South Australian Current Acts

EDUCATION AND EARLY CHILDHOOD SERVICES (REGISTRATION AND STANDARDS) ACT 2011 - SCHEDULE 2

Schedule 2—Powers of entry by search warrant

1—Application for warrant

        (1)         An authorised officer may apply to a magistrate of a participating jurisdiction for a search warrant in relation to premises if the officer believes on reasonable grounds that—

            (a)         a person is or has been operating an education and care service at the premises in contravention of this Law; or

            (b)         documents or other evidence relevant to the possible commission of an offence against this Law are present at the premises.

        (2)         The authorised officer must prepare a written application that states the grounds on which the warrant is sought.

        (3)         The written application must be sworn.

        (4)         The magistrate may refuse to consider the application until the authorised officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

2—Issue of warrant

        (1)         The magistrate may issue the warrant in respect of premises only if the magistrate is satisfied there are reasonable grounds to believe that—

            (a)         a person is operating an education and care service at the premises in contravention of this Law; or

            (b)         documents or other evidence relevant to the possible commission of an offence against this Law are present at the premises.

        (2)         The warrant must state—

            (a)         that a stated authorised officer may, with necessary and reasonable help and force—

                  (i)         enter the premises and any other premises necessary for entry; and

                  (ii)         exercise the authorised officer's powers under this Schedule; and

            (b)         the matter for which the warrant is sought; and

            (c)         the evidence that may be seized under the warrant; and

            (d)         the hours of the day or night when the premises may be entered; and

            (e)         the date, within 14 days after the warrant's issue, the warrant ends.

3—Application by electronic communication

        (1)         An authorised officer may apply for a warrant by phone, facsimile, email, radio, video conferencing or another form of communication if the authorised officer considers it necessary because of—

            (a)         urgent circumstances; or

            (b)         other special circumstances, including the authorised officer's remote location.

        (2)         The application—

            (a)         may not be made before the authorised officer prepares the written application under clause 1(2); but

            (b)         may be made before the written application is sworn.

        (3)         The magistrate may issue the warrant (the original warrant ) only if the magistrate is satisfied—

            (a)         it was necessary to make the application under subclause (1); and

            (b)         the way the application was made under subclause (1) was appropriate.

        (4)         After the magistrate issues the original warrant—

            (a)         if there is a reasonably practicable way of immediately giving a copy of the warrant to the authorised officer, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the authorised officer; or

            (b)         otherwise—

                  (i)         the magistrate must tell the authorised officer the date and time the warrant is issued and the other terms of the warrant; and

                  (ii)         the authorised officer must complete a form of warrant including by writing on it—

                        (A)         the magistrate's name; and

                        (B)         the date and time the magistrate issued the warrant; and

                        (C)         the other terms of the warrant.

        (5)         The copy of the warrant referred to in subclause (4)(a), or the form of warrant completed under subclause (4)(b) (in either case the duplicate warrant ), is a duplicate of, and as effectual as, the original warrant.

        (6)         The authorised officer must, at the first reasonable opportunity, send to the magistrate—

            (a)         the written application complying with clause 1(2) and (3); and

            (b)         if the authorised officer completed a form of warrant under subclause (4)(b), the completed form of warrant.

        (7)         The magistrate must keep the original warrant and, on receiving the documents under subclause (6), file the original warrant and documents in the court.

        (8)         Despite subclause (5), if—

            (a)         an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this clause; and

            (b)         the original warrant is not produced in evidence,

the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power.

        (9)         This clause does not limit clause 1.

4—Procedure before entry under warrant

        (1)         Before entering premises under a warrant, an authorised officer must do or make a reasonable attempt to do the following:

            (a)         identify himself or herself to a person present at the premises who is an occupier of the premises by producing the authorised officer's identity card;

            (b)         give the person a copy of the warrant;

            (c)         tell the person the authorised officer is permitted by the warrant to enter the premises;

            (d)         give the person an opportunity to allow the authorised officer immediate entry to the premises without using force.

        (2)         However, the authorised officer need not comply with subclause (1) if the authorised officer reasonably believes that immediate entry to the premises is required to ensure the effective execution of the warrant is not frustrated.

5—Powers after entering premises

        (1)         This clause applies if an authorised officer enters premises under clause 4.

        (2)         The authorised officer may for the purposes of the investigation do the following:

            (a)         search any part of the premises;

            (b)         inspect, measure, test, photograph or film, or make audio recordings of, any part of the premises or anything at the premises;

            (c)         take a thing, or a sample of or from a thing, at the premises for analysis, measurement or testing;

            (d)         copy, or take an extract from, a document, at the premises;

            (e)         take into or onto the premises any person, equipment and materials the authorised officer reasonably requires for exercising a power under this Schedule;

            (f)         require the occupier of the premises, or a person at the premises, to give the authorised officer reasonable help to exercise the authorised officer's powers under paragraphs (a) to (e);

            (g)         require the occupier of the premises, or a person at the premises, to give the authorised officer information to help the authorised officer in conducting the investigation.