Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actssubstitute
Division 7.2 Other powers
64 Direction to provide information
(1) This section applies if an authorised person suspects on reasonable grounds that a person has information or documents reasonably required by the authorised person for the administration or enforcement of this Act.
(2) The authorised person may direct the person to provide the information or documents to the authorised person (an information direction ).
(3) The direction must be in writing and state—
(a) the name of the person to whom it is directed; and
(b) the information or documents required to be provided; and
(c) why the information or documents are required; and
(d) when the direction must be complied with (the due date ), being a day at least 2 days after the day the direction is given to the person; and
(e) that if the information is not provided by the due date the person may be committing an offence under section 65.
Note The power to make a direction includes the power to amend or repeal the direction. The power to amend or repeal the direction is exercisable in the same way, and subject to the same conditions, as the power to make the direction (see Legislation Act
, s 46).
65 Offence—fail to comply with information direction
(1) A person commits an offence if the person—
(a) is subject to an information direction; and
(b) fails to comply with the direction.
Maximum penalty: 50 penalty units.
Note It is an offence to make a false or misleading statement or give false or misleading information (see Criminal Code
, pt 3.4).
(2) An offence against this section is a strict liability offence.
(3) This section does not apply if—
(a) the person did not know, and could not reasonably be expected to know or find out, the information required under the direction; or
(b) the person did not have reasonable access to the documents required under the direction; or
(c) the authorised person did not produce the authorised person's identity card for inspection by the person as soon as practicable after giving the direction.
Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code
, s 58).
66 Immediate information direction
(1) An authorised person may require a person to state the person's name and home or business address (a name and address direction ) if the authorised person believes, on reasonable grounds, that the person is committing or has just committed an offence against this Act.
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act
, s 104).
(2) The authorised person must tell the person the reason for the requirement and, as soon as practicable, record the reason.
(3) If the authorised person believes on reasonable grounds that the person's response to a name and address direction is false or misleading, the authorised person may direct the person to produce evidence (an "evidence direction")—
(a) as soon as practicable; or
(b) if the person does not have evidence reasonably available—to the authorised person's office within 2 business days after the day the direction is given.
(4) A person commits an offence if the person—
(a) is subject to—
(i) a name and address direction; or
(ii) an evidence direction; and
(b) fails to comply with the direction.
Maximum penalty: 10 penalty units.
(5) An offence against this section is a strict liability offence.
67 Direction to stop vehicle containing fish etc
(1) This section applies if an authorised person believes on reasonable grounds that a person has committed, is committing or is about to commit an offence against this Act.
(2) The authorised person may, to exercise a function under part 7 (Enforcement), direct the driver of the vehicle to stop the vehicle (a "stop vehicle direction")—
(a) without delay; or
(b) at the nearest place that the vehicle can be safely stopped as indicated by the authorised person.
Note An authorised person can enter a vehicle stopped under this section (see s 54 (1) (f)) and inspect or examine, etc anything in the vehicle (see s 59).
(3) A direction may be given to a driver orally or by means of a sign or signal (electronic or otherwise) or in any other way.
(4) A direction to a driver ceases to be operative to the extent that an authorised person—
(a) gives the driver or other person a later inconsistent direction; or
(b) indicates to the driver that the direction is no longer operative.
(5) However, an authorised person may direct a vehicle to be stopped only for the amount of time necessary for the authorised person to exercise the function.
Note The power to make a direction includes the power to amend or repeal the direction. The power to amend or repeal the direction is exercisable in the same way, and subject to the same conditions, as the power to make the direction (see Legislation Act
, s 46).
(6) In this section:
"in", a vehicle, includes on the vehicle.
"vehicle" includes vessel.
68 Offence—fail to comply with stop vehicle direction
(1) A person commits an offence if the person—
(a) is subject to a stop vehicle direction under section 67; and
(b) fails to comply with the direction.
Maximum penalty: 10 penalty units.
(2) An offence against this section is a strict liability offence.
(3) This section does not apply to a person if the authorised person did not produce the authorised person's identity card for inspection by the person as soon as practicable after giving the direction.
Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code
, s 58).
69 Direction to remove gear from water
(1) This section applies if an authorised person believes on reasonable grounds that a person is using fishing gear in contravention of this Act.
(2) An authorised person may direct a person to remove from waters any fishing gear being used by the person.
(3) If an authorised person gives a direction to a person, the authorised person must—
(a) tell the person that it is an offence if the person fails to comply with the direction; and
(b) give the direction in a language, or way of communicating that the person is likely to understand.
(4) A person commits an offence if the person—
(a) is subject to a direction under subsection (2); and
(b) fails to comply with the direction.
Maximum penalty: 50 penalty units.
(5) An offence against this section is a strict liability offence.
(6) This section does not apply to a person if—
(a) the person has a reasonable excuse for failing to comply with the direction; or
(b) the authorised person did not produce the authorised person's identity card for inspection by the person as soon as practicable after giving the direction.
Note The defendant has an evidential burden in relation to the matters mentioned in s (6) (see Criminal Code
, s 58).
70 Urgent directions
(1) This section applies if an authorised person reasonably believes that a person—
(a) has breached, is breaching or is about to breach a fisheries licence; or
(b) has contravened, is contravening or is about to contravene a provision of this Act; or
(c) has engaged in, is engaging in or is about to engage in conduct that may threaten the management of fisheries.
(2) The authorised person may direct (an urgent direction ) the person to—
(a) take action to stop the breach, contravention or threat; or
(b) cease conduct causing the breach, contravention or threat.
(3) An urgent direction must either—
(a) state—
(i) the action to be taken; and
(ii) when the direction must be complied with; or
(b) state—
(i) the conduct not to be undertaken; and
(ii) how long the direction is in force.
71 Offence—fail to comply with urgent direction
(1) A person commits an offence if the person—
(a) is subject to an urgent direction; and
(b) fails to take reasonable steps to comply with the direction.
Maximum penalty: 50 penalty units.
(2) An offence against this section is a strict liability offence.
(3) This section does not apply to a person if the authorised person did not produce the authorised person's identity card for inspection by the person as soon as practicable after giving the direction.
72 Authorised person's directions
(1) This section applies if—
(a) 1 or more of the following is in waters:
(i) a native fish species;
(ii) critical habitat; and
(b) the authorised person reasonably believes that the occupier of the waters may engage in conduct that may threaten native fish species or critical habitat.
(2) The authorised person may give the occupier a direction about the protection or conservation of the species, community or habitat (an authorised person's direction ).
(3) An authorised person's direction must not be inconsistent with a fisheries management plan.
(4) An authorised person's direction must—
(a) be in writing; and
(b) state when the direction must be complied with, being a day at least 14 days after the day the direction is given to the occupier.
Note The power to make a direction includes the power to amend or repeal the direction. The power to amend or repeal the direction is exercisable in the same way, and subject to the same conditions, as the power to make the direction (see Legislation Act
, s 46).
72A Offence—fail to comply with authorised person's direction
(1) A person commits an offence if the person—
(a) is subject to an authorised person's direction; and
(b) fails to comply with the direction.
Maximum penalty: 50 penalty units.
(2) An offence against this section is a strict liability offence.
(3) This section does not apply to a person if the person took reasonable steps to comply with the authorised person's direction.
Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code
, s 58).
72B Treatment directions
(1) This section applies if an authorised person reasonably believes that a person—
(a) is keeping a fish and—
(i) the fish is carrying a disease or suffers from a condition; and
(ii) it is necessary or desirable for a particular kind of treatment to be carried out in connection with the disease or condition; or
(b) is the occupier of land that—
(i) has waters containing an aquatic habitat; and
(ii) it is necessary or desirable for a particular treatment to be carried out in connection with the habitat.
(2) The authorised person may direct the keeper of the fish or the occupier of the land to carry out a stated treatment on the fish or aquatic habitat (a treatment direction ).
Examples—treatment direction of aquatic habitat
1 removing fallen timber
2 removing an invasive plant species
3 draining a dam
(3) In deciding whether to make a treatment direction, the authorised person must consider—
(a) if the treatment direction is in relation to a fish—the following:
(i) the likelihood of the disease infecting other fish;
(ii) the impact of the disease if it were to infect other fish;
(iii) any matter prescribed by regulation; or
(b) if the treatment direction is in relation to an aquatic habitat—the following:
(i) the impact if the direction were not followed;
(ii) any matter prescribed by regulation.
(4) A treatment direction must be in writing and state the following:
(a) the fish or aquatic habitat to which it relates;
(b) if the direction is made in relation to a fish—the disease or condition to which it relates;
(c) the treatment to be carried out;
(d) when the direction must be complied with.
Note The power to make a direction includes the power to amend or repeal the direction. The power to amend or repeal the direction is exercisable in the same way, and subject to the same conditions, as the power to make the direction (see Legislation Act
, s 46).
72C Offence—fail to comply with treatment direction
A person commits an offence if the person—
(a) is subject to a treatment direction; and
(b) fails to comply with the direction.
Maximum penalty: 50 penalty units.
72D Power to seize things
(1) An authorised person who enters premises under this part with the occupier's consent may seize anything at the premises if—
(a) the authorised person is satisfied on reasonable grounds that the thing is connected with an offence against this Act; and
(b) seizure of the thing is consistent with the purpose of the entry told to the occupier when seeking the occupier's consent.
(2) An authorised person who enters premises under a warrant under this part may seize anything at the premises that the authorised person is authorised to seize under the warrant.
(3) An authorised person who enters premises under this part (whether with the occupier's consent, under a warrant or otherwise) may seize anything at the premises if satisfied on reasonable grounds that—
(a) the thing is connected with an offence against this Act; and
(b) the seizure is necessary to prevent the thing from being—
(i) concealed, lost or destroyed; or
(ii) used to commit, continue or repeat the offence.
(4) Also, an authorised person who enters premises under this part (whether with the occupier's consent, under a warrant or otherwise) may seize anything at the premises if satisfied on reasonable grounds that the thing poses a risk to the health or safety of people or of damage to property or the environment.
(5) The powers of an authorised person under subsections (3) and (4) are additional to any powers of the authorised person under subsection (1) or (2) or any other territory law.
(6) Having seized a thing, an authorised person may—
(a) remove the thing from the premises where it was seized (the place of seizure ) to another place; or
(b) leave the thing at the place of seizure but restrict access to it.
(7) A person commits an offence if—
(a) the person interferes with a seized thing, or anything containing a seized thing, to which access has been restricted under subsection (6); and
(b) the person does not have an authorised person's approval to interfere with the thing.
Maximum penalty: 20 penalty units.
(8) An offence against subsection (7) is a strict liability offence.
72E Receipt for things seized
(1) As soon as practicable after a thing is seized by an authorised person under this part, the authorised person must give a receipt for it to the person from whom it was seized.
(2) If, for any reason, it is not practicable to comply with subsection (1), the authorised person must leave the receipt, secured conspicuously at the place of seizure under section 72D (Power to seize things).
(3) A receipt under this section must include the following:
(a) a description of the thing seized;
(b) an explanation of why the thing was seized;
(c) the authorised person's name, and how to contact the authorised person;
(d) if the thing is moved from the premises where it is seized—where the thing is to be taken.
72F Moving things to another place for examination or processing under search warrant
(1) A thing found at premises entered under a search warrant may be moved to another place for examination or processing to decide whether it may be seized under the warrant if—
(a) both of the following apply:
(i) there are reasonable grounds for believing that the thing is or contains something to which the warrant relates;
(ii) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; or
(b) the occupier of the premises agrees in writing.
(2) The thing may be moved to another place for examination or processing for not longer than 72 hours.
(3) An authorised person may apply to a magistrate for an extension of time if the authorised person believes on reasonable grounds that the thing cannot be examined or processed within 72 hours.
(4) The authorised person must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard on the application.
(5) If a thing is moved to another place under this section, the authorised person must, if practicable—
(a) tell the occupier of the premises the address of the place where, and time when, the examination or processing will be carried out; and
(b) allow the occupier or the occupier's representative to be present during the examination or processing.
(6) The provisions of this part relating to the issue of search warrants apply, with any necessary changes, to the giving of an extension under this section.
72G Access to things seized
A person who would, apart from the seizure, be entitled to inspect a thing seized under this part may—
(a) inspect the thing; and
(b) photograph the thing; and
(c) if the thing is a document—take extracts from, or make copies of, the thing.
72H Return of things seized
(1) A thing seized under this part must be returned to its owner, or reasonable compensation must be paid to the owner by the Territory for the loss of the thing, if—
(a) an infringement notice for an offence connected with the thing is not served on the owner within 1 year after the day of the seizure and either—
(i) a prosecution for an offence connected with the thing is not begun within the 1-year period; or
(ii) a prosecution for an offence connected with the thing is begun within the 1-year period but the court does not find the offence proved; or
(b) an infringement notice for an offence connected with the thing is served on the owner within 1 year after the day of the seizure, the infringement notice is withdrawn and—
(i) a prosecution for an offence connected with the thing is not begun within 1 year after the day of the seizure; or
(ii) a prosecution for an offence connected with the thing is begun within 1 year after the day of the seizure but the court does not find the offence proved; or
(c) an infringement notice for an offence connected with the thing is served on the owner within 1 year after the day of the seizure, liability for the offence is disputed in accordance with the Magistrates Court Act 1930
, section 132 (Disputing liability for infringement notice offence) and—
(i) an information is not laid in the Magistrates Court against the person for the offence within 60 days after the day notice is given under that section; or
(ii) the Magistrates Court does not find the offence proved.
(2) If anything seized under this part is not required to be returned or reasonable compensation is not required to be paid under subsection (1), the thing—
(a) is forfeited to the Territory; and
(b) may be sold, destroyed or otherwise disposed of as the waste manager directs.
Division 7.3 Miscellaneous
72I Damage etc to be minimised
(1) In the exercise, or purported exercise, of a function under this part, an authorised person must take all reasonable steps to ensure that the authorised person, and any person assisting the authorised person, causes as little inconvenience, detriment and damage as is practicable.
(2) If an authorised person, or a person assisting an authorised person, damages anything in the exercise or purported exercise of a function under this part, the authorised person must give written notice of the particulars of the damage to the person whom the authorised person believes on reasonable grounds is the owner of the thing.
(3) If the damage happens at premises entered under this part in the absence of the occupier, the notice may be given by leaving it secured in a conspicuous place at the premises.
72J Compensation for exercise of enforcement powers
(1) A person may claim compensation from the Territory if the person suffers loss or expense because of the exercise, or purported exercise, of a function under this part by—
(a) an authorised person; or
(b) a person assisting an authorised person.
(2) Compensation may be claimed and ordered in a proceeding for—
(a) compensation brought in a court of competent jurisdiction; or
(b) an offence against this Act brought against the person making the claim for compensation.
(3) A court may order the payment of reasonable compensation for the loss or expense only if it is satisfied it is just to make the order in the circumstances of the particular case.
(4) A regulation may prescribe matters that may, must or must not be taken into account by the court in considering whether it is just to make the order.