and the regulations, and of any conditions imposed on an employer's authority, are being complied with at premises that are a place of employment of a person who is the holder of an employer's authority, or
(b) ensuring that the conditions of any employer's exemption are being complied with at premises that are a place of employment of an employer exempt from holding an employer's authority.
(1) This clause applies to any premises that an authorised person reasonably suspects is a place at which a person is employing a child in contravention of Part 6 of this Act.
(2) An authorised person may, at any time, enter and inspect any premises to which this clause applies without the need for any authority other than that conferred by this clause for the purpose of ensuring that the provisions of Part 6 are being complied with.
A person who is authorised under this Part to enter and inspect any premises may also exercise the powers specified in clause 29.
(1) This Part applies to any premises that are subject to control or regulation under this Act or the regulations, whether by means of a licence or otherwise.
(2) This Part does not limit the operation of Parts 1-6 of this Schedule.
(1) The Children's Guardian may, at any time, enter and inspect any premises to which this Part applies without the need for any authority other than that conferred by this clause for the following purposes--(a) making an inquiry in relation to an application under this Act with respect to the premises,(b) ensuring that the provisions of this Act and the regulations with respect to the premises, and of any conditions imposed on a licence or other authority with respect to the premises, are being complied with,(c) ensuring that the conditions of any exemption relating to the premises are being complied with.
(2) This clause does not apply to premises to which Part 8 of this Schedule applies.
(1) An authorised person acting on an authority under this Part, or under a search warrant issued under this Act, to enter and inspect any premises, may do any one or more of the following--(a) enter the premises,(b) inspect the premises,(c) make such examination and inquiry as the authorised person thinks necessary in order to exercise functions under this Act and the regulations,(d) take such photographs, films and audio, video and other recordings, as the authorised person considers necessary,(e) make copies of, or take extracts or notes from, any records, books, documents or other things,(f) for the purpose of further examination, take possession of, and remove, any of those records, books, documents or other things,(g) require the owner or occupier of the premises to provide the authorised person with such assistance and facilities as is or are reasonably necessary to enable the authorised person to exercise functions under this Act or the regulations,(h) require any person in or about the premises to answer questions or otherwise furnish information,(i) require any person to produce any records, books, documents or other things in the possession or under the control of the person that relate to, or that the authorised person making the entry and inspection believes on reasonable grounds relate to, the operation or administration of the premises or any activity conducted on or from the premises,(j) if the authorised person making the entry and inspection considers it necessary to do so for the purpose of obtaining evidence of the commission of an offence, seize any document or other thing inspected.
(2) A person must comply with any requirement of the authorised person making the entry and inspection under this clause.: Maximum penalty--10 penalty units.
(3) Despite subclause (2), for a requirement made in relation to the exercise of a power under Part 8 of this Schedule, a person must comply with any requirement under this clause of the authorised person making the entry and inspection.: Maximum penalty--200 penalty units.
(1) This Part does not limit the operation of Parts 1-6 of this Schedule.
(2) This Part applies to an investigation under Part 9 of this Act.
(1) For the purposes of an investigation, the Children's Guardian may apply to an authorised officer for a search warrant if the Children's Guardian has reasonable grounds for believing that there is on any premises a risk to the safety, welfare and wellbeing of a child.
(2) If the authorised officer is satisfied there are reasonable grounds, the authorised officer may issue a search warrant authorising the Children's Guardian, or an officer of the Children's Guardian named in the warrant, to enter premises specified in the warrant and do any or all of the following--(a) examine and inspect any part of the premises for evidence a child is not safe, or evidence indicating the welfare or wellbeing of the child is at risk,(b) take any photographs, films and audio, video or other recordings that the Children's Guardian or officer of the Children's Guardian considers necessary,(c) require documents to be produced for inspection,(d) examine and inspect any documents,(e) copy or take notes from any documents,(f) for the purpose of further examination, take possession of, and remove, any documents or other things,(g) require the owner or occupier of the premises to provide the Children's Guardian or officer of the Children's Guardian named in the warrant with any assistance or facilities that are reasonably necessary to enable the Children's Guardian or officer to conduct an investigation,(h) require any person in or about the premises to answer questions or otherwise provide information.
(3) If the person executing a warrant under this clause is accompanied by a relevant health practitioner, the relevant health practitioner may inspect the premises and observe and speak with any child or adult apparently residing at the premises.
(4) If the Children's Guardian, or officer of the Children's Guardian named in the warrant, removes any goods from the premises when executing a warrant under this clause, the Children's Guardian or officer of the Children's Guardian must provide a written receipt to the person apparently in charge of the premises.
(5) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this clause.Note : Under Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 , a person may execute a search warrant with the aid of any assistants the person considers necessary (including a police officer or health practitioner).
(6) In this clause--
"relevant health practitioner" means a medical practitioner or other health practitioner of a class prescribed by the regulations.
(1) Subclause (2) applies if an individual gives or produces information or a document to an authorised person under this Schedule.
(2) Evidence of the information or document, and other evidence directly or indirectly derived from the information or document, is not admissible against the individual in any proceeding to the extent it tends to incriminate the individual, or expose the individual to a penalty, in the proceeding.
(3) Subclause (2) does not apply to a proceeding about the false or misleading nature of the information or anything in the document or in which the false or misleading nature of the information or document is relevant evidence.